R. v. Malcolm, 2026 ONSC 1508

Court File No.: CR-22-50000374-0000 Date: 2026-03-12

Ontario Superior Court of Justice

Between:

HIS MAJESTY THE KING

-- and --

LEAHAIN MALCOLM

Donohue, B. and Miller, A., counsel for the Crown

Bottomley, C. and VanderHeyden, A., counsel for Mr. Malcolm

Heard: June 4, 5, 9, 10, 11, 13, 16, 18, August 13, November 28, 2025, and January 28, 2026

Reasons for Judgment

H. A. McArthur J.:

Introduction

[1] Leahain Malcolm stabbed and killed his husband, Rupert Brown. Within minutes of the stabbing, he called 911. Mr. Malcolm told the 911 operator that he was hearing voices. He said that the voices told him his husband was a demon, who was going to kill him. When asked by the operator, Mr. Malcolm agreed that the voices told him to kill his husband.

[2] Mr. Malcolm was charged with second-degree murder. Pursuant to s. 473(1) of the Criminal Code, R.S.C., 1985, c. C-46, Mr. Malcolm proceeded to trial before me, without a jury.

[3] The key issue in this case is whether Mr. Malcolm should be found not criminally responsible on account of mental disorder ("NCR"). Defence counsel submits that Mr. Malcolm should be found NCR because at the time of the incident he was suffering from a mental disorder that prevented him from appreciating that his actions were morally wrong. In support of their position the defence called expert evidence from two psychiatrists who both opined that Mr. Malcolm was NCR at the time of the stabbing. In the alternative, the defence argues that the Crown has failed to establish beyond a reasonable doubt that Mr. Malcolm had the intent required for murder and that he should be convicted of the lesser included offence of manslaughter.

[4] Crown counsel acknowledges that Mr. Malcolm has a history of mental health issues. The Crown argues, however, that Mr. Malcolm was not actively psychotic at the time of the incident. The Crown also asserts that Mr. Malcolm had the capacity to understand that his actions were morally wrong. The Crown urges me to reject the opinion of the defence experts who supported a finding of NCR, submitting that their opinions are based on a frail foundation of unproven facts. And, while strictly speaking unnecessary since the defence bears the burden, the Crown also urges me to accept the evidence of the prosecution expert who opined that Mr. Malcolm was not NCR at the relevant time. Finally, the Crown argues that the evidence overwhelmingly establishes that Mr. Malcolm had the necessary intent for murder.

The Evidence and Information before the Court

[5] The experts in this matter relied on a substantial amount of information in their assessments of Mr. Malcolm. To properly assess the expert opinions, I was provided with the information they relied upon. The parties, however, only tendered some of that information as evidence.

[6] One of the challenges in this case is clearly identifying what information and material forms part of the evidentiary record. In the summary that follows, I set out the admissible evidence. I also set out the information provided that did not become evidence in this trial. As I will discuss later, when assessing the legal issues raised, I may only consider the admissible evidence.

a) Background of Mr. Malcolm and Mr. Brown

[7] The background of Mr. Malcolm and Mr. Brown went in through an Agreed Statement of Fact and forms part of the admissible evidence in this NCR hearing.

[8] Mr. Malcolm and Mr. Brown are both originally from Jamaica. They met there in 2016 and began a romantic relationship. They were married in the United States in April 2018.

[9] Homosexuality is illegal in Jamaica. In January 2020, Mr. Malcolm and Mr. Brown came to Canada and claimed asylum based on homophobia in Jamaica.

[10] Mr. Brown had trained and worked as a doctor while in Jamaica. After coming to Canada, he did not work in his field while he was awaiting the outcome of his refugee claim.

[11] Mr. Malcolm had studied to be a lawyer in Jamaica. However, he did not pass the entrance exam and thus was not called to the Jamaican bar. Mr. Malcolm obtained a job with the Independent Commission of Investigation, investigating allegations of police wrongdoing.

[12] After coming to Canada, Mr. Malcolm applied to be a lawyer here. In January 2021, however, the Law Society of Ontario denied his accreditation.

[13] On January 28, 2021, Mr. Malcolm was charged with assaulting Mr. Brown. After his arrest, the police took him to the Centre for Addiction and Mental Health ("CAMH"). Mr. Malcolm was placed on a Form 1 and admitted. He remained at CAMH until February 12, 2021.

[14] Because of the criminal charge, Mr. Malcolm was bound by a release order that prohibited him from being in contact with Mr. Brown or attending at their apartment. For a while after his release, Mr. Malcolm stayed with his friend, Justin Baird. In the days leading up to the stabbing, however, Mr. Malcolm went back to stay at the apartment with Mr. Brown.

b) The Offence and the 911 Call

[15] In the early morning hours of February 27, 2021, Mr. Malcolm stabbed and killed Mr. Brown in their apartment. Marilou Cabajar, a woman who lived in the unit below their apartment, testified that she heard someone yelling "help, help, help" at approximately 3:25 a.m.

[16] Mr. Malcolm called 911 at 3:27 a.m. Given Ms. Cabajar's evidence as to when she heard the cries for help, it seems that Mr. Malcolm called 911 almost immediately after the stabbing.

[17] On the 911 recording, Mr. Malcolm can be heard breathing heavily before the call is picked up. When the call connected, Mr. Malcolm said "hi." He then asked for the police and an ambulance. He provided the dispatcher his address, the closest major intersection, the entry code for the building and his phone number.

[18] The dispatcher asked Mr. Malcolm what happened, and he replied, "I was hearing voices and I killed my spouse." He told the dispatcher, "I think he's dead." Mr. Malcolm also told the dispatcher that Mr. Brown was sitting in a chair and gasping for air. Photos from the scene, however, establish that there were only four chairs in the apartment, all with white cushions. None of the chairs had any blood on them.

[19] When the dispatcher asked how he had killed Mr. Brown, Mr. Malcolm responded, "just come ... when I get a lawyer I will tell you what happened."

[20] Approximately five minutes into the 911 call, the dispatcher asked Mr. Malcolm whether the voices told him to kill his spouse. He responded, "yes they did." The dispatcher asked him what the voices said, and Mr. Malcolm replied, "they just said he was a demon ... they said that he was a demon and he was going to kill me."

[21] The dispatcher testified that Mr. Brown seemed "eerily calm" on the call. Having listened to the 911 call, I concur with this assessment.

[22] The 911 call was tendered as an exhibit and forms part of the admissible evidence before me.

c) The First Officers on Scene and their Body-Worn Camera Footage

[23] The first police officers arrived on scene at 3:31 a.m. They were outfitted with body-worn cameras. The officers knocked on the door and identified themselves. Mr. Malcolm opened the door and emerged from the apartment with a cellphone in his hand. He was wearing underwear and was covered in blood. The footage from the cameras shows that Mr. Malcolm was extremely calm as he was arrested and charged with murder.

[24] The first officer who entered the apartment, Officer Kevin Moore, a 20-year veteran of the force, said "Jesus" when he encountered the bloody scene in the bedroom. When firefighters arrived and entered the unit, Officer Moore warned them, "it's bad in there." Officer Moore testified that it was a "disturbing scene."

[25] The body-worn camera videos and photos from the scene were tendered as exhibits and form part of the admissible evidence on the NCR hearing.

d) The Pathology Evidence

[26] Officers located Mr. Brown's lifeless body on the bedroom floor. They found two knives under his body. Dr. Carolyne Lemieux, the forensic pathologist who conducted the autopsy, determined that Mr. Brown sustained 30 sharp-force injuries of varying sizes and depths. Dr. Lemieux identified some "defensive-type wounds" on Mr. Brown's extremities. Some of the injuries were superficial, non-specific sharp force injuries, while others were gaping wounds. Two of the injuries would have been fatal -- an incised wound to his left upper arm and a stab wound to his right chest.

