Superior Court of Justice — Ontario

Court File No.: CR-2023-26

Date: 2026/02/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Robert Ballard, Defendant

Counsel: Gracie Romano, for the Crown Genevieve Eliany / Ian McCuaig, for the Defendant

HEARD: November 10, 14, 17, 18, 26, 28

Reasons for Judgment

THE HONOURABLE JUSTICE A.D. HILLIARD

Overview

[ 1 ] Robert Ballard is charged with second degree murder in relation to the death of Michael Murray on March 30, 2021.

[ 2 ] The trial was conducted without a jury. Mr. Ballard pleaded not guilty to second degree murder. He did, however, acknowledge that he caused the death of Mr. Murray.

[ 3 ] Mr. Ballard raised the following two issues in his defence: 1) he was not criminally responsible (NCR) on account of mental disorder; or, in the alternative, 2) he did not have the requisite mens rea for second degree murder. If Mr. Ballard is found NCR, the issue of mens rea need not be addressed.

Background

[ 4 ] The general circumstances of the offence are not in dispute.

[ 5 ] Mr. Ballard and Mr. Murray met and became friends when both men were residing at the Maple Leaf Motel just outside of the town of Delhi, Ontario in late 2020.

[ 6 ] In March 2021, Mr. Murray moved out of the Maple Leaf Motel and into an apartment on King Street in town. Mr. Ballard occasionally visited Mr. Murray at his apartment. They had frequent contact through text messages. Leading up to the day Mr. Murray was killed, Mr. Ballard's text messages became increasingly bizarre. Mr. Murray had advised his parents about the messages he was receiving from Mr. Ballard, telling them he wanted to get his friend help.

[ 7 ] On March 29, 2021, Mr. Murray visited with his parents. He left at approximately 4:30 p.m. complaining of a headache. He told his parents he was going home but would return the following day and cook them dinner.

[ 8 ] Sometime late night on March 29 or in the early morning hours of March 30, Mr. Ballard went to Mr. Murray's residence. There was no sign of forced entry. With a mallet and kitchen knives, Mr. Ballard beat and stabbed Mr. Murray multiple times in the head and torso.

[ 9 ] In the afternoon of March 30, after not hearing from their son as expected, Mr. Murray's parents attended at his apartment to check on him. They found their son lying on the floor in the front foyer. He was without vital signs when paramedics arrived and was declared deceased. The coroner determined the cause of death to be blunt force trauma to the head and upper torso.

[ 10 ] Mr. Ballard was discovered that same afternoon in an attached garage of a house in Delhi. When confronted by the homeowner Mr. Ballard claimed he was running away from people who were trying to kill him. The homeowner observed Mr. Ballard to be disoriented and confused. He walked away from the residence towards the commercial area of town.

[ 11 ] Police arrested Mr. Ballard shortly thereafter for break and enter. Mr. Ballard was sitting on the pavement when police arrived not wearing shoes or a shirt.

[ 12 ] Police did not locate any drugs or drug paraphernalia on Mr. Ballard's person during the search incident to arrest. Although the arresting officer was of the view that Mr. Ballard appeared to be under the influence of a substance given his demeanour, there was no drug testing done to determine what substances, if any, were in Mr. Ballard's system.

[ 13 ] Mr. Ballard was initially compliant with police upon his arrest and during transport to the detachment. However, once at the detachment, after he had an opportunity to speak with his lawyer and was lodged in cells, Mr. Ballard became agitated, smeared feces on the cell walls and on the surveillance camera obscuring the view into the cell. When officers attempted to move Mr. Ballard to a new cell, he became physically combative. It took four (4) officers to get Mr. Ballard moved to a clean cell.

[ 14 ] Due to Mr. Ballard's presentation after his arrest and detention, the officer in charge of the investigation into Mr. Murray's death made the decision not to interview Mr. Ballard on March 31, 2021. Mr. Ballard made a brief appearance in bail court, then he was remanded into custody and transported to Hamilton Wentworth Detention Centre (HWDC).

[ 15 ] Mr. Ballard was medically assessed upon his admission to HWDC. His prescribed medications were noted in his record. He did not report any suicidal thoughts. In the assessment record there is a query as to whether Mr. Ballard is bipolar. Depression and anxiety were noted, along with some minor physical injuries. Nothing else was noted in the medical records as to Mr. Ballard's mood or affect upon admission.

