COURT FILE NO.: CR-20-00000069-00

DATE: 2024-09-06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent

– and –

BRADLEY MCKEE Applicant

Counsel: Dennis Chronopoulos, Shannon Curry & Kathryn Ginn, for the Respondent Nathan Gorham, Breana Vandebeek & Adrian Forsythe, for the Applicant

HEARD: November 27, 28, 29, 30, 2023 & July 15, 2024

RULING ON CONSTITUTIONAL CHALLENGE TO THE MANDATORY SENTENCE FOR FIRST DEGREE MURDER

CHRISTIE J.

Overview

[1] Following a multiple week trial, on November 17, 2022, a jury found Bradley McKee guilty of first degree murder relating to the death of his father, William (Bill) McKee, on February 11, 2019.

[2] There was no request at that time for the jury to consider whether Bradley McKee was not criminally responsible. The jury was discharged and the matter was adjourned for sentencing.

[3] Typically, given the verdict of the jury, Bradley McKee would face the mandatory sentence for first degree murder – life, with no possibility for parole until 25 years have passed. Of course, any time that Mr. McKee has already spent in custody would be credited toward his parole eligibility time.

[4] However, at this time Bradley McKee has not been sentenced.

[5] Following the finding of guilt by the jury, Mr. McKee brought a constitutional challenge to the sentencing provision, arguing that it violates both s. 12 and s. 15 of the Charter of Rights and Freedoms.

[6] Upon receiving notice of this constitutional challenge, following some pre-trial meetings with another judge, several days were set for this hearing to occur. There has been viva voce evidence heard, including evidence from Bradley McKee himself. In addition, many documents have been provided. Following the completion of the evidentiary portion of the hearing, updated facta have been provided and oral arguments were heard.

[7] This application raises the following issues:

a. Does the mandatory life sentence and parole ineligibility violate the protection against cruel and unusual punishment under section 12 of the Charter?

b. Does the mandatory life sentence and parole ineligibility violate section 15 of the Charter by disproportionately prejudicing a protected class of people?

[8] While the Applicant’s arguments shifted somewhat when presented orally, in his written material, the Applicant submitted that he involuntarily and unintentionally killed his father while suffering the delusions of long-standing mental disorder – a disorder that continues to this day, leading him to believe that people are influencing his thoughts and actions remotely. According to the Applicant, sentencing him to life in prison without the possibility for parole for 25 years is contrary to the values that animate the Canadian criminal justice system – values that recognize an individual is not morally blameworthy where their actions are involuntary or unintentional on account of mental disorder. As a result, the Applicant argues, the mandatory minimum sentence of life imprisonment without parole for 25 years violates sections 12 and 15 of the Charter and should be struck down.

[9] This court has very carefully considered all of the evidence presented and submissions made and has reached a conclusion on this constitutional challenge.

[10] Before answering the specific questions posed in this application, this court must determine what evidence it can properly consider on this application.

Evidence to be Considered

Evidence on Fitness Hearing

[11] As agreed by the parties, this court is permitted to consider the record created and evidence heard at the fitness hearing, as well as the report itself.

[12] On March 21, 2022, the Applicant was set to commence his trial. Prior to commencing the jury selection, Crown and Defence counsel advised this court of concerns in relation to Mr. McKee’s fitness, in light of correspondence that had been received from the jail. It was reported that the Applicant’s behaviour leading up to his trial included presenting as paranoid, anxious, disoriented and unfocused. The Applicant had reported that he could hear voices making threatening and menacing comments about him. He was expressing concerns that there were cellphones inside the institution that would be able to pick up what he was saying. He was expressing general paranoia regarding the staff and inmates at CNCC and felt that they were all out to get him. The March 17, 2022 letter from Sgt. Matthew Stickles, the security manager at CNCC, detailed that the Applicant was being housed on the Behavioural Stabilization Unit as of March 13, 2022, as he was displaying unpredictable, bizarre and abnormal behaviour. The letter also stated that Mr. McKee’s medication had been changed by Dr. Peter Moran.

[13] An investigative voir dire was held to canvass if an evidentiary foundation for a possible application for a fitness assessment existed. At the outset, Mary Cremer, counsel for Mr. McKee at that time, indicated that the Applicant maintained that he was fine, healthy, and ready to proceed to trial. The Applicant disputed the necessity of a fitness assessment. Subpoenas were issued for the Applicant’s treating psychiatrist, Dr. Stephen Wood, the nursing manager at the Central North Correctional Centre, and Sgt. Stickles. The subpoenas were returnable for the following day, on March 22, 2022.

[14] On March 22, 2022, this court heard from three witnesses: Dr. Wood, Tricia Brunk, and Sgt. Stickles. Dr. Wood testified as the Applicant’s treating psychiatrist and expressed shock that the Applicant’s mental health had deteriorated so rapidly. Dr. Wood had not seen the Applicant since February 2022, but had received updates from the nurses at the Central North Correctional Centre. Dr. Wood articulated concerns that, due to the Applicant’s ongoing paranoia, he may not be able to communicate with counsel in an effective way. Dr. Wood also testified that there was a possible concern that the Applicant was dealing with a micro-psychotic episode or experiencing symptoms of a primary psychotic disorder.

[15] Tricia Brunk, a nursing manager at the Central North Correctional Centre, testified regarding the Applicant’s interactions with nursing staff while in custody. Ms. Brunk testified to the Applicant’s sporadic compliance with his medication regime, and ongoing paranoid, bizarre, and delusional behaviour.

[16] Sgt. Stickles from the Central North Correctional Centre also provided testimony regarding the Applicant’s housing within the institution. Sgt. Stickles provided some testimony regarding the Applicant’s unpredictable and abnormal behaviour as well. Sgt. Stickles testified to the letter he authored to the Crown on March 17, 2022, and further explained that the Applicant had to be escorted throughout the facility with a minimum of three other officers because he had displayed unpredictable behaviour.

[17] As a result of this preliminary investigation, Defence counsel requested that the Court engage in a formal fitness assessment hearing pursuant to s. 672.11 of the Criminal Code. This request was made over the objections of Mr. McKee, who articulated his own view on the record that his mental health was fine, and he was prepared to proceed to trial. The Applicant advised the Court that his concerns were with the staff and inmates of the Central North Correctional Centre conspiring against him. The matter was adjourned to hear from further witnesses and to formally address the issue of requiring a fitness assessment.

[18] On April 12, 2022, the court heard from David Runnalls and Merlin Kalambukattu, nurses at the Central North Correctional Centre who had been involved in the treatment of the Applicant while he had been in custody. At the end of the evidence, Defence and Crown counsel jointly requested that the court order a fitness assessment to be conducted. Mr. McKee’s position remained unchanged. He felt it was unnecessary and wished to proceed with his trial.

[19] On April 13, 2022, for oral reasons provided, this court ordered an assessment under s. 672.11(a) be conducted, with a report in writing to be filed with the court, sealed, on or before May 13, 2022. The matter was adjourned to May 13, 2022.

[20] As outlined in a report dated May 11, 2022, prepared by Dr. Jeffrey Van Impe, Consultant Forensic Psychiatrist at Waypoint, Mr. McKee was determined to be fit to stand trial. Following the receipt of this report, this issue was not pursued any further and the parties agreed that Mr. McKee was fit.

[21] As evidenced by the report, Mr. McKee was admitted to High Secure Provincial Forensic Programs Division at Waypoint Centre on April 14, 2022 for the purpose of a fitness assessment. The assessor was provided with various sources to assist with the assessment, including a criminal responsibility assessment authored by Dr. Choptiany dated February 18, 2020. The fitness assessment report notes the following:

a. Mr. McKee was not a management concern while at Waypoint for the assessment;

b. At the time of his admission on April 14, 2022, he was on a variety of psychiatric medications;

c. During his admission interview, Mr. McKee requested increases in his doses of Vyvanse (an amphetamine-based psychostimulant) and methadone (an opioid). The doses were not increased which appeared to be a source of irritation for Mr. McKee;

d. When Mr. McKee arrived at the facility for assessment, he was also on an antidepressant medication (Effexor XR) and an antipsychotic medication (Invega). He was non-compliant with both of these medications and they were discontinued about a week after he arrived;

e. Mr. McKee presented with a flat affect. Staff consistently reported an absence of signs or symptoms indicative of a psychotic disorder despite Mr. McKee not receiving any antipsychotic medication;

f. Mr. McKee was cooperative with the assessing psychiatrist, and had absolutely no difficulties engaging in linear, goal-directed, rational conversation. His thoughts were neither disorganized nor containing delusional content. Although his affect was flat, he denied sufficient symptoms indicative of a major depressive disorder and there was no signs or symptoms indicative of a manic, hypomanic or mixed episode. His behavior was neither bizarre nor disorganized;

g. Mr. McKee told the assessor that he fired his first lawyer because he found them to be ineffective. He specifically referenced a concern he had over how an NCR assessment had occurred. Mr. McKee explained that he learned that it might have been preferable for his defense lawyer to arrange a private NCR assessment so that the results could have been kept confidential if they were not in his favor;

h. Dr. Van Impe concluded that the most obvious diagnoses for Mr. McKee were substance related and include cannabis, opioid, stimulant (amphetamine) and anxiolytic use disorders. Based primarily on historical information, the psychiatrist stated that Mr. McKee also appeared to fulfil diagnostic criteria for both antisocial and borderline personality disorders. In the opinion of Dr. Van Impe, Mr. McKee did not suffer from a primary psychotic disorder such as schizophrenia, schizoaffective or delusional disorder. He also did not believe that Mr. McKee satisfied diagnostic criteria for a primary mood disorder such as bipolar disorder or major depressive disorder.

i. Dr. Van Impe was fully satisfied that Mr. McKee was able to understand the nature and object of the proceedings, understood the possible consequences of the proceedings, and was capable of communicating with counsel. It was determined that Mr. McKee was fit to stand trial.

[22] On May 13, 2022, the assessment order of this court was terminated as it was completed. All counsel agreed with the findings in the report and the inquiry into fitness was at an end. Mr. McKee was considered fit and the trial was to commence on October 17, 2022.

Evidence at Trial

[23] As agreed by the parties, this court is permitted to consider all of the evidence presented during the trial.

[24] As stated, the trial commenced on October 17, 2022. The jury commenced deliberations on November 16, 2022. On November 17, 2022, they returned a verdict of guilty to first degree murder.

[25] There was a great deal of evidence at trial that, well before February 11, 2019, Bradley McKee was suffering from substance use and mental health issues. He lived with his parents. The home became stressful. His parents had to call police many times for assistance. His parents called doctors and social services, in an effort to get him help. Bradley McKee blamed his parents for ruining his life. He became more upset each time. He did not want to be hospitalized or arrested. He feared going to jail. He could not move from the family home because he was facing a trial for some outstanding criminal charges and his parents were his sureties on that bail.

[26] In the months prior to February 11, 2019, he had attempted suicide in various ways, including overdosing on his medication. The trial evidence included the police occurrence reports, recognizance of bail, text messages, and testimony of Anna McKee all of which painted a picture of what was happening in the family leading up to February 2019.

[27] The occurrence reports admitted at trial can be briefly summarized as follows:

a. On April 6, 2016, Bradley McKee made a threat of suicide, specifically, threatening to buy Fentanyl from a drug dealer to commit suicide, and was assaultive towards his mother, hitting her in the car with his elbow and hands while driving to the pharmacy. Anna McKee advised police that Bradley McKee had 14 overdoses since 2012 with heroin, and threatened suicide with a knife previously. She also mentioned that he was still dealing with a probation officer in regards to an assault on herself and her husband in 2012, and was receiving treatment from a psychiatrist bi-weekly. When approached by police, Bradley McKee became agitated, shouting “she always does this”. He said he was not suicidal. Bradley McKee was apprehended under the Mental Health Act and taken to Georgian Bay General Hospital. Enroute, Bradley McKee is said to have remarked that his mom is always tracking everything, which has been making him angry, as he does not believe a mother should be tracking a 24-year old man’s every move.

b. On May 11, 2016, members of the McKee family contacted police due to escalating and violent behaviour and concerns related to the mental health of Bradley McKee. The occurrence report states that Bradley McKee spent time at Waypoint in April of 2016. On this date, Bradley McKee became very violent and assaulted two members of his family, causing them to contact police. He also made threats to kill himself. Bradley McKee was reported to be enraged and was not allowing the family members to leave the home. He had assaulted his mother and brother and was not allowing them to use the telephone. He was breaking and throwing things around the house, and both parents and Eric McKee had secured themselves in the master bedroom. When Bradley McKee saw police in the residence, he became enraged and began yelling and swearing at his mother, saying she ruined his life and questioning why police were there. It is reported that Bradley McKee was aggressive with police. Once secured in the rear of the police vehicle, Bradley McKee continued to shout, swear, and make repeated statements about his intention and desire to kill himself. Bradley McKee was taken to Georgian Bay General Hospital under a Mental Health Act apprehension. Anna McKee told police that, prior to police arrival that evening, his behaviour, which had been irritable all day, escalated to volatile because of his mother’s refusal to buy him cigarettes. Anna McKee told police that Bradley McKee has extensive health issues stemming from years of heroin abuse and repeated overdoses.

c. On July 5 and 6, 2016, Bradley McKee was suspected of overdosing at Hindson Marina. He was found by his father, incoherent, and on the bathroom floor, with evidence of drug activity in the bathroom stall. When William McKee placed a call to the ambulance, William McKee reported that his jacket had been torn by Bradley McKee.

d. On November 22, 2018, Anna McKee witnessed Bradley McKee injecting himself with an unknown substance. Bradley McKee denied this and was insisting that someone had been hacking into his computer as well as his two cell phones. He insisted that he had to go to the bank in order to sort things out, otherwise he would be out $6000. Mr. McKee was apprehended under the Mental Health Act and taken to Georgian Bay General Hospital, however was released shortly after as it was determined that there were no grounds to hold him. Bradley McKee refused medical treatment and refused to have blood work done.

e. On November 24, 2018, police attended Don Street as a result of a dropped 911 call. Upon attendance, police observed Bradley McKee through a window, sitting on a couch, holding knives, and screaming at his father. Anna McKee rushed outside to tell police that Bradley McKee had threatened to slit his own throat and that he said he would kill himself if his mother called police. Bradley McKee was apprehended under the Mental Health Act and taken to Georgian Bay General Hospital.

f. On November 30, 2018, a taxi driver reported driving Bradley McKee from Penetanguishene to the downtown Tim Hortons in Midland. The driver stated that the male just seemed “off” and “odd”. He was not violent and did not make any comments about being violent or harming himself or anyone.

g. Also on November 30, 2018, Anna McKee reported Bradley McKee missing. Approximately two days earlier, Bradley McKee was released from Waypoint Centre for Mental Health Care after being held for a short time due to mental health issues. That morning, Anna McKee took Bradley McKee to an appointment with his psychiatrist. Later that day, Bradley McKee advised his mother that he wanted to go out and take all of his stuff with him so she could not snoop through his personal things to see what medications he is on. He took two black knapsacks and a green reusable garbage bag containing personal papers. Anna McKee later noted that Bradley McKee took his 6-day supply of methadone with him.

h. On December 1, 2018, Bradley McKee was located on the waterfront property off of Bayshore Drive in Midland. He was laying in an open area with his pants down exposing his buttocks, which were blue and purple. He was suffering from hypothermia. His responses were incoherent. He was transported to Georgian Bay General Hospital. The six 15 ml methadone carries he had with him were all empty. A prescription dated November 30 for seven 2 mg Clonazepam pills was also empty.

[28] The jury heard that, in the weeks prior to February 11, 2019, Bradley McKee became increasingly suspicious, especially of his father, who he believed hacked his computer, and was lying to him. He continued to blame his parents and believe they were using services to control him.

