R. v. Serieaux, 2025 ONSC 2356

Ontario Superior Court of Justice

Court File No.: CR-22-650
Date: 2025-04-17

Between:
His Majesty the King
J. McKenzie, Counsel, for the Crown

and

Jheidon Serieaux
M. Savard; S. Nadarajah, for Defendant
C. Hicks and T. Davidson as Amicus

Heard: December 3, 2024; March 31, April 1, 2, 3, 4, 9, 2025
Judge: H.S. Arrell

Judgment

Introduction

1Mr. Serieaux was convicted of first-degree murder in the stabbing death of Christopher Sim on August 8, 2021: see R. v. Serieaux, 2024 ONSC 5054.

2Immediately after delivering my verdict, and before sentencing, Mr. Serieaux through Amicus advised the court of his request for a bifurcated NCRMD (not criminally responsible due to a mental disorder) hearing, which has now been completed. These are my reasons.

Facts

3Mr. Serieaux was self-represented throughout the trial of the index offence, although given many opportunities to retain counsel, he elected not to do so.

4Amicus was appointed some time ago to assist Mr. Serieaux and the Court. With the consent of the Crown, I granted Amicus increased flexibility to act primarily like Mr. Serieaux’s advocate. I specifically ordered that Amicus would have the function of explaining strategic choices available to the accused, as well as the implications of those decisions.

5At the start of the NCRMD hearing, on December 3, 2024, Mr. Serieaux retained counsel who requested several adjournments to properly prepare, which I granted. The bifurcated NCRMD hearing commenced March 31, 2025, and was completed on April 9, 2025.

6Mr. Serieaux, at certain earlier stages of these proceedings, was deemed unfit to stand trial due to a mental illness. On March 18, 2025, after Mr. Serieaux had received treatment at Waypoint Centre for Mental Health Care (“Waypoint”), pursuant to my keep fit order, a jury ruled that he was fit for trial.

7Mr. Serieaux requested a judge alone trial. The Crown consented and the trial commenced before me on April 7, 2024.

8Two forensic psychiatrists prepared NCRMD reports during the pretrial proceedings, pursuant to my orders, and upon the request of the parties. Neither the Crown nor Amicus, on behalf of Mr. Serieaux, called those doctors to give evidence and NCRMD was not an issue during the trial of the index offence. Indeed, no evidence was heard by the court during the trial as to Mr. Serieaux’s mental health at the time of the murder, excepting that which was stated in his own viva voce evidence. Certainly, in closing, Amicus led that Mr. Serieaux’s mental health testimony was capable of negating the mens rea requirement of murder, specifically its first-degree criterion of ‘planning and deliberation’. I disagreed, as neither Amicus nor Mr. Serieaux chose to tender any formal psychiatric evidence to that effect prior to me delivering my verdict.

9Mr. Serieaux was 23 years of age at the time of the index offence. It appears that he had been living on the street and in shelters for some time.

10There was no evidence at the trial of the index offence, again aside from the testimony of Mr. Serieaux, that Mr. Serieaux and Mr. Sim, who was also living in shelters, were acquainted prior to the killing.

11The evidence at the trial of the index offence established that, prior to the stabbing, Mr. Serieaux and Mr. Sim had a very brief physical altercation just outside the Mission Services lot (the “initial altercation”). Mr. Sim was clearly the aggressor and the winner of the approximately 22-second video-recorded initial altercation. During the initial altercation, Mr. Serieaux was knocked to the sidewalk by Mr. Sim, who then appeared to pull Mr. Serieaux’s hair, after which Mr. Serieaux ran from the scene. Mr. Sim then walked back to the Mission Services lot and entered the dining hall.

12Mr. Serieaux was next seen on video outside of the Mission Services lot, approximately 20 minutes after Mr. Sim has entered the dining hall. Mr. Serieaux appeared to be looking in the windows of the dining hall, and he was seen walking back and forth outside the Mission Services parking lot.

13Shortly thereafter, Mr. Sim exited the dining hall and walked down the exit ramp, which leads into the Mission Services parking lot. Mr. Serieaux saw this and immediately ran towards Mr. Sim, attacking him from behind for approximately four seconds and repeatedly stabbing him. He was pronounced dead in hospital shortly thereafter. Mr. Serieaux immediately fled. He was arrested two months later in Brantford. No murder weapon was found.

14Mr. Serieaux testified, at the index offence trial, that he knew the only way he could win a fight against Mr. Sim was if he used his four-inch knife that he always carried with him. Mr. Serieaux agreed in cross-examination, that upon returning to the Mission Services lot, he was looking for Mr. Sim, with his hand in his pocket holding his knife, in order to stab him and to hurt him. Mr. Serieaux was adamant he did not intend to kill Mr. Sim. Mr. Serieaux testified that he stabbed Mr. Sim only once in the lower stomach and that he cut Mr. Sim’s eye when hitting him with the handle of his knife. Mr. Serieaux confirmed that he immediately ran away, as he knew the police would come and he did not want to get arrested. He also testified to knowing that the knife in his hand, which was covered in Mr. Sim’s blood, was evidence. He disposed of the knife in a dumpster.

15Mr. Serieaux testified that he ended up at his friend Rico’s house, who saw on his computer that Mr. Sim had died and that the police were looking for Mr. Serieaux. Mr. Serieaux then took a GO bus to Toronto and stayed with his father until early October, when he went to Brantford where he was ultimately arrested after causing a disturbance in a restaurant washroom. Mr. Serieaux admits that he gave the arresting officer a fake name.

16Mr. Serieaux testified that he knew Mr. Sim from earlier encounters. He testified that he had been shot in the leg, robbed, raped, and mentally transported by Mr. Sim through witchcraft in July of 2021. He testified to thereafter being constantly threatened by Mr. Sim’s demands for money. Mr. Serieaux testified that he had gone to the hospital because of the gunshot to his leg, however, there were no such records before the court nor did the police have any incident report involving gunshots between Mr. Sim and Mr. Serieaux. Mr. Serieaux stated that he was not looking for Mr. Sim when he ended up on the bench at the corner of Barton St. and James St. N. on the morning of August 8, 2021 (prior to the initial altercation). Mr. Serieaux gave no explanation as to why he would voluntarily cross the street to have a seemingly amicable ten-minute conversation with Mr. Sim, after being shot, robbed, and raped by him only a few weeks earlier, and constantly threatened thereafter. Mr. Serieaux said his head was cracked open during the initial altercation and that he was covered in blood when he ran away. The police found no trace of blood in the area of the initial altercation.