[ 16 ] Mr. Ballard was medically assessed next on April 1, 2021. The note in Mr. Ballard's chart indicates that he was restless throughout the assessment and precautions were taken accordingly. The notes included a query as to the possibility of psychosis and to follow Mr. Ballard's thought processes over the week.

[ 17 ] On April 3, 2021, Mr. Ballard was observed by medical staff as displaying illogical thought content, loose association and was noted as providing illogical and irrelevant responses to questions. Ongoing monitoring of Mr. Ballard's thought processes and behaviour was indicated. The notes also indicate "stay light on meds for now".

[ 18 ] Mr. Ballard was seen by medical staff at HWDC every other day from April 1 to April 6 and then every day from April 7 to April 11, 2021. There is no indication as to what specific medications were prescribed and when but on April 8 the notes indicate that Mr. Ballard was "much better with antipsychotic medication" and diagnosis indicates "substance-induced psychosis resolving". He continued to be monitored until April 11, 2021, by which time it was assessed that his acute psychosis had resolved. After that initial period of intensive monitoring, Mr. Ballard was not seen by psychiatry again until May 19, 2021.

[ 19 ] On April 14, 2021 OPP officers attended at HWDC, arrested Mr. Ballard and transported him back to the Norfolk OPP detachment for questioning.

[ 20 ] Prior to be interviewed, Mr. Ballard was given his rights to counsel and cautioned. He spoke with his lawyer of choice. He then provided a cautioned statement which I ruled was voluntary.[^1] During that statement Mr. Ballard admitted to killing Mr. Murray by hitting him with a mallet and stabbing him with a kitchen knife. Mr. Ballard explained that he was approached by CSIS officers and offered a large sum of money to kill Mr. Murray. He also advised that he had been smoking a lot of cannabis and drinking large amounts of alcohol in the weeks leading up to Mr. Murray's killing.

Forensic Assessment

[ 21 ] On March 29, 2022, I ordered that Mr. Ballard undergo an assessment pursuant to section 678.13 of the Criminal Code to determine whether Mr. Ballard suffered from a mental disorder so as to exempt him from criminal responsibility.[^2] Pursuant to my order, Mr. Ballard was admitted to the Forensic Psychiatry Program at the West 5th Campus of St. Joesph's Healthcare Hamilton (SJHH) on April 6, 2022. His original period of assessment was thirty-six (36) days, which was extended for an additional twenty-nine (29) days.

[ 22 ] A report was prepared, authored by Dr. Joseph Ferencz, Staff Psychiatrist in the Forensic Psychiatry Program at SJHH, after the sixty-five (65) day period of assessment. That report set out all of the information that was reviewed by Dr. Ferencz and his team, as well as what testing Mr. Ballard was subject to during the assessment and the conclusions reached as a result.

[ 23 ] The report noted that Mr. Ballard was a regular user of recreational cannabis. Also that he consumed alcohol on a regular basis and experimented with illicit substances such as cocaine and methamphetamine.

[ 24 ] Mr. Ballard's psychiatric history includes two instances of hospital care: the first in June 2013 and the second in December 2020.

[ 25 ] The admission to Credit Valley Hospital in Mississauga in 2013 was involuntary after having been transported to hospital by police. Mr. Ballard was reportedly acting bizarrely, threatening to kill himself, talking about God and people dying, and reported not eating or sleeping in the two weeks prior to his admission. Cannabis use appeared to be a factor in Mr. Ballard's behaviour. The discharge diagnosis was Marijuana Abuse and Cocaine Abuse. No medications were prescribed.

[ 26 ] Mr. Ballard was seen at Norfolk General Hospital in December 2020 for an emergency room consultation where Mr. Ballard presented with complaints of blurred vision, and increase in suicidal thoughts, advising that he had discontinued his antidepressant medication three days prior. He was diagnosed with situational anxiety and encouraged to follow up with his family doctor. No medication was prescribed.

[ 27 ] The information obtained for the report about Mr. Ballard's personal development and history included Mr. Ballard's involvement with Child and Family Services of Grand Erie (CFSGE). That agency had been supervising Mr. Ballard's care of his daughter in 2020 subject to a court order in a child protection application. When it was discovered that Mr. Ballard had left his daughter in the care of the paternal grandfather, CFSGE's involvement became more intrusive and ultimately took the child into care. Mr. Ballard sent bizarre and disturbing messages to his family service worker at CFSGE in January and February 2021 that included pictures of pentagrams that appeared to be drawn in blood.

