Ontario Superior Court of Justice

Court File No.: 24-100000268-0000
Date: 2025-01-27

BETWEEN:
His Majesty the King
– and –
Ryan Richard Cunneen

Appearances:
Megan Scott and Anna Spieser, for the Crown
Maureen Addie, for Mr. Cunneen

Heard: November 5, 2024

Reasons for Judgment
Re: Not Criminally Responsible
R. Maxwell

Overview

[1] On January 20, 2020, Mr. Cunneen ran up behind 89-year-old Xiaoxia Wang while she was walking northbound on Yonge Street just north of King Street. Mr. Cunneen’s forceful push from behind caused Ms. Wang to fall forward to the pavement. Ms. Wang’s face and head hit the pavement with significant force, causing her head to snap backwards and causing a fracture to vertebrae in her spine. The fracture caused damage to her spinal cord, which caused her death.

[2] Mr. Cunneen elected to have a trial by judge alone on a three-count Indictment. Mr. Cunneen pled guilty to the count of mischief at the end of the Crown’s case.[^1] On July 23, 2024, I found Mr. Cunneen guilty of the offence of unlawful act manslaughter: R. v. Cunneen, 2024 ONSC 4541.

[3] Following the findings of guilt, Crown counsel Ms. Scott and Ms. Spieser requested an order under s. 672.11 of the Criminal Code requiring Mr. Cunneen to undergo an assessment into his mental condition in order to determine whether, at the time of the commission of the offences, he was suffering from a mental disorder such that he would be exempt from criminal responsibility.

[4] Mr. Cunneen did not oppose the assessment order and an order was made on July 23, 2024. Mr. Cunneen’s position at that time was that he would oppose the NCR verdict.

[5] Following the order of July 23, 2024, Mr. Cunneen was assessed by a team at the Brief Assessment Unit (BAU) at the Centre for Addiction and Mental Health (CAMH). Dr. Maxym Choptiany conducted the assessment over the course of several visits with Mr. Cunneen and prepared a report, dated October 24, 2024.

[6] At the outset of the NCR hearing on November 5, 2024, Ms. Addie advised that Mr. Cunneen no longer wished to contest the NCR verdict. On consent of the parties, Dr. Choptiany’s report was filed as an exhibit on the Crown’s application to have Mr. Cunneen found not criminally responsible. The Crown called Dr. Choptiany as a witness on the hearing. Ms. Addie conducted a brief cross-examination of Dr. Choptiany. Both parties also agreed that both Dr. Choptiany’s report and his testimony on the hearing constituted his evidence on the hearing. On behalf of Mr. Cunneen, Ms. Addie did not seek to have any other reports or evidence put before the court on the application.

[7] On behalf of the Crown, Ms. Scott made submissions in support of a finding of not criminally responsible. Ms. Addie also made brief submissions, essentially to address the fact that although Mr. Cunneen maintains that he does not have a mental disorder and that the events of January 20, 2020 were accidental, he nonetheless consents to the NCR verdict.

[8] Following the hearing, I reflected further on whether I should make further inquiries with Mr. Cunneen to ensure that his consent to the NCR finding was fully informed and voluntary. I came to a conclusion that a further inquiry would be prudent in this case, and I conducted that inquiry this morning.

[9] Based on Mr. Cunneen’s answers to my inquiries today, I am fully satisfied that Mr. Cunneen’s consent to an NCR finding is informed, is being done voluntarily, and that he is freely giving up his right to contest the NCR finding.

[10] I turn now to my ruling on the verdict of “not criminally responsible”.

The NCR Hearing

[11] Dr. Choptiany has been a psychiatrist since 2015 and holds sub-specialty certification in forensic psychiatry from the Royal College of Physicians and Surgeons of Canada. He is a staff psychiatrist in the Forensic Service at CAMH and holds an academic appointment as a lecturer at the University of Toronto. His qualifications as a forensic psychiatrist are not disputed. He also has a law degree.