17Mr. Serieaux admitted on cross-examination that from the end of the initial altercation until the stabbing, a period of approximately 26 minutes, he thought constantly about going back to hurt Mr. Sim. He agreed that during that time he had planned not to use his fists but to stab Mr. Sim, as he did not think he could win a simple fist fight. He agreed that the only way he could get the better of Mr. Sim was if he stabbed him. He agreed that he looked in the window of the dining hall and saw Mr. Sim having lunch. He testified to standing just around the corner of the dining hall, out of Mr. Sim’s line of vision, and waiting for Mr. Sim to exit and go down the ramp. Mr. Serieaux testified to knowing that Mr. Sim’s back would be to him when he was using the ramp. Mr. Serieaux planned to surprise Mr. Sim in order to get the upper hand and be successful in hurting him. Mr. Serieaux testified that he planned to stab Mr. Sim deeply because he knew he was a tough guy.

18Mr. Serieaux, when talking about this 26-minute period, again stated that he did not think that there was any possibility Mr. Sim would die. He admitted that he knew of people dying from a single stab wound but was adamant that he did not think there was any possibility Mr. Sim would die. He stated that he was shocked and surprised when he later learned, at Rico’s, that Mr. Sim had died.

19Mr. Serieaux admitted that at the time of the stabbing he knew what he was doing was wrong. He also agreed that other people would think what he did was wrong, however, as raised at the NCRMD hearing, such was not clarified as a belief he held at the time of the index offence versus at the time of testimony.

20Finally, at the index offence trial, Mr. Serieaux advised the Crown on cross-examination that he had spoken to Dr. Komer, a forensic psychiatrist, and told him that Mr. Sim would not die because God had promised him he would not die if he stabbed him.

21The evidence during the NCRMD hearing indicates that Mr. Serieaux has had a long history of mental health issues. Records commencing in 2013, from McMaster Children’s Hospital in Hamilton, note Mr. Serieaux to be an in-patient experiencing serious mental health issues, with regular in-patient status thereafter at various hospitals.

22The mental health records filed with the court indicate that Mr. Serieaux has, since adolescence, been diagnosed with paranoia, delusions, grandiosity, mania/bipolar disorder, schizoaffective disorder, personality disorder, anti-personality disorder, anti-social disorder, drug and alcohol abuse disorder, and schizophrenia. Oftentimes his delusions take on a religious tone, with elements of grandiosity, persecutory delusions against himself, and auditory hallucinations. He appears to have a pattern of chronically stopping his medication when out of hospital. His mental health then deteriorates to the point that he again must be hospitalized. He then starts to recover after recommencing his medication and is released and once again deteriorates. This cycle has never appeared to change.

23Many of Mr. Serieaux’s symptoms, diagnoses, and actions, seem to be rooted in anxiety, paranoia, and a persecutory fear that others are after him or out to get him and thus he needs to act first before something happens to him.

24Dr. Komer testified at the NCRMD hearing. He was qualified by the court, on consent, as an expert forensic psychiatrist with over 30 years of experience. He is one of the medical staff at Waypoint. He has been involved with Mr. Serieaux since his admission to that institution in September 2022. Dr. Komer’s lengthy s. 16(1) assessment report dated July 23, 2024, was before the court.

25Dr. Komer confirmed Mr. Serieaux’s long history of mental health diagnoses, hospital admissions, and treatments over the years.

26Dr. Komer testified that Mr. Serieaux was hospitalized on one of many community treatment orders (the “CTO”) in May 2021, prior to the index offence. The CTO was not renewed as Mr. Serieaux had not been showing up for injection appointments and could not be located or reached. He was therefore deemed not to be cooperating with the CTO, a necessary component of its renewal.

27As a result, Dr. Komer testified that likely Mr. Serieaux went without treatment and prescribed medication from the end of May 2021 up to (and following) the date of Mr. Sim’s death. The testimony of Mr. Serieaux, at the index offence trial, confirms this account.

28After numerous interviews with Mr. Serieaux, and a review of his extensive mental health records, Dr. Komer concluded that Mr. Serieaux knew that stabbing Mr. Sim was legally wrong and that it would harm him, but also that Mr. Serieaux genuinely believed, at the time of the offence, that Mr. Sim was a demon who had previously stabbed, robbed, and raped him. Mr. Serieaux, according to Dr. Komer, wanted Mr. Sim to stop tormenting and assaulting him and thus, on god’s direction, stabbed him. God had told Mr. Serieaux that such was the only way to stop Mr. Sim from harming him, and that Mr. Sim would be taught a lesson but not die. Again, Dr. Komer believed this to be a genuine delusion held by Mr. Serieaux at the time of the index offence.

29Dr. Komer was cognizant of the possibility that Mr. Serieaux may have been malingering but concluded that was not the case for several reasons.

30First, in Dr. Komer’s professional experience, those who are malingering during an NCRMD assessment will, almost always, consistently affirm their mental illness. Such was not the case with Mr. Serieaux who has most often over the years, both before and after the index offence, denied his psychotic diagnoses. According to Dr. Komer, this is also why Mr. Serieaux was deemed incapable for two-and-a-half years prior to the index offence, requiring the public guardian and trustee to consent to his CTOs, as Mr. Serieaux refused to acknowledge the extent of his mental illness. In Dr. Komer’s opinion, for the most part, Mr. Serieaux is unable to even recognize his delusions as symptoms of mental illness.

31Dr. Komer also rejects malingering in this case because of numerous corroborative incidents in Mr. Serieaux’s medical history. Such incidents include past references of psychotic delusions among the reviewed records, more specifically, that Mr. Serieaux believed he was the prophet Allah, that he was the son of god, that he was Jesus, that people such as his mother and father were possessed by the devil, or that he had been injured by someone when he had not. These delusions are similar to those that Mr. Serieaux self-reported having to Dr. Komer, about Mr. Sim on the day of the index offence. Dr. Komer pointed out the importance of these past references to the malingering analysis, as their prior documentation (to the index offence) refutes their ability to be self-serving. Their prior documentation also tends to corroborate Mr. Serieaux’s delusional thinking regarding Mr. Sim at the time of the index offence.

32Dr. Komer also reviewed medical records, detailing delusions, from after the index offence and concluded that they were consistent with reports from before the offence. In Dr. Komer’s opinion, the consistency of delusions, before and after the index offence, also negates malingering.

33Dr. Komer was provided with additional material after the index offence trial, including the court’s findings of fact and Mr. Serieaux’s testimony at trial. He noted that none of this material changed his opinion. Likewise, he has had further discussions with Mr. Serieaux, who has remained at Waypoint. Nothing further that Dr. Komer has heard from Mr. Serieaux has changed his professional opinion.

34Dr. Komer was asked whether he had any issues of bias or conflict in both conducting an NCRMD assessment of Mr. Serieaux and also treating him. Dr. Komer was quite definite that he well understood his first duty was to the court to be objective and independent. He further advised that it was very common for members of his profession to provide treatment and conduct an NCRMD assessment on the same individual. He testified that, in this case, he can be most confident in his lack of bias as his instructions have come solely from the court. He is treating Mr. Serieaux on a keep fit order issued by the court, not because Mr. Serieaux is a private clinical patient/outpatient. Likewise, his NCRMD assessment is as a result of an order of the court.