[27] Dr. Lemieux testified and her findings form part of the admissible evidence before me.

e) Mr. Malcolm's Statement to Police

[28] The police interviewed Mr. Malcolm approximately 12 hours after the incident and he provided them with an account of what happened.

[29] The defence conceded that the statement was voluntary. The Crown, however, chose not to tender the statement in its case. As a result, the statement cannot be considered substantively for the truth of its contents. The experts, however, all relied on Mr. Malcolm's statement in coming to their opinions. The statement was thus filed as an exhibit for the limited purpose of assessing the expert opinions.

[30] The police started the interview at 2:30 p.m. Mr. Malcolm initially refused to provide the police with much information or answer their questions. As he explained to the officers, "my lawyer told me not to answer." At 3:52 p.m., officers stopped the interview to allow Mr. Malcolm to consult with counsel again.

[31] Mr. Malcolm returned to the interview room at 4:27 p.m. At that time, he provided the officers with an account of what happened. Mr. Malcolm began by saying that he wanted to talk about his relationship with Mr. Brown. He told the officers that Mr. Brown was "kind" and "gentle" but that he was also "verbally and emotionally" and sometimes "physically abusive." He said that Mr. Brown "played" like he was "some kind of big important man who ruled the world" and that Mr. Malcolm was to be a "subservient person." That left Mr. Malcolm feeling "beat down" emotionally.

[32] Mr. Malcolm told the police that because of the assault allegations from January he was not supposed to be with Mr. Brown. However, he returned to the apartment a few days before the stabbing. He told police that in the week leading up to the incident he had been feeling "depressed." He said his "mood was up and down" and he was "extremely worried" and "extremely anxious most of the time." Mr. Brown tried to comfort him, but Mr. Malcolm was "not receptive."

[33] On the night of the incident, he said that Mr. Brown was playing "mind games." Mr. Brown was saying things like he was an important man, and that he was going to leave Mr. Malcolm for someone "better." He told Mr. Malcolm that he cheated on Mr. Malcolm with a person he used to live with and that this person was "better" than Mr. Malcolm. But then Mr. Brown would "switch it up" and tell Mr. Malcolm that he loved him.

[34] At some point, they got into an argument about "building back" their relationship. Mr. Brown told Mr. Malcolm that he had "trust issues" because of Mr. Malcolm's past "infidelity" and "deceitfulness." Mr. Brown told Mr. Malcolm that he would not have sex with him because of those issues and Mr. Malcolm accused him of "withholding sex." During the argument, Mr. Brown pushed Mr. Malcolm to the floor.

[35] Mr. Malcolm told police he went to bed, but soon after Mr. Brown came into the bedroom, carrying a knife. He told Mr. Malcolm that he would use the knife to stab him in his sleep, then Mr. Brown put the knife down on the bed.

[36] Mr. Malcolm said that he was in bed and was hearing voices. The voices were telling him that Mr. Brown was going to kill him. The voices were "loud" and "inside his head." He described the voices as being like an "echo inside his head" and that it was like "zombies were bouncing off the walls in my head." The voices said that Mr. Brown was "evil" and that he was going to kill Mr. Malcolm.

[37] Mr. Malcolm told the police that he had heard the voices before. One of the voices sounded like Mr. Brown's sister. The other voices were also female. He explained that about a year and a half earlier, the voices told him to jump off a roof. When he attempted to jump off the roof as directed by the voices, his father pulled him back and prevented him from jumping. Mr. Malcolm also said that the voices had told him to do other things.

[38] Mr. Malcolm told police that he could usually "tolerate" the voices. However, on the day of the incident, the voices were speaking to him all morning. He explained that there had been a change in his medication and that he was "extremely stressed out." Mr. Malcolm said that the voices made him afraid. The voices were telling him that something was "wrong" with Mr. Brown, that he "wasn't natural, he was unreal, he was probably a Satan... Or a demon coming to attack" him.

[39] When asked how he felt about Mr. Brown's death, Mr. Malcolm replied that he felt "terrible." He explained that Mr. Brown was "everything" to him and was his "best friend." When the officer asked him why he stabbed Mr. Brown, Mr. Malcolm replied, "I had to. The -- the voices told me that I had to, so I had to." Mr. Malcolm told police that the "voices were quite convincing" because they just "continued, and they continued, and they continued."

[40] When asked for further details about the stabbing, Mr. Malcolm said that he did not remember and that it was "like I was automated during the incident." After the stabbing, he realized what had happened and called 911. When the officer asked Mr. Malcolm why he called 911, he responded that when saw Mr. Brown on the ground, he was extremely "shocked" and he thought to himself, "what happened", "what can I do" and "how can I save him."

[41] Mr. Malcolm told the officers that at the time of the stabbing, he was not in "complete control" because the voices told him to do it. He told police that he remembered "an intense rush of fear" when he picked up the knife. Mr. Malcolm said he recalled thinking that Mr. Brown would kill him. Mr. Malcolm also said that he did not know what happened and it was only when he saw Mr. Brown on the ground that he realized something had happened to Mr. Brown.

[42] At the end of the interview, the officer asked Mr. Malcolm if there was anything he wanted to change about what he had said. Mr. Malcolm replied, "you asked me earlier about how I see the incident -- if it's a murder. I don't see it as a murder." Mr. Malcolm then explained he did not think he had "the capacity of murder." He said instead, "maybe it could be manslaughter."

f) The Experts

[43] The defence relied on the evidence of two forensic psychiatrists. First, Dr. Lisa Ramshaw, who conducted a court-ordered assessment of Mr. Malcolm. Second, Dr. Derek Pallandi, who assessed Mr. Malcolm at the request of the defence.

[44] In reply, the Crown called Dr. Iosif, a forensic psychiatrist who also undertook a court-ordered assessment of Mr. Malcolm. The Crown also called Dr. Percy Wright, a forensic psychologist who conducted extensive testing of Mr. Malcolm at Dr. Ramshaw's request.

[45] The experts in this matter are all highly qualified and respected. All of them testify frequently in our courts. Each of them understood their duty and obligations to the court: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, at paras. 2, 30, and 32. The experts all largely followed the same methodology. They each reviewed voluminous information, albeit there were some differences in the materials each reviewed. As noted above, some of the information they relied upon forms part of the evidentiary record before me. Much of the information they relied upon, however, is not admissible evidence. As I will discuss later in these reasons, the weight to be accorded to the various experts will be impacted by the extent to which the opinions are founded on facts not established at the hearing.

[46] I will not outline the evidence of the experts in detail at this point but instead set out a summary of their opinions.

i) Summary of Dr. Ramshaw's Opinion

[47] Dr. Ramshaw was qualified as an expert in forensic psychiatry. Dr. Ramshaw opined that Mr. Malcolm was likely experiencing psychotic symptoms at the time of the incident. While she concluded that Mr. Malcolm likely suffered from an underlying psychotic disorder, she was unable to offer a firm diagnostic opinion. She offered four possibilities: substance-induced psychosis, schizophrenia, depression with psychotic features, or a brief psychotic disorder.

[48] Dr. Ramshaw testified that if Mr. Malcolm believed his husband was a demon who was going to kill him, he would be unable to assess the moral wrongfulness of his action. Dr. Ramshaw noted that she was providing an "if/then scenario" rather than a "firm opinion." Dr. Ramshaw explained that her opinion was based on the following analysis:

.... if he was psychotic and feared he was going to be killed. If he feared, if he truly feared that his husband was Satan and that there was those commands at the same time, so you have a double distortion of reality, delusions and auditory hallucinations of them in that context. But I can't tell you with the information I have whether he does, whether it truly is the case. So I am not providing like I often do, though not always, in this case a specific opinion of support or not support.