[12] I qualified him to give expert opinion evidence in the area of forensic psychiatry with respect to what mental health disorder(s) Mr. Cunneen suffered from at the time of the offences and with respect to the question of Mr. Cunneen’s criminal responsibility on the date of the offences.

The Elements and Operation of Section 16 of the Criminal Code

[13] Section 16(1) of the Criminal Code (the “Code”) provides for a verdict of not criminally responsible for actions taken while a person suffers from a mental disorder that renders them incapable of appreciating the nature and quality of their acts or of knowing that their acts are morally wrong.

[14] Under s. 16(2) of the Code, everyone is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility. The presumption is not that persons do not suffer from a mental disorder simpliciter but, rather, that they do not suffer from a mental disorder of sufficient magnitude or intensity that they are exempt from criminal responsibility on that account: see also R. v. Chaulk, [1990] 3 S.C.R. 1303.

[15] This presumption can be rebutted with evidence that establishes, on a balance of probabilities, that the accused suffered from a mental disorder of sufficient magnitude so as to render them incapable of appreciating the nature and quality of their actions, or that their actions were wrong. The burden of proof is assigned to the party who seeks to rebut the presumption: s. 16(3) of the Code.

The Mental Disorder Requirement

[16] Whether a person suffers from a mental disorder or “disease of the mind” as defined in s. 2 of the Code to be captured by s. 16 of the Code is a question of law with medical dimensions. Medical experts play a role in the legal characterization exercise, but whether a particular medical condition is a “mental disorder” for purposes of s. 16 of the Code is a question of law to be determined by the trial judge: R. v. Rabey (Ont. C.A.), at pp. 472-473, affirmed, [1980] 2 S.C.R. 513; R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575, at para. 60.

[17] The legal concept of a “disease of the mind” is broad and flexible enough to encompass any mental illness, disorder or condition which impairs a person’s mental functioning. The concept of “disease of the mind” or its equivalent “mental disorder” includes any condition, whether curable or incurable, temporary or permanent, recurring or nonrecurring: Bouchard-Lebrun, at para. 59; Rabey, at p. 533.

[18] The presence of a mental disorder alone, however, is not sufficient to bring a person within the ambit of s. 16 of the Code. The disorder must be of such intensity so as to render a person incapable of appreciating the nature and quality of the acts, or of knowing that the acts are morally wrong, by society’s standards. Excluded from the definition of a disease of the mind and mental disorder are self-induced states caused by alcohol or drugs: Cooper v. The Queen, [1980] 1 S.C.R. 1149; Bouchard-Lebrun; R. v. Dobson, 2015 ONSC 2865, at para. 70.

[19] In Dr. Choptiany’s opinion, at the time of the offences, Mr. Cunneen suffered from schizoaffective disorder - bipolar type.

[20] In coming to the conclusion that Mr. Cunneen suffered from schizoaffective disorder – bipolar type at the relevant time – Dr. Choptiany undertook a comprehensive review of Mr. Cunneen’s personal and medical history. He observed that Mr. Cunneen has a history of being diagnosed with either schizophrenia or schizoaffective disorder, both disorders that include psychotic symptoms.

[21] Dr. Choptiany provided a definition of schizoaffective disorder at p. 36 of his report as follows:

Schizoaffective disorder is a major mental illness that tends to have its onset in males, in the second and third decade of life. Once extant, schizoaffective disorder is a life-long illness. The symptomology of schizoaffective disorder is characterized by symptoms that are a combination of the symptoms of schizophrenia (namely, symptoms of psychosis) and symptoms of a mood disorder. Psychosis is generally defined as the presence of hallucinations, delusions, grossly disorganized thought and behaviour, or some combination of these. These symptoms of psychosis will, by definition, extend beyond the symptoms of a major mood disorder, and may in fact, after a period of time suffering this illness be almost constant. At certain times, individuals suffering from schizoaffective disorder will also experience symptoms of either mania or major depression. Manic symptoms include euphoria or irritability, combined with the grandiose sense of one’s self, agitation, a decrease need for sleep and increased energy, pressured speech and a flight of ideas, distractibility, over talkativeness, and poor judgment…Psychosocial stress, an unstructured living situation, alcohol or substance abuse, and non-compliance with psychiatric treatment may adversely affect the course of schizoaffective disorder.