35Dr. Komer did indicate that it would be an entirely different situation if Mr. Serieaux had not come through the forensic system but sought him out to treat him as an outpatient. Under that scenario, Dr. Komer confirmed that his duty would be to the patient and he would decline, if asked, to do an NCRMD assessment.

36Dr. Komer testified that although Mr. Serieaux’s CTO was discontinued in May 2021, that had nothing to do with the discontinuing doctor being of the opinion that Mr. Serieaux was well and no longer needed treatment, as Mr. Serieaux had testified at his trial. Dr. Komer pointed out that Mr. Serieaux was on his fifth CTO at that time, and he was not cooperating. He was failing to attend for treatment and failing to abide by the terms of the CTO. As such, the CTO was not renewed despite the discharge doctor opining that Mr. Serieaux continued to require active support and ongoing medication. A further CTO would be considered if Mr. Serieaux was prepared to cooperate.

37Dr. Komer pointed out that Mr. Serieaux refusing to continue his medication so abruptly would have serious side effects and likely exacerbate his ongoing mental health issues, especially his psychotic, bipolar, and mood symptoms relatively quickly. Mr. Serieaux would also likely experience sleep disturbances.

38Dr. Komer testified that social stress can add significantly to mental health symptoms. Social stress includes being unhoused, a lack of family and community support, lack of finances, not eating properly, sleep deprivation, and not taking prescribed medication. According to Dr. Komer, Mr. Serieaux was experiencing all of these social stressors at the time of the death of Mr. Sim.

39Dr. Komer was aware and considered in his opinion that Mr. Serieaux fled the scene, disposed of the weapon, and evaded capture for approximately two months. He opined that Mr. Serieaux was with his father for part of that time. He had also been homeless for a lengthy period and likely street smart which may have assisted in him evading the police. In considering these actions, Dr. Komer reiterated that Mr. Serieaux knew he had done something legally wrong but did not appreciate the nature and quality of his actions or believe that what he did was morally wrong. Dr. Komer confirmed that on this basis Mr. Serieaux’s evasion of the police did not alter his overall opinion.

40Dr. Komer agreed that, following the index offence, Mr. Serieaux’s first recorded mention of any delusion that Mr. Sim was a demon or that god told Mr. Serieaux to stab him and that he would not die was in May 2022, a number of months after the death of Mr. Sim. This was also the first time that Mr. Serieaux mentioned that Mr. Sim had previously assaulted him. Dr. Komer testified that this delay did not alter his opinion as there may be a number of explanations for it, such as Mr. Serieaux not being asked the proper questions. Dr. Komer did not take this delay to mean that Mr. Serieaux’s delusion was not genuine or that it had been backdated. Again, Mr. Serieaux had had similar delusions before the incident and his explanation of his delusions at the time of the incident were consistent with those prior delusions – i.e. speaking with god, that he is god, that his mother had the devil in her and he needed to kill her, as did his father, that his girlfriend was a witch, and numerous prior reports of being injured by others when he had not.

41In regard to Mr. Serieaux’s belief that Mr. Sim had assaulted him on multiple occasions prior to the offence, Dr. Komer opined that such a delusion could possibly have been triggered by the assault, or “sucker punch”, on Mr. Serieaux by Mr. Sim the morning of the stabbing. The court understands that this could explain why Mr. Serieaux walked up to Mr. Sim that morning as if nothing was wrong – i.e., the delusions had not yet been born.

42Ms. Candice Babby, a registered social worker, was Mr. Serieaux’s case manager between March 2019 and June 2021 while he was part of the TOPSS (Transitional Outpatient Program of Schizophrenia Service) program administered by St. Joseph’s Healthcare Hamilton. He had been involved in this program since 2018. This program is meant to assist in transitioning hospital inpatients to outpatient community status, while ensuring they get the needed treatment and required medication. This program also issued CTO’s if conditions (i.e., cooperation) were met.

43Ms. Babby testified that throughout the time in which she was Mr. Serieaux’s case manager, he would not comply with his CTO protocol or his medication requirements and from time to time would be hospitalized as a result. When Mr. Serieaux did show up for his injection, he was nearly always weeks late. As such, Ms. Babby’s experience with Mr. Serieaux often involved attempting to locate him. Mr. Serieaux consistently told Ms. Babby that he had no mental health issues other than being anti-social. His history clearly showed this to be untrue.

44During Mr. Serieaux’s hospitalization from April 21 to May 25, 2021, Ms. Babby testified that Mr. Serieaux usually had to be restrained physically and medically due to his aggressive and constantly threatening behaviour. After a regimen of in-hospital medication he improved slightly and he was transferred back to jail. His CTO was not renewed as it was deemed ineffective given his lack of cooperation, failure to attend appointments, and failure to take his medication. He also remained treatment incapable with the public guardian and trustee providing any consents required for treatment. He was released from jail in early June 2021.

45Ms. Babby was not aware of whether Mr. Serieaux received any of the medications or treatments prescribed after early June 2021.

46Dr. Grimes was qualified on consent as an expert forensic psychologist. She had spent time interviewing Mr. Serieaux at the request of Dr. Komer but had no further therapeutic relationship with Mr. Serieaux. During the interview process Dr. Grimes found that Mr. Serieaux suffered from confusion and a disorganized thought process, especially when recounting his history.

47As part of her forensic psychological assessment of Mr. Serieaux, Dr. Grimes administered two standardized screening measures for feigning or exaggerating of psychological illness. Mr. Serieaux fell far below the cutoff for feigning on one of these tests and just over the cutoff on the other. She held the inconsistencies among these results to be the likely result of test administration, as the latter test (that Mr. Serieaux fell just above the cutoff on) was a self-report test requiring reading and concentration. Mr. Serieaux struggled with this. Dr. Grimes differentiated feigning, exaggerating, or fabricating for no secondary gain (i.e., personal beneficial reason or motive) from malingering. She defined malingering as having an ulterior motive to benefit oneself. She concluded, as a possibility, that Mr. Serieaux presented some feigning. She did not conclude that he was malingering, as he did not meet the test criterion for such.

48Dr. Grimes, unlike Dr. Komer, was unable to conclude that Mr. Serieaux suffered from an anti-social personality disorder as Mr. Serieaux has never had an extended period of stability adhering to medication for his schizoaffective disorder or been symptom free of the same. Thus, Dr. Grimes did not feel confident concluding whether the antisocial behaviour and antisocial orientation is attributable to a personality disorder or attributable to his unstable mental status in reference to the schizoaffective disorder. Dr. Grimes did diagnose Mr. Serieaux as having schizoaffective disorder, a schizophrenia spectrum disorder. He also had a long history of psychosis with symptoms of delusions, hallucinations, and mania. She testified that he has had a long history of serious mental instability. Dr. Grimes recognized that Mr. Serieaux’s symptoms wax and wane depending on whether he is regularly monitored and regularly taking medication, such as when he is hospitalized versus when he is living unhoused. The Doctor opined that the longer he went without treatment and medication the worse his symptoms would become.