Dr. Ramshaw made clear that her opinion was "not definitive."

ii) Summary of Dr. Pallandi's Opinion

[49] Dr. Pallandi was qualified as an expert in forensic psychiatry. Dr. Pallandi testified that Mr. Malcolm has a major mental illness and was likely experiencing psychosis at the time of the killing. While he agreed that the specific diagnosis was difficult to determine, he testified that he believed it was likely that Mr. Malcolm had a primary mental illness, either schizophrenia or recurrent brief psychosis. He also noted that while it was less likely, there was also the potential of substance-induced psychosis.

[50] Dr. Pallandi concluded that Mr. Malcolm was likely psychotic at the time of the homicide. He noted that Mr. Malcolm was experiencing both command auditory hallucinations (voices telling him to kill his husband) and delusions (the belief that his husband was a demon). Dr. Pallandi opined that either would prevent Mr. Malcolm from knowing the moral wrongfulness of his actions. Dr. Pallandi testified that if Mr. Malcolm did not have a serious mental disorder, it is unlikely that he would have killed his husband.

iii) Summary of Dr. Iosif's Opinion

[51] Dr. Iosif was qualified as an expert in forensic psychiatry, the diagnosis and assessment of mental illnesses and their presentation, and the assessment of NCR. Dr. Iosif concluded that while Mr. Malcolm may have mental health issues, there is "little evidence to suggest that Mr. Malcolm suffers from a primary psychotic disorder." She explained that even if one accepted that Mr. Malcolm was experiencing some psychotic symptoms at the time of the killing, his symptom burden was very unlikely to render Mr. Malcolm incapable of assessing the moral wrongfulness of his actions.

iv) Summary of Dr. Wright's Testing

[52] Dr. Wright was qualified as an expert in forensic psychology, specifically in the administration and interpretation of psychological testing. Dr. Wright met with Mr. Malcolm in person twice. Dr. Wright observed Mr. Malcolm's affect to be responsive. Mr. Malcolm did not exhibit the "flat" affect often seen in those with a major mental illness.

[53] Dr. Wright administered several psychological tests to Mr. Malcolm. He explained that in NCR evaluations, such tests can provide information regarding whether the individual is underreporting or overreporting their difficulties. The testing can also assist in understanding whether the person has any residual positive or negative symptoms of a psychotic disorder.

[54] Because of the concerns surrounding Mr. Malcolm's claimed amnesia Dr. Wright administered the Test of Memory Malingering ("TOMM"). Dr. Wright testified that "malingering" is the "purposeful either exaggeration or fabrication of symptoms in order to get the desired outcome." Dr. Wright testified that Mr. Malcolm's scores on the TOMM were "fine."

[55] Dr. Wright also administered the Miller Forensic Assessment of Symptoms Test ("MFAST"). The MFAST screens for malingering. Mr. Malcolm scored a 6, which Dr. Wright testified is "really pretty high."

[56] Dr. Wright further administered the Structured Inventory of Malingered Symptoms test ("SIMS"). This test looks to see if someone is exaggerating or fabricating symptoms in several areas, such as psychosis and amnesia. On the SIMS, Mr. Malcolm scored an 11, which is below the current cut off of 14. Moreover, Dr. Wright explained that more recent studies suggest that the cut off should be as high as 23. That said, Mr. Malcolm's score in the area of malingered amnesia was elevated.

[57] Dr. Wright also administered the Shipley-2, which evaluates cognitive abilities in vocabulary, block patterns and abstract reasoning. Mr. Malcolm scored in the high-average range on the vocabulary and block pattern tasks. In contrast, Mr. Malcolm's score in abstract reasoning was average. Indeed, he scored 20 points below what he achieved in the vocabulary part of the test. Dr. Wright explained that the abstract weaknesses shown by Mr. Malcolm could be acquired and related to schizophrenia, or it could be long-standing. Dr. Wright believed the latter was more likely. He agreed with defence counsel, however, that the 20-point discrepancy was concerning.

[58] Dr. Wright also gave Mr. Malcolm the Rey Complex Figure Test, which evaluates visual-spatial skills and visual memory -- areas often impacted by schizophrenia. Mr. Malcolm scored in the high-average range. He did not exhibit any difficulties with his visual-spatial functioning or memory, areas that are typically impaired by psychotic disorders.

[59] In addition, Dr. Wright administered the Personality Assessment Inventory Test ("PAI"). The PAI is designed to identify whether an individual is overreporting or underreporting symptoms. Mr. Malcolm's results were mixed. There was some evidence of positive impression management. The results also showed some exaggeration on certain emotional issues. Mr. Malcolm showed some depression and anxiety. The test, however, did not reveal any strong indicators of current or past psychotic symptoms.

[60] Mr. Malcolm also underwent the Spectra test ("Spectra"). This is a short, self-report style test. The Spectra revealed some elevation on psychotic experience items. But the test did not show the type of functional impairment that would be expected if Mr. Malcolm were experiencing true psychotic symptoms. The mixed results on the Spectra were similar to the results on the PAI.

[61] Dr. Wright also administered the Anger Disorder Scale. This test suggested that Mr. Malcolm underreported his anger. In addition, Mr. Malcolm took the Trauma Symptom Inventory test. This test did not reveal elevated trauma. But according to Dr. Wright, the validity scale showed that Mr. Malcolm was not very open, which made the results difficult to interpret.

g) The Medical Information

[62] In assessing the NCR issue, the experts all considered Mr. Malcolm's self-reports about his past struggles with mental health. What Mr. Malcolm told the experts during the assessments, however, is hearsay and not proof of the facts: R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at para. 76.

[63] The experts also relied on voluminous medical records from CAMH. These records were filed on agreement pursuant to the business records exception to the hearsay rule.[^1] This agreement obviated the need for the medical staff who dealt with Mr. Malcolm to attend court to provide evidence about such matters as their observations of Mr. Malcolm, the diagnosis they gave him, or what medications they prescribed to him.

[64] That said, there are aspects of the records that remain hearsay. In general, whatever Mr. Malcolm reported to or told the medical staff is hearsay and not admissible for the truth. For example, Mr. Malcolm provided the staff information about past mental health issues, his current mental health struggles and his drug use. While the experts considered this information, it is hearsay.

[65] While much of what Mr. Malcolm told the staff is inadmissible, there is one exception. Evidence of odd, strange, or bizarre utterances made by Mr. Malcolm at the time he was interacting with the staff that suggest that he was delusional or suffering hallucinations may be admissible as original evidence going to his mental state at that time. For example, during one of his admissions to CAMH, Mr. Malcolm reported that he was hearing the voice of Justin Trudeau. Since this comment, and similar statements made by Mr. Malcolm, were not tendered as proof of a fact in issue, they are not hearsay. This has been referred to as the "preposterous statements" exception: R. v. Kirkby, 1985 CanLII 3646 (ON CA), [1985] O.J. No. 166 (C.A.), at paras. 57, 59; R. v. Fell, [2003] O.J. No. 1145 (S.C.), at para. 434, aff'd 2009 ONCA 551.

[66] In contrast, statements by Mr. Malcolm to the CAMH staff (or to the experts in this matter) that he had experienced delusions or hallucinations in the past are hearsay, and not admissible to establish that Mr. Malcolm in fact experienced those symptoms: Kirkby, at para. 59; Fell, at para. 434.