[ 28 ] Mr. Ballard's mental health was reported to significantly decline starting in the latter part of 2020. He sought help from his family doctor for anxiety and depression in December 2020 but then failed to follow through with the referral to a psychiatrist.

[ 29 ] A psychological assessment of Mr. Ballard was completed at SJHH. Mr. Ballard was assessed as having been cooperative overall but over-endorsing his mental health symptoms to a degree. There was an indication that Mr. Ballard was exaggerating his responses to questions that were designed to examine symptoms of psychopathology. It was concluded that Mr. Ballard was likely over-endorsing his ongoing symptoms (also referred to as malingering) as his presentation and behaviour was not consistent with someone who was experiencing auditory hallucinations.

[ 30 ] Despite the conclusion of malingering, Dr. Ferencz and his team concluded that Mr. Ballard was suffering from a mental disorder at the time of the killing of Mr. Murray that prevented Mr. Ballard from understanding the nature and consequences of his actions. However, Dr. Ferencz's ultimate opinion was that "following the Supreme Court decision of R v. Bouchard-Lebrun, […] Mr. Ballard is not eligible for exemption from criminal responsibility on account of mental disorder." [emphasis in original]

[ 31 ] That report was tendered at trial on consent and Dr. Ferencz was called as the court's witness, subject to cross-examination by both Crown and defence counsel. He was qualified as an expert in forensic psychiatry.

[ 32 ] Dr. Ferencz testified that Mr. Ballard's medical history was reviewed as part of the NCR assessment. Based on the medical records, Mr. Ballard's own report of substance misuse, and the documented rapid response to anti-psychotic medication administered while Mr. Ballard was in custody, Dr. Ferencz concluded that Mr. Ballard was suffering from Cannabis-Induced Psychotic Disorder exacerbated by alcohol intoxication or withdrawal at the time of the offence. Mr. Ballard was diagnosed as suffering from Cannabis Use Disorder and Alcohol Use Disorder, both of which are currently in remission in a controlled environment.

[ 33 ] Although Dr. Ferencz uses the terms "mental disorder" and "disease of the mind" interchangeably in his report, during his evidence at trial Dr. Ferencz clarified that the term mental disorder is the appropriate term to classify the conditions Mr. Ballard was diagnosed as suffering from. Dr. Ferencz opined that Mr. Ballard's psychotic symptoms were a consequence of his substance use. His evidence was that he could find no other explanation for Mr. Ballard's psychotic symptoms, such as schizophrenia or any other psychiatric or personality disorder.

[ 34 ] The evidence of Dr. Ferencz was that Mr. Ballard's rapid response to anti-psychotics in custody further supports the conclusion that the only mental disorder he suffers from is related to his substance use and dependency thereon. He testified as to how much longer individuals take to respond to anti-psychotic medication when they are suffering from schizophrenia or other psychotic disorders not related to substance use. Furthermore, Mr. Ballard does not display any of the other characteristics or behaviours that are commonly seen in individuals suffering from schizophrenia.

[ 35 ] When questioned about whether his opinion would change if there was evidence that Mr. Ballard was not acutely intoxicated by cannabis or alcohol at the time of the offence, Dr. Ferencz indicated that it would not. In his view, whether Mr. Ballard was intoxicated or withdrawing from substance use at the time of the offence, the diagnosis would be the same.

Not Criminally Responsible

[ 36 ] The Supreme Court of Canada reaffirmed the test to be applied in determining whether an accused is NCR in R. v. Bouchard-Lebrun:

[a]n accused who wishes to successfully raise the defence of mental disorder must therefore meet the requirements of a two-stage statutory test. The first stage involves characterizing the mental state of the accused. The key issue to be decided at trial at this stage is whether the accused was suffering from a mental disorder in the legal sense at the time of the alleged events. The second stage of the defence provided in s. 16 Cr. C. concerns the effects of the mental disorder . At this stage, it must be determined whether, owing to his or her mental condition, the accused was incapable of "knowing that [the act or omission] was wrong" (s.16(1) Cr. C. ). [emphasis in the original][^3]

[ 37 ] As Mr. Ballard raised the NCR defence, he bears the onus of demonstrating on a balance of probabilities that he was suffering from a disease of the mind and that as a result of his mental condition he was incapable of appreciating the wrongfulness of his actions.

[ 38 ] The Crown has conceded that Mr. Ballard has met his onus on the second part of test. I agree with that concession and I find that based on the expert evidence of Dr. Ferencz, Mr. Ballard was incapable of appreciating the wrongfulness of his actions at the time of Mr. Murray's killing. An analysis on the second prong of the test is therefore not necessary.