[29] The trial evidence included that, on January 7, 2019, Bradley McKee called police to state that he had money stolen from his computer and that he had been hacked. Police determined this to be unfounded. The trial evidence included that, on January 14, 2019, Bradley McKee contacted police to advise that his computer had been hacked and a copy of his passport and driver’s licence had been stolen. Bradley McKee was concerned that his identification would be used for illegal purposes and was concerned that he may be accused of crimes.

[30] The trial evidence also included text messages between various people, which can be summarized as follows:

a. Exhibit 5 - Bill and Anna McKee between January 17, 2019 and February 11, 2019 – The messages express how they believe Bradley McKee is feeling, referring to blame, no appreciation, “we ruin his life every day”, delusional, “thinks we r hacked”, “misplaces stuff and says we r stealing”, references to attempted suicide, references to lack of cleanliness, references to him being abusive every day, Bill McKee refers to his plan to remove himself as a surety. The last message from Anna McKee to Bill McKee on February 11, 2019 states, “He has increase in meds. Don’t antagonize!!”

b. Exhibit 6 - Bill McKee to Joan Walsh, his mother - On September 26, 2018, Bill McKee texted his mother and said, “Brad case may be delayed again cause crown has witness who can’t make Oct 23. We are pissed and asking date sooner. Brad’s health is downhill ever since. Can’t find family doctor for him. Not sure he will make it. We are prisoners in our home.” There are references in October, November, December and January to Bradley McKee not being well, depression rather than drug use, suicide attempts, Bradley McKee’s belief that his parents have ruined his life, are his trigger, and that Bradley McKee does not trust his parents. There are references to Bradley McKee going downhill mentally for two years.

c. Exhibit 7 - Bill McKee to his friend, John Jambrovic - In late November and very early December 2018, Bill McKee reported to his friend that Bradley McKee had downloaded an app which had a virus, deleted his data, and hacked into all his accounts. Bill McKee reported frustration with the system. Bill McKee reported to his friend that “we are his trigger ie he blames us for ruining his life”. Bill McKee reports that “the hack thing set him off too as they took all his money. He was hallucinating that we are being spied on. It got so bad that he actually tried to strangle me. I real thought he was going to kill me”. Bill McKee also stated, “He on like 13 meds he doesn’t even know if he took them. He was so stressed about hack he was going crazy.”

[31] There was evidence at trial that Bradley McKee left two voice mail messages with Ontario Works on January 15 and 31, 2019. Wendy Ellery testified that she took an application from Bradley McKee in February 2016 for ongoing Ontario Works assistance. He was transferring from another region and he was being considered for qualification within the County of Simcoe. Bradley McKee became and continued to be a client of hers until he was granted disability benefits in June 2016 and then transferred over to that program. Ms. Ellery testified that Bradley McKee’s file had been transferred to the Ontario Disability Support Program (ODSP) as of June 2016 and that she had no further communication with Mr. McKee or his family or dealings with his file until these messages.

[32] The audio recordings and related transcripts of the messages left by Bradley McKee were admitted and were marked as Exhibit 8A and 8B and Exhibit 9A and 9B at this trial.

[33] In the message on January 15, 2019, Bradley McKee referred to his parents taking his stuff, like his mail, opening it and keeping it, and sending stuff that he did not consent to. Mr. McKee suggests that the receiver of this message has been in contact with his parents and refers to what is happening as “super illegal”, including his parents forging his signature.

[34] Wendy Ellery testified that she called Bradley McKee back and spoke to him for a period of time. She tried to answer his questions and attempted to assure him that there was no conversation with him or anyone else regarding his file for years. At the end of the conversation, Ms. Ellery felt that the matter was resolved. She explained that there was no communication whatsoever between her and Bradley McKee or between her and his family. Ms. Ellery agreed that, during this conversation, Mr. McKee sounded paranoid and confused. Ms. Ellery testified that during the phone call, Mr. McKee repeated his concerns over and over again. By the end of the phone conversation, Ms. Ellery believed that she was able to convey that she had nothing to do with communication with his family and she felt successful in telling him that she had nothing to do with the topics he raised.

[35] On January 31, 2019, Bradley McKee left a second message with Ontario Works. He refers to the receiver of the message having been talking to his mother a lot and refers to a consent to release medical information and that he never gave permission for that. Ms. Ellery agreed that in the context of her work with Mr. McKee it did involve getting a consent to release medical information from Bradley McKee in order to defer him from participating in employment related activities in the Ontario Works program. The deferral would have been attached to the medical form, which would have been provided to him in blank and the client would sign this to give their doctor permission to fill out medical information which would be returned to Ontario Works. It required Mr. McKee to sign his own signature. Ms. Ellery confirmed that in fact that form was never returned to her and never became part of his file, therefore, this part of Bradley McKee’s message was in fact true. He had never given permission to release medical information.

[36] The jury heard further evidence that, in February of 2019, Deborah Montgomery was the crisis services supervisor at Wendat, a community-based, non-profit, mental health organization in Midland. They provide numerous services in the community, including crisis assessments to Georgian Bay General Hospital’s emergency department. Ms. Montgomery never dealt directly with Bradley McKee but was aware that Wendat did provide him services through the Georgian Bay General Hospital’s emergency room, providing crisis assessment. She believed there may have been three times: the first time in 2016, the last time in December 2018, and one other service in between. Ms. Montgomery explained the process of doing an assessment, and if consent was provided, it would be sent to the client’s family doctor or psychiatrist. If the person was issued a Form 1 to go to a Schedule 1 facility for the 72-hour observation, the assessment would be faxed to the facility. Waypoint was the central intake facility used. Ms. Montgomery confirmed that Bradley McKee was sent to a Schedule 1 facility back in December 2018.

[37] The jury heard that, on February 7, 2019, at approximately 1:13 p.m., Bradley McKee called Wendat and left a voice mail message on the general voicemail, which was forwarded to Ms. Montgomery. The audio recorded message, and its related transcript, were admitted and are marked as Exhibit 10A and 10B. In the message, Bradley McKee stated that two girls who saw him at a hospital in Midland talked to his parents without his consent. He refers to his parents talking to his doctors and psychiatrists behind his back since he was 19, and calling the police on him. He refers to his father threatening to kill him “back in the day” with a shotgun and that he use to “beat” him. He refers to his parents having taken the door off his bedroom. He refers to wanting to sue his parents. According to Ms. Montgomery, Wendat would not communicate with family of a client unless they had verbal or signed consent from the client, and she did not know if there was such consent in this case.

[38] The jury also heard evidence that Bradley McKee called the Ontario Provincial Police at approximately 2:15 p.m. on February 11, 2019. In this call, Bradley McKee made various accusations about his parents, including that they were attempting to commit a fraud on him, that they were talking to his doctors without his permission, and that they were using the police illegally against him to control his life. He would not provide his name and contact information to the OPP dispatcher, rather wanting instead to think about it and call back. This was marked as Exhibit 11A and the corresponding transcript as Exhibit 11B.

[39] The jury, of course, also heard the evidence of Anna McKee, mother of Bradley McKee, who provided information about her son’s history of mental illness, the developing relationship between Bradley McKee and his parents, and the events leading up to and occurring on February 11, 2019.

[40] She stated that her son, Bradley McKee, had been suffering with mental illness for quite a few years before their move to Penetanguishene, since approximately 2012, even though she saw signs as early as 2008, when he was about 17 years old. In 2008, Ms. McKee observed that Bradley was very anxious, extremely depressed, and could not function on his own, such as cooking, cleaning, or paying his bills. She described his symptoms as being on and off, although things worsened in 2012. At that time, he went to different doctors, including psychiatrists, who, in her view, were not helping him. Bradley McKee began to self medicate by using various street drugs, including heroin, Xanex, methamphetamine, and anabolic steroids. Commencing in 2012, Bradley McKee was also on a lot of prescription medications for his mental health issues. According to Anna McKee, he would misuse his prescription medication, as in he would take too many or not at all. Anna McKee was very involved in her son’s care, including his mental health care.

[41] As for their move to Penetanguishene in December 2015, and whether she wanted Bradley McKee to move with them, she stated that, when you have kids, you want them to move out, but if they are ill, what are you supposed to do. Therefore, her and her husband gave Mr. McKee the choice to move with them.

[42] Ms. McKee described the events surrounding the occurrence reports dated April 6, 2016 and May 11, 2016. She explained that the occurrence on May 11, 2016 resulted in some rules that regulated where Mr. McKee could live, such that he was not allowed to live in the home for a period of time. Bradley McKee then lived on the family boat with his father for a bit. During this time, Bill McKee was continuing to keep Anna McKee informed about their son’s mental health and its state of decline. Ms. McKee described what she knew about the occurrence in July 2016 at the marina.

[43] Due to some changes to Bradley McKee’s bail conditions, by December 2016, he was permitted to return to the family home. However, as Anna McKee explained, she and her husband Bill had to make a choice as to which of their sons, Bradley or Eric, would live with them. They were not able to live together due to the fact that they were prohibited from communicating with each other as a result of the legal proceeding. She stated that Bradley was very ill and Eric was not. Anna McKee felt that she and her husband needed to care for Bradley. Therefore, they chose for Bradley to continue to live with them and Eric moved out. She described it as an easy decision. By this time, Bradley McKee was 25 years old, however, from her perspective, he was not able to live on his own and was not in a position to take care of himself. From Anna McKee’s perspective, Bradley McKee did not have the life skills to live on his own in an apartment. He could not manage his finances. He could not hold down long-term employment. He could not manage his physical or mental health. He could not get himself to medical appointments. He could not manage his prescriptions. He was in danger of misusing his medications and street drugs. It was Anna McKee’s opinion that Bradley McKee did not have proper or accurate insights into his own mental health, and had often denied his condition of being mentally ill. However, from Anna McKee’s perspective, her son was in the throes of a mental illness. He had shown that he did not want to go to the hospital, even when his mental health was in decline. Ms. McKee felt that her son was acting delusional, such as he would hold false beliefs of something that was either impossible or beyond belief. He believed that his father had hacked into his computer, and would accuse his father of hacking into his computer even when Bill McKee was at work all day. Ms. McKee testified that she felt that her son would not survive on his own and that he would end up dead by a drug overdose or suicide.

[44] Ms. McKee described to the jury the events that led to Bradley McKee’s bail in February 2017. From what she understood, Bradley had attended a medical appointment on his own in the family car, and was charged with a number of offences on his way home, including impaired driving, dangerous driving, possession of a substance, being cocaine and other prescription medications, and breaching probation. Anna and William McKee were sureties for Bradley on his bail in relation to these charges.

[45] Ms. McKee described Bradley’s room in the basement as in a general state of disarray off and on. She would clean it up, and then it would go back to the same condition, a situation that continued from the time they moved to Penetanguishene.

[46] By 2018 and into 2019, Anna McKee described Bradley’s mental illness as “horribly bad”. He was becoming more fearful of police. He was fearful of the police coming into the house and taking him away. He was fearful of the police taking him to jail. He was fearful of the police taking him to the hospital. Ms. McKee had Bradley apprehended under the Mental Health Act three or four times in 2018. Bradley had been at Waypoint on two or three occasions between October and December 2018. For example, around October 2018, he attempted suicide again.

[47] Anna McKee described the events surrounding the occurrence reports dated November 22, 2018, November 24, 2018, November 30, 2018 and December 1, 2018. After Mr. McKee was located suffering from hypothermia on December 1, 2018, he was taken to Georgian Bay General Hospital and he spent some time being treated. From Georgian Bay, he was taken to Waypoint. Anna McKee urged medical staff at Waypoint to keep Bradley there for a prolonged stay to sort out his misuse of prescription medication and street drugs. Ms. McKee hoped that he would be in the hospital for at least a month. She stated that they requested the hospital and doctors, in writing, not to give Bradley carries of his medications and asked to have them dispensed daily.

[48] The extended stay at Waypoint did not happen. He was released before Christmas. Ms. McKee understood that Bradley did not want to stay in hospital. Bradley’s release from Waypoint was contrary to Ms. McKee’s wishes, contrary to Bill McKee’s wishes, and contrary to the 8-10 page letter she had written, wherein she had begged and pleaded that he stay for a prolonged time. From Anna McKee’s perspective, Bradley was not in a state to judge his own mental health.

[49] After his release from Waypoint, Anna McKee drove Bradley daily to get his medication. Methadone he had to take at the pharmacy, but for his other medications, he received dosettes that he took home and had to take throughout the day.

[50] Ms. McKee explained that, after Bradley left the hospital, he started thinking that some people were hacking him and the phones were tapped. He took apart the home phone and other phones. Ms. McKee explained that Bradley started making accusations about his father, Bill, soon after he left the hospital. For example, Bradley thought that Bill was spying on him using a mouse deterrent with a red beam that Bill had set up on top of the hutch in the basement rec room. Bradley thought Bill’s computer was spying and the phones were spying. He thought Bill was touching his stuff.

[51] At Christmas 2018, they all spent some time with family in Collingwood. Bradley McKee was in a complete lethargic state and incoherent. He would barely participate in anything. When they arrived at a family house for dinner, he stayed in the car for four hours passed out. According to Ms. McKee, Bradley was very unwell because of his state of mental health.

[52] Anna McKee described what she knew about the occurrence on January 7, 2019. She did not know that Bradley had called the police until police arrived at the house. Bradley wanted to speak to police by himself when they arrived and so she left the room. On that day, Ms. McKee described Bradley as agitated that nobody believed him. After he spoke to police, Bradley said that he wanted to see a lawyer about this.

[53] According to Anna McKee during the first few weeks of January 2019, Bradley’s mental health was getting worse. She was talking to Bill a lot by text message about this. She was referred to those text messages during her testimony – Exhibit 5 as previously summarized.

[54] Ms. McKee stated that the basement living quarters had become worse in January 2019.

[55] According to Anna McKee, there were times when she would see something in her field of vision that Bradley was unable to see. He would place items in areas that did not make sense, like his cell phone in the fridge. His memory was declining. He was forgetting appointments and forgetting where he put things. When he could not find something, he would accuse her of taking it. He was weak, tired, lethargic, and walking slowly and shuffling.

[56] According to Ms. McKee, she had done everything she could to try to assure Bradley that he was not being hacked, including having gone to several different stores and getting different computers. Despite her best efforts, she was not successful in alleviating his concerns. Bradley continued to be afraid of people hacking him. He was blaming Ms. McKee of stealing things from him. He was fearful of people stealing from him. He was looking around the house, ransacking the house, and suspecting people of taking things from him.

[57] Although Anna McKee testified that, by February 2019, Bradley McKee was no longer on bail and they were no longer sureties for him, an agreed statement of fact, contained in Exhibit 1, paragraph #4, confirmed that the bail was still in force on February 11, 2019. As to when the bail was in effect, Anna McKee stated that Bradley did express that there was too much control over him and that he did not have a lot of freedom. Ms. McKee stated that Bradley mostly expressed blame toward her for the situation, not that much about his father. When he would express blame, he would repeat that it was his mother’s fault that he had to go to jail. He described negative experiences in jail. He would also express that he did not want to go back to jail and felt like killing himself. He expressed his fear of police coming to their house. He expressed fear of the whole system. Ms. McKee stated that Bradley was afraid police were going to take him away. He would sometimes lock all the doors, draw the curtains, and go to the basement.

[58] In 2018 and into 2019, Bradley McKee was fearful of people trying to hack into his computer. He expressed fear to his mother and father a number of times that Chinese spys were trying to hack into his computer. According to Ms. McKee, there was no evidence that anyone was hacking, and she tried to reassure Bradley that no one was hacking into his computer or information. Bradley did not believe them. Even when he got a new computer, he still believed it was hacked. Bradley disconnected and hid the modem in the house, as he thought it was hacked. He was constantly changing passwords. Bradley would often use a pocket knife to take the household modem apart and put it back together. He would also take apart the phones in the house.

[59] On February 7, 2019, Anna McKee sent a text to her husband about observing Bradley with a blue garbage bag around his neck which she had walked in and observed. She was considering having him apprehended under the Mental Health Act.