49Dr. Grimes testified that Mr. Serieaux’s schizoaffective disorder, and its symptoms, have been long standing. In her opinion, he likely was experiencing at least some symptoms of psychosis and/or mania (as this would have been his unmedicated baseline). As a result of these symptoms, his executive function would likely have been impaired. Dr. Grimes was unable to opine as to which specific executive functions (i.e., decision-making, reasoning, judgment, problem solving, or cognitive flexibility) would have been affected at the time of the offence or to what degree.

50Dr. Gojer was qualified as an expert forensic psychiatrist and his two reports were exhibits before the court as was his C.V. He had been asked by the court to provide an NCRMD assessment regarding Mr. Serieaux.

51Dr. Gojer confirmed that Mr. Serieaux had been found unfit for trial on at least two occasions relating to this offence, once by Dr. Gojer himself. On each occasion he had to be treated with a keep fit order before a jury found him fit. Dr. Gojer confirmed that Mr. Serieaux has a serious mental health disorder but that his symptoms wax and wane. Dr. Gojer opined that just because schizoaffective disorder could be diagnosed both before and after the index offence, and that it was clear that Mr. Serieaux was very ill after the offence, does not automatically allow one to conclude that Mr. Serieaux had psychotic symptoms at the time of the stabbing.

52Dr. Gojer has opined that he did not have convincing information at the time of the index offence to displace the presumption that Mr. Serieaux knew that what he was doing was morally wrong, not just legally wrong, and he had no doubt that he was able to appreciate the nature and quality of his act. As a result, he concluded that Mr. Serieaux was not NCRMD on account of a mental disorder at the time he stabbed Mr. Sim.

53Dr. Gojer felt that there were too many inconsistencies in Mr. Serieaux’s reporting. Further, his limited cooperation in the assessment with Dr. Gojer left too many gaps to allow Dr. Gojer to be able to accurately assess, for himself, what Mr. Serieaux’s mental state was at the time of the index offence. Dr. Gojer confirmed that he saw Mr. Serieaux only once for approximately two hours on May 11, 2024. During that interview Mr. Serieaux said bizarre things, he was uncooperative, and left the interview before Dr. Gojer was finished. However, Dr. Gojer never attempted to re-interview him.

54Dr. Gojer wrote two reports. The first dated August 6, 2024. In that report, after reviewing various records he was sent by counsel and the two-hour interview of Mr. Serieaux, he opined that he was not NCRMD and that a malingering component could not be excluded. Dr. Gojer listed malingering as a differential diagnosis that would benefit from further investigation.

55Dr. Gojer produced a second report dated April 1, 2025, after he received further material from the Crown. The material he said he reviewed and listed included Dr. Komer’s report, Dr. Grime’s report, a progress note of Dr. Komer dated May 27, 2024, the court’s judgment, and the transcript of Mr. Serieaux’s testimony at the trial of the index offence. He listed no other documents that he reviewed to enable him to produce this second report.

56On cross-examination, however, Dr. Gojer admitted to reviewing numerous other documents including all of Dr. Komer’s progress notes subsequent to his May 27, 2024 note. His explanation for not listing or commenting on these additional records, in his second report, was that he had a lack of time. He admitted that these additional documents assisted in forming his second opinion.

57Dr. Gojer’s second opinion changed from his first one in a key way, listing malingering as a primary diagnosis rather than a differential one. He testified that Dr. Grimes report pushed him from a differential diagnosis to a primary one. Dr. Gojer concluded from reviewing Dr. Grimes report that Dr. Grimes’ opinion was that Mr. Serieaux, based on her own testing, was malingering in his account of the index offence. This in fact was not Dr. Grimes opinion. Dr. Grimes was quite clear that she could not conclude that Mr. Serieaux was malingering. Dr. Gojer never spoke to Dr. Grimes about her opinion to clarify it.

58Dr. Gojer admitted that he was not an expert in malingering and that Dr. Grimes, a psychologist licensed to administer forensic testing for feigning/malingering, was. Dr. Gojer did testify, however, that the vast majority of his papers and lectures listed in his C.V. were relevant to the issue of malingering. On cross-examination, Dr. Gojer backtracked significantly on that statement and admitted that only two of the papers and lectures listed on his C.V. were devoted to malingering.

59Dr. Gojer opined that the main issue going to whether Mr. Serieaux can be found NCRMD is whether or not he was malingering. He agreed that no other doctor, on Mr. Serieaux’s entire file, has ever given an opinion/diagnosis of malingering from Mr. Serieaux’s first contact with mental health practitioners as a teen to date. However, he erroneously felt that Dr. Grimes had, and he adopted such.

60Dr. Gojer further opined that exaggeration, feigning, and impression management, as mentioned in a few of Mr. Serieaux’s records, are simply synonyms for malingering. That indeed was not the opinion of Dr. Grimes or Dr. Komer as stated earlier in this judgment.

61Dr. Gojer testified that if the court concluded that Mr. Serieaux was not malingering and instead believed that the delusions and psychotic episodes he has reported as occurring during the index offence were real to him, then he would appropriately be found NCRMD. Dr. Gojer did note that for this to be the case the court would also have to be satisfied, on a balance of probabilities, that Mr. Serieaux was not backdating or malingering his delusions and actually held them on August 8, 2021.

62Dr. Gojer has admitted that in fact he did not review all the documents in this file, despite his earlier opinion that he had. He reviewed what he felt was relevant, which generally only included summaries of the actual source records by other doctors/staff. As an example, Dr. Gojer stated in his second report that the gap between the index offence and Mr. Serieaux’s first report to others of delusions and psychotic events was five months (being August to December 2021). He confirmed the longer the length of time between the index offence and independent collateral reports of psychotic events is important. He confirmed he had read the hospital records of October 28 and 29, 2021, but forgot about them and did not list them in his report to the court. In fact, he ultimately admitted that he only read a summary of those source records.

63The late October records are from very shortly after Mr. Serieaux’s arrest, when he was transferred from jail to St. Joseph’s psychiatric hospital due to bizarre and manic behaviour, refusing his medication and reporting that guards were poisoning and raping him. These behaviours were of such concern to the jail psychiatrist that he was admitted on a Form 1 for his worsening psychotic symptoms and schizoaffective disorder. In hospital, Mr. Serieaux was subject to physical and chemical restraints. These details, which Dr. Gojer agreed were significant, were omitted from his report. He agreed this was an error on his part and that this error would have left the court concluding that the first psychotic delusions, post-offence, that anyone witnessed Mr. Serieaux experiencing were in December rather than October.