[ 39 ] The battleground in this case is on the first stage of the test. Specifically, the Crown disputes Mr. Ballard's contention that he was suffering from a disease of the mind in the legal sense such that he meets the test for a finding of NCR. If Mr. Ballard was not suffering from a disease of the mind, then he has failed to demonstrate that he should be exempted from criminal responsibility.

Disease of the Mind

[ 40 ] Dickson J. (as he then was) set out the definition of "disease of the mind" in R. v. Cooper:

in a legal sense, "disease of the mind" embraces 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. In order to support a defence of insanity, the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong.[^4]

[ 41 ] In R. v. Stone, the majority decision set out a single approach to be followed in all cases involving claims of automatism. In order to determine whether an accused is NCR, the Court held that a "new approach" was in order. Drawing on the Court's own previous decisions in R. v. Rabey[^5] and R. v. Parks[^6], a new holistic approach was set out with a two-pronged analysis.[^7]

[ 42 ] When dealing with a case involving an accused person suffering from toxic psychosis, the Supreme Court of Canada wrote in Bouchard-Lebrun:

[…] a court should start from the general principle that temporary psychosis is covered by the exclusion from Cooper. This principle is not absolute, however: the accused can rebut the presumption provided for in s. 16(2) Cr.C. by showing that, at the material time, he or she was suffering from a disease of the mind that was unrelated to the intoxication-related symptoms. To determine whether an accused has discharged the burden of proof in this respect, the court should adopt the "more holistic approach" describe by Bastarache J. in Stone. […] it is ultimately this "more holistic approach" that will enable a court to determine whether the mental condition of an accused at the material time constitutes a "mental disorder" for the purposes of s. 16 Cr.C. [citations omitted][^8]

[ 43 ] However, the Court then stipulated that the purpose of that decision was "not to identify a rule to be applied to every case of toxic psychosis." The Court held that it would be "counterproductive" to attempt to set out an exhaustive list of mental conditions covered by the Cooper exclusion. The Court cautioned against overreliance on reported cases:

Although the courts can seek assistance from the existing caselaw, it would be preferable for them to engage in an individualized analysis that takes account of the specific circumstances of each case. This means that the courts should determine on a case-by-case basis, applying the "more holistic approach" from Stone, whether the mental condition of each accused is included in or excluded from the definition of "disease of the mind" proposed by Dickson J. in Cooper. This approach is consistent with the line of authority based on Rabey, in which this Court endorsed Martin J.A.'s opinion that "[p]articular transient mental disturbances may not … be capable of being properly categorized in relation to whether they constitute 'disease of the mind' on the basis of a generalized statement and must be decided on a case-by-case basis". [citations omitted][^9]

A More Holistic Approach

[ 44 ] There have been significant advances in medical science since Cooper was decided by the Supreme Court. Dickson J. specifically noted that disease of the mind was not, at that time, "a term of art in either law or psychiatry." He went on to note that "[e]ven medical experts are not given to agreement when asked to define 'disease of the mind'."[^10] In the intervening four (4) decades, the expansion of medical knowledge and consensus in the area of mental health has been significant.

[ 45 ] There is an important legal principle underlying the exclusion of mental states such as drug-induced psychosis or automatism caused by excessive alcohol consumption from the definition of disease of the mind. As the Supreme Court confirmed in Bouchard-Lebrun, "criminal responsibility can result only from the commission of a voluntary act."[^11] To put it another way, criminal law only holds people accountable for intentional acts or for the reasonably foreseeable consequences of intentional actions. It therefore logically follows that one cannot exempt themselves from criminal responsibility by virtue of having consumed alcohol or drugs to the point where it was reasonably foreseeable that they could blackout or lapse into a state in which they were physically awake but mentally unable to understand or appreciate the nature and consequences of their actions.

[ 46 ] However, in the area of substance use, there has been a seismic shift in how the medical profession approaches and treats individuals who are chronic users of alcohol and illicit and prescription drugs. In 1979, substance-use disorder was not a recognized medical condition. Today, the diagnosis is not only not controversial, but it is so widely accepted that it is now listed in the Diagnostic and Statistical Manual, Version V (DSM-V), the authoritative guide for diagnosing and classifying mental health disorders.