[60] Anna McKee recalled that, the night before February 11, 2019, Bradley had come up to the guest room on the main floor to sleep. She said that this reminded her of other instances where he came up to sleep in that bedroom. She thought he was having some kind of dream, his room was dirty, or he was afraid of something. She stated that it was not an unusual situation for him to be sleeping in that room. She explained that he would sleep there when he was afraid of police coming.

[61] Anna McKee reviewed a number of photographs of the state of disarray of the basement from February 2019 – showing paper, medication, and garbage littered about.

[62] Anna McKee described the events on February 11, 2019. She stated that Bill McKee was working. She took Bradley McKee to the Shoppers Drug Mart to receive his methadone and to pick up his other medications to take home. She and Bradley had dentist appointments but Bradley was not feeling well and stayed home. She described Bradley McKee as pretty quiet, tired, lethargic, with no energy, but that she did not notice anything out of the ordinary. When referring to him not feeling well, she meant physically. She did not see Bradley consume any alcohol or drugs before Bill returned home, although he was in the basement. There were some text messages between Anna and Bill that day, wherein Anna told Bill that Brad had an increase in his medication and for Bill not to antagonize.

[63] According to Anna McKee, Bill McKee returned home after 6:00 or 6:30 p.m. He had his dinner in the living room and she joined him in that room. Bradley was in the basement. The lights were on, and she said they always had the lights on, especially given the fact that it was winter and it was late. She said that the curtains on the living room window were shears and they were normally open.

[64] Ms. McKee stated that Bradley must have heard Bill come in. Bradley came upstairs and was accusing Bill of doing something with his new computer. He was agitated. He had a bottle of wine in one hand. According to Anna McKee, Bradley looked like he was drunk, like wavering, unsteady on his feet. He had a small pocketknife in the other hand, and was using it to try to open the wine bottle, by pushing it into the top of the bottle. The blade was extended. He was at the border of the kitchen and living room. His speech was slow and garbled. He appeared to be having trouble focusing when talking to her and Bill. It appeared that he was looking right through them. He appeared “zombie like” as on other previous occasions. Ms. McKee never saw him put down the wine bottle or the knife in the living room. Bradley never pointed the knife at them.

[65] Bill McKee was upset and kept telling Bradley that it was time for him to get out and go to jail, and that he belongs in jail. Bill said he was going to call the police. Ms. McKee kept telling her husband not to antagonize Bradley, not to say what he was saying, and to be quiet. Ms. McKee was attempting to de-escalate the situation. Bill stopped making these comments.

[66] Anna McKee testified that she normally went on an evening walk. She did not go that night because, after Bradley came upstairs with the pocketknife and bottle of wine, Bradley did not want her going.

[67] Anna McKee stated that she was going to the washroom. Her intention was to go to the washroom and call the police from there. In response to Anna McKee saying she had to go to the washroom, Ms. McKee initially stated that Bradley said just not to call the police. After refreshing her memory with her earlier testimony, she recalled that Bradley said people in jail are not allowed to go to the washroom and she was not allowed to go. He also told her not to use the phone and to keep the door open, as he wanted to hear if she was calling the police.

[68] She went to the washroom off the hallway, not the ensuite. She did keep the door open. She stated that she felt nervous and needed to go to the washroom. She said that these events reminded her of other times.

[69] Anna McKee testified that she had her phone with her when she went to the washroom. Her phone was an old Blackberry that made noise when she pressed the buttons. She stated that Bradley told her to stop calling the police. She stopped.

[70] Anna McKee returned to the living room. She said that not much was happening. Ms. McKee then said she had to use the washroom again. She said that Bradley asked for her phone. As for wanting to go to the washroom again, she said that she was kind of pretending she was going to go and thought this would have been another opportunity to use her cell phone.

[71] When she announced she had to go to the washroom for a second time, Bradley told her to stop going to the washroom.

[72] Anna McKee did go to the washroom a second time. She thought that she must have had her phone still with her as otherwise there would have been no point in going. She thought this would give her another opportunity to lock the door and call police or 911 without Bradley hearing.

[73] Sometime after Anna McKee returned from the washroom the second time, Bradley closed the living room curtains, which was what Anna McKee said he always did. When he closed the curtains, Bradley said he wanted her cell phone. She gave it to him even though she did not want to. After her memory was refreshed from her earlier statement, Anna McKee testified that Bradley said “we’re not leaving the room…nobody is leaving the room.”

[74] At some point, Bradley turned off the TV in the living room. As Bradley was turning off the TV, Ms. McKee stated that it was time to go to bed. She remembered Bradley saying “it’s time” and she said “yeah, it’s time to go to bed”. A short time later, Ms. McKee stated that when Bradley turned the TV off, he said “it’s time to kill” or “it’s time to go to bed”, or “it’s time”. She stated that she took this to mean that he was going to kill himself. After her memory was refreshed, she stated that Bradley said, “it’s time to kill you”. She stated that she thought maybe he was referring to her and Bill, or could have been referring to himself. She later agreed that she had a hard time remembering exactly what Bradley McKee said and the sequence of the words. She initially stated that the word “kill” was used, but then stated that she was not 100% certain if she was hearing correctly or if she was thinking of another occurrence.

[75] Sometime after she said “let’s go to bed” or “it’s time to go to bed”, she thought Bradley then turned out the lights.

[76] Anna McKee said she led them into the bedroom. She said it was rather early, not her normal bedtime. It was around 8:00 p.m. Anna McKee stated that Bradley McKee did not intimidate her or block her from leaving the living room. She said, “I was just worried about him”.

[77] Anna McKee said that she was suggesting going to bed as a form of de-escalation, to get Bradley’s mind off them calling police, to calm down, and to divert his thoughts. She did not intend to go to sleep. She thought she would try to get the other phone in the bedroom, the emergency phone, which was located out of sight in the bedside table.

[78] When Anna McKee was saying “let’s go to bed”, Bradley was mimicking her, saying “oh yeah, it’s time to go to bed.” After refreshing her memory, she recalled that Bradley said, “it’s not time to go to bed”.

[79] All three of them went to the master bedroom. After her memory was refreshed, she recalled that Bradley still had the pocketknife in the bedroom.

[80] Anna McKee turned the bedroom lights on. She stated that Bradley was being “silly” and turned the lights off when she said “it’s time to go to bed”. Bradley said “it’s time”, which she felt was mimicking her, because she said “it’s time to go to bed”.

[81] Anna McKee assumed that Bill had his cell phone, as he always had it in his pocket. After refreshing her memory, Anna McKee recalled that Bradley McKee said he wanted Bill’s cell phone. Ms. McKee did not know if Bill gave Bradley his cell phone or not.

[82] Bill McKee then went into the ensuite bathroom. After refreshing her memory, Ms. McKee recalled Bradley told him not to go. She did not know if Bill said anything, but Bill went to the washroom. After refreshing her memory, Anna McKee recalled that Bradley said, “this is it”, at least that was what she thought he said.

[83] At that point, Anna McKee grabbed the V-tech phone in the bedroom, started to run with the phone, hit the post on the bed, and the phone flew out of her hand. The lights were off. She stated that she was thinking about getting out of the house, like she normally did, and to call police from outside. She did not see where the phone landed, but heard it hit the floor. She made no effort to pick it up, as she just panicked and tried to run outdoors like always. She did not consider using the phone in the kitchen. As she ran out, she told Bill to close the door, which was partially open.

[84] When Anna McKee left the bedroom, Bradley McKee was at the foot of the bed. On Exhibit 24, Anna McKee marked with an “X” where Bradley was when she left the bedroom. On the same diagram, she marked with an “A” where she was when she dropped the phone.

[85] Anna McKee never saw Bill close the bathroom door and did not see Bradley close the bathroom door.

[86] Anna McKee never saw Bradley chase after Bill. Anna never heard Bradley yell threats at Bill.

[87] Bradley McKee did not chase after Anna McKee. He was not yelling threats to her.

[88] Anna McKee ran out the front door and over to a neighbour. Anna McKee testified that she told her neighbour to call 911 because she was worried that something might have happened or will happen, and she was worried about her son. According to Denyse Beattie, the neighbour, Anna McKee asked her to call 911 to 26 Don Street and said, “my son is crazy and I’m concerned about my husband”. By the time Ms. Beattie turned around to get the phone to call 911, Anna McKee was gone. Denyse Beattie looked across the street and saw that the house was almost totally dark and the drapes were closed in the living room. Ms. Beattie had never seen that before and did not know that they had curtains because the drapes were always open.

[89] After requesting that her neighbour call 911, Anna McKee then returned to her own home to see what was going on. All the lights were out and it was quiet.

[90] She went into the master bedroom and saw Bradley McKee on the floor on his knees at the foot of the bed full of blood – specifically with blood on his face. He was trying to stab himself. Ms. McKee marked the position of Bradley McKee when she returned to the bedroom with a “Y” on Exhibit 24.

[91] Ms. McKee stated that Bradley did not have the little knife from earlier, rather he had a large hunting knife, and was stabbing himself in the neck and chest area. She described the knife as having a 5-6 inch blade, but stated it was dark and she could not give specific details. This was not the same knife she had seen him with earlier in the living room area. She stated that she saw Bradley stab himself 2 to 3 times.

[92] Anna McKee asked him “where is Bill”. Bradley McKee said, “He’s in the bathroom”.

[93] There were no lights in the bedroom but there was a little light coming from the ensuite bathroom, as the door was open a little bit, like a 2 to 3 inch gap. She heard no sound coming from the bathroom.

[94] At that point, Anna McKee tried to break down the bathroom door. She was yelling to see what happened to Bill and did not hear an answer. She was pushing the ensuite bathroom door and it would not open. She then stuck her arm in the gap of the door. She saw Bill laying on the floor. She could only see his head, and he was facing up toward the ceiling. She could see the right side of his face. His eyes were closed. He was breathing erratically. She saw a little cut on his throat with blood squirting out. She got a towel that was laying on the floor. She reached in and put the towel to his neck. At that point, he lifted his arm. She was getting tired and could not hold the door open any further. The door closed.

[95] Anna McKee yelled at Bradley, “what did you do”.

[96] Bradley McKee kept saying he “didn’t mean it”. He said this a number of times. He was still crouched on the floor, crying. This was the first show of emotion she had seen from Bradley all day.

[97] Bradley McKee still had the large knife. Anna McKee said “give me the knife and stop stabbing yourself”. Bradley said he was going to call 911. Bradley still had her phone. He started dialing. She heard some voices on the phone, but it sounded like they could not understand Bradley. Anna McKee said “give me the phone and I will tell them”. She told the 911 operator to send emergency personnel. The jury was provided with the recording of the 911 call, and associated transcript, as Exhibit 12A and 12B.

[98] After she spoke to 911, Bradley McKee was crying and saying he did not mean to do it.

[99] Police officers then came in. Bradley McKee was still trying to stab himself. Police told him to put the knife down. An officer tasered him. Another officer came in and told Anna McKee to get out of the room. An officer took her to a police vehicle. Anna McKee told police to break the bathroom door down because that was where her husband was located.

[100] According to Anna McKee, when police came, Bradley McKee was still on his knees, saying he “didn’t mean to do it”. She described him as in agony.

[101] Ms. McKee agreed that, in describing the events of February 11, 2019, she has a hard time separating this incident from previous incidents. She agreed that there had been a previous incident, on November 24, 2018, when Bradley McKee held knives and was suicidal and was taken to hospital. She agreed that there were previous incidents where Bradley fought with Bill, assaulted Bill, assaulted her, and assaulted Eric. There had been no previous incidents where Bradley brandished a knife at her or Bill.

[102] Several police officers also testified at the trial.

[103] When police arrived at the residence on Don Street, officers saw Bradley McKee lying on the floor at the foot of the bed in the master bedroom. He was saying “shoot me, shoot me” and was holding a hunting style knife. Police tried to convince Bradley McKee to drop the knife, but he refused.

[104] After approximately 2 minutes, Constable Nicholas Harris deployed his taser on Bradley McKee. Right before it was deployed, Constable Brent Harris saw that Bradley McKee began moving his hand with the knife in it towards the right side of his head, and then down closer towards his neck.

[105] As police were trying to assist Bradley McKee at the home, he stated, “just let me die”.

[106] The jury had evidence relating to the layout of the house, the location of blood staining, and the location of items found. The jury was asked to consider the condition of the basement bedroom which was understood to have been Bradley McKee’s bedroom. Garbage, paperwork, and various medication bottles or packages were littered around the area. Similarly, the jury was asked to recall the state of the basement rec room and basement bathroom which was in a similar state to the basement bedroom. The jury was asked to compare these areas of the home to the remainder of the home which was relatively tidy and organized.

[107] Dr. Daryl Mayers was qualified by his training, education and experience to give an expert opinion in the area of forensic toxicology, including the absorption, distribution, elimination, and effects of drugs and alcohol on the human body, and the analysis of biological tissues and fluids for the presence or absence of drugs and alcohol. Dr. Daryl Mayers testified and provided his opinions as to the nature of certain drugs found in the blood and urine of Bradley McKee. He also testified and provided his opinions in relation to the level of alcohol contained in Bradley McKee’s blood. In summary, blood and urine was collected from Bradley McKee on February 12, 2019. Testing showed the presence of methadone, alprazolam, midazolam, zopiclone, amphetamine, sertraline, 7-aminoclonazepam, ketamine, mirtazapine, and ethanol. Substances detected were within a therapeutic range, expected due to medical procedures, or in trace amounts not toxicologically significant. He also testified about the possible effects these substances could have on a person, with a caution that it was difficult for him to speak about effect without having more information about the person’s usage and tolerance. Exhibits 17 and 18A through 18D were introduced and discussed during his testimony.

[108] The jury had all of this evidence when they considered and came to their verdict.

[109] At the request of all counsel, the jury was not left with the option of finding Mr. McKee not guilty of any crime. The jury was left with the options of first degree murder, second degree murder, or manslaughter. The charge to the jury was replete with references to Mr. McKee’s mental health issues, including when discussing the use the jury could make of the previous police occurrences, motive, after the fact conduct, state of mind required for murder, including using the totality of the evidence to determine intent, the intent to confine, and in summarizing the positions of both the Crown and Mr. McKee.

[110] It is undeniable that Bradley McKee’s mental health issues were front and centre in this trial.

Further Evidence on this Constitutional Challenge that was Not Before the Jury

Bradley McKee

[111] Bradley McKee, 32 years old at the time of his testimony, was the first witness on the constitutional hearing.

[112] In October 2018, Mr. McKee testified that he was out on bail and his sureties were his parents. He said he mostly stayed at home, felt isolated, and was quite depressed. As for mental disorders, he said that he was diagnosed with depression and anxiety, and this was all he had been diagnosed with at that time. As for his own belief about his mental disorders at that time, he believed that he was probably going through some type of psychosis, as he was acting odd and doing very irregular things totally out of his character, having very severe memory issues, and a lot of paranoia. As for paranoia, he believed his computer was hacked and was very suspicious of other people. He believed that someone who had talked to him on the internet was going to come to his house and try to kill him. Mr. McKee said, “I was quite suspicious sometimes of… my parents I think”. He said he thought they were not being very helpful with his computer and the internet being hacked. Thinking back on it, Mr. McKee stated that they were being helpful, but they did not believe that it was being hacked. Mr. McKee described his thinking at the time as erratic and suspicious. He stated, “It’s kinda hard to like think back when my mind was definitely not working properly… so it’s kinda hard to describe when your mind is not totally working properly”. He stated that he felt his clothes were stolen by his brother and that his mother had sent some of the clothes he bought back to the people who sold them. He remembered that someone came to fix the internet and that he was paranoid of them.