[22] Dr. Choptiany stated that throughout his illness, which dates back to 2007-2008, Mr. Cunneen has demonstrated psychotic symptoms including delusions (fixed false beliefs) that are grandiose in nature, as well as paranoid and persecutory. He noted that Mr. Cunneen believes he works for the Federal Bureau of Investigation, that he has significant wealth, has expressed concerns about people being out to get him, and reported having auditory hallucinations. He was also noted to have grossly disorganized thinking.

[23] As Dr. Choptiany noted in his assessment, Mr. Cunneen was regularly hospitalized between 2007 and 2017 for recurrent interactions with the mental health care system due to psychotic and manic symptoms, usually precipitated by non-adherence to medication. In those times, he was invariably diagnosed with either schizophrenia or schizoaffective disorder. His manic symptoms included inflated self-esteem/grandiosity, decreased need for sleep, pressured speech, increased irritability and agitation. His psychotic symptoms included grandiose, paranoid, and persecutory delusions, referential delusions, perceptual abnormalities, disorganized speech and behavior, anger, and aggression.

[24] Although he was in remission from his symptoms from 2010 to 2017 when adhering to medication, since 2017 he has recurrently discontinued medication with profound deterioration in his mental state. Dr. Choptiany further noted in his report that his symptoms occurred in the absence of alcohol or substance use and became increasingly persistent even when treated with antipsychotic medication. With the progression of his illness, his insight into his mental illness also deteriorated. He noted that Mr. Cunneen does not believe he suffers from a mental illness and expressed that he does not believe he benefits from treatment and would discontinue treatment if he was not required to take treatment.

[25] Dr. Choptiany observed in his evidence and in his report that in the six months prior to the incident, Mr. Cunneen, who had been in British Columbia in forensic psychiatric care as a result of being charged with an offence, discontinued psychiatric treatment when the charge was stayed and he returned to Ontario. In January of 2020, he would not have had any medications in his system for six months.

[26] Dr. Choptiany opined, based on his review of the video chronology and reviewing disclosure capturing Mr. Cunneen’s behavior and state post arrest (including an in-car camera video, the booking hall video, and Mr. Cunneen’s videotaped statement to the police), Mr. Cunneen was exhibiting grandiose and persecutory paranoid delusions, as well as profoundly disorganized thought and behavior on the date in question. He noted that all of the symptoms were persistent once he was jailed in the Toronto South Detention Centre. He was unfit to stand trial in the early phases of the case and was treated to render him fit. He continued to experience residual psychotic symptoms and disorganized thinking even toward the end of the treatment to render him fit.

[27] I am entirely satisfied that Mr. Cunneen was suffering from a mental disorder, most likely schizoaffective disorder - bipolar type, at the time of the offending behaviour on January 20, 2020 and in the timeframe leading up to the incident. I have carefully reviewed the assessment report and Dr. Choptiany’s viva voce evidence in this case. Based upon the opinion offered, against the facts as elicited and found in this trial, I accept that Mr. Cunneen was and continues to suffer from a psychotic disorder, most likely schizoaffective disorder – bipolar type.

[28] I have also considered the definition for schizoaffective disorder, a major mental illness involving symptoms of psychosis, which definition includes the presence of delusions, hallucinations, and grossly disorganized thought and behavior. I have also considered Dr. Choptiany’s evidence that, alternatively (but not preferred), Mr. Cunneen may have been suffering from schizophrenia at the time of the offence. I note and accept Dr. Choptiany’s evidence that both mental illnesses are psychotic disorders and that the core symptoms of schizophrenia are part of schizoaffective disorder.