64Dr. Gojer felt that since there were no collateral sources to confirm Mr. Serieaux’s account of his delusions at the time of the index offence, and since his accounts were unreliable given the primary diagnosis of malingering, then the killing of Mr. Sim must simply have been his anti-social disorder acting in revenge for Mr. Sim punching him earlier.

65Dr. Gojer agreed it was likely that Mr. Serieaux did not have any treatment or medication from early June 2021 up to the index offence and thereafter until his arrest in October. He also agreed that during this time Mr. Serieaux had a severe schizoaffective disorder and may not have communicated his symptoms due to the negative aspects of this disorder, especially because Mr. Serieaux consistently denies having a psychotic illness. Dr. Gojer also confirmed that the longer one with schizoaffective disorder does not take medication regularly, or at all, the more significant delusional symptoms can become.

66Dr. Gojer confirmed that Mr. Serieaux was never asked any questions about any delusions he experienced on August 8, 2021, at his trial of the index offence. He agreed that Mr. Serieaux could not be faulted for that. He also agreed that the longer one presents as having psychotic episodes for, the more likely they are legitimate. Dr. Gojer also agreed, when he assessed Mr. Serieaux for his fitness to stand trial in November 2023, that he had found Mr. Serieaux to have a significant thought disorder. However, in his NCRMD assessment in 2024 he opined that he had no thought disorder. Dr. Gojer agreed that thought disorders are very unlikely to be malingered. Further, in relation to malingering, Dr. Gojer agreed that inconsistencies in symptom reporting can be due to psychotic delusions and not malingering. However, Dr. Gojer ultimately concluded that the inconsistencies in Mr. Serieaux’s case are a result of malingering.

67Dr. Gojer agrees that he was rushed in providing his second report of April 1, 2025, and as such did not summarize all the material he reviewed or list all of what he had reviewed within that report. He agreed this could leave the court confused as to what he relied on to form his opinion.

Position of the Parties

The Defence

68The Defence position is that Mr. Serieaux is, on a balance of probabilities, more likely than not to be NCRMD within the meaning of s.16 of the Criminal Code. He has been diagnosed with serious mental disorders including schizoaffective disorder since his early teens, a diagnosis that persists to date. Further, the extensive medical records before the court show repeated psychiatric hospitalizations since at least fifteen years of age to date. These extensive psychiatric records demonstrate a repeat pattern of deterioration to the point of hospitalization, oftentimes with the public guardian and trustee giving consent for treatment. Treatment often includes a significantly high dose of anti-psychotic medication. Over time Mr. Serieaux will become stable enough to be released from hospital on a CTO. He will then once again refuse treatment and medication on a regular basis as he believes he has no psychotic disorder. He will cycle and again deteriorate before being hospitalized.

69Beyond satisfaction of the first branch of the s.16 analysis, as Mr. Serieaux has a disease of the mind, the court is able to find both that Mr. Serieaux did not appreciate the nature and quality of his actions and was unable to comprehend the moral wrongfulness of same. Specifically on the moral wrongfulness branch, defence analogizes to R. v. Worrie, 2022 ONCA 471, as a series of actions taken seemingly to avoid detection may only prove that an accused knew something to be legally wrong.

70In making out the above argument, the Defence argues that the court should accept the opinions of Dr. Grimes and Dr. Komer that Mr. Serieaux is not malingering his psychotic symptoms or his account of the index offence. Dr. Grimes, the forensic psychologist, is clearly the proper expert to opine on feigning and malingering especially as she was the one to test him for same.

71Dr. Komer’s opinion that Mr. Serieaux is NCRMD, within the meaning of s.16 of the Code, should be preferred over Dr. Gojer’s opinion that he is not. Dr. Komer’s opinion was based on a review of all of the documents, he did not change his opinion, and he had many sessions with Mr. Serieaux over a great deal of time. When compared to Dr. Gojer, it is clear that Dr. Komer had the better knowledge and understanding of Mr. Serieaux.

72Dr. Gojer’s opinion should be rejected by the court and given no weight. His evidence was full of inconsistencies, he admittedly had not reviewed the entire file of source documents, and he was rushed in preparing his second report. Further, he agreed that malingering was the key issue for him and yet based that opinion on his erroneous understanding of Dr. Grimes opinion. On the issue of malingering, he agreed that he left out crucial material in his report to the court, such as that Mr. Serieaux was expressing significant psychotic symptoms in October shortly after his arrest rather than in December as stated by Dr. Gojer.

73The Defence submits that while Mr. Serieaux did not use the exact same language each time, he described the delusions he experienced during the index offence, his explanations always took on the same religious, grandiose, and persecutory tones. On this basis, any inconsistency cannot be used to make out malingering.

74The bookends of documented severe psychosis being May 2021 and October 2021 must be looked at as a continuum of Mr. Serieaux’s condition. It makes no sense that in between those two bookends, when Mr. Serieaux was also experiencing social stressors and receiving no treatment or medication, would Mr. Serieaux suddenly appear symptom free in August of 2021. All of the experts testified, before this court, that the above noted social stressors would have worsened Mr. Serieaux’s hallucinations and delusions. Dr. Gojer’s opinion that Mr. Serieaux would have been free of psychotic symptoms on August 8, 2021, experiencing only those effects of an anti-social personality disorder, is just not plausible. Mr. Serieaux’s subsequent account of psychotic delusions at the time of the offence should be treated as genuine.

Amicus

75Amicus echoes the position of the Defence as the most reasonable conclusion based on all of the evidence. Amicus submits that on a balance of probabilities Mr. Serieaux has met the burden and should be found NCRMD.

76Amicus suggests that the evidence before the court makes it clear that Mr. Serieaux has a disease of the mind that has been present consistently since he was a young teenager. This disease of the mind has never been effectively treated and has always been with him. The evidence is also clear that when Mr. Serieaux goes without regularly taking his medication he deteriorates, and his psychotic episodes increase in intensity. Finally, it is also clear that the more social stresses Mr. Serieaux is under the more likely his psychotic symptoms will increase.

77Amicus agrees with defence that the more reliable medical opinions before the court are of Dr. Komer and Dr. Grimes and posits that they should be preferred regarding malingering and the ultimate issue of NCRMD. Dr. Komer was well aware of the video of the index offence, Mr. Serieaux’s testimony at trial, and his after the fact conduct. This information did not alter his final opinion.

The Crown

78The Crown submits that Mr. Serieaux has not met the burden to be found NCRMD, within the meaning of s.16 of the Code. While the Crown concedes that Mr. Serieaux had a disease of the mind at the time of the offence, they do not accept that same impacted Mr. Serieaux’s ability to comprehend the nature and quality of his actions or know that the index offence was morally wrong. In essence Mr. Serieaux’s schizoaffective disorder was in a period of waning on August 8, 2021.