[113] Mr. McKee described that, in December 2018, he had tried to kill himself in the forest by taking all of his prescription medication, which included methadone, Xanax, clonazepam, clonidine, Lyrica, zopiclone, and Zoloft. He went into his mother’s room where she kept a bunch of papers. He took those to the back and burned them all. He then walked up the street and got a ride from some man. He asked to be driven to Tim Hortons. He then walked into the forest and that was where he passed out. He almost froze to death. Mr. McKee explained that he thought he was experiencing drug induced psychosis. He had started a new medication at the beginning of October, Zoloft, an antidepressant, and he was on other medications. He believed Zoloft interacted with those other medications. He looked it up and saw how the liver enzymes were affected by the drugs he was taking. He also explained experiencing withdrawals resulting in delirium tremens from some of these drugs. He explained that he would be delirious, like in a dream world, and he would see things and believe things that were not real. Mr. McKee stated that things got worse in January 2019. He had just come back from hospital, from the overdose and almost dying, and he felt like he had brain damage of some sort.

[114] From October 2018 to the end of January 2019, Mr. McKee said he was only using his prescribed medications – no other drugs. However, he said in the months before, in September, he might have used some fentanyl or heroin and a little bit of methamphetamine, but other than that he had been clean and had not used since then.

[115] In January 2019, he described his mindset as “quite psychotic and insane”. He stated that he lost touch with reality. Mr. McKee stated that he was calling his defence lawyer saying he wanted to sue his parents. As for why he wanted to sue his parents, he could not remember why. Mr. McKee explained that the internet problem was supposed to be corrected but he was still having issues. Every time he went on his computer, it seemed that someone was controlling his computer, and he was not able to do anything on it. He stated that he would have things pop up, he was pretty sure that someone owned all of his accounts, and he could not log into them. His computer would also randomly restart. Mr. McKee also stated that his father had placed a device to deter mice and he thought his father put that device there to listen to him and watch him. At the time, he thought his father was suspicious of what he was doing because he was acting odd. As for who was behind controlling his computer, Mr. McKee thought it was someone from China. Mr. McKee stated that around this time, he and his parents were getting into arguments. He was blaming them for not believing him and that they were helping the hacker in some way. When asked why he would have thought that, he said he was having a lot of memory issues back then and now. As for how his parents reacted to the accusations, Mr. McKee stated they would get into arguments and his parents were sick of how he was acting. Looking back to January 2019 and the beliefs he was having back then, Mr. McKee still felt it was possible these things were happening, but then stated that he now did not think his parents were helping the hacker.

[116] As for whether he ever had schizophrenia or a delusional disorder, Mr. McKee stated that he had looked into it and sometimes believed he might have. As for his belief at the time of testifying, he stated that he was “undecided”.

[117] Mr. McKee then testified about the events of February 11, 2019. He agreed in cross-examination that he took his proper medications that day in the morning, which included Xanax (benzodiazepine), clonazepam (benzodiazepine), imovane, clonidine, nabilone, zopiclone, and Lyrica. He stated that he was trying to fix his computer and access the internet. According to Mr. McKee, it was not working well, and he could not get on the internet. Mr. McKee remembered going to McDonalds with his mother and then “kinda blacked out” for the rest of the day. He then remembered being on his computer. He remembered going upstairs and being upset about not being able to get on the internet. He remembered getting into an argument with his mother. He thought he went back downstairs. He could not remember exactly how it went. He did not know if his father was home yet at that point. He remembered getting dinner, bringing it downstairs, and eating it. He said it was all “kinda fuzzy” and he was having trouble remembering.

[118] Mr. McKee then said he remembered going upstairs and getting into an argument with his father. He remembered going back downstairs, finishing his dinner, and drinking a glass of wine. He was watching TV. He stated that, at that point, he was very paranoid and irrational. He had two knives in his pocket. He was suicidal. He remembered planning to go to sleep but it was too messy in his bedroom, so he decided not to sleep there. Mr. McKee stated that he had been sleeping in the other bedroom upstairs and he was going to that room. He said it was hard to remember when he did what. He remembered getting a bottle of wine from the cupboard upstairs and trying to open it. He remembered walking upstairs with the bottle and saying goodnight to his parents. His father noted the bottle and they got into an argument. He stated that he thought it was later in the day than it was. He stated he was extremely paranoid about a lot of stuff. His father’s laptop was open by the TV, and he thought his father was recording everything. He then said he remembered feeling like he was being controlled by something, like he was an actor in a movie. He remembered trying to prevent his parents from calling the police. His mother asked if she could go to the bathroom, and he said “yeah” but he made sure she was not calling the police. His mother came back. His father was not saying much, rather it was more his mother making things a lot worse. He then said “lets all go to bed”.

[119] According to Mr. McKee, his parents got ready for bed. He was keeping an eye on them, making sure they were not calling the police. Then his mother tried to run through the door. He said he let her, and she left. He did not know where she went. His father then went to the bathroom. He said he felt like he was being controlled by someone and he had to do what he was doing. He followed his father to the bathroom and was face to face with him. They looked at each other. His father said, “what are you doing”. Mr. McKee stated that he held the knife near his father’s throat and that he just wanted to scare him, but the way he “thought of physics was off” because the knife went too close to his father’s throat and blood sprayed out.

[120] He remembered being quite paranoid and afraid and a little bit upset – afraid of going back to jail, upset about the internet not working and his stuff being hacked. He felt that he was not in control of his actions at that point. Mr. McKee testified that he did not mean to stab his father in the neck. He felt like it was an involuntary action or reaction. He said he did not mean to do that at all. He tried to grab a towel to put on his father’s neck. He ran out of the bathroom and his father kicked the door or pushed the door closed. He remembered panicking and did not know what to do. He could not get back in the bathroom. He remembered opening the door a crack, and that he tried to hold the towel to his father’s neck. He was freaking out. There was blood all over the place. Mr. McKee was kneeling down. He could hear his father breathing but not saying much of anything. Mr. McKee was trying to figure out what to do. At this point, he thought his mother came in and asked what was wrong. He said something like “I didn’t mean to do it”. Then his mother went to the bathroom but could not get in. His mother said to call the police. He did not know he had the phone in his pocket. He then noticed he had the phone. He called the police and tried to tell them where to come. His mother then took the phone from him or used her own phone. It took a while for the police to arrive. He was kneeling there for a while.

[121] Police eventually came. They told him to drop the weapon. He thought he got tased and then stabbed his throat. Police came and handcuffed him. He remembered watching the police try to break into the bathroom door. When they got in, they tried to do CPR, but they were having trouble getting his father to regain consciousness. The police grabbed Mr. McKee and told him to walk. There was blood coming out of his neck. He was trying to let it come out because he was very suicidal. He was brought to the ambulance. He then stated that it was hard to remember.

[122] There was no objection to Mr. McKee’s evidence raised by the Crown until after he had provided a narrative of what had occurred on the day in question, including information about his mental health on that day and that he had no intention to kill his father. It should be noted that, at this point, the Crown said that the evidence might be admissible for the purpose of sentencing generally, but not to permit this court to make a finding that would contradict the findings of the jury, particularly with respect to intent. The defence agreed that this was a fair comment but suggested that the court hear the evidence and that everyone could argue at the end whether to consider this or not, referring to this as a complex and delicate situation. In any event, by the time the Crown objected, the evidence was already heard. Given that it was already out before the objection was made, and given that counsel was going no further with his questions in that area, it was determined that the only thing that could be done was to decide admissibility or use at the end.

[123] When asked to elaborate on being controlled, he said he felt that he was not in control of his body – something was controlling it. As to who or what was controlling him, he was not sure what it was but he felt that there was someone that was trying to sabotage his life – make it so he was not able to do what he wanted. He remembered thinking that the police were trying to sabotage his life and that jail was a lot worse than it is. He remembered having a lot of odd thoughts like in a dream. He said his brain was not working properly at all and it was hard to remember.

[124] Following the events on February 11, 2019, Mr. McKee was arrested and taken to hospital with serious injury requiring medical intervention. Mr. McKee was in a drug induced coma for a bit. When he came out of the coma, Mr. McKee stated that his mental health got a lot worse, as he had a lot of memory issues, paranoia, depression, and anxiety. He was also having a lot of delusions. As for why it got worse, he felt he had some brain damage. He said he was in a psychotic state and delirious. He stated that he was experiencing withdrawals, as while at Sunnybrook, they took him off almost all of his medications, including benzodiazepines. As for withdrawals from benzodiazepines, he stated that he was experiencing delirium tremens, was having a lot of spasms in his muscles, was having severe bad dreams, and was “believing a lot of insane things” that were not true. He believed he was dead and in hell. He stated that the most severe parts of this lasted for about a year and then it started to get better, but he still had a lot of anxiety and post traumatic stress, in addition to waking up from nightmares. He did not feel the same.

[125] Mr. McKee was asked about the period from June 2022 to the time of testifying. He stated that his mental health was getting a bit better but was still not the greatest. He described as feeling healthier and that his anxiety and delusions were fading away. He was able to be in a normal environment rather than segregation, where at one point he stayed for a month. When the trial started, October 2022, Mr. McKee stated that he was getting a bit better but was still believing that he was possibly dead and in hell or some sort of purgatory.

[126] As for the time of his testimony on this constitutional challenge, November 2023, he said that he had been having a lot of memory issues. He also stated that he was feeling a lot better, but not that great. He said he had been having seizures and had been in the hospital quite a few times in the past year – twice or three times. When asked to focus on the state of his mental health, he said “so and so…not the greatest.” He testified that he was kind of depressed. As to whether he felt he had mental health issues at this moment, he said he did feel this was the case and that he believed he was suffering from depression, anxiety, PTSD, and possibly schizophrenia, but he was “not 100% on that”. He stated that he sometimes has delusions – thoughts that he is in a hell of some sort. As for physical things he was experiencing at the time of his testimony, he stated he was experiencing pain all over his body, not the best vision or hearing, a lot of memory issues, and seizures.

[127] As for the memory problems, he testified that he has very bad memory lapses and cannot remember a lot of his life. He believed that it had something to do with something in his ears. He explained that he had been having shock sensations, trouble speaking, and people talking in his ears. He felt that these people have been trying to sabotage his life and make him have an unfair trial. According to Mr. McKee, these people told him that they were paid to do these things to him by Dr. Lorberg at Waypoint, who was his psychiatrist before and during the critical events. He explained that he named these people in a letter, and they are from CNCC and his methadone clinic. He then provided some names. He believed these people were doing these things to him for Dr. Lorberg, because he was getting tortured, such as electrocuted and shocked when he was at CNCC. As for the torture at CNCC, he explained that there were lasers in the vents that would burn him, as well as they had something in his ears that electrocutes him – shocks his body and messes with his head. As for how he knew there were lasers in the vents at CNCC, he said he had a cellmate and the cellmate agreed. He said there were also speakers in the vents and people would talk and try to use hypnosis on him every day and night, before he went to court, and try to get him to use certain lawyers. He stated that whatever is in his ears uses electricity. It takes away memories to hide evidence. As for his tail bone, he said it was missing, as they melted it. He referred to Jessica from Midland, but “they all did it” and tortured him every day, tried to force him to plead, and made his life uncomfortable while at CNCC. He said his tail bone is not there, as “she cut it and melted it” and that he could feel them doing that. He again referred to writing about this in a letter. He said that there was physical pain all over his body – every part is in pain – all of his bones, organs, his ribs are fractured, he had broken toes, and his neck was very sore with parts of it cut. He said he writes it down because his memory is fading. As for his fractured ribs, he explained that there is an energy weapon in his ears, and it can crack his ribs and that they broke his ribs in this way. He said that they are also able to take away the pain with electricity. He believed that the thing in his ears is attached to his ear drums, which goes to the brain, and electricity can dull the pain.

[128] According to Mr. McKee, none of these things were going on in February 2019, rather these things started in February 2020. He did not think these things were just in his head. He knew the damage to his body was very real, and he was never diagnosed with schizophrenia. He was aware that his mother had a lawsuit against Dr. Lorberg and Waypoint and that Dr. Lorberg works at CNCC. He believed that Dr. Lorberg paid off a guard to put something in his ears or, when he went to Waypoint for the assessment, something went into his ears. Mr. McKee stated that he thinks these things are very real.

[129] It should be noted that Mr. McKee testified that he was aware that this hearing was to determine the constitutionality of finding him guilty and that it was like a trial. He understood the roles of counsel and the court.

[130] Mr. McKee stated that he wanted his ears and whole body to be checked and an investigation done. He requested a full body CT scan, an x-ray, an MRI, and an fMRI, to check for evidence of the severe damage that he had been talking about in his letters and notes. He explained that he felt he had an unfair trial because of all this stuff. He stated that in addition to letters and notes, he also talks to his mother on the phone and describes some of his issues.

[131] Mr. McKee was asked about his state of mind in relation to his legal representation by his previous counsel, David North and Mary Cremer. Present defence counsel for Mr. McKee made it clear that the defence of Mr. McKee was reasonable and there was no allegation of ineffective assistance. It was clear that this was not being asked to question or discredit their work, rather it was said to be relevant to his mental health at the time which would provide circumstantial evidence of what his mental health was at other times. The Crown questioned how his mental health a year or two after the events is relevant to his mental health at the time of these events. However, it was quite clear that this court would be asked to consider the mental health of Mr. McKee throughout his life up to present on this constitutional challenge. The Crown seemed to agree to leave any argument about the relevance of this evidence to submissions. Mr. McKee then explained that his first lawyer, David North, was talking to Dr. Lorberg without his permission.

[132] Mr. McKee was also asked questions about the criminal responsibility assessment that was performed by Dr. Choptiany in 2019-2020. Dr. Choptiany’s written report is dated February 18, 2020. Mr. McKee remembered that he saw Dr. Choptiany in December 2019 at Waypoint. Mr. McKee agreed that he did review the report a few months after. He did not think his mother’s lawsuit had been launched against Dr. Lorberg at that time. He was in Waypoint for this assessment for 60 days. He understood it was a mental health assessment for his case. He believed that people at Waypoint told him it would be confidential. He did not remember Dr. Choptiany telling him anything like that. This was his first time meeting Dr. Choptiany. According to Mr. McKee, Dr. Choptiany seemed “like a regular psychiatrist” but it appeared to Mr. McKee that Dr. Choptiany did not like him or had something against him. He met Dr. Choptiany twice but he was not very impressed the second time they met. They discussed the assessment the first time they met, and discussed medication the second time they met. Mr. McKee said they got into an argument and he (Mr. McKee) was told to leave without finishing the assessment. Mr. McKee stated that he spoke to Dr. Choptiany about what happened on February 11, 2019 during the first meeting. He said he was trying to be truthful and helpful. At that time, Mr. McKee did not have concerns about Dr. Lorberg. Mr. McKee said his concerns about Dr. Lorberg were more when he got back to CNCC and Dr. Lorberg was acting odd, not letting him change psychiatrists, and Dr. Lorberg was not being very helpful. Mr. McKee said that he did not feel comfortable using Dr. Lorberg at that time because he was not prescribing the medication he normally prescribed. Mr. McKee then said his concerns actually started right away when he came from the hospital to CNCC. He said that Dr. Lorberg came to see him when he was walking around the cell naked, putting feces on the wall. Dr. Lorberg did not really do anything, just wrote stuff. Another time, Dr. Lorberg said something odd about suing him and that he did not really have a lot of money. Mr. McKee then felt uncomfortable seeing him. Mr. McKee believed this was around June 2019, a few months before seeing Dr. Choptiany. He stated it was hard to remember because he was in a mental health crisis.

[133] By the time the trial was occurring in October / November 2022, Mr. McKee was asked what his thoughts were about whether he wanted Dr. Choptiany as a witness. Mr. McKee stated that he thought there was a conflict of interest, as his mother had a lawsuit with Waypoint and they were potentially trying to work against him and it made him feel uncomfortable with Dr. Choptiany being a witness.