[ 47 ] There is no internal cause of substance-use disorder. It results from voluntary consumption of drugs or alcohol. Does that then mean that psychosis that is related solely to substance-use disorder, a now recognized mental disorder, is nevertheless covered under the Cooper exception? In my view the answer to that question is dependent on the facts of each particular case. As the Supreme Court confirmed in Bouchard-Lebrun, the Cooper exception is not absolute, even when dealing with cases involving toxic or drug-induced psychosis.

[ 48 ] In determining whether the drug induced psychosis Mr. Ballard was suffering from at the time he killed Mr. Murray constitutes a disease of the mind, I must take a holistic approach as set out in Stone, as explained and clarified by Bouchard-Lebrun. That approach requires me to assess two factors: 1) the internal cause factor and 2) the continuing danger factor.

Internal Cause Factor

[ 49 ] To begin, it is helpful to return to the directions of Dickson J. (as he then was) in Cooper relating to the assessment of medical opinion evidence, specifically "the maintenance of a clear distinction between the weight to be given medical opinions expressed in the evidence, however relevant, and the task of the trial judge to form an independent conclusion as to whether the mental condition falls within the legal concept." [emphasis added][^12]

[ 50 ] While I recognize and acknowledge Dr. Ferencz's significant expertise in the area of forensic psychiatry and I accept that he has read the decision in Bouchard-Lebrun, his conclusion that Mr. Ballard does not qualify for NCR based on his understanding of the law is beyond his expertise. It is my task to determine whether Mr. Ballard was suffering from a disease of the mind. Dr. Ferencz's opinion regarding the applicability of the Cooper exception should not be given any weight as that is a legal opinion not a medical one.

[ 51 ] The inquiry on the internal cause factor requires a comparison of how a normal person in the circumstances of the accused would react. The Supreme Court in Stone specified that "[t]he comparison involved in the disease of the mind inquiry is thus a contextual objective test. The accused's automatistic reaction to the alleged trigger must be assessed from the perspective of a similarly situated individual."[^13]

[ 52 ] I accept the expert opinion of Dr. Ferencz that Mr. Ballard suffers from Cannabis Use Disorder and Alcohol Use Disorder. I also accept the undisputed opinion of Dr. Ferencz that at the time of Mr. Murray's killing, Mr. Ballard was suffering from Cannabis-Induced Psychotic Disorder. I accept the conclusion of Dr. Ferencz that Mr. Ballard's psychotic disorder at the time of the offence was a "consequence of his substance use", specifically using large amounts of cannabis and alcohol on a daily basis in the months prior. That evidence would tend to support the conclusion that the cause of Mr. Ballard's mental state at the time of the offence was not internal but rather was externally caused by consumption of cannabis and alcohol.

[ 53 ] However, the evidence of Dr. Ferencz at trial, which I also accept, was that his assessment of Mr. Ballard's mental state at the time of the killing would not change even if there was evidence that Mr. Ballard was not actively under the influence of cannabis or alcohol at the time of the offence:

THE COURT: If the evidence was that Mr. Ballard was not using substances on the specific day of the index offense, would that change your diagnosis?

A. Probably not and the reason for it is because a substance induced psychosis does not necessarily have to be a result of a direct time connection between the taking of the substance and the onset of psychosis. In fact, a psychotic episode can happen days, or even weeks after the use of a substance. [emphasis added]

[ 54 ] I turn then to the evidence of Mr. Ballard's use of substances on the day Mr. Murray was killed.

[ 55 ] Georgina Gray, Mr. Ballard's mother, testified that she was with her son the night of March 29, 2021. Her evidence was that Mr. Ballard was demonstrating bizarre and erratic behaviour when he attended at his father's residence at approximately 8:30 p.m. She testified that she did not smell any alcohol or cannabis on her son while he was in her presence. Ms. Gray recalls her son seeming nervous, upset and scared. He was taking about the government and people trying to kill him.

[ 56 ] Ms. Gray took Mr. Ballard to Tim Horton's around 9:30 p.m. She got him a drink and sat talking with him in her vehicle trying to calm him down. Ms. Gray's evidence was that she had never seen her son like that before and he was scaring her. Ms. Gray and Mr. Ballard then went back to his father's home and went inside and watched television.

[ 57 ] Not long after, Ms. Gray drove Mr. Ballard back to his motel room for the night. She went into his motel room for approximately five to ten minutes. Ms. Gray testified that she did not notice any alcohol or cannabis in his motel room while she was there. Mr. Ballard was agitated and upset but she did not wish to remain with him for the night. Her evidence was that when she indicated it was time for her to leave, Mr. Ballard asked if she would drive him back into town and drop him off. Ms. Gray's evidence was that she acceded to this request and dropped her son off in the town of Delhi on King Street.