79The Court must focus on August 8, 2021, and the video at the trial speaks to this in dramatic and profound terms. No one during the morning of the index offence noticed anything untoward about Mr. Serieaux. He was sitting casually with another gentleman on a bench. He crossed the street where he had what appears to be a normal conversation with Mr. Sim. After ten minutes he was punched, knocked to the ground, and fled. The evidence is clear, the video shows Mr. Serieaux coming back nearly half an hour later. He stalks Mr. Sim, attacks him from behind with a knife and kills him. He then escapes, discards the knife, and eludes the police for two months. According to the Crown, these are not the actions of a person who is NCRMD but are the actions of a person who knew exactly what he was doing, why he was doing it, and in essence was carrying out a pre-formed plan. He carried out the murder, successfully disposed of evidence, and escaped.

80The Crown submits that Mr. Serieaux’s own testimony at the trial of the index offence is telling and speaks volumes as to his thinking at the time of the offence. He very clearly stated that he was seeking revenge for the earlier beating Mr. Sim had delivered. He knew he had to surprise Mr. Sim and use a knife because Mr. Sim was “tougher than him”. He tried to get his friend to help him to no avail, so he planned to get revenge himself. He escaped because he knew what he had done was wrong and people would agree what he did was wrong. He did not want to get caught by the police. He discarded the knife because it had Mr. Sim’s blood on it and was evidence. The Crown argues that Mr. Serieaux never told the court in his evidence that god told him to kill Mr. Sim, only that god told him Mr. Sim would not die.

81The Crown submits that there is absolutely no evidence that on August 8, 2021, Mr. Serieaux was having any psychotic episode (never mind one that would reach the level for a finding of NCRMD). Such is supported by the opinion of Dr. Gojer. Further, there must not only be evidence of psychosis at the time of the offence, but that psychosis must be linked to and explain the offence (within the wording of s.16). There simply is no such evidence. The two bookends that the defence speaks of to show that psychosis was present on August 8, 2021, invites speculation that the Court should not accept.

82The Crown states that Dr. Gojer’s opinion is valuable to the Court. It points out the flaws and inconsistencies in Mr. Serieaux’s evidence and the lack of any collateral corroborating evidence regarding the psychotic delusions he has reported over time. Likewise, the Crown suggests that the evidence before the court is clear, the psychotic symptoms of schizoaffective disorder do wax and wane over time. There is nothing to suggest Mr. Serieaux was being significantly affected at the time of the index offence. Dr. Komer’s opinion should be given little weight as he has not effectively dealt with the facts of the actual offence and Mr. Serieaux’s testimony.

83As noted, the Crown agrees that Mr. Serieaux suffers from a disease of the mind. However, this does not mean his psychosis was present on August 8, 2021, and does not mean it caused him to kill Mr. Sim. He acted because of his reckless anti-social behaviour. His motive was simple, and not due to psychosis, he wanted revenge on Mr. Sim.

The Law

84Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility: see s.16(2) of the Code; R. v. Chaulk, [1990] 3 S.C.R. 1303.

85Section 16 recognizes the principle of law that a person who suffers from a mental disorder that renders them incapable of appreciating the nature and consequences of the act or of knowing that the act is wrong is not criminally responsible for committing that act: see R. v. Worrie, 2022 ONCA 471, para. 91.

86The incapacity must exist when the act is performed and relate to the conduct that is the subject matter of the offence with which the accused is charged: see Chaulk.

87To establish a claim of mental disorder the party raising the issue must show on a balance of probabilities first that the person committed the act, and then that the person committing the act was:

1. suffering from a mental disorder; and
2. unable to appreciate the nature and quality of the act; or
3. did not know it was wrong.

see R. v. Sullivan, 2022 SCC 19, para. 20.

88Section 2 of the Code defines mental disorder as a disease of the mind. The scope is broad and is premised on a non-exhaustive list.

89Mental disorder and disease of the mind are both legal terms, not medical terms: see R. v. Stone, para. 195. It is a legal construct, regardless of its medical dimension, and is thus a determination for the trier of fact not the medical expert: see Stone, at para. 197.

90The Ontario Court of Appeal in R. v. S.H., 2014 ONCA 303, para. 80 put it in the following way:

To determine whether a condition amounts to a disease of the mind, a trial judge is to take a holistic approach informed by the internal cause factor, the continuing danger factor and other policy considerations: Stone, at para. 203. The internal cause factor refers to a malfunctioning of the mind that arises from a source in the accused’s psychological or emotional make-up, as opposed to being produced by a specific external factor, such as a concussion: Rabey (Ont. C.A.), at para. 59. Especially relevant to the continuing danger factor are the psychiatric history of the accused and the likelihood that the trigger alleged to have caused the automatistic episode will recur: Stone, at para. 214.

91Different to the act of knowing which means a “base awareness, the act of receiving information without more”, the act of appreciating means “a second stage in a mental process requiring the analysis of knowledge or experience in one manner or another.”: see R. v. Kjeldsen, p. 623; R. v. Barnier, p. 1137. A person appreciates the nature and quality of an act when there is an understanding of the physical nature, character, and consequences of the act. A person may appreciate an act even though they lack appropriate feelings of remorse or guilt for what was done. Further, an incapacity to appreciate the penal consequences of an act does not assist an accused in raising a mental disorder defence. See R. v. Landry; R. v. Abbey, pp. 29-30; and R. v. Kjeldsen, at p. 623.

92Nature and quality refers to the “physical character and consequences of the act.” The accused is not responsible where the offence was “really not his act”: see R. v. Schwartz, p. 687.

93The meaning of the word wrong is restricted to morally wrong and not legally wrong: see Chaulk, at p. 1308. A person may be aware that it is ordinarily wrong to commit a crime, but by reason of mental disorder may believe that it would be “right” according to the ordinary morals of society to commit a crime.

94The meaning of morally wrong is determined from the perspective of society or the perspective of a reasonable people. Moral wrong is not to be judged by personal standards, but by an accused’s awareness that society regards the act as wrong. An accused may not substitute his or her own moral code for that of society: see Chaulk, at p. 1308.

95In assessing capacity to appreciate morally wrong conduct, the focus should be upon “the thinking process of the accused, not their actual knowledge of wrongness”. This requires delving into “the thought process, ... coherence, logic, rationality” of the person. Did his condition deprive him of an ability to properly appreciate his conduct? See Schwartz, at p. 687. Stated another way, as per R. v. Dobson, 2018 ONCA 589, para. 24, citing to R. v. Oommen, [1994] 2 S.C.R. 50:

…an accused who has the capacity to know that society regards his actions as morally wrong and proceeds to commit those acts cannot be said to lack the capacity to know right from wrong. As a result, he is not NCR, even if he believed that he had no choice but to act, or that his acts were justified. However, an accused who, through the distorted lens of his mental illness, sees his conduct as justified, not only according to his own view, but also according to the norms of society, lacks the capacity to know that his act is wrong. That accused has an NCR defence. Similarly, an accused who, on account of mental disorder, lacks the capacity to assess the wrongness of his conduct against societal norms lacks the capacity to know his act is wrong and is entitled to an NCR defence.