[67] Similarly, the parties also tendered jail records from Mr. Malcolm's time in custody. As with the CAMH records, this meant that the staff who made observations of and interacted with Mr. Malcolm did not have to testify. The statements made by Mr. Malcolm to the jail staff are hearsay, subject to the preposterous statements exception outlined above.

i) Mr. Malcolm's Self-Reports of Mental Health Issues While Living in Jamaica

[68] The experts all relied on Mr. Malcolm's self-reports regarding mental health issues he struggled with when he still lived in Jamaica.

[69] As the Crown highlights, what Mr. Malcolm told the experts about his mental health history varied in some respects from what he told the staff at CAMH in the past. And there is no doubt that Mr. Malcolm is an unreliable historian. The following general chronology, however, can be gleaned from Mr. Malcolm's various self-reports.

[70] Mr. Malcolm reported that he first suffered from depression in 2011 when he was diagnosed with HIV. In 2018 he reported that he became paranoid that people were following him and accessing his electronics remotely. He advised he was taken to Cornwall Regional Hospital in Montego Bay, Jamaica.

[71] Mr. Malcolm further reported that in September 2019, he attempted to kill himself by jumping off a building. He reported to some, but not others, that he had been hearing voices when he attempted suicide.

[72] Mr. Malcolm reported that because of his suicide attempt, he was admitted to Cornwall Regional Hospital for approximately one week. He advised that he had been using cannabis on a regular basis before his admission. While in some self-reports he attributed his psychotic episodes to cannabis use, at other times he linked the episodes to head trauma.

[73] Mr. Malcolm reported that after the incident in 2019, doctors prescribed risperidone, an anti-psychotic medication. Mr. Malcolm explained that by the time he came to Canada, he was no longer taking his medication.

ii) CAMH Records from July 2020

[74] On July 3, 2020, Mr. Brown brought Mr. Malcolm to CAMH. At the time Mr. Malcolm was acting bizarrely and disclosed to Mr. Brown that he was hearing the voice of Justin Trudeau. Mr. Malcolm told medical staff that he had consumed either crack cocaine and GHB, or methamphetamine, days before. Mr. Malcolm reported suicidal ideations.

[75] Mr. Malcolm was admitted to the CAMH Early Psychosis Unit, where he spent five days. Medical staff observed Mr. Malcolm to be talking to himself. He stared blankly at the nursing assessor who observed him to be responding to internal stimuli. Staff also noted a speech latency. He was described as unkempt, unshaven, and anxious. Yet he was also described as being calm and coherent, with a good rapport. Mr. Malcolm was diagnosed with either a substance-induced psychotic disorder or a primary psychotic illness, such as recurrent brief psychotic disorder or schizophrenia.

[76] Upon Mr. Malcolm's discharge, doctors prescribed risperidone, which he had been prescribed previously in Jamaica. He was also prescribed escitalopram (an anti-depressant) and lorazepam for anxiety.

iii) CAMH Records from January and February 2021

[77] On January 28, 2021, police brought Mr. Malcolm to CAMH after he was released on charges of assaulting Mr. Brown. He told the staff that he had stopped taking his medication in November. He also told them that he had relapsed and had been using cannabis in the week before his admission and methamphetamine two days before.

[78] Mr. Malcolm reported suicidal ideations and the formulation of a suicide plan to the triage nurse. Staff noted that Mr. Malcolm appeared to be thought blocking with speech latency. He presented as disorganized in terms of behaviour and thought processes and was unable to provide a complete history. He was also described as being calm and coherent with good rapport.

[79] Mr. Malcolm was placed on a Form 1 and admitted. He remained at CAMH until February 12, 2021. He was ultimately diagnosed with stimulant-induced psychotic disorder and major depressive disorder. The CAMH records disclose that Mr. Malcolm's medication was changed from oral risperidone to injectable and oral aripiprazole, a different anti-psychotic. His anti-depressant was also changed from escitalopram to bupropion. Medical staff noted that his psychotic symptoms rapidly improved.

iv) Follow up with Case Manager After Discharge from CAMH in February 2021

[80] On February 18, 2021, Mr. Malcolm spoke with his case manager, Sheilon Rogers. The case manager noted that Mr. Malcolm's affect was responsive, his thought content normal, and his thought process coherent. Mr. Malcolm denied any hallucinations, current substance use, or missed doses of medication.

[81] Mr. Malcolm missed his next two scheduled meetings with his case manager. He next spoke with Ms. Rogers on February 25, 2021. He was reported to be calm and pleasant with the worker. However, Ms. Rogers noted that Mr. Malcolm's affect was constricted and anxious. Mr. Malcolm denied any hallucinations or current substance use. He said he was taking his medication. He reported that he had finished his aripiprazole oral medication and was taking his bupropion.

v) The Jail Records

[82] After his arrest, Mr. Malcolm was taken to the Toronto South Detention Center. Staff there described him as calm and coherent with a flat affect and good rapport. Mr. Malcolm reported that he was struggling with "current abuse" of both cannabis and methamphetamine.

[83] On March 1, 2021, Dr. Kiran Patel, a doctor with the Forensic Early Intervention Service, saw Mr. Malcolm. Because of precautions related to covid, Dr. Patel spoke to Mr. Malcolm through the window hatch in the door. Mr. Malcolm reported several psychotic symptoms, including "confused" thoughts and paranoia. He reported visual hallucinations of "people on the floor" and voices talking to him about his case. He said that the voices had previously commanded him to hurt people and that he sometimes struggled not to obey. Dr. Patel characterized Mr. Malcolm's speech as normal in rate and his thought process as "organized."

[84] Mr. Malcolm was diagnosed with "unspecified schizophrenia spectrum and other psychotic disorder -- ongoing psychosis, rule out schizophrenia." Questions were raised about Mr. Malcolm's fitness to stand trial. He was treated with an aripiprazole injection (to be administered every four weeks) along with daily oral aripiprazole. He was also prescribed bupropion.

h) Collateral Witness Information

[85] In addition to the medical information, Dr. Ramshaw and Dr. Iosif obtained information from collateral witnesses. These witnesses did not testify. As a result, the information they provided is hearsay.

[86] Dr. Ramshaw interviewed Mr. Malcolm's mother, Pamela Boen-Malcolm. Ms. Boen-Malcolm told Dr. Ramshaw that Mr. Malcolm had an uncle with schizophrenia. She further advised Dr. Ramshaw that Mr. Malcolm had been unwell since 2018 and that he became worse in 2019. She described him as being depressed and paranoid. Once he told her to throw out all his clothing because they were "carrying the demon". She reported that Mr. Malcolm would talk about demons. She did not want to accept that he had a mental illness and so attributed his odd comments to his consumption of cannabis. However, after he tried to jump off the roof, she said he was diagnosed with schizophrenia and given medication.

[87] Ms. Boen-Malcolm said that she would talk with her son by phone after he moved to Canada. She advised that about four months after he arrived in Canada, she believed he was "sick" again, because his voice did not sound the same. She further recalled that after he was discharged from the hospital in February 2021, he "wasn't in his right mind."

[88] Dr. Ramshaw also spoke with Mr. Malcolm's long-time friend, Mr. Baird. Mr. Baird told Dr. Ramshaw that Mr. Malcolm came to stay with him after he had been charged with assaulting Mr. Brown. According to Mr. Baird, Mr. Malcolm told him he had been diagnosed with schizophrenia and had been given medication. Mr. Malcolm expressed concern about the impact of the charge on his refugee status.