[29] I have also considered the psychological testing completed by Dr. Stephanie Penney and documented in Dr. Choptiany’s report. I have considered all of the testing results, but note in particular the conclusion that Mr. Cunneen did not show indications of poor effort or malingering psychotic symptoms based on the psychological testing. The psychological testing and Mr. Cunneen’s extensive history of significant mental illness since 2007 leaves me with no concerns that Mr. Cunneen was malingering psychotic symptoms.

[30] I am satisfied on a balance of probabilities that at the time that he committed the actus reus of the offences, Mr. Cunneen was suffering from a mental disorder, most likely schizoaffective disorder – bipolar type within the meaning of ss. 2 and 16(1) of the Code.

The Ability to Know His Actions Were Wrong

[31] Dr. Choptiany opined, at page 39 of his report, that Mr. Cunneen appears to have had the ability to appreciate the nature and quality of his actions, in that he knew he had pushed Ms. Wang and heard her fall to the ground. He further opined that Mr. Cunneen had a general awareness, in the abstract, of the legal wrongfulness of his actions. Although he stated that he was not sure there were legal consequences for his actions, he knew that he had pushed Ms. Wang and that she could have been injured and further, that he ran due to his concern that there would be legal repercussions for him.

[32] The key question is whether Mr. Cunneen, at the time of committing the acts, knew his actions were morally wrong by society’s standards.

[33] In R. v. Chaulk, [1990] 3 S.C.R. 1303, the Supreme Court of Canada established that the meaning of “wrong” as contemplated by s. 16(2) of the Code means more than knowing the act(s) committed are contrary to the law, or “legally wrong”. It encompasses an individual’s ability to know the act(s) are morally wrong in the circumstances according to the “moral standards of society”: Chaulk, at para. 97.

[34] The Court in Chaulk identified two important features of this branch of the NCR defence. First, the incapacity to make moral judgments must be causally linked to the mental disorder. Second, “moral wrong” is not judged by the personal standard of the offender but by their awareness that society regards the act as wrong. In other words, the accused cannot benefit from the defence by substituting their own moral code for that of society. A defence under s. 16 of the Code is only available if the accused is “incapable of understanding that the act is wrong according to the ordinary moral standards of reasonable members of society”: Chaulk, at para. 101.

[35] In R. v. Ratti, [1990] 3 S.C.R. 1303, the Supreme Court of Canada (citing Chaulk) stated:
"It is not sufficient to decide that the appellant’s act was a result of his delusion.  Even if the act was motivated by the delusion, the appellant will be convicted if he was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society." (emphasis added)

[36] The Supreme Court of Canada’s decision in R. v. Oommen, [1994] 2 S.C.R. 507 addressed the meaning of “knowing the acts are wrong” for purposes of an NCR defence.

[37] McLachlin J. (as she then was) explained that the accused must have more than the intellectual ability to know right from wrong in the abstract. They must also possess the ability to apply that knowledge in a rational way to the alleged criminal act. McLachlin J. went on to set out the relevant question as, “whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not”: Oommen, at para. 26.

[38] In R. v. Dobson, 2018 ONCA 589, 48 C.R. (7th) 410, the Court of Appeal for Ontario further examined the meaning of the word “wrong” under s. 16 of the Code. Doherty J.A. held that an accused is not “not criminally responsible” if they knew that society regarded their actions as morally wrong yet proceeded to commit the actions anyway. Importantly, this is true “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” (emphasis added): para. 24.

[39] In Dr. Choptiany’s view, because of his active symptoms of psychosis at the relevant time, Mr. Cunneen’s perceptions were very impaired and his thinking was so disorganized that he would have been unable to access his knowledge of wrongfulness, based on society’s standards, to make a rational decision or choice about his conduct.