[ 58 ] There is no evidence to support a conclusion that Mr. Ballard consumed any substances, cannabis, alcohol or otherwise, during the hours he was with his mother that night. Based on Ms. Gray's evidence, Mr. Ballard was with her from approximately 8:30 p.m. to 10:00 p.m.

[ 59 ] When Mr. Ballard was arrested, the evidence was that he did not have any drugs or drug paraphernalia on his person. Mr. Ballard did not even have a lighter in his pocket.

[ 60 ] There was no evidence from Mr. Murray's apartment that could support an inference that Mr. Ballard consumed substances upon arriving at Mr. Murray's apartment before killing him. There was nothing in the pictures taken at Mr. Murray's apartment that even suggests that Mr. Balland went to visit Mr. Murray that night after his mother dropped him off in town and the two had some late-night drinks or smoked some cannabis before Mr. Murray went to bed.

[ 61 ] There was evidence from the arresting officer that Mr. Ballard appeared to be under the influence of a substance at the time of his arrest. However, I have considered that evidence in the context of the opinion of Dr. Ferencz that Mr. Ballard was in an acutely psychotic state at the time of Mr. Murray's killing and the medical records from HWDC in the days following his detention which confirm that Mr. Ballard continued to suffer symptoms of acute psychosis for days. I find that the observations of the arresting officer as to Mr. Ballard's demeanor and presentation the day of his arrest are attributable to the acute psychosis he was suffering, not intoxication.

[ 62 ] The evidence from Mr. Ballard about his own consumption the day of the killing is inconsistent when viewed in its totality. He advised police that he had consumed "a lot of weed" that day, but I have considered that his statements to police immediately after his arrest were made when he was acutely psychotic and objectively noted to be not oriented to time and place. I have also considered the self-report of Mr. Ballard noted in his medical assessment upon admission to HWDC the day after his arrest indicates no street drug use and alcohol consumption on weekends "12 – 24 beers" noted under type, amount, and frequency. I find that Mr. Ballard's self-report as to his consumption of cannabis and alcohol on the day Mr. Murray was killed is unreliable given his mental state as objectively assessed by medical professionals.

[ 63 ] Having found Mr. Ballard's statements about his consumption unreliable, there is no evidence upon which I can find that he had consumed cannabis and alcohol on March 29, 2021. I therefore find that it is more likely than not that at the time of Mr. Murray's killing, Mr. Ballard was not intoxicated by cannabis or alcohol.

[ 64 ] In the months leading up to March 29, 2021, a number of different individuals observed Mr. Ballard exhibiting increasingly bizarre behaviours. The evidence of two child protection workers from CFGSE regarding the disturbing pictures they received by email from Mr. Ballard and the evidence of the change in the tone and content of the text messages sent by Mr. Ballard to Mr. Murray in the weeks prior demonstrate a pattern of mental decline and increasing paranoia and disturbed thought. Although I accept that Mr. Ballard was actively using cannabis and alcohol throughout this period of time, the gradual increase in psychotic symptoms over time culminating in the killing of March 30, 2021 is distinguishable from cases where the accused person's psychotic state was brought on suddenly by contemporaneous consumption of drugs.

[ 65 ] Then there is the evidence of Dr. Epelbaum and the medical records from HWDC that Mr. Ballard's psychotic symptoms did not diminish simply by abstinence. I find that Mr. Ballard continued to experience psychotic symptoms for several days after he was detained in custody. The medical notes as late as April 5, 2021, 6 days after his initial arrest and detention, note that Mr. Ballard was "non-sensical and disorganized with loose association. Pressured speech and irritable. He was not oriented to time or place/person. He was seen responding to stimuli." Dr. Epelbaum confirmed that Mr. Ballard was prescribed anti-psychotic medications to alleviate symptoms such as auditory hallucinations and disordered thought. Although Dr. Epelbaum testified that the rapid improvement of Mr. Ballard's symptoms while in custody supported his tentative diagnosis of substance induced psychosis, his evidence also confirmed that Mr. Ballard's psychotic symptoms did not diminish or disappear simply by abstinence from substances.