[89] Mr. Baird noticed that Mr. Malcolm was acting oddly during the time he stayed with him. He had difficulty sleeping and was "staring into space a lot." Mr. Malcolm was "not formulating thoughts properly." His conversations were shifting, and he would get lost in the middle of a sentence. Mr. Malcolm also believed that he was being tracked by Mr. Brown. Although Mr. Baird discouraged it, Mr. Malcolm went back to stay with Mr. Brown. On the night of the incident, Mr. Malcolm called Mr. Baird at around 2:00 a.m. and said, "something bad just happened and I don't know if I will see you again."

[90] Dr. Iosif also spoke with Mr. Baird. He told Dr. Iosif that when Mr. Malcolm came to stay with him after being released from CAMH in February 2021, he noticed a "drastic change" in the way Mr. Malcolm spoke. Mr. Baird described him as "very paranoid" and anxious. He further described Mr. Malcolm as being a "shell of himself." Mr. Baird observed Mr. Malcolm to just sit and "stare." He was sleeping only minimally, and his mind seemed to be "everywhere."

[91] Shortly after arriving at Mr. Baird's apartment, Mr. Malcolm told him that Mr. Brown was tracking his phone. Mr. Brown started calling Mr. Malcolm frequently, asking him to come back to their apartment. Eventually Mr. Malcolm did return home.

[92] Mr. Baird said that at approximately 3:00 a.m. on the night of the incident, Mr. Malcolm texted him something to the effect of, "I did something very wrong...something bad happened...I think I am going to jail." Mr. Baird read the text at around 4:00 a.m. and began frantically calling Mr. Malcolm, to no avail. He then read about the stabbing in the news.

i) Mr. Malcolm's Claimed Amnesia About the Incident

[93] While Mr. Malcolm recalled the stabbing when he gave his statement to the police, by the time he spoke with the experts he professed to have no memory of what happened. Each of the experts had to grapple with Mr. Malcolm's purported amnesia of the event and how that impacted their assessment.

[94] As Dr. Ramshaw stressed, one of the biggest hurdles in completing Mr. Malcolm's assessment was his professed lack of memory. Dr. Ramshaw explained that sometimes people who are experiencing psychosis are unable to create memories in their psychotic state and thus are unable to access those memories later. Dr. Ramshaw highlighted that Mr. Malcolm also professed to have memory issues surrounding his previous admissions to CAMH. As she noted, there would be no obvious reason for Mr. Malcolm to lie about having amnesia about this hospital admission. Given that, Dr. Ramshaw believed Mr. Malcolm's claimed inability to recall his prior hospital admissions was likely true and a product of psychosis.

[95] Dr. Ramshaw had concerns, however, about Mr. Malcolm's claim that he could not recall the stabbing. As she explained, it would be unusual for someone to not recall an extreme event such as the one Mr. Malcolm experienced. Thus, Dr. Ramshaw was not convinced that Mr. Malcolm truly has amnesia about the event. She noted that it was possible that the experience was too overwhelming to discuss, or he just did not want to talk about it. Dr. Ramshaw agreed that if Mr. Malcolm's goal was to be found NCR, it would have been in his best interest to simply reiterate what he told the police about the stabbing when speaking with the experts.

[96] Dr. Pallandi testified that he had concerns about Mr. Malcolm's memory issues. But he agreed that people in a psychotic state can have difficulty with memory recall, describing it like trying to listen to a staticky radio. Dr. Pallandi noted that Mr. Malcolm also claimed that he had no memory of his prior admissions to CAMH. Dr. Pallandi highlighted, as did Dr. Ramshaw, that Mr. Malcolm's professed amnesia makes little sense if Mr. Malcolm's goal is to be found NCR.

[97] Dr. Iosif found Mr. Malcolm's professed lack of memory to be concerning. She was of the view that Mr. Malcolm was feigning his amnesia. She testified that his claim of lack of memory was "neither credible nor reliable." Her belief that he was malingering his amnesia was important to her conclusion that Mr. Malcolm was not NCR.

The Legal Framework

i) The Applicable NCR Test

[98] Section 16(1) of the Criminal Code provides that no one is criminally responsible for an act committed while suffering from a mental disorder that rendered them incapable of appreciating the nature and quality of the act or of knowing that it was wrong. There is a statutory presumption that every person is sane and responsible for their own actions, unless the contrary is proven on a balance of probabilities by the party raising the issue: Criminal Code, s. 16(2) and (3).

[99] An assessment of the defence of NCR involves two stages. At the first stage, the question to be asked is whether it has been established on a balance of probabilities that the accused has a mental disorder that was active at the time of the offence. If the answer is no, the defence of NCR fails. If the answer is yes, then the court must go on to the second stage.

[100] The second stage considers the issue of incapacity. There are two questions to grapple with at the second stage. The first question asks whether it has been established on a balance of probabilities that the accused was incapable of appreciating the nature and quality of their actions. The second question asks whether it has been established on a balance of probabilities that because of the mental disorder the accused was incapable of knowing that their actions were wrong. If the answer to either of the incapacity questions is yes, then the accused should be found NCR.

ii) The Role of Experts

[101] As stated in R. v. Molodowic, 2000 SCC 16, at para. 10, "[a] proper understanding and weighing of expert opinion often plays a central role in the determination of whether or not an accused should be found not guilty by reason of mental disorder." While expert evidence is often relied upon in cases where a s. 16(1) defence is advanced, the ultimate determination of whether an accused was NCR at the time rests with the court, not the experts.

[102] In R. v. Worrie, 2022 ONCA 471, at para. 102, the court summarized the approach to be taken when dealing with expert evidence. The court highlighted that the probative value of expert evidence is to be assessed in the same manner as any other testimony. A trier of fact is not bound by the expert psychiatric opinions even if the opinions are unanimous and uncontradicted by other experts: see also Molodowic, at para. 8.

[103] That said, there must be a rational foundation in the evidence to reject the expert opinion. A rational basis for rejecting expert opinion evidence that an accused is NCR may consist of, among other things, a flaw in the expert's reasoning, a frailty in the basis for the opinion, or a conflict between the opinion and the inferences that can be drawn from the other evidence: see also R. v. Richmond, 2016 ONCA 134, at para. 58.

[104] The weight to be afforded to a psychiatric expert opinion is linked to the factual foundation established in court. The more that an expert relies on facts not in evidence, the less weight the opinion will carry. As stated in R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, at para. 52, "...[b]efore any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist." Where an expert opinion is based on a mix of hearsay and non-hearsay, the weight accorded to the opinion is directly related to the amount and quality of non-hearsay evidence upon which it is based: Lavallee, at para. 92.

[105] With the legal framework in mind, I turn to the questions raised in this matter.

1) Has the defence established on a balance of probabilities that Mr. Malcolm was suffering from a disease of the mind that was active at the time of the stabbing?

[106] Section 2 of the Criminal Code defines a "mental disorder" as a "disease of the mind." A "disease of the mind" encompasses "any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding, however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion": see R. v. Cooper, 1979 CanLII 63 (SCC), [1980] 1 S.C.R. 1149, at para. 5; R. v. Bharwani, 2025 SCC 26, at para. 53.

[107] As highlighted in R. v. Bouchard-Lebrun, 2011 SCC 58, at para. 61, "disease of the mind" is a legal concept with a medical dimension. Although medical experts play an essential role in the analysis, the ultimate decision of whether a particular mental condition can be characterized as a mental disorder must be decided by the trial judge.

[108] I have competing expert evidence on the issue of whether Mr. Malcolm suffered from a disease of the mind that was active at the time. Dr. Ramshaw and Dr. Pallandi, while differing in the precise mental disorder, both opine that Mr. Malcolm had an active disease of the mind at the time of the killing. In contrast, Dr. Iosif asserted that Mr. Malcolm did not have a mental disorder at the relevant time.