[40] As examples, Mr. Cunneen reported to Dr. Choptiany that on the date in question, he threw the brick at the Subway Restaurant window based on a delusional belief that there may be criminal activity going on in the restaurant and he wanted to identify the location of the activity for the police. He also reported to Dr. Choptiany that he subsequently tried to speak to a police officer because in his opinion, he was owed money for his work for the FBI and that he had been conducting negotiations for the police. He attempted to get into a police cruiser on the day in question in order to be taken to court. Dr. Choptiany further noted in his report that on the video compilation, Mr. Cunneen can be seen walking agitated, speaking to himself and/or unseen people, raising his fists, moving his arms while he crossed the streets, alternating his speed from walk to run intermittently, hitting a metal box with a closed fist, and throwing pieces of paper in the air.

[41] Dr. Choptiany further observed that when interviewed by the police following the incident, Mr. Cunneen expressed grandiose delusional beliefs regarding his wealth and occupation as an FBI agent as well as paranoid and persecutory delusional beliefs regarding police harassment. In addition to erratic and disorganized behaviour, he evidenced severe thought disorder when interviewed by the police shortly after his arrest. As noted, these symptoms persisted for a significant period after his arrest while he was detained at Toronto South Detention Centre, until he was subject to a treatment order and resumed antipsychotic treatment in April of 2023.

[42] Dr. Choptiany summarized his view at pages 39-40 of his report:

At the time of the index offence he was homeless and untreated and profoundly psychotic. Given the severity of his psychotic symptoms, including the severity of his thought disorder, it is unlikely that he would have been able to engage in rational decision making at the time of the index offence and to make a rational choice. He would not have been able to appreciate the wrongfulness of his actions against societal norms.

Thus, on a balance of probabilities, from a psychiatric perspective, it appears that psychotic symptomology present proximal to the offences rendered Mr. Cunneen unable to engage in rational perception or rational choice, or to turn his mind to the wrongfulness of his actions, in light of the relevant moral standard of reasonable members of society, and to apply his knowledge of right and wrong in the circumstances. Thus, on a balance of probabilities, from a psychiatric perspective, Mr. Cunneen qualifies for a defence of not criminally responsible by reason of a mental disorder.

[43] I give Dr. Choptiany’s view significant weight, as it is based on a very thorough and complete review of Mr. Cunneen’s personal and psychiatric history, his numerous meetings with Mr. Cunneen, his review of materials relevant to the time of the incident, and his careful and measured approach to arriving at his conclusions.

[44] I accept, based on the totality of the evidence, that while Mr. Cunneen was aware that the act of pushing someone intentionally is legally wrong and morally wrong in the abstract, he was unable to turn his mind to what was right or wrong by society’s standards or to make a rational choice. I am satisfied on balance that because of his highly disorganized thinking and active delusional psychosis at the relevant time, Mr. Cunneen was unable to engage in rational decision making or perception. I accept that Ms. Wang was not part of his delusional beliefs at that time. Nevertheless, I am satisfied that throughout the entire period of time proximate to the incident, Mr. Cunneen was experiencing profound psychosis and disorganized thinking, rendering him incapable of engaging in the thought process of knowing his actions were wrong by society’s standards and of making a rational choice in his conduct. His mental illness rendered him incapable of making choices necessary to act in a manner consistent with societal norms.

Conclusion

[45] Having regard for the positions of counsel on this hearing, the evidence led during this NCR proceeding, the evidence led at trial, and the findings of facts I have previously made, I find on a balance of probabilities that Mr. Cunneen is not criminally responsible on the charges of unlawful act manslaughter and mischief. A verdict of not criminally responsible on account of mental disorder is made in respect to each count.

[46] This matter shall be dealt with by the Ontario Review Board, pursuant to s. 672.45(1.1) of the Code. A copy of the Indictment, the trial transcript, all reproducible exhibits, a copy of the reasons for judgment, these reasons, and any other materials the Crown or Defence deem appropriate shall be provided to the Review Board.

[47] I wish to thank both counsel for the diligent, thoughtful and careful approach taken in this difficult case.

R. Maxwell
Released: January 27, 2025

[^1]: Count 2 on the Indictment charging aggravated assault was withdrawn at the request of the Crown at the end of the Crown’s case.