[ 66 ] Next, I considered the evidence of Dr. Ferencz regarding his opinion on whether Mr. Ballard was pre-disposed to drug induced psychosis:

A. I think he had – I absolutely think he had a predisposition to a drug induced psychosis. He had one at the age of 19 and that's pretty much confirmed. He was using different substances I believe. I think they were cocaine and methamphetamine at the time, but he did have that, which absolutely made him vulnerable to a drug induced psychosis or something of the sort at a later date, but he continued to use substances. And regrettably he did have future psychotic experiences, which is absolutely clear. So, I'm not in any way denying that he had a predisposition. I do believe he had a predisposition, but he – he and everyone who knew him, who knew he had that – that brief hospitalization at the – in 2013 would have known that he had a predisposition. That he was a vulnerable – had a vulnerable brain as it were. He said that he had experiences where he had stopped using for example for a period of time stopped using alcohol and he had psychotic experiences. He had said that he had had experiences like that in the past using substances. Unfortunately, it didn't stop him from using substances, and you know he used them with people. He used them on his own. He used a variety of different substances. There is evidence that in 2020 at least he was using hard substances such as cocaine and methamphetamine. As I say, I don't have any direct evidence or any testimony that says he was using hard substances at the time of the offence other than what he said to the people at the detention centre.

[ 67 ] I take from this evidence that a "normal person" would not be expected to react in the same manner to consumption of cannabis and alcohol. That is to say, I understand from Dr. Ferencz's evidence the average person would not be expected to develop psychotic symptoms from using substances such as cannabis and alcohol. The evidence that Mr. Ballard has a "vulnerable brain" leads me to conclude that Mr. Ballard's internal mental condition contributed to the drug induced psychosis he experienced the night Mr. Murray was killed. In reaching this conclusion, I also considered the evidence of Dr. Ferencz that Mr. Ballard has features of borderline personality disorder and antisocial personality disorder that are entirely separate and apart from his substance use, as well as his evidence about Mr. Ballard's predisposition to psychosis because of his vulnerable brain.

[ 68 ] This was not a situation where Mr. Ballard consumed substances that immediately resulted in a state of toxic psychosis that dissipated immediately upon the intoxicating effect of the drugs subsiding as was the case in Bouchard-Lebrun. Mr. Ballard is also different from the normal person who consumes cannabis and alcohol, even on a habitual basis, insofar as he has a vulnerable brain and personality disorder features.

[ 69 ] I find that it is more likely than not that the drug-induced psychotic state Mr. Ballard was in at the time of Mr. Murray's killing was not the result of acute intoxication but rather prolonged use over a period of months combined with his internal physical and psychological condition. Therefore, the cause of Mr. Ballard's psychosis was both internal and external.

Continuing Danger Factor

[ 70 ] The likelihood of psychotic symptoms recurring must be assessed in considering whether or not there is a continuing danger. In the absence of any possibility that Mr. Ballard will experience psychosis without consuming cannabis or alcohol, then there is no continuing danger, which militates against finding that he was suffering from a disease of the mind. However, both Dr. Ferencz and Dr. Epelbaum testified that individuals can continue to suffer from psychotic symptoms even after total abstinence from substance use. Although Dr. Ferencz put the possibility of recurrence around 20%, I must consider that the possibility is not zero.

[ 71 ] I have also considered the evidence that Mr. Ballard is at greater risk of toxic psychosis recurring in the future, particularly if he returns to consuming substances. The assessment of continuing danger is further informed by the evidence of Dr. Ferencz that even if Mr. Ballard maintains his abstinence from substances for the rest of his life, he remains at risk of suffering from psychotic symptoms in the future.

[ 72 ] Particularly concerning is Dr. Ferencz's evidence about the likelihood of psychotic symptoms recurring if use is resumed and the concern about the likelihood of a return to consumption given the dependency that Mr. Ballard developed. Dr. Ferencz testified that without supports and interventions to prevent Mr. Ballard from returning to substance use, the risk of psychosis reoccurring is significant.

[ 73 ] The evidence of Dr. Ferencz about Mr. Ballard's risk to the community if released without supervision was as follows:

A. If that's acceptable, I would have to say that Mr. Ballard would pose a significant threat to the safety of the community unless he was under close supervision. And the reason for it is as follows: I think that he has a high risk of relapsing into the use of substances unless he was given a great deal of treatment and support and relapse prevention for specific alcohol and substance related matters. I also think that because he has features of personality disorder separate from substances and primary mental illness, he poses a risk of emotional instability, self-harm and sort of a general risk for anger, impulsive behaviour and so forth which would also affect his risk. He has features of borderline and anti-social personality disorder, which suggests that he could conceivably engage in aggressive or manipulative behaviours with other individuals. So there – unless he receives therapy and treatment and relapse prevention and close monitoring, were he to be released to the community tomorrow, I think he would pose a significant threat. Not because he's an intrinsically violent person but he has all these other factors that would contribute to his risk being elevated.[^14]