[109] I propose to deal first with my assessment of Dr. Iosif's evidence. Dr. Iosif relied heavily on the information Mr. Malcolm provided in his statement to the police in coming to her opinion that Mr. Malcolm was not psychotic at the relevant time. The statement, of course, was not admitted as substantive evidence before me. Similarly, Dr. Iosif relied on her interview with Mr. Baird in concluding that Mr. Malcolm did not have a mental disorder at the relevant time. Dr. Iosif's reliance on hearsay lessens the weight to be afforded to her opinion.

[110] Dr. Iosif noted that when Mr. Malcolm spoke with the police, he seemed to be calm and to have a good rapport. She was of the view that the way Mr. Malcolm presented in his statement was inconsistent with psychosis. Dr. Iosif, however, did not explain how to reconcile this view with Mr. Malcolm's documented history, which suggested that he often appeared calm despite being psychotic. As highlighted by the defence, when Mr. Malcolm was admitted to CAMH in July 2020, staff described him as being calm and with good rapport, despite being actively psychotic. Similarly, when Mr. Malcolm was actively psychotic in February 2021, CAMH staff again noted that he was calm and had good rapport.

[111] There were other issues with Dr. Iosif's evidence. For example, Dr. Iosif testified that Mr. Malcolm was "quite frantic" on the 911 call. She relied on this in formulating her opinion, noting that this would be normal behaviour for someone who had just killed their husband. She agreed that it would be "odd in a psychiatric way if the person was completely calm and flat in their affect." I found Dr. Iosif's characterization of how Mr. Malcolm presents on the 911 call to be difficult to reconcile with what can be heard on the recording. I agree with the defence that any reasonable listener would describe Mr. Malcolm as showing little emotion and presenting as quite flat. As the 911 operator testified, in the 911 call Mr. Malcolm comes across as "eerily calm."

[112] By way of another example, Dr. Iosif based her opinion that Mr. Malcolm was not psychotic at the time in part on her belief that he told the booking officer that he was "not in crisis." Indeed, she put that purported utterance of Mr. Malcolm in quotes in her report. But Dr. Iosif was wrong. Mr. Malcolm did not say that. He said the opposite. When the booking officer asked Mr. Malcolm if he was in crisis, he responded, "probably, yes."

[113] Further, in examination in chief, Dr. Iosif noted that Mr. Malcolm reported that he could speak back to the voices in his head. Dr. Iosif dismissed this report as "impossible." She stated, quite firmly, that "one cannot speak back to the voices, one cannot carry a dialogue with the voices." Yet, in cross-examination, Dr. Iosif agreed that someone hearing a voice "may have a conversation" with the voice, or it may be more subtle, such as the person looking off to the side, pausing or saying something that is not the subject of a reality-based conversation. Dr. Iosif also agreed that "walking down Queen Street, you can see people fully engaged in conversations with people that are not there." I found her varying evidence about whether someone hearing voices could speak to the voices puzzling.

[114] Dr. Iosif also testified in examination in chief that a major depressive disorder "consists of presentation of low mood for several weeks, potentially months, and the symptoms become extremely severe." She told the Crown that "one sees a person who is severely depressed for a long period of time and then the low mood essentially evolves into unusual ideas and experiences." Dr. Iosif then told the Crown that she did not believe that Mr. Malcolm had major depressive disorder at the relevant time, because it "did not seem to be that Mr. Malcolm had endorsed low mood in the months leading up to the index offence." I took from Dr. Iosif's evidence in chief that low mood and depression were essentially equivalent. The issue Dr. Iosif seemed to have had was that Mr. Malcolm did not report low mood in a time proximate to the offence.

[115] In cross-examination, defence counsel showed Dr. Iosif records suggesting that Mr. Malcolm had endorsed low mood in the month leading up to the stabbing. For example, upon his admission to CAMH on January 28, 2021, Mr. Malcolm reported feeling "overwhelmed and hopeless." He also reported suicidal ideations with "a plan to hang himself." There was a note from CAMH staff regarding Mr. Malcolm's "low mood." On February 10, 2021, Mr. Malcolm reported using "crystal meth" to combat "low mood." Another note reported that Mr. Malcolm was being prescribed mirtazapine off label for drug cravings and for "low mood."

[116] When shown this information, Dr. Iosif replied, "so the examples that you actually showed me talk about low mood. Low mood is not the same as depression." I was surprised when Dr. Iosif said this. Her evidence seemed inconsistent with her evidence in chief, where she seemed to equate low mood and depression.

[117] Defence counsel then showed Dr. Iosif a record from January 2021, when Mr. Brown had reported to CAMH staff that Mr. Malcolm was "depressed." Dr. Iosif responded that "the fact that a person has a low mood does not mean that they are depressed." Defence counsel clarified that Mr. Brown had said specifically that Mr. Malcolm was depressed, not that he had a low mood. Dr. Iosif responded that Mr. Brown was not a psychiatrist. When defence counsel highlighted that Mr. Brown was a doctor, she replied, "[j]ust because another doctor says someone is depressed, doesn't mean that someone is depressed."

[118] I was troubled by Dr. Iosif's testimony in this area. She seemed to be trying to joust with counsel, rather than answering the questions in a fair and objective way. She came across as intransigent. Her refusal to revisit or reconsider her conclusion that Mr. Malcolm was not depressed, despite being provided information that suggested he may have been, was concerning.

[119] I had other concerns with Dr. Iosif's testimony but do not see the utility in outlining them any further. Suffice to say, given Dr. Iosif's reliance on hearsay in coming to her opinion, along with the concerns I have identified, I am not prepared to rely on her opinion.

[120] Of course, as noted by Crown counsel, the defence has the onus. A rejection of Dr. Iosif's opinion does not necessarily mean that the defence prevails. While both Dr. Ramshaw and Dr. Pallandi concluded that Mr. Malcolm was suffering from a mental disorder at the time of the stabbing, the Crown urges me to reject their opinions.

[121] Both Dr. Ramshaw and Dr. Pallandi relied to some extent on comments made by Mr. Malcolm in his statement to the police. As with Dr. Iosif, that decreases the weight to be accorded to their opinions. Similarly, both Dr. Ramshaw and Dr. Pallandi relied on Mr. Malcolm's self-reports in coming to their conclusion that he was actively psychotic at the relevant time. Dr. Ramshaw also relied on interviews with collateral witnesses who did not testify. The reliance of both Dr. Ramshaw and Dr. Pallandi on hearsay and information that did not become evidence at this trial lessens the weight to be given to both of their opinions.

[122] On the other hand, on the issue of whether Mr. Malcolm was suffering from a disease of the mind at the time of the stabbing, both Dr. Ramshaw and Dr. Pallandi relied on several pieces of admissible evidence. The evidence they relied on included the CAMH records from January and February 2021. Based on the observations reported in the records, it seems clear that Mr. Malcolm was suffering from a psychotic episode at the time of his admission, a month before the stabbing. The CAMH doctors prescribed an injectable anti-psychotic, and an oral anti-psychotic. As Dr. Pallandi observed, anti-psychotic medications are "serious." Such medication would not be prescribed lightly or unnecessarily. The CAMH records shine some light on Mr. Malcolm's unstable mental health in a time proximate to the stabbing.