[134] In cross-examination, Mr. McKee agreed that he had misused medication in the past, in that he would take more or less than what was prescribed. Mr. McKee said, however, when this occurred in February 2019, he was getting his medication from the pharmacy so it was not possible to misuse his medication. He conceded that he had overdosed on medication in the past, both with prescribed and illegal drugs. He agreed that in the past, he had taken heroin, fentanyl, steroids, marijuana, and he did that because he wanted to take those drugs, although he explained that it was an addiction. He agreed that he liked some drugs more than others because of how they made him feel, such as benzodiazepines. Mr. McKee agreed that there were times in custody that he tried to hoard medication.

[135] In cross-examination, Mr. McKee was referred to Dr. Choptiany’s report and the reference to a lengthy interview that he had with Dr. Lorberg on March 12, 2019. Mr. McKee knew he met with Dr. Lorberg but did not know which day. Mr. McKee did not remember the entire conversation as reported by Dr. Choptiany. Mr. McKee did not remember discussing diagnoses from Sunnybrook, but then remembered Dr. Lorberg said one of the potential diagnoses was anti social personality disorder. He remembered that part. He remembered telling Dr. Lorberg that he did not feel antisocial and that what they saw was him going through benzodiazepine withdrawal. Mr. McKee agreed he was asking why he was not on his medication, including benzodiazepines, and that he wanted to be back on them. He stated he was going though withdrawals and wanted to be weaned off more slowly. He wanted something to help with withdrawals as he was in segregation suffering. Mr. McKee remembered Dr. Lorberg reading from the Sunnybrook discharge that, given the diagnosis of benzodiazepine use disorder, they strongly recommended against any future prescription of benzodiazepines, especially with his methadone. Mr. McKee conceded that he disagreed with that and believed he could handle benzodiazepines because they worked best for him. Mr. McKee somewhat recalled telling Dr. Lorberg that he suffered from a psychotic disorder but now, thinking back, he feels he was still having a psychotic break of some sort. In response to Dr. Lorberg telling him that Sunnybrook suspected substance induced psychotic disorder, Mr. McKee agreed that he responded that he was not using anything, he felt fine, and thought he was personally good enough to interact with others on the range. Mr. McKee stated that people who are psychotic do not always know that they are psychotic. He agreed he had been doing a lot of reading since being in custody.

[136] Mr. McKee agreed that, prior to killing his father, he got along with Dr. Lorberg for the most part. Dr. Lorberg was prescribing the medications he wanted. After returning to CNCC from Sunnybrook, he said he started having issues with him when he did not help him, rather just watched him in a psychotic state. Mr. McKee wondered why he was unable to give the medications he gave before. He started having problems with Dr. Lorberg when the doctor made it clear in March 2019 that he was not going to prescribe the medications he was prescribing before.

[137] It must be remembered that Bradley McKee’s evidence was not before the jury.

Dr. Maxym Choptiany

[138] Dr. Maxym Choptiany was qualified as a forensic psychiatrist who has the specialized skill, education, and training to clinically and medically diagnose mental disorders, including in the case of Bradley McKee. Dr. Choptiany’s CV and report dated February 18, 2020 were marked as Exhibits on this hearing.

[139] Dr. Choptiany conducted a court ordered assessment on Bradley McKee at Waypoint. Mr. McKee was admitted for assessment to determine, from a psychiatric perspective, whether the defence of not criminally responsible was available to him in relation to the charge of first degree murder. Ultimately, Dr. Choptiany concluded that, from a purely psychiatric perspective, a defence of not criminally responsible on account of mental disorder did not appear to be available to Mr. McKee.

[140] Mr. McKee was admitted to the forensic assessment program at Waypoint on December 3, 2019. Dr. Choptiany delivered his report on February 18, 2020. Dr. Choptiany explained that part of the assessment process was to determine whether there was a mental disorder and whether he suffered from a mental disorder at the time of the offence. The process involved interviewing Mr. McKee, obtaining collateral records, obtaining input from collateral sources such as family members who could provide developmental history or information surrounding the time of the index offence, psychological testing to assist with diagnosis and malingering, and reviewing source documents such as health records from other health institutions or correctional facilities.

[141] As of February 11, 2019, the date of the offence, Dr. Choptiany opined, as stated at page 46 of his report, that Mr. McKee qualified for the following psychiatric diagnoses:

a. Substance Use Disorder (Opioid, Stimulant, Sedative-Hypnotics, or Anxiolitics, and Cannabis)

b. Substance/Medication-Induced Psychosis (potentially exacerbated by an underlying medical condition)

c. Antisocial Personality Disorder

d. Borderline Personality Disorder

He also noted in the report that Mr. McKee likely suffered from an Unspecified Depressive Disorder and Unspecified Anxiety Disorder, meaning there is evidence of symptoms consistent with these disorders that do not meet threshold criteria for formal diagnoses under another diagnostic category, such as for a major depressive disorder or generalized anxiety disorder.

[142] Dr. Choptiany explained each of these mental disorders in turn using the guidance from the DSM-5.

[143] He explained that Substance Use Disorder is generally defined as the use of substances in a fashion that has maladaptive social, occupational, or physiological consequences. The individual continues to use the substance despite significant substance related problems.

[144] He explained that a Substance/Medication-Induced Psychosis denotes the presence of psychotic symptoms that are the direct result of an externally administered substance. Almost any substance, if taken in sufficient quantities over a given period of time, can precipitate psychotic symptoms. The psychotic symptoms experienced may differ from those seen in other psychotic disorders, such as schizophrenia, or the symptoms can in fact mimic such a disorder. Certain substances, such as "harder" illicit drugs, are more likely to cause psychosis than other products. The duration of psychotic symptoms can be from hours to days to even weeks, and the symptoms typically remit when the causative substance is discontinued.

[145] As for Antisocial Personality Disorder, Dr. Choptiany explained that the essential feature is a pervasive pattern of disregard for, and violation of, the rights of others, occurring since the age of fifteen, as indicated by three or more of the following: failure to conform to social norms with respect to lawful behaviours; deceitfulness as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure; impulsivity or a failure to plan ahead; irritability and aggressiveness; reckless disregard for the safety of self or others; consistent irresponsibility as indicated by a repeated failure to sustain consistent work behaviour or honour financial obligations; lack of remorse, as indicated by being indifferent to, or rationalizing, having hurt, mistreated, or stolen from another. Dr. Choptiany explained in cross-examination that Mr. McKee displayed impulsivity, irritability, aggressiveness, disregard for self and others, and lack of remorse. Dr. Choptiany pointed out that he was not the first doctor to make this diagnosis for Mr. McKee.

[146] The essential feature of Borderline Personality Disorder, according to Dr. Choptiany, is a pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity that begins by early adulthood and is present in a variety of contexts. He explained that it is common to see marked vacillations in mood, instability in one’s sense of self, feeling empty, irritability and anger, quick to feeling that one is being treated inequitably, and blaming others. He explained that there is overlap with the symptoms seen for antisocial personality disorder. Dr. Choptiany pointed out that Mr. McKee had been previously diagnosed with this disorder.

[147] In terms of symptoms noted, there was no suggestion of malingering by Bradley McKee. At page 48 of his report, he stated:

While malingering cannot be ruled out, making it less likely is the fact that Mr. McKee's self-report has been consistent across interviews and with file information. Additionally, psychological test results were not indicative of malingering.

[148] Dr. Choptiany was asked whether it was possible to determine which of these diagnoses occurred first in time in Mr. McKee’s life. He stated that, with the history as documented in medical reports, there was a long-standing history of substance use disorder and abuse of substances which dated back to teenage years. At the same time, there were overlapping symptoms of mood and anxiety. In terms of personality disorders, Dr. Choptiany explained that these tend to be formally diagnosed when an individual is an adult, but tend to have onset in the developmental phase. In summary, Dr. Choptiany stated that the formal diagnosis that was clearly present throughout Mr. McKee’s history was Substance Use Disorder, which clearly predated and persisted, as it was clear and apparent throughout adolescence and had been diagnosed throughout early adulthood. Having said that, he acknowledged that it was a challenge to clearly identify what occurred first, as disorders may emerge at the same time. Ultimately, as for what emerged first, Dr. Choptiany felt that it was impossible to clearly disentangle the disorders as they coexist and coemerge. As for whether Mr. McKee had an unspecified depressive disorder prior to his substance use disorder, Dr. Choptiany testified that he was not clearly able to pinpoint the onset, but he did note his interactions with the mental health care system note anxiety and depression that is consistently documented throughout by health care professionals. However, again, Dr. Choptiany pointed to the overlay of substance use and stated that he could not clearly disentangle them.

[149] Dr. Choptiany defined a psychotic episode as a period in time when an individual can experience perceptual anomalies, such as visual hallucinations, auditory hallucinations, and changes in their organization in terms of thought process. He explained that severely psychotic individuals can become disorganized in their behaviours and thoughts, or when they speak it does not make sense, which he described as “word salad”. Such persons can experience delusions or fixed false beliefs. He stated that those are the hallmarks of psychosis, however, he explained that there is a spectrum in terms of symptoms, in that some experience only certain symptoms or mild symptoms, while others experience very severe symptoms and all of the symptoms.

[150] Dr. Choptiany was asked whether it could be a delusion for Mr. McKee to believe that his parents were conspiring against him with the police to send him to a mental health facility for life. Dr. Choptiany explained that there was some basis for this belief in the history, given that Mr. McKee had been admitted to hospital and police had been called in the past. However, he explained that there is a spectrum to beliefs, which can have some origin in reality. Regarding Mr. McKee, Dr. Choptiany accepted that there was evidence of beliefs and paranoia at the time, including that he was fearful of being taken by police or to the hospital in keeping with prior incidents. There was increased paranoia around the time of the event. Dr. Choptiany was asked about someone believing their tailbone had been melted off with a laser and whether this would be an example of a delusion. He stated that, if there was no basis in reality, that could be considered a delusion.

[151] According to Dr. Choptiany, behaviour, whether speech or conduct, may become disorganized during periods of psychosis. Disorganized speech can include making no sense, “word salad”, mismatch of words, being incoherent, or an inability to communicate. There may be tangential thought process, where an individual starts at one point but does not complete the thought, rather veers off to another topic. Disorganization in thinking could also include jumping from one topic to the next without segways or preoccupation with a particular issue that is also a delusion, although he stated that ruminative thinking may also be something else.

[152] Dr. Choptiany agreed that there are different types of delusions, including paranoid delusions, persecutory delusions, grandiose delusions, and religious delusions. He explained that persecutory delusions can include that a person believes they are being tracked, monitored, or followed, if it is driven by psychosis and is fixed and false. Dr. Choptiany agreed that there can be associated psychosis with a depressive episode. He also explained that, if there is substance use to the extent that there are affiliated psychotic symptoms, it could be substance use related. Dr. Choptiany explained that it is context specific. He explained that there can be multiple contributing factors to psychosis.

[153] When asked specifically whether, as of February 11, 2019, it was possible that Mr. McKee’s depressive and anxiety disorders contributed to some or all of the symptoms of psychosis, Dr. Choptiany stated that, it was his opinion, as noted in the report, that the psychotic symptoms were primarily driven by substance, with the possibility of medications, at the time. When the question was asked again, he stated that it was his opinion that it was not depression or anxiety that was contributing, although there may have been depression and anxiety present at the time. In his opinion, based on his assessment as it related to NCR, the primary driver was the substance abuse. Dr. Choptiany testified that using substances can generate psychotic symptoms ranging the spectrum from minimum to severe. A mood disorder, such as a manic episode, can be associated with psychotic symptoms. A depressive episode of sufficient severity could be associated with psychotic symptoms, but the person would have to meet the threshold criteria for major depressive episode. Dr. Choptiany agreed that it could be possible in a clinical setting that a person could be diagnosed with unspecified depressive disorder and have psychotic symptoms, but it would be unusual, and he had never seen that. Dr. Choptiany also testified that individuals could experience delirium in the context of medication overuse or withdrawal.

[154] Dr. Choptiany had noted in his report that according to the Waypoint records from November 25-26, 2018, Mr. McKee’s “diagnosis on discharge was significant overdose and suicidal ideation….Other diagnoses included anxiety and depression, personality disorder, substance abuse, previous suicide attempts, query hypothyroidism, query Addison’s disease, hypogonadism and ADHD.” Dr. Choptiany agreed that Addison’s disease is an adrenal insufficiency. Dr. Choptiany was not able to speak to Mr. McKee’s health in terms of his adrenal insufficiency or any hormone imbalance on the date in question. At page 48 of his report, under “criminal responsibility”, Dr. Choptiany noted:

From self-report, collateral information from Mr. McKee's mother, and medical records, Mr. McKee appears to have been experiencing psychotic symptoms at the time of the index offence. The psychotic symptoms do not appear to be the result of an underlying psychotic illness but rather driven primarily by substance use, and possibly contributed to by medication misuse, medication interaction, or an underlying medical condition.

[155] Dr. Choptiany confirmed that the underlying medical conditions being referred to were the ones referred to earlier in the report – Addison’s disease and hypogonadism. He explained that this was a possibility, but it was his opinion that it was predominantly a substance induced psychosis; in other words, the psychosis on February 11, 2019 was driven primarily by substance use but may have been contributed to by an underlying medical condition, namely hormone imbalance. He agreed that hormonal imbalance on its own could cause psychosis, however, he felt that there was no medical information about this being an ongoing concern at the time. The medical information for February 11, 2019 was hospital information from Sunnybrook, where he was taken shortly after the events, and there was nothing to suggest psychosis from hormonal imbalance. Ultimately, Dr. Choptiany agreed he could not rule this in or out without relevant information. He also added that it was his understanding that the hormonal imbalance was caused by chronic anabolic steroid and opioid use, although he agreed that there was nothing to suggest that thyroid or adrenal issues were as a result of steroid use. In the absence of further evidence, Dr. Choptiany could not say, in a reliable way, how much of a factor hormone imbalance was in the psychosis that occurred on February 11, 2019. Dr. Choptiany agreed that there can be an interplay between hormone imbalance and depressive disorder and that it was impossible to say how much hormone imbalance and depressive symptoms contributed to the psychotic symptoms.

[156] Dr. Choptiany explained that, in speaking of substance induced psychosis, this did not mean necessarily that he was intoxicated by substances on that day, although there was some evidence of use on that day. He further explained that there are substances with known association with psychosis, some of which Mr. McKee abused, such as cannabis and crystal methamphetamine, and with enough use by someone with susceptibility to psychosis, they could develop psychotic symptoms which could persist despite the absence of use in the moment. The high could have worn off but the psychosis could continue. With substance induced psychosis, according to DSM criteria, symptoms persist not longer than a month after an individual has stopped using and most individuals who stop using should see a cessation, but clinically, he explained, a person could have persistence beyond that with substances like crystal methamphetamine.

[157] He agreed that psychotic episodes can be multifactorial with a whole bunch of things going on at once. He agreed that psychosis can be part of withdrawal from benzodiazepines.

[158] Dr. Choptiany stated in his report at page 48 and 49:

Regardless of the cause, Mr. McKee has been consistent in his reports that he was having increased paranoia regarding his parents and the police, and that he believed that his parents were hacking his accounts, interfering with his life, and feared that they were planning to have him return to jail or taken to a mental health facility pursuant to Mental Health Act Certification.

If one were to believe Mr. McKee on the surface, it appears that he was suffering from psychotic symptoms, which could in theory exempt him from Criminal Responsibility.

In contrast, one must consider alternative motivations. This episode was in keeping with Mr. McKee's long-standing history of violence and intimidation that he had perpetrated against his family in the context of frequent conflict with his parents and chronic fear of being hospitalized or returned to jail. He had previously assaulted family members and prevented them from leaving their home, requiring them to call the police to intervene.

There is limited information regarding the material time of the incident given that Mr. McKee and his father were the only ones present at the time of the stabbing. According to his self-report, Mr. McKee was not compelled to act out by way of command hallucinations and he did not act out in self-defence. He lost control and did not realize he had hurt his father until his father started to bleed.