[ 74 ] When determining the continuing danger factor, I must also consider the likelihood of Mr. Ballard encountering the events or circumstances that triggered his toxic psychosis.[^15] Although it is challenging to predict the likelihood that Mr. Ballard will resume using cannabis and alcohol upon his release from custody, I have considered the evidence of Dr. Ferencz expressing concern about the long-standing nature of Mr. Ballard's substance use disorder and the ability of Mr. Ballard to address his addictions issues without support services. Although Mr. Ballard's substance use disorder is currently in remission, I note that there was a qualifier noted specifying that remission is "in a controlled setting". If Mr. Ballard was released on parole, there would be no external control over his ability to access and consume substances such as alcohol or cannabis. It is also relevant that the substances on which Mr. Ballard became dependent after chronic use are substances that are legal and readily accessible upon Mr. Ballard's eventual release from custody.

[ 75 ] I have also considered the evidence of Dr. Epelbaum about Mr. Ballard's request to discontinue the anti-psychotic medication he is taking while in custody. Dr. Epelbaum testified that he advised Mr. Ballard against making any changes to his medication regime prior to trial given the potential for psychotic symptoms to re-emerge and result in Mr. Ballard being unfit to participate in his trial. This evidence, in my view, underscores the need for Mr. Ballard's medication regime to be supervised on an ongoing basis and reinforces the evidence of Dr. Ferencz as to the risk of psychosis reoccurring and the danger that would create.

[ 76 ] If Mr. Ballard were to be found criminally responsible and sentenced to life in prison, the mandatory sentence for murder, that would not mean that he would never be released back into the community. Even a life sentence comes with the possibility of parole. The minimum parole eligibility for a life sentence for second degree murder is ten (10) years. Whatever time is set for parole eligibility, once an individual is sentenced, the court has no further ability to place specific restrictions on an offender's terms of release, such as relapse prevention programming.

[ 77 ] I accept the opinion of Dr. Ferencz as to the potential threat to public safety posed by Mr. Ballard and I find that there is a continuing danger as there is a possibility that Mr. Ballard will return to using cannabis and alcohol upon his release from custody which could trigger another episode of toxic psychosis.

Conclusion

[ 78 ] Having considered both the internal cause factor and the continuing danger factor, I find that in Mr. Ballard's specific circumstances the drug induced psychosis he was suffering from at the time of Mr. Murray's killing constitutes a disease of the mind, despite the precipitating cause being Mr. Ballard's misuse of cannabis and alcohol.

[ 79 ] Given my findings on the NCR defence, it is not necessary for me to assess whether or not Mr. Ballard had the requisite mens rea to commit the offence of second-degree murder.

[ 80 ] Having found that Mr. Ballard was suffering from a disease of the mind at the time of the offence and accepted the evidence of Dr. Ferencz that Mr. Ballard was incapable of appreciating the nature and consequences of his actions at the time of the offence, I find that Mr. Ballard has met his onus to establish that he should be found not criminally responsible for the killing of Michael Murray.

[ 81 ] Accordingly, a verdict of not criminally responsible on account of mental disorder shall be entered on the Indictment.

A.D. Hilliard

Released: February 12, 2026

[^1]: R. v. Ballard, 2025 ONSC 5666. [^2]: At that time, I ordered the assessment in my capacity as a judge of the Ontario Court of Justice. [^3]: 2011 SCC 58, [2011] 3 SCR 575 at para 56. [^4]:, [1980] 1 S.C.R. 1149 p. 1159. [^5]:, [1980] 2 S.C.R. 513 [^6]:, [1992] 2 S.C.R. 871 [^7]: R. v. Stone, [1999] 2 SCR 290 at para 203. [^8]: Supra note 3 at para 69. [^9]: Ibid at para 77. [^10]: Cooper, supra [page?] [^11]: Bouchard-Lebrun, supra, at para 45. [^12]: Cooper v. R., [1980] 1 S.C.R. 1149 at para 50. [^13]: Supra note 7 at para 210. [^14]: Dr. Ferencz qualified his opinion by indicating that he had not specifically done an assessment of Mr. Ballard's risk to the community prior to being asked the question while testifying. [^15]: R. v. Luedecke 2008 ONCA 716, 2008, 93 O.R. (3d) 89 (CA) para 111