[123] The admissible evidence also establishes that the anti-psychotic given to Mr. Malcolm in January/February 2021, shortly before the stabbing, was aripiprazole. This was a different anti-psychotic than the one Mr. Malcolm had taken in the past. Dr. Ramshaw testified that aripiprazole does not work for everyone. She described it as "not the best anti-psychotic" and "mediocre at best." Dr. Ramshaw said that a change in medication, like the one in Mr. Malcolm's case, can cause a change in symptoms and be a risk factor for psychosis. Dr. Ramshaw also testified that the fact that Mr. Malcolm was given an injectable medication further compounded his vulnerabilities, as it takes a while for injectable medication to reach a steady state.

[124] The 911 call is also admissible. As noted, despite the horror of the situation, Mr. Malcolm was "eerily calm." Mr. Malcolm told the operator that Mr. Brown was sitting in a chair, gasping for air. But there was no blood on any of the chairs in the apartment. This supports the inference that Mr. Malcolm was having reality-based issues at the relevant time. Moreover, Mr. Malcolm told the 911 operator that his husband was a demon, that he was hearing voices, and that the voices told him to kill his husband. This is some evidence to support the inference that Mr. Malcolm was suffering from delusions at the relevant time.

[125] Both Dr. Ramshaw and Dr. Pallandi relied on several pieces of admissible evidence in reaching their conclusion that Mr. Malcolm was likely suffering from a psychotic episode at the time of the stabbing. In my view, it is appropriate to give weight to their opinions on the issue of whether Mr. Malcolm was suffering from a mental disorder that was active at the time of the stabbing.

[126] Looking at the totality of the admissible evidence, I am persuaded on a balance of probabilities that Mr. Malcolm was suffering from a disease of the mind that was active at the time that he stabbed and killed Mr. Brown.

2) Has the defence established on a balance of probabilities that Mr. Malcolm was incapable of appreciating the nature and quality of his actions?

[127] The capacity to appreciate the nature and quality of an act means simply that the person must have the capacity to know what they are doing and the capacity to estimate and understand the physical consequences that would flow from their actions: R. v. Kjeldsen, 1981 CanLII 218 (SCC), [1981] 2 S.C.R. 617, at p. 623. The question is whether Mr. Malcolm had the capacity to know what he was doing (in this case, repeatedly stabbing Mr. Brown) and to estimate and understand that his conduct was causing physical injury that could result in Mr. Brown's death: R. v. Langevin, 2024 ONSC 2524, at para. 31.

[128] All three experts concluded that Mr. Malcolm likely appreciated the nature and quality of his actions. Based on the evidence, defence counsel concedes that Mr. Malcolm likely could appreciate the nature and quality of his actions.

[129] I agree with this reasonable concession. Based on the totality of the evidence, I am satisfied on a balance of probabilities that Mr. Malcolm appreciated the nature and quality of his actions when he repeatedly stabbed Mr. Brown.

3) Has the defence established on a balance of probabilities that Mr. Malcolm was incapable of appreciating that his actions were morally wrong?

[130] The second branch of the s. 16 test considers whether an accused appreciated that their actions were "wrong." Wrong in this context means more than legally wrong. Rather, wrong refers to morally wrong, according to the "moral standards of society" or the "ordinary moral standards of reasonable members of society": R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, at paras. 97 and 101.

[131] The applicable test where the NCR claim is founded on the assertion of an incapacity to know that one's acts are morally wrong is set out in R. v. Oommen, 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507. As explained in Oommen, at para. 21, the inquiry focuses on the ability to know that a particular act was wrong in the circumstances instead of just the general capacity to know right from wrong. The court must determine if the accused was incapable of understanding that their acts were wrong according to the ordinary moral standards of reasonable members of the community: R. v. Woodward, 2009 ONCA 911, at para. 5.

[132] Even if the conduct of an accused resulted from their delusions, the defence of NCR is not available if the accused was capable of knowing, despite the delusion, that their conduct in the particular circumstances would have been morally condemned by reasonable members of society: R. v. Ratti, 1991 CanLII 112 (SCC), [1991] 1 S.C.R. 68, at para. 21.

[133] The inability of a person accused of a crime to exercise the same degree of judgment as a person without a disease of the mind is a "long way removed" from being incapable of knowing that their actions are wrong according to the "normal standards of members of the community": R. v. Guidolin, 2011 ONCA 264, at para. 22. Further, a subjective belief by an accused that their conduct was justifiable does not suffice to exempt them from criminal responsibility, even if their actions were driven by a mental disorder, so long as they have the capacity to know that the conduct would be viewed as wrong by reasonable members of society: Chaulk, at para. 98; R. v. Ross, 2009 ONCA 149, at para. 27.

[134] In R. v. Dobson, 2018 ONCA 589, at para. 24, leave to appeal refused [2019] S.C.C.A. No. 70, Doherty J.A. explained that the defence of NCR is not available to an accused who knew that society regarded their actions as morally wrong yet proceeded to commit the actions anyway. He noted that the defence is not open to an accused even if they believed that they had no choice but to act or that their acts were justified.

[135] But, as Doherty J.A. further explained in para. 24, if an accused, "through the distorted lens" of their mental illness, saw their conduct as justified, not only according to their own views, but also according to the "norms of society", then that accused would lack the capacity to know that their actions were wrong. Similarly, an accused, who on account of their mental disorder, lacks the capacity to assess the wrongness of their conduct against societal norms would also be incapable of knowing their acts were wrong. In either case, the accused would have an NCR defence.

[136] I turn now to the question of whether the defence has established on a balance of probabilities that Mr. Malcolm was incapable of appreciating the moral wrongfulness of his actions.

[137] The Crown asserts that the evidence supports that Mr. Malcolm had the capacity to know that his actions were morally wrong. In so arguing, the Crown relies heavily on Woodward, at para. 6, where the court noted that it is "difficult to see how an individual like the appellant who knew his actions were legally wrong would be incapable of understanding that the same acts would be regarded as morally wrong by the community." The Crown points to the fact that when Mr. Malcolm was speaking with the 911 operator, he said he wanted to wait to speak to a lawyer before providing more information about the stabbing. The Crown argues that this shows that Mr. Malcolm was clearly aware he had committed a crime, which pursuant to the reasoning in Woodward supports that he knew his actions were morally wrong.

[138] I am not persuaded by this argument for three reasons. First, Mr. Malcolm was trained as a lawyer. As Dr. Ramshaw explained, it is not unusual that Mr. Malcolm's legal training would kick in, even if Mr. Malcolm were in a psychotic state.

[139] Second, in Chaulk, the Supreme Court specifically cautioned against conflating the moral wrongfulness analysis with the legal wrongfulness analysis. As Lamer C.J.C. stated at para. 97, a "person may well be aware that an act is contrary to law but by reason of ... disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society."

[140] Third, I am concerned that it would be improper to draw an adverse inference against Mr. Malcolm for exercising his constitutional right to silence: R. v. Pestill, 2024 ONSC 4459, at para. 213. In Woodward, the court did not seem to be dealing with any right to silence issues. Here, Mr. Malcolm chose to remain silent. He was constitutionally entitled to do so. I thus decline to place any weight on the fact that he told the 911 operator that he did not wish to provide any further information until he spoke with a lawyer.

[141] The Crown also argues that the opinions of Dr. Ramshaw and Dr. Pallandi are entitled to little weight since both experts relied heavily on inadmissible evidence. I find this argument to be more persuasive.

[142] On the moral wrongfulness issue, both Dr. Ramshaw and Dr. Pallandi relied on information that did not form part of the evidentiary landscape before me. That impacts the weight to be accorded to their opinions. Ultimately, when I consider the extent of the inadmissible evidence relied upon by both experts, I find I am unable to place much weight on their opinions. To be clear, they are not to be faulted for relying on unproven evidence. That was their task -- to sift and sort through all the information available to them in formulating their opinions.