Having reviewed the information pertaining to the events leading up to his charge, it is my opinion that although it appears that his behaviours were likely related to psychotic symptoms, I am unable to, from a psychiatric perspective, overturn the presumption of Criminal Responsibility. It does not appear that Mr. McKee was deprived of the ability to appreciate the nature and quality of his act or of knowing it was wrong. I note that immediately after the offence, he realized that he might have killed his father and that he faced returning to jail, the consequence he feared most, suggesting that he knew the wrongfulness of his act, at the material time.

Thus from a psychiatric perspective, and on balance, a defence of Not Criminally Responsible on account of mental disorder does not appear to be available to Mr. McKee from a purely psychiatric perspective.

Dr. Choptiany confirmed that Mr. McKee’s self report of what happened at the time of the killing was outlined at page 5 to page 9 of his report and that he recorded it accurately. Dr. Choptiany agreed that this included delusional beliefs, paranoia, hallucinations, and disorganized thought. Dr. Choptiany agreed that the things reported were consistent with psychotic symptoms.

[159] After completing his report in February 2020, Dr. Chotiany did review a fitness assessment report as well as some institutional records that were provided to him. His clinical and medical opinion about what mental disorders Mr. McKee suffered from in February 2019 as it related to questions of criminal responsibility had not changed. He indicated that he had not assessed Mr. McKee since that time and did not provide an opinion on any current or present diagnoses.

[160] In summary, Mr. McKee was at Waypoint for an assessment by Dr. Choptiany for a period of 60 days, from December 2019 to February 2020. At the end of this assessment, Dr. Choptiany provided a diagnosis. Dr. Choptiany agreed that he would not be able to revise his diagnosis without, at least, meeting and interviewing Mr. McKee again as a starting point, which he was not asked to do. He agreed that he was not able to look at documents about Mr. McKee’s behaviour in custody and use that to revise the diagnosis he made previously. In coming to his conclusions in February 2020, Dr. Choptiany cited all documentation reviewed for his report, including occurrence reports and medical records, essentially throughout Mr. McKee’s life. Mr. McKee was never diagnosed with schizophrenia or a schizophrenic illness and Dr. Choptiany did not make that diagnosis. Rather his diagnosis was as contained on page 46 of his report, which included Substance Use Disorder, Substance / Medication-Induced Psychosis, Antisocial Personality Disorder, and Borderline Personality Disorder.

[161] Dr. Choptiany recognized that Dr. Julian Gojer, psychiatrist, had performed a file review and concluded that several diagnoses were evident, including an underlying schizophrenic illness that could have been worsened by the use of drugs of abuse, and prescription medication that he was abusing or withdrawing from. Dr. Choptiany explained that the diagnostic criteria for a schizophrenic illness – as set out in DSM-5 – requires a time course, in that there must be the presence of psychotic symptoms beyond six months. Further, there must be the presence of certain symptoms, at least one in combination with a couple of others, including delusions, hallucinations, thought disorder or behavioural disorder, in the absence of other contributing factors, such as substances and medications or other causes of psychosis. Dr. Choptiany testified that Mr. McKee possibility had underlying schizophrenic illness undiagnosed, which was made worse by drug use, but this was less likely, or even unlikely, given his history of recurring episodes of substance induced psychosis, and in the absence of substance use or abuse, his symptoms tended to resolve quite quickly. Therefore, Mr. McKee’s condition was more in keeping with substance induced psychosis.

[162] It must be remembered that Dr. Choptiany’s opinions, including his testimony and report, were not part of the trial that occurred before the jury. In fact, Mr. McKee never raised the issue of his criminal responsibility, or lack there of, as part of the trial.

Anna McKee

[163] Anna McKee testified on this constitutional challenge hearing. During her testimony, the Applicant sought to tender and mark as exhibits some documents: 1) letters Anna McKee received from Bradley McKee. It was clear that these letters were not introduced for a hearsay purpose, but rather only to demonstrate that Mr. McKee reported certain things to his mother at the time. It was also made clear that this evidence was not to be used as a prior consistent statement or oath helping. It was submitted that this was solely circumstantial evidence of the content and style of Mr. McKee’s communication with his mother – not for truth or consistency – just that he said these things in this style and form; 2) list of medications prescribed to Mr. McKee at a certain point in time. It was agreed that this did not provide any evidence of what Mr. McKee was actually ingesting at any given time. Ultimately, the list of medications was marked as Exhibit 3, showing the prescriptions for Mr. McKee from January 1, 2019 to February 11, 2019. The letters Anna McKee received from Bradley McKee were received by her on June 22, 2023 (5 pages), which was marked as Exhibit 4, and received by her on September 11, 2023 (7 pages), which was marked as Exhibit 5.

[164] As for her contact and communication with Bradley McKee, Anna McKee explained that, initially following these events, she was not able to see or talk to him, however, since either July or October 2020 to today, she indicated that she talks to him pretty much daily. An average call with him is 20 minutes. He has expressed concerns to her during these calls.

[165] In January 2022, Mr. McKee started telling her about hearing things, such as people talking through the vents. She had never heard him suggest this before. Mr. McKee reported that he thought correctional officers were doing something with a device, in that he thought the device was sending electricity through his ears and eyes to gather information from him. He also expressed having burning sensations all over his body and brain. He reported that he was not feeling good. Mr. McKee told her that people were spying on him through this device. According to Anna McKee, Bradley McKee would talk about this pretty much daily.

[166] After February 2022, he began talking about a robot device or computer device that was hacking his brain and that the manner of doing that was through his eyes. Bradley McKee explained to her that he had contacts that someone put in his eyes, and some kind of white thing that somebody put in his ears. That was how they communicated through his ears and eyes. Mr. McKee also mentioned some names of those responsible. Mr. McKee told his mother that people were hacking her computer at home, and he wanted to make sure that his computer, his Facebook, and bank account were not hacked or things stolen.

[167] Ms. McKee tried to convince Bradley McKee that this was not happening. He did not believe her despite her confirmations through other sources.

[168] Ms. McKee confirmed that Bradley McKee’s “bizarre ideas” continued to the last day she talked to him – right up to the time of the constitutional hearing.

[169] According to Ms. McKee, Bradley McKee would say the same thing over and over, ruminating about the same topics. No matter how she tried to get him away from these topics, he would continue to try to get it across to her that this was happening.

[170] Bradley McKee also reported to her that he was always having pain in his head and legs, and that there was something going through his head to cause that pain. He explained that it was as a result of an electricity force and that people were doing these things through the computer. He explained that his body feels like it is being electrocuted.

[171] Bradley McKee told her that he wants to get an MRI. She understood that he did have one which she read. She tried to explain to Mr. McKee that it showed nothing in his head, eyes, or ears. Despite this, Bradley McKee continues to insist on having another MRI, an fMRI, and wanting to have his whole body checked.

[172] According to Anna McKee, Bradley McKee believed that Dr. Lorberg was involved in these things that were happening to him. He did not discuss Dr. Choptiany with her.

Dr. Julian Gojer

[173] Dr. Julian Gojer was not called as a witness but his three-page letter dated November 30, 2023 was marked as an exhibit – Exhibit 6. As for what he could offer on this hearing, the Applicant conceded that Dr. Gojer was not able to make an official firsthand diagnosis in this case. He was working from Dr. Choptiany’s findings and a file review, suggesting some possible diagnoses. The Crown was content that Dr. Gojer’s three-page letter be admitted as his evidence – in other words, the letter set out what Dr. Gojer would say in court as to the diagnostic possibilities that were evident to him from the file review. The Crown pointed out one obvious difference between Dr. Gojer and Dr. Choptiany, in that Dr. Gojer stated that, from the materials reviewed, several diagnoses were evident, including an underlying schizophrenic illness. Dr. Gojer confirmed that he had not met with Mr. McKee or interviewed collateral sources. Dr. Gojer stated:

It is important to note that I am not offering my own diagnosis. I see my role at this specific time as providing an opinion on Dr. Choptiany’s evidence based on my review of the file and Dr. Choptiany’s report.

I largely agree with the opinion of Dr. Choptiany.

From the materials reviewed, several diagnoses are evident. They include:

• Multiple drug abuse that includes prescription and non-prescription drugs

• Behavioural problems that are indicative of a personality disorder

• Psychotic episodes, likely drug induced

• Chronic problems with delusions and or hallucinations with bizarre behaviors that have been noted prior to and post offence

• An underlying schizophrenic illness that could have been worsened by the use of drugs of abuse, and prescription medication that he was abusing or withdrawing from

I agree with Dr. Choptiany that a drug- induced psychosis is a likely explanation for the psychosis on February 11th 2019. Such a psychosis could have been the result of illicit substances or prescription drugs or some combination of the two. Additional consideration should be given to the possibility that prescribed medication contributed to the psychosis. Underlying medical conditions (hormonal imbalance) and/or psychiatric conditions (depression/anxiety and/or borderline personality disorder) could have contributed to the psychosis. It is also possible that Mr. McKee suffered from an underlying schizophrenic illness and the use of drugs/medications or underlying medical illnesses contributed to or exacerbated the illness. The presence of these multiple psychiatric, pharmacological and medical problems raise problems with disentangling the precise etiology of the psychosis

[174] Dr. Gojer’s evidence was obviously not before the jury on this trial.

Mary Cremer – Trial Counsel

[175] Mary Cremer swore an affidavit, November 29, 2023, which the Applicant sought to have admitted on this constitutional challenge. Given the Crown’s objection to its introduction, it was initially marked as a lettered exhibit only, although later marked as a numbered exhibit. The Crown argued that the affidavit was not admissible as it related to trial decisions, not to moral culpability or sentencing issues. The Applicant argued that the affidavit was relevant to show the enduring and significant nature of the mental illness.

[176] In summary, Ms. Cremer stated in her affidavit that she wanted to call Dr. Choptiany as a witness at the trial, and that as the trial commenced, she urged Mr. McKee to permit Dr. Choptiany to be called. Ms. Cremer stated that she told Mr. McKee that his mental illness at the time of the offence was a major issue that could be a defence to murder by negating the mental component for the offence of both second degree and first degree murder. She explained to Mr. McKee that the evidence regarding his mental health and physical diagnoses or the specific effects of drugs must be introduced through a medical doctor. She explained to Mr. McKee that Dr. Choptiany’s February 18, 2020 assessment was the most compelling and persuasive evidence they had to raise a defence of substance-abuse related psychosis or other defences based on his mental illness. She discussed the risks and benefits of using Dr. Choptiany’s evidence and told him that the benefits far outweighed the risks. She also explained that not using Dr. Choptiany’s evidence would limit her ability to advance any mental health defence. Ultimately, despite all of this, Mr. McKee instructed her not to call Dr. Choptiany.

[177] Obviously, this evidence was not presented to the jury on this trial.

Letter from Bradley McKee to Alexandra Youssef on December 12, 2022

[178] Finally, the Applicant introduced a letter that Mr. McKee provided to present counsel’s articling student in December 2022. According to the Applicant the letter provided circumstantial evidence of the longevity of his mental health issues. It was clearly stated that it was not being introduced for the truth of its contents. According to the Applicant, this letter demonstrated that Mr. McKee was saying the same things in December 2022 that he was reporting at other times as to what he was experiencing. When this evidence was introduced on the hearing, the Crown made it clear that they were not challenging the defence position that Mr. McKee continued to suffer delusional and bizarre beliefs throughout the time period described in the evidence. In other words, the Crown was not challenging Mr. McKee’s credibility about the beliefs of what was going on in the jail and this was “not a hotly contested issue”. The Crown confirmed that there would be no question from them that Mr. McKee continued to report these things throughout his time in custody, including December 12, 2022, that he believed what he was reporting was occurring, and that he continued to experience symptoms of mental illness. The Crown confirmed that the court would not hear the Crown challenge Mr. McKee’s credibility in terms of what he reported he was experiencing. The Crown seemed to concede that this letter to the articling student, as with the letters to Anna McKee, could become an exhibit and evidence for the fact that Mr. McKee reported the things in the letter – a non-hearsay purpose.

[179] The Crown did indicate, however, that the letters to Anna McKee, the letter to the student, and the conversation with Ms. Cremer did not come in through Bradley McKee and he was not cross-examined on it. Therefore, this material should be given no weight. Having said that, the Crown confirmed that they were not challenging Bradley McKee’s truthfulness that he was experiencing these beliefs all the way through.

Evidence to be Considered on this Constitutional Challenge

[180] The Respondent now argues that the evidence called at the hearing of this constitutional challenge, as set out in paragraphs 33 to 60 of the Applicant’s Factum, which includes the testimony of Bradley McKee, Dr. Maxym Choptiany, Anna McKee, and the affidavit of Mary Cremer, is not admissible, rather the Applicant would need to attempt to introduce this evidence on appeal with leave of the Court of Appeal under the Palmer criteria: see Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Triolo, 2023 ONCA 221 paras 49-60; R. v. Basso, 2024 ONCA 168, paras 18-36.

[181] Further, the Respondent argues that none of the hearsay evidence tendered by the Applicant at the sentencing hearing, including the letter to the articling student, the conversations between Bradley McKee and Mary Cremer, the letters tendered through Anna McKee, and the list of medications that Bradley McKee was prescribed at the time of the relevant events, were admitted for the truth of their contents. The Respondent argues that these things should be given little to no weight. As a further argument, the Respondent submits that this hearsay evidence, except for the list of medications, amounts to prior consistent statements, which are not admissible at trial as a means of bolstering the credibility of a witness. See: R. v. Stirling, 2008 SCC 10, at para 5 and 7; R. v. D.K., 2020 ONCA 79, para 34; R. v. J.H., 2020 ONCA 165 at para 117.

[182] The Respondent refers to the case of R. v. Edgar, 2010 ONCA 529, pointing out that these prior consistent statements do not fit within this exception. This court would agree. In fact, there is no suggestion that these statements are spontaneous statements made upon arrest or when first confronted with an accusation. The Respondent points out that the Applicant did not testify with respect to any of the prior consistent statements that he sought to tender, which should have been introduced during his examination in chief as directed by R. v. Kailayapillai, 2013 ONCA 248 at para 56. This court accepts that the prior statements were not introduced through Mr. McKee’s examination in chief.

[183] According to the Respondent, this Court heard the evidence at trial that was admissible and considered by the jury in reaching its verdict, and only some of the evidence called on this constitutional challenge is admissible.

[184] In principle, this court would agree with some, but not all, of the Respondent’s arguments. However, when considering the nature of this hearing and the comments, frankly concessions, by the Crown as the hearing continued, it is unclear why the Crown is taking this general position at this point.

[185] As for the admissibility of the testimony of Bradley McKee, Dr. Maxym Choptiany, and Anna McKee, this court does not agree that the Applicant must satisfy the Palmer criteria. This is a constitutional challenge brought in relation to the sentencing provision, as a precursor to sentencing itself. On such challenges, it is typical that a further evidentiary record be created. On sentencing, parties are permitted to present further evidence. Frankly, even hearsay evidence is admissible.

[186] As previously stated, the Crown made it perfectly clear during the constitutional hearing that they were not challenging the defence position that Mr. McKee continued to suffer delusional and bizarre beliefs throughout the time period described in the evidence. In other words, the Crown was not challenging Mr. McKee’s credibility about the beliefs of what was going on in the jail. The Crown confirmed that there would be no question from them that Mr. McKee continued to report these things throughout his time in custody, that he believed what he was reporting was occurring, and that he continued to experience symptoms of mental illness. The Crown confirmed that this court would not hear the Crown challenge Mr. McKee’s credibility in terms of what he reported he was experiencing. Frankly, the Crown agreed during various discussions throughout this hearing that Mr. McKee has suffered from mental health disorders for many years. This would seem to be undeniable. Therefore, it is not at all clear to this court why the Crown would be challenging the admissibility of the evidence of Bradley McKee, Dr. Choptiany, Anna McKee, or Dr. Gojer as it relates to mental health issues generally.