Analysis

96Mr. Serieaux is presumed not to suffer from a mental disorder under s. 16(2) of the Code. He must persuade the court first that he suffered from a disease of the mind at the time of the index offence, being the death of Mr. Sim on August 8, 2021, before the court can move on to the other elements of s.16(1) in order to substantiate an NCRMD finding.

97Dr. Komer provided his evidence in a clear and straightforward manner. He had no hesitation in admitting that his opinion, while not altered, may have weakened slightly in light of new material put to him by the Crown. He requested the services of Dr. Grimes to assess Mr. Serieaux in her capacity as a forensic psychologist and spoke with her about her findings, especially her conclusion that Mr. Serieaux did not meet the malingering criterion. Such coincided with his own views. Dr. Komer has had a long history with Mr. Serieaux, since 2022. He has a rapport with him. He has interviewed him numerous times, including for his assessment. He knew his own file for Mr. Serieaux well, as well as the extensive file of Mr. Serieaux from his teen years to date including its source material. His opinion did not waver on cross-examination. His explanation that he felt he was not in any conflict position regarding his treatment and assessment of Mr. Serieaux was logical and persuasive. It was clear that, at all times, Dr. Komer understood his duty to the court.

98Dr. Grimes was also well acquainted with her file and Mr. Serieaux. She answered questions in a straightforward manner. She appeared to know her area of specialty well and did not stray from it. Her opinion never wavered on cross-examination. She had met with Mr. Serieaux on several occasions. Her explanations regarding her testing results were persuasive and not challenged.

99In contrast, Dr. Gojer did not know his file well and was effectively cross-examined in a number of areas. Counsel pointed out things he had forgotten about or had not reviewed. He contradicted himself on a number of important issues in cross-examination as he would confirm review of a document only to have that document put to him and realize he had in fact reviewed a non-verbatim summary admittedly different from the source material. He was sometimes argumentative with counsel and often failed to answer questions in a straightforward way, instead giving long answers that strayed from the point. Further, Dr. Gojer clearly misinterpreted Dr. Grimes conclusions on malingering, which he admitted to being the key issue in the case. He failed to speak to Dr. Grimes about her opinion. He also only had one short two hour visit with Mr. Serieaux where he admittedly got very little information that hampered his own ability to give an opinion, yet he never attempted to re-engage with Mr. Serieaux. He gave two different opinions on malingering in his two reports. He admitted he was rushed in preparing his second report.

100For all the above reasons, the court gives little weight to Dr. Gojer’s opinions. The Court prefers the views of Dr. Komer and Dr. Grimes and where they conflict with Dr. Gojer’s they are accepted over his.

101The issue of Mr. Serieaux malingering his symptoms in order to obtain an NCRMD ruling is a significant issue in this case.

102The court concludes, on a balance of probabilities, that Mr. Serieaux is not malingering his symptoms for the following reasons. He has had psychotic symptoms for years based on his medical records both before and after the index offence. The symptoms although not always identical are generally consistent in their themes (i.e., religious grandiosity). As Dr. Komer pointed out, psychotic symptoms prior to the index offence cannot be malingered, it is thus significant that they both exist prior to and continue after the offence. Dr. Grimes tested Mr. Serieaux for feigning and malingering and did not conclude, after interpreting the results that he met the criteria for malingering. Dr. Komer who knew Mr. Serieaux well, over a long period, also concluded he was not malingering. In fact, no medical practitioner since Mr. Serieaux was a teenager to date has diagnosed him with malingering aside from Dr. Gojer.

103There is no real disagreement between the parties or the medical practitioners who have treated Mr. Serieaux over many years that he suffers from a variety of mental health issues, and has received a variety of diagnoses, being schizoaffective disorder, substance use disorder, alcohol use disorder, social anxiety disorder, anti-social personality disorder, bi-polar disorder, schizophrenia. Many of these diagnoses commenced in his early teens and all continue to date (some as differential and others as primary). The key diagnosis for this hearing was that of schizoaffective disorder. Mr. Serieaux has been prescribed significant doses of various medications to help control his symptoms. He sometimes follows these treatments but often does not, at which time his mental health deteriorates.

104This Court is satisfied that Mr. Serieaux suffers from a serious mental disorder, or disease of the mind, being schizoaffective disorder, and has for many years.

105The Court acknowledges that the symptoms of a disease of the mind, such as schizoaffective disorder, can wax and wane. However, the evidence is uncontroverted that they are never eliminated. There is a dearth of evidence, from collateral sources, from early June 2021 until early October 2021 regarding Mr. Serieaux’s symptom load. Of course, the events of August 8, 2021, and Mr. Serieaux’s movements that morning, are better documented. What is highly likely, given this gap in medical records, is that Mr. Serieaux received no medical treatment or prescribed medication during the June-October period. It is not contentious that Mr. Serieaux was under significant social stressors leading up to and including August 8, 2021. All of the experts testified that, combined with his lack of medication and treatment, such would have likely increased the severity of his symptoms. As such, the Court concludes that on a balance of probabilities Mr. Serieaux suffered from a serious disease of the mind on August 8, 2021, being schizoaffective disorder.

106Mr. Serieaux must also persuade the Court that his disease of the mind was of such intensity at the time of the index offence that he either did not appreciate the “nature and quality of the act” being the stabbing of Mr. Sim; or that he did not know the act was “morally wrong.”: see R. v. Cooper, p. 1159; Worrie, at paras. 93-94.

107Dr. Komer opines that Mr. Serieaux knew the legal wrongfulness of his actions, however, his mental disorder rendered him incapable of knowing the moral wrongfulness or appreciating the nature and quality of his actions. He may have known he was stabbing the victim but according to Dr. Komer he did not appreciate the physical consequences of his actions as he thought the victim was not fully human, god had told him the victim would not die, and god told him he should stab him. Dr. Komer also opined that Mr. Serieaux’s delusional beliefs pertaining to the victim and his auditory hallucinations of a religious nature rendered him incapable of rational perception, rational choice, and understanding of the wrongfulness of his actions according to the ordinary moral standards of reasonable members of society. In essence he was fulfilling the wish of god, he was harming a humanoid/demon, and his actions would not result in death.

108On a balance of probabilities, I accept the opinion of Dr. Komer, in relation both to the appreciation of the nature and quality of the act as well as its moral wrongfulness, as accurate regarding Mr. Serieaux when he stabbed Mr. Sim for the following reasons.