[143] My task is different. I must sift and sort through the voluminous information provided to the court, and determine what information is admissible. Then, considering only the admissible evidence, I must determine if the defence has met its onus.

[144] Mr. Malcolm did not testify. I have no evidence from him to assist in evaluating whether at the time he stabbed Mr. Brown, he was incapable of appreciating that his actions were morally wrong. I have no evidence from him as to why he killed his husband. I have no evidence as to what he was thinking or experiencing at the time of the stabbing. Anything that Mr. Malcolm told the experts is inadmissible hearsay. Information from the collateral witnesses is inadmissible hearsay. The statement Mr. Malcolm gave to the police is not evidence. Anything that Mr. Malcolm told the police about voices telling him to kill his husband or believing that his husband was Satan is inadmissible hearsay.

[145] On the issue of whether Mr. Malcolm had the capacity to understand the moral wrongfulness of his actions there is sparse admissible evidence. The most salient evidence I have on the moral wrongfulness issue comes from the 911 call. There Mr. Malcolm said that his husband was a demon. He said he was hearing voices. And, in response to a leading question from the 911 operator, Mr. Malcolm said that the voices told him to kill his husband.

[146] Based on the 911 call, and the other admissible evidence, I find that it is distinctly possible that Mr. Malcolm did not appreciate that his act of stabbing Mr. Brown was morally wrong. But that is not the test. In a similar vein, I have no doubt, as testified to by both Dr. Ramshaw and Dr. Pallandi, that but for the mental health issues Mr. Malcolm was struggling with at the time, the stabbing would not have occurred. But that is also not the test. As noted in R. v. Mann, 2019 ONSC 1949, at para. 61, the fact that "an accused would not have committed the offence were [they] not suffering from a mental disorder, does not establish that the accused is NCR."

[147] Considering only the admissible evidence, I am unable to find on a balance of probabilities that Mr. Malcolm was incapable of appreciating that stabbing his husband was morally wrong according to the ordinary moral standards of reasonable members of society.

[148] As a result, I find that the defence of NCR has not been made out.

4) Has the Crown established beyond a reasonable doubt that Mr. Malcolm had the necessary intent for murder.

[149] A person commits homicide when, directly or indirectly, by any means, they cause the death of a human being: Criminal Code, s. 222(1). Pursuant to s. 222(5)(a), a person commits culpable homicide when they cause the death of another person by an unlawful act. A culpable homicide is murder where the accused causes the death of another person, and the accused either intended to cause their death, or intended to cause them bodily harm that the accused knew was likely to result in death and was reckless as to whether death ensued: Criminal Code, s. 229(a)(i) and s. 229(a)(ii).

[150] Mr. Malcolm stabbed Mr. Brown repeatedly. There is no dispute that in so doing, Mr. Malcolm caused Mr. Brown's death by an unlawful act. The defence argues, however, that the Crown has failed to establish beyond a reasonable doubt that Mr. Malcolm had the requisite intention for murder.

[151] The starting point of the analysis is that Mr. Malcolm is presumed innocent. As in all criminal cases, the onus rests entirely on the Crown to prove his guilt beyond a reasonable doubt. Proof beyond a reasonable doubt is a very high legal standard. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is logically derived from the evidence or absence of evidence. Proof of likely or even probable guilt is not enough to ground a criminal conviction. On the other hand, proof to a level of absolute certainty is also not required, as that standard is impossibly high. To convict Mr. Malcolm of murder, I must be sure that he had the requisite intention.

[152] The prosecution's case relies largely on circumstantial evidence to prove that Mr. Malcolm had the necessary intent to ground a finding of guilt for murder. As a result, he must not be convicted of murder unless his guilt for that offence is the only reasonable inference considering all the evidence, or the absence of evidence: see R. v. Villaroman, 2016 SCC 33, at paras. 30-42.

[153] As explained in R. v. Seymour, 1996 CanLII 201 (SCC), [1996] 2 S.C.R. 252, at para. 19, in determining an accused's state of mind at the time an offence was committed, the trier of fact may draw the inference that "sane and sober persons intend the natural and probable consequences of their actions." If a person acts in a way that is likely to produce a certain result it generally will be reasonable to infer the person foresaw the probable consequences of their action. However, different considerations apply when there is evidence that an individual, such as Mr. Malcolm, has mental health issues.

[154] As observed by Copeland J. (as she then was), in R. v. MacKinnon, 2021 ONSC 4763, at para. 730, whether the intent required for murder is proven to the requisite standard is a factual question. The whole of the evidence must be assessed. Any evidence that may have had an impact on the accused's mind at the relevant time must be considered.

[155] Even where the defence of NCR has not prevailed, evidence that the accused suffered from a disease of the mind at the time of the homicide may be relevant to whether the Crown has proven that the accused had the required intent for murder. As explained in R. v. Spence, 2017 ONCA 619, at para. 49, "outside of the s. 16 framework, evidence of mental illness is capable of undermining the mental element for murder in s. 229(a) (thereby reducing liability from second-degree murder to manslaughter)."

[156] Here, defence counsel argues that the "cumulative impact of [Mr. Malcolm's] mental disturbance, his genuine fear that Mr. Brown was going to kill him, and Mr. Brown's ongoing abuse and cruel comments, reduced Mr. Malcolm's level of intent from murder to manslaughter."

[157] As in the analysis with respect to NCR, it is important to be clear about what evidence is admissible. In their submissions on the intention issue, defence counsel relied heavily on what Mr. Malcolm told the police in his statement: see Defence Written Submissions, paras. 147, 149-151. For example, defence counsel points out that in his statement, Mr. Malcolm told the police that his husband had been emotionally and physically abusive. Similarly, defence counsel highlights that Mr. Malcolm told the police that on the night of the incident, Mr. Brown had made cruel comments towards him. Defence counsel also notes that Mr. Malcolm told police that Mr. Brown had told him he was "nothing" and would be replaced. Defence counsel also relies on Mr. Malcolm's comment to the police that his husband told him he was going to kill him, and he felt "an intense rush of fear." Mr. Malcolm's statement to the police, however, is not admissible evidence.

[158] The admissible evidence establishes that Mr. Malcolm stabbed Mr. Brown repeatedly. The scene is horrific. The pathology evidence showed that Mr. Brown sustained 30 sharp-force injuries, two of which would have been fatal. Mr. Brown had defensive wounds. He yelled out for help. Within minutes of stabbing Mr. Brown, Mr. Malcolm called 911. He reported that he had killed his husband. He told the 911 operator that he was hearing voices -- voices that told him his husband was a demon who was going to kill him.

[159] This is a challenging case. I have no doubt that Mr. Malcolm was struggling with a mental disorder at the time he stabbed his husband. I also accept that but for his mental health issues, he would not have killed Mr. Brown. But I am satisfied that despite any mental health issues, Mr. Malcolm knew that he was stabbing his husband repeatedly. Mr. Malcolm knew that he was causing significant injuries to Mr. Brown as he stabbed him. Mr. Malcolm knew that the injuries he was inflicting were likely to cause death to Mr. Brown, yet he recklessly continued anyway.

[160] At the end of the day, I am unsure if Mr. Malcolm intended to kill Mr. Brown. But looking at the totality of the evidence, I am satisfied beyond a reasonable doubt that Mr. Malcolm intended to cause Mr. Brown bodily harm that he knew was likely to cause death to Mr. Brown and was reckless as to whether death ensued. That is the only reasonable inference available on the evidence.

[161] As a result, I find Mr. Malcolm guilty of second-degree murder.

Justice Heather McArthur

Released: March 12, 2026

[^1]: The parties confirmed on January 28, 2026, that the records were filed pursuant to the business records exception.