[187] With respect to the letters written by Mr. McKee, these reflect symptoms that Mr. McKee was reporting long after the events in question. This court accepts that these letters should not be considered for the truth of their content – in fact, this was never the intended purpose. However, these letters are admissible as evidence that Mr. McKee reported what was said in the letters. There would seem to be no suggestion that Mr. McKee did not write the letters or did not write the letters when it is claimed the letters were written. To the extent that this is relevant to the question at hand, certainly this court is entitled to consider the fact that Mr. McKee made these statements at the time suggested. Again, the Crown previously confirmed that they would not be challenging that Mr. McKee continued to report these things throughout his time in custody, that he believed what he was reporting was occurring, and that he continued to experience symptoms of mental illness.

[188] As for the list of medications, there would seem to be no reason to question what the document says – that these were the medications prescribed to Mr. McKee at the time reflected – January and February 2019. Certainly, this is not evidence of what medication Mr. McKee had actually taken on the day of these events. It must be remembered that there was toxicology evidence at the trial, referenced above, that was not significantly challenged, and which stands. The level of alcohol detected in Mr. McKee’s urine on February 11, 2019 was 4.5 mmol alcohol/L of ethanol, as per the Georgian Bay General Hospital records. It should also be noted that, with respect to the delirium experienced by the Applicant at Sunnybrook, it was said that this was “most likely driven by benzodiazepine withdrawal” and it appeared to have occurred after he was admitted to hospital on February 11, 2019. The list of medication prescribed can be considered along with all of the other evidence.

[189] As for the affidavit of Mary Cremer as it relates to advice she gave at trial and instructions she received, it is the view of this court that this is simply irrelevant to the issues this court is being asked to decide. It is not apparent that Mr. McKee instructed Ms. Cremer not to call Dr. Choptiany as a result of any mental health issues he was suffering from, as the Applicant would suggest, as opposed to simply considering what he thought was best in the circumstances. Mr. McKee had concerns about calling Dr. Choptiany given the outstanding lawsuit against Waypoint, which, on its face, is a valid concern. He was entitled to make decisions about how to conduct his trial. It is not for this court to question those decisions or consider whether those decisions were good or bad. Frankly, Ms. Cremer herself concedes that there were pros and cons to calling Dr. Choptiany.

[190] This court agrees that Mr. McKee’s testimony at this constitutional challenge hearing, to the extent that he stated that he was not controlling his actions and did not intend to stab his father, is inadmissible as it undermines the jury’s verdict. Further, this court agrees that the evidence of Dr. Choptiany and Dr. Gojer, to the extent that it would undermine the jury’s verdict, is also not admissible on this hearing. Any evidence that suggests that Mr. McKee was not acting voluntarily or intentionally when he killed his father, or evidence that suggests he did not have the moral culpability for murder, or is likely not criminally responsible by reason of mental disorder, must not, and is not, considered by this court. Such evidence clearly contradicts the findings of the jury.

[191] Unquestionably, this jury concluded that Mr. McKee acted voluntarily and with the requisite mens rea for first degree murder. Mr. McKee had the option of running an NCRMD defence at trial. This did not occur. It is not for this court to question why Mr. McKee did not do so, or what the outcome would have been if he did so. The reality is that Mr. McKee did not raise the issue and, therefore, he is deemed to be criminally responsible assuming the elements of the offence are established. The jury found that those elements were met, despite being presented with a great deal of evidence about Mr. McKee’s mental health issues.

[192] The authorities make it clear that the sentencing judge is not permitted, at this point in the trial, to reopen the trial proceedings and effectively quash the verdict of the jury. Following the delivery of a verdict by the jury, the trial judge is functus in respect of that verdict which cannot be altered, except on appeal.

[193] In R. v. Henderson, [2004] O.J. No. 4157 (C.A.), before trial, the accused requested production of all of his employment records from Revenue Canada, however, no records could be located. The defence made no motion before or during the trial to remedy the failed disclosure. The jury convicted on all counts. At the sentencing, the accused brought a motion for a stay on the basis that the Crown had failed to produce the employment records. The trial judge found that the Crown had been negligent and that the Crown's conduct had been an abuse of process. He declared a mistrial. The Crown appealed. The appeal was allowed. The Court stated as follows:

29 A trial judge's jurisdiction to alter a jury's verdict, order a stay or declare a mistrial after a jury verdict is extremely limited. The normal rule is that following the delivery and recording of a verdict by the jury, the trial judge is functus in respect of that verdict, which cannot be altered, except on appeal. The rule is somewhat different in a judge-alone trial. In that case, where the trial judge has entered a verdict of acquittal, the verdict is final and cannot be subsequently altered by the trial judge. However, where a trial judge convicts an accused but has not yet sentenced him or her, the trial judge is not functus in respect of that charge, and can, in exceptional circumstances, vacate the adjudication of guilt before sentencing: R. v. Lessard (1976), 30 C.C.C. (2d) 70 at 73-75. (Ont. C.A.); R. v. Benns, [2004] O.J. No. 182 (C.A.).

See also: R. v. Chamot, 2012 ONCA 903, at paras 35, 38; See also: R. v. Correia, 2017 ONSC 1271, at paras 9-12, where the court held that the sentencing judge does not have jurisdiction to consider an argument that the jury’s verdicts were inconsistent; See also: R. v. Stankovic, 2015 ONSC 5437, at paras 1-10, where the court held that there was no jurisdiction to challenge the jury’s verdict on sentencing based on new information provided in a Victim Impact Statement; See also: R. v. Crocker, 2013 ONSC 2554, at para 6, where the court held that alleging a breach of Charter rights does not create jurisdiction to call into question the jury’s verdict.

[194] Sentencing must be based only on facts consistent with the jury’s verdict. After a jury verdict a trial judge must do their best to determine the facts necessary for sentencing. However, the sentencing judge is bound by the express and implied factual implications of the jury’s verdict.

[195] Parliament has codified the principles to follow in s. 724 of the Criminal Code:

724 (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.

(2) Where the court is composed of a judge and jury, the court

(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and

(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

[196] Section 724(2) was considered by the Supreme Court of Canada in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96. In Ferguson, it was held that when factual implications of the verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury but should come to their own independent determination of the relevant facts. To rely upon an aggravating fact, however, the sentencing judge must be convinced of the fact beyond a reasonable doubt. As for any other relevant fact, the sentencing judge need only be persuaded on a balance of probabilities. The Court held that the judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues. The judge must make their own sentencing findings, recognizing that disputed facts relied upon by the Crown in aggravation must be established beyond a reasonable doubt. The Court in Ferguson stated:

[15] The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction. It follows that the appropriateness of the minimum sentence of four years that Parliament has prescribed for Constable Ferguson's offence depends on what the jury concluded about Constable Ferguson's conduct.

[16] This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury's verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.

[17] Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and implied factual implications of the jury's verdict": R. v. Brown, [1991] 2 S.C.R. 518, p. 523. The sentencing judge "shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty" (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 95 C.C.C. (3d) 443 (Man. C.A.).

[18] Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 162 A.R. 117 (C.A.). In so doing, the sentencing judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven" (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.

[197] On the critical issues in this case, there is no ambiguity left by the jury’s verdict. Bradley McKee was found guilty of first degree murder. On the agreement of all parties, the jury was not left with an option to acquit entirely. In fact, on the agreement of all parties, including Mr. McKee, the jury were told that there were certain elements of the offence of first degree murder that were admitted, agreed to, and therefore, would not require their consideration. Specifically, the jury was advised at the request of all parties, including Bradley McKee that it was admitted that:

a. Bradley McKee caused the death of William McKee; and

b. Bradley McKee caused the death of William McKee unlawfully; and

c. Bradley McKee was the sole participant in causing the death of William McKee, and, therefore, was the only active participant in the killing of William McKee.

[198] The jury was therefore only left to determine whether the Crown had proven three essential elements beyond a reasonable doubt, which were:

a. That Bradley McKee had the state of mind (intent) required for murder; and

b. That Bradley McKee intentionally committed, or attempted to commit, an unlawful confinement of William McKee, or Anna McKee, or both; and

c. That the unlawful confinement, or attempted unlawful confinement, of William McKee or Anna McKee or both, and the murder of William McKee, were part of the same series of events.

[199] The jury was left with the option of first degree murder, second degree murder, or manslaughter. Based on the final instructions of this court to the jury, finding Bradley McKee guilty of first degree murder means that the jury concluded, beyond a reasonable doubt that:

a. that Bradley McKee meant to cause William McKee’s death, or that Bradley McKee meant to cause William McKee bodily harm that he knew was likely to cause his death, and was reckless whether death ensued or not.

b. that Bradley McKee intentionally committed, or attempted to commit, an unlawful confinement of William McKee, or Anna McKee, or both; and

c. that the unlawful confinement, or attempted unlawful confinement, of William McKee or Anna McKee or both, and the killing of William McKee, were part of the same series of events.

[200] With respect to the intent for murder, the jury was told, among other things, that they may take into account, as a matter of common sense, that a person usually knows what the predictable consequences of his or her actions are, and means to bring them about. However, they were also told that they were not required to draw that inference about Bradley McKee, and must not do so, if, on the whole of the evidence, including evidence of impairment by drugs and/or alcohol, or evidence of mental illness, they had a reasonable doubt whether Bradley McKee had the intent required for murder. The jury was told to use the totality of the evidence to determine intent – the rolled up instruction.

[201] With respect to the intent required for unlawful confinement, the jury was again reminded that all of Mr. McKee’s words and actions were to be considered to determine whether or not he had an intention to confine William McKee or Anna McKee or both. Again, the jury was reminded to consider the evidence of Bradley McKee’s mental health issues and his ongoing belief that he was being hacked and spied on. With respect to a consideration of attempted unlawful confinement, the jury was again reminded that a person usually knows what the predictable consequences of his or her actions are, and means to bring them about. However, they were also told that they were not required to draw that inference about Bradley McKee, and must not do so, if, on the whole of the evidence, including evidence of impairment by drugs and/or alcohol, or evidence of mental illness, they had a reasonable doubt whether Bradley McKee meant to confine William McKee or Anna McKee.

[202] Both the Crown and Defence counsel also referred to the mental health of the Applicant as well as his consumption of drugs and alcohol in their closing addresses.

[203] Clearly, the jury concluded that any mental health or impairment issues did not prevent the Applicant from forming the intent required for murder, and the intent required for either unlawful confinement or attempted unlawful confinement.

[204] There are some critical factors here that are absolutely clear.

[205] First, Mr. McKee has a long-standing history of mental illness. This is demonstrated by the hospital records from the Georgian Bay General Hospital and the Waypoint Centre for Mental Health, the testimony from Bradley McKee, the testimony from Anna McKee both at trial and on this hearing, and the testimony from Dr. Choptiany, as supported by the report of Dr. Gojer. The mental disorders that he suffers from are complex and difficult to disentangle. The various and varying symptoms that he experiences are not necessarily only indicative of one mental disorder, rather some symptoms overlap with more than one disorder. The symptoms are numerous, including, but certainly not limited to, aggression, paranoia, delusions, anxiety, depression, and suicidal ideation. He has been on a complicated cocktail of medication for many years, certainly predating these offences. To complicate things even further, Mr. McKee suffers from addiction to both prescription and non-prescription drugs. He also has suffered from hormonal imbalances. It would appear to be impossible to establish which mental disorders came first in his life. Mr. McKee has been admitted to hospital on multiple occasions throughout his life for mental health issues as demonstrated by medical records introduced on this hearing. Multiple diagnoses have been made.

[206] The evidence presented on the fitness hearing, at trial, and on this constitutional challenge establish the undeniable fact that Mr. McKee suffers from various long standing mental disorders which were in place before, during, and after these events, and which continue to this day. There was certainly evidence before the jury that Mr. McKee had long standing mental illness and may have been in some kind of mental health crisis at the time of these events. Frankly, the evidence on this constitutional challenge simply emphasized or reinforced this point which the jury already knew. While there were further details provided on the constitutional challenge that were not before the jury, the presence of various mental disorders was certainly not missing from the trial, rather it was a focal point of the trial – something that was discussed every day with every witness to some degree or other. Mr McKee was at liberty to present the mental health issues as he chose. He did choose. For example, he chose not to testify, as was his right. He chose not to call Dr. Choptiany as a result of a concern of conflict due to the pending civil litigation – a valid concern. Frankly, while accepting that Mr. McKee had mental health issues, Dr. Choptiany did not support a not criminally responsible finding and may not have assisted on issues of intent.

[207] The evidence on this constitutional challenge does support the conclusion that Mr. McKee continues to have multiple and complicated mental disorders, a circumstance that is not surprising given his history.

[208] Second, Mr. McKee is criminally responsible for this offence, despite his mental disorders. It is agreed by all parties, including the Applicant, that even if it were inclined to do so, this court it not at liberty to determine issues of criminal responsibility at this juncture. Frankly, even if this court were permitted to do so, jurisdictionally, this evidence does not go so far as to suggest a lack of criminal responsibility. There is no medical support for a conclusion of NCRMD. A fact that the jury never knew, but which is now known to this court, is that a court ordered assessment was performed on Bradley McKee prior to the trial to determine whether he had a mental disorder which would provide the basis for an NCR defence. Mr. McKee was admitted to Waypoint on December 3, 2019, and Dr. Choptiany delivered his report to the court on February 18, 2020. During this time, Dr. Choptiany interviewed Bradley McKee several times and collected information from others who knew Mr. McKee. He also reviewed Bradley McKee’s psychological reports and health records. Dr. Choptiany diagnosed Mr. McKee with various mental illnesses, including substance use disorder, medication-induced psychosis, borderline personality disorder and anti-social personality disorder. His report stated that Mr. McKee potentially suffers from unspecified depressive and anxiety disorder, as he had symptoms consistent with those disorders. Dr. Choptiany agreed that Mr. McKee was experiencing psychotic symptoms at the time of the killing. Despite all of this, it was Dr. Choptiany’s opinion that, from a purely psychiatric perspective, a defence of not criminally responsible on account of mental disorder did not appear to be available to Mr. McKee. While the evidence of Dr. Gojer suggests further diagnoses, such as an underlying schizophrenic illness, Dr. Gojer admits that his opinion is based merely on a file review and that he has never met with Mr. McKee or interviewed collateral sources. Dr. Gojer clearly states: “I an not offering my own diagnosis. I see my role….as providing an opinion on Dr. Choptiany’s evidence based on my review of the file and Dr. Choptiany’s report. I largely agree with the opinion of Dr. Choptiany.” While Dr. Gojer does conclude that, in his opinion, Mr. McKee appears to have been experiencing psychotic symptoms at the time of the index offence on February 11, 2019, he provides no opinion on criminal responsibility from a psychiatric perspective or otherwise.

[209] Frankly, Mr. McKee’s narrative on this constitutional hearing suggests that he did appreciate the nature and quality of his acts, and knew his acts were wrong. While stating he was having a hard time remembering, he gave a detailed step by step account of what happened. He stated that he did not intend to hurt his father, rather just intended to scare him. He claims that he misjudged the closeness of the knife and it cut his father. He immediately understood the severity of this and tried to assist his father to some degree. At best, this suggests a lack of intent or accident.

[210] Third, Mr. McKee had the requisite intent required for first degree murder. The jury has spoken. The narrative of Mr. McKee was not before the jury and cannot now be considered by this court. There was no suggestion that Mr. McKee chose not to testify as a result of mental issues. He did not testify, as was his right. On the basis of the record before the jury, including a lot of evidence about mental heath, they determined that he had full intent required for murder. This court cannot come to a different conclusion. This means that the jury, considering a great deal of mental health information, and a forceful closing address by counsel on Mr. McKee’s behalf about this very issue, concluded that Mr. McKee either intended to (meant to) cause the death of his father, or that he meant to cause his father bodily harm that he knew was likely to cause his death, and was reckless whether death ensued or not. This is a very high and specific mens rea. It is meant to be so, due to the severe consequences that attach to a conviction for murder. It is clear that the jury, fully instructed about their options, including manslaughter, concluded that Mr. McKee had this very high and specific mens rea. This court cannot do anything that contradicts that verdict of the jury.