109As noted above, there is no evidence that Mr. Serieaux was receiving medication or treatment on and leading up to August 8, 2021. The court concludes on the available medical evidence and doctor testimony, that in all likelihood Mr. Serieaux was unmedicated for at least two months, prior to August 8, 2021, which is in fact what Mr. Serieaux said at the trial of the index offence. He was also under significant social stressors during those months. As a result, it is probable that Mr. Serieaux’s psychotic symptoms had been increasing since early June 2021, leading up to August 8, 2021. It is probable that Mr. Serieaux was experiencing same in a significant way on August 8, 2021.

110The Court accepts the opinion of Dr. Grimes that at the time of the index offence the executive function of Mr. Serieaux would have been compromised given his untreated schizoaffective disorder and its associated psychotic symptoms. While Dr. Grimes could not pinpoint the exact function that this would have affected, Dr. Grimes provided the following laundry list: decision-making, reasoning, judgment, problem solving, and cognitive flexibility.

111The evidence before the court, both before and after the index offence, is abundant with references to Mr. Serieaux’s psychotic delusions of grandiosity, delusions, paranoia regarding harm befalling him, and auditory hallucinations of a religious nature involving god and of the devil/demons/humanoids pursuing him. The court recounts Mr. Serieaux testifying and believing, prior to the index offence, that his mother was the devil attempting to harm him and he needed to kill her. In regard to the index offence, Mr. Serieaux told the court that Mr. Sim raped him, beat him, shot him, robbed him, and continually threatened him for money just before the index offence. Mr. Serieaux also believed Mr. Sim to be a demon/humanoid. Other delusions, he told the court about experiencing at the time of the index offence, were that he was the second coming of Jesus Christ, that he was covered/soaked in blood after being punched by Mr. Sim, that after being punched by Mr. Sim he was “like dead for a while” and his “brain was exposed”, that Mr. Sim robbed Mr. Serieaux for all his money, and that Mr. Serieaux had no control over what Mr. Sim would do to him. Mr. Serieaux, at the time of the trial, stated that the video of the stabbing to be fake and noted that he was having a bad bipolar episode on August 8, 2021, and that he had not slept for two weeks prior. Following the index offence, Mr. Serieaux has noted that guards at the jail were raping and poisoning him.

112The Court accepts that many of these delusions are consistent in theme and have persisted for nearly a decade, both before and after the offence. The court accepts the views of Dr. Grimes and Dr. Komer that Mr. Serieaux is not attempting to malinger in consistently reporting psychotic delusions that he says were occurring at the time of the index offence. I accept that Mr. Serieaux has not backdated these delusions, as was a concern noted by Dr. Gojer.

113Dr. Komer has reported that during his many interviews with Mr. Serieaux he has stated that the victim attacked him and cracked open his head. That he blacked out and was hysterical. On May 1, 2024, Mr. Serieaux said to Mr. Komer, it was “like a devil controlled me… he was controlling my body”, as well as "God or the devil promised me he wouldn't die from one stab wound.” On April 18, 2024, Mr. Serieaux recounted a similar possession, stating, “I had no freewill from the demon.” On June 26, 2024, Mr. Serieaux noted that Mr. Sim was a “humanoid demon. A demon human.” On July 15, 2024, regarding his conversation with god on the day of the index offence, Mr. Serieaux said "God said he would not die if I stabbed him." Dr. Komer opines that Mr. Serieaux truly believed these psychotic delusions and auditory hallucinations at the time of the index offence. They were not part of any attempt at malingering, and they were not backdated. The Court accepts as more probable than not that Dr. Komer is correct and accepts that these psychotic delusions and auditory hallucinations were occurring to Mr. Serieaux at the time of the index offence.

114Dr. Gojer accepted that if the Court determined that Mr. Serieaux was not malingering, which it does, and accepts that the psychotic delusions reported by Mr. Serieaux at the time of the index offence were real to him, which it does, and accepts that god had instructed him to stab Mr. Sim as he was the devil and he would not die, which it does, then the doctor concedes that Mr. Serieaux would not have appreciated the nature and quality of his actions or that what he did to Mr. Sim was morally wrong. Ultimately, he would be properly NCRMD. The Court agrees.

115The Court has considered that none of the witnesses at the time of the index offence described any apparent psychotic episodes visibly occurring with Mr. Serieaux. Most of those witnesses did not know Mr. Serieaux well and would not have been able to define his behaviour on a scale of normal for him compared to abnormal. They saw him only very briefly. It is not surprising that witnesses would have no idea what Mr. Serieaux was thinking at the time of the offence and not surprising that he did not verbally or physically express those thoughts.

116The Court accepts the opinion of Dr. Komer that even though a person may be acting under a psychotic delusion this does not mean that they cannot plan and execute how they intend to fulfill the delusional instructions they are acting upon, as Mr. Serieaux on the surface appears to be doing.

117The Court has also considered the after the fact conduct of Mr. Serieaux in escaping, disposing of evidence, and hiding from the police for two months. Such evidence can bear upon an accused’s appreciation of the wrongfulness of their conduct, however, “…such evidence is highly ambiguous and carries the risk that the trier of fact may mistakenly leap from such evidence to a conclusion of guilt without taking into account alternative explanations for the accused’s behaviour.”: see Worrie, at para. 142. On this NCRMD hearing, I have been provided with several alternative explanations for Mr. Serieaux’s after the fact conduct. As Dr. Komer stated, Mr. Serieaux knew what he did was legally wrong and as such he escaped. He could also have escaped because he was not appreciating what he had done. He was street smart and disappearing was familiar to him. Likewise, he could have escaped because his executive function and therefore reasoning function and judgment were impaired. For all of these reasons the Court is “…cautious about drawing incriminating inferences from after the fact conduct…” in light of the various alternative explanations in the evidence: see Worrie, at para. 148.

Conclusion

118The court accepts that Mr. Serieaux was unable to appreciate the nature and quality of the stabbing, especially its physical consequences. The court also accepts that Mr. Serieaux was unaware of the moral wrongness of his act against Mr. Sim as he was “deprived of the capacity for rational perception and hence rational choice about the rightness or wrongness of his acts”, due to the psychotic delusions he was experiencing: see R. v. Szostak, 2022 ONCA 57, para. 57.

119The Court concludes that Mr. Serieaux has met the burden of being found NCRMD on a balance of probabilities.

120I therefore find that Mr. Serieaux killed Mr. Sim on August 8, 2021, but that at the time he was suffering from a mental disorder pursuant to s. 16(1) of the Code. Accordingly, pursuant to 672.34 of the Code, I render a verdict that Mr. Serieaux unlawfully caused the death of Mr. Sim but is not criminally responsible on account of mental disorder.

121Mr. Serieaux will be remanded to the Ontario Review Board for disposition.

122A copy of my reasons, the transcript, the indictment, and all other exhibits filed on this trial are to be sent to the Ontario Review Board forthwith.

123A warrant of committal is to issue for Mr. Serieaux to remain at Waypoint Mental Health facility pending the disposition of the Ontario Review Board.

Released: April 17, 2025

H.S. Arrell