[211] It is on this basis that the court will consider this constitutional challenge – in summary, on the basis that 1) Mr. McKee has long standing and continuing mental disorder; 2) Mr. McKee is criminally responsible for the offence; 3) Mr. McKee had the requisite intent for the offence of murder.

Analysis

A. Does the mandatory life sentence and parole ineligibility violate the protection against cruel and unusual punishment under section 12 of the Charter of Rights and Freedoms?

Legal Principles

[212] In R v Nur, 2015 SCC 15, the Supreme Court of Canada explained that a mandatory minimum sentence violates section 12 of the Charter if it results in a punishment that is grossly disproportionate to the gravity of the offence and the blameworthiness of the offender. Constitutionally valid punishment must not be manifestly excessive or outrageously harsh. When considering section 12, courts must conduct an individualized assessment of whether the mandatory minimum sentence is, objectively, grossly disproportionate in the specific circumstances of the case, considering all relevant factors that affect the offender's moral blameworthiness and the gravity of the offence. The focus is on the overall severity and excessiveness of the punishment. The Court in Nur stated:

[77] In summary, when a mandatory minimum sentencing provision is challenged, two questions arise. The first is whether the provision results in a grossly disproportionate sentence on the individual before the court. If the answer is no, the second question is whether the provision's reasonably foreseeable applications will impose grossly disproportionate sentences on others. This is consistent with the settled jurisprudence on constitutional review and rules of constitutional interpretation, which seek to determine the potential reach of a law; is workable; and provides sufficient certainty.

[213] In the first stage, sentencing principles and objectives are relevant to consider, including aggravating and mitigating factors, the principle of parity, the principle of totality, the principle of restraint in imposing imprisonment, and the fundamental principle of proportionality. In the second stage, the court can consider reasonable hypotheticals.

[214] The Supreme Court of Canada upheld as constitutional the mandatory minimum sentence of life imprisonment without eligibility for parole for 25 years for first degree murder in R. v. Luxton, [1990] 2 S.C.R. 711. In Luxton, the Supreme Court considered the constitutionality of the mandatory minimum sentence, specifically for murder while committing forcible confinement. Writing for the majority, Lamer C.J. stated:

[12] The appellant's final argument is that the combined effect of s. 214(5)(e) and s. 669 contravenes s. 12 of the Charter. Section 12 of the Charter protects individuals against cruel and unusual punishment. The phrase "cruel and unusual punishment" has been considered by this Court in R. v. Smith, supra. That case held that the criterion to be applied in order to determine whether a punishment is cruel and unusual is whether the punishment is so excessive as to outrage standards of decency. At pages 1072-73 I stated that:

The test for review under s. 12 of the Charter is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive. We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence. Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate.

In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender.

In Lyons, supra, La Forest J. addressed the meaning of the word "grossly" at pp. 344-45:

The word "grossly" [as in "grossly disproportionate"], it seems to me, reflects this Court's concern not to hold Parliament to a standard so exacting, at least in the context of s. 12, as to require punishments to be perfectly suited to accommodate the moral nuances of every crime and every offender.

In my view, the combination of s. 214(5)(e) and s. 669 does not constitute cruel and unusual punishment. These sections provide for punishment of the most serious crime in our criminal law, that of first degree murder. This is a crime that carries with it the most serious level of moral blameworthiness, namely subjective foresight of death. The penalty is severe and deservedly so. The minimum 25 years to be served before eligibility for parole reflects society's condemnation of a person who has exploited a position of power and dominance to the gravest extent possible by murdering the person that he or she is forcibly confining. The punishment is not excessive and clearly does not outrage our standards of decency. In my view, it is within the purview of Parliament, in order to meet the objectives of a rational system of sentencing, to treat our most serious crime with an appropriate degree of certainty and severity. …

The Court held that the mandatory life sentence without eligibility for parole for 25 years was not grossly disproportionate, in view of the utmost gravity of the offence and the highest level of moral blameworthiness on the part of the offender.

[215] The mandatory life sentence for murder was also upheld in R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, where the Supreme Court scrutinized the sentencing provision in the circumstances of Mr. Latimer, who took the life of his own severely disabled and long-suffering daughter. The Court acknowledged that Mr. Latimer "faced challenges of the sort most Canadians can only imagine" (para 5). However, in deciding to end his daughter's life, "the gravest possible consequences resulted from an act of the most serious and morally blameworthy intentionality" (para 84). Despite Mr. Latimer's, arguably, sympathetic circumstances, the mandatory life sentence was not a grossly disproportionate sentence.

[216] In R. v. Bissonnette 2022 SCC 23, released in May 2022, the Supreme Court struck down s. 745.51 of the Criminal Code, which had allowed for consecutive parole ineligibility periods in circumstances of multiple first-degree murders. Writing for the Court, Chief Justice Wagner struck down the provision on the second prong of the protection afforded by s. 12 of the Charter, which considers inherently cruel and unusual punishment as being intrinsically incompatible with human dignity. In the reasons, the Chief Justice also reiterated and explained the sentencing principles and considerations of "gross disproportionality" that are considered under the first branch of section 12. Despite the violation of s. 12 found to be caused by consecutive parole ineligibility periods, the Court reaffirmed the holding in Luxton that the mandatory minimum sentence for first degree murder does not infringe s. 12 of the Charter. The court reaffirmed that the 25-year parole ineligibility period reflects society's condemnation of the commission of such a crime and does not outrage our standards of decency. The Court stated:

[86] As an illustration, in Luxton, this Court rejected the argument that the mandatory sentence for first degree murder infringes s. 12 of the Charter. The Court considered it proper for Parliament to treat this crime -- the most serious of all -- with an appropriate degree of severity. The 25-year parole ineligibility period reflects society's condemnation of the commission of such a crime and does not outrage our standards of decency (Luxton, at pp. 724-25). Because of the 25-year mandatory ineligibility period, an elderly offender who is convicted of first degree murder will thus have little or no hope of getting out of prison. As was decided in Luxton, that sentence is nonetheless compatible with s. 12 of the Charter, since it is within the purview of Parliament to sanction the most heinous crime with a sentence that sufficiently denounces the gravity of the offence, but that does not exceed constitutional limits by depriving every offender of any possibility of parole from the outset.

[217] Most recently, the mandatory minimum sentence for second degree murder was upheld in R. v. Tobicoe, [2023] O.J. No. 5870 (S.C.). In a slightly earlier 2023 decision, R. v. Mohiadin, 2023 ONSC 3066, at para. 4, Campbell J., in the context of a first degree murder sentencing, referred to a number of appellate court decisions across the country that have upheld the constitutionality of the mandatory minimum sentence for murder.

[218] The Applicant argues that a person suffering from a mental disorder does not have the same level of moral blameworthiness as individuals without mental disorders. As a matter of logic and common sense, this is not necessarily true, as it would seem to be context and circumstance specific. Mental disorder has extreme variability. Such a general statement cannot possibly be accepted by this court.

[219] Unquestionably, mental disorder is a relevant consideration on sentencing. In R. v. Bertrand Marchand, 2023 SCC 26, the Court stated:

[128] ….Where a mental illness existed at the time of the offence and contributed to the offender's behaviour, sentencing judges should consider prioritizing rehabilitation and treatment through community intervention (R. v. Lundrigan, 2012 NLCA 43, 324 Nfld. & P.E.I.R. 270, at paras. 20-21; R. v. Ellis, 2013 ONCA 739, 303 C.C.C. (3d) 228, at para. 117). This is especially the case given that offenders with mental illnesses are often distinctly negatively affected by imprisonment (see Ruby, at ss.5.325 and 5.332).

[220] The Court of Appeal for Ontario has recognized that a mental disorder may reduce moral blameworthiness and should be considered a mitigating factor on sentencing where there is a direct link between the disorder and the offence, and where incarceration time would have a severe impact upon the individual. For instance, in R v Prioriello, 2012 ONCA 63, the Court stated the test for reducing moral blameworthiness as a result of mental disorder as follows:

[11] In order for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct: R. v. Robinson, [1974] O.J. No. 545 (C.A.).

[12] Further, there must be evidence that a lengthy sentence would have a severe negative effect on the offender such that it should be reduced on compassionate grounds.

See also: R v. Hart, 2015 ONCA 480, in which the Court of Appeal approved of the trial judge's assessment of how incarceration would impact upon the very mental health issues which led to the offence. The trial judge had determined that imposing a custodial sentence would "likely destroy any progress" toward improved mental health and would "serve no genuine societal interest" (para 8).

[221] In R. v. Megill, 2021 ONCA 253, para 171, the Court determined that a mitigating factor on sentence required a causal link between the illness and criminal conduct. The illness was required to be an underlying reason for the conduct. Further, evidence was required demonstrating that the sentence would have a serious negative impact upon the offender such that compassionate grounds would demand a reduced sentence.

[222] In the case of first degree murder, of course, the sentence is fixed. As a result of the severity of the consequences, a high degree of moral culpability is built into the finding of guilt.

[223] The Applicant raises the point that the not criminally responsible defendant is not morally blameworthy. Undoubtedly this is true. However, Mr. McKee is not this person. No such finding has been sought or made by the court. The Applicant conceded, in fact, that this court has no jurisdiction to make that finding at this point in the proceedings. So while it is true that the not criminally responsible defendant is not morally blameworthy, this has no application in this case.

[224] The Applicant argues that none of the constitutional challenge cases have dealt with the circumstances presented in this case, where the moral blameworthiness of the offender was either significantly reduced or non-existent on account of an existing mental disorder. It is the view of this court that this statement completely ignores the verdict of the jury. While the Applicant now seeks to present a reduced moral blameworthiness for Mr. McKee, this was not the finding of the jury. The jury was not given the opportunity to weigh in on whether Mr. McKee was criminally responsible, as this was never raised. Therefore, presumptively, Mr. McKee is criminally responsible. The jury was given the mental health evidence that they were given, and on the basis of the evidence presented, they determined that Mr. McKee had the requisite intent for murder – meaning that he had the most serious level of moral blameworthiness, namely subjective foresight of death. This court is not permitted to re-try the case which is what the Applicant is asking this court to do. It would be entirely inappropriate for this court to determine this constitutional challenge and / or sentence Mr. McKee on the basis of a factual platform that precisely contradicts the findings that this jury made. The finding of the jury was that Mr. McKee had this highest level of moral blameworthiness required.

[225] Mr. McKee was determined to be fit to stand trial, exercised his right not to testify at his trial, chose not to call Dr. Choptiany at his trial, and chose not to pursue a finding of not criminally responsible as a result of a mental disorder. These were Mr. McKee’s choices to make. It is not for this court to question whether those decisions were right or wrong, good or bad. In R. v. Bharwani, 2023 ONCA 203, a five-member panel of the Court of Appeal for Ontario upheld the Taylor test as the governing law related to the determination of whether an accused is fit to stand trial. One of the reasons for doing so was that the Defendant has a right to control their own defence, even when it not in his or her best interests, with the underlying principle rooted in the autonomy of an accused. The court stated:

[155] The authors of Mental Disorder in Canadian Criminal Law recognize that reality, noting that "[m]any accused persons for whom mental disorder is simply not an issue would not meet the analytical capacity test": at pp. 3-7. For instance, many accused who have no mental disorder "routinely make decisions contrary to their best interests, whether self-represented - arguably, the ultimate bad decision - or by choosing to ignore their counsel's advice:" at pp. 3-7. Many of those accused will be incapable of making what the reasonable observer would consider to be sound legal decisions, not because of mental disorder, but for any number of reasons, including rage, conscience, hate, love, frustration, religious beliefs and so on: see e.g., R. v. Jaser, 2015 ONSC 4729, at paras. 8, 21.

[157] We must respect the autonomy of all accused persons. Like everyone else, accused persons living with mental health challenges - and there are a lot of them - must maintain the right to make decisions based upon choices that others may or may not see as the most sensible or wise, decisions that may even cut against their interests, provided they are fit to stand trial.

[226] According to the Applicant, this is a unique case because Mr. McKee’s actions do not establish the moral culpability calling for a life sentence without parole for 25 years. With all due respect, this is not an accurate representation of the circumstances. Mr. McKee was fit to stand trial. Mr. McKee was represented by experienced counsel. Mr. McKee made decisions about the conduct of the trial and what evidence to present or not present. Mr. McKee’s actions, as found by the jury, do call for such a sentence. The jury was well aware that, Mr. McKee, at the time of the offence, was suffering from various mental illnesses, yet in the face of that evidence, the jury found that he had the requisite intent for murder – subjective foresight of death. While the jury was not made aware of all of the medical information now presented to this court on this hearing, that evidence was available to Mr. McKee to present if he wished. Mr. McKee also had the option of testifying at his trial before the jury and explaining, as he did on this hearing, that he felt that his actions were automatic and that he did not mean to kill his father. He chose not to testify as was his right.

[227] The Applicant now claims that the evidence also reveals that Mr. McKee is likely not criminally responsible by reason of mental disorder. While the Applicant acknowledges that this court has no jurisdiction to make such a finding at this point, he argues that this court can rely upon NCR jurisprudence to recognize that Mr. McKee has no moral culpability. Quite frankly, this argument does not make any sense. If this court cannot make an NCR finding at this point, which it agrees it cannot, then certainly, this court cannot conclude that Mr. McKee has no moral culpability because of his mental illnesses. One flows from the other.

[228] While the Applicant points to the fact that diminished responsibility has been recognized as a partial defence in other countries, this has been clearly rejected in Canada. In R. v. Dobson, 2018 ONCA 589, the accused suffered from a delusional disorder – either schizophrenia or schizotypal personality disorder – which caused him to believe that Satanic beings were guiding him to kill himself and his friend, allowing their souls to travel to a divine world. It was agreed at trial that Mr. Dobson's mental disorder rendered him incapable of appreciating the nature and quality of his acts and knowing that his actions were legally wrong. The issue in dispute was whether he knew his actions were morally wrong. The Court of Appeal for Ontario held that, absent a constitutional challenge to the definition of murder, the defence of diminished responsibility was not available under Canadian criminal law, thereby allowing for the lifetime incarceration of an individual with mental health issues that impaired his reasoning process at the time of the offence: see paras 3-8, 34-38; see also R v. Damin, 2012 BCCA 504.

[229] If the Applicant wished to have a partial defence of diminished responsibility considered in this case, he should have brought a pre-trial motion, or at the very least, should have raised it at the pre-charge conference to have this court consider whether this was something that should be left with the jury on the basis of the evidence presented, including whether there was an air of reality. None of this occurred.

[230] The Applicant has not met the threshold for revisiting the constitutionality of the mandatory minimum sentence for first degree murder in this case. There is neither a new legal issue raised as a consequence of significant development in the law, nor has there been a change in the circumstances of evidence that fundamentally shifts the parameters of the debate. The mandatory minimum sentence does not apply to offenders whose conduct was not voluntary or who did not subjectively intend to cause death, as the Applicant suggests will occur in this case. This is not what is occurring in this case. It is not open to the Applicant to argue that he did not act voluntarily or that he did not have the specific intent required for a murder conviction. This argument flies in the face of the jury's verdict of guilt on the charge of first degree murder and cannot be entertained on sentencing. The proper forum for this argument will be at the Court of Appeal, perhaps with fresh evidence.

[231] The imposition of a mandatory minimum sentence for first degree murder does not violate s. 12 of the Charter.

B. Does the mandatory life sentence and parole ineligibility violate section 15 of the Charter by disproportionately prejudicing a protected class of people?

[232] The purpose of section 15 has been succinctly stated and reaffirmed: “the promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration” (R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 at paragraph 15 citing Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at 171, per McIntyre J.). In Quebec (A.G.) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61,