



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. LaPierre, 2018 ONCA 801

DATE: 20181004

DOCKET: C52785

MacPherson, Huscroft and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Trevor LaPierre

Appellant

James C. Fleming, for the appellant

Eric H. Siebenmorgen, for the respondent

Heard: September 5, 2018

On appeal from the conviction entered by Justice Stephen
    Glithero of the Superior Court of Justice on January 18, 2010, and from the
    sentence imposed on January 21, 2010.

MacPherson J.A.:


A.

INTRODUCTION

[1]

The appellant pleaded guilty to the savage, unprovoked and inexplicable
    killing of Hugh Hunter Brown, a defenceless 74-year-old man delivering
    Christmas cards to neighbours on a residential street in Kitchener in December
    2007. In advance of the trial, he was examined by two psychiatrists; both
    offered the opinion that the appellant was not eligible for a
Criminal Code
s. 16 defence of not criminally responsible (NCR). The appellant pleaded
    guilty to second degree murder and assault. The trial judge imposed a sentence
    of life imprisonment with no possibility of parole for 17 years.

[2]

The appellant appealed his sentence. During the appeal process, this
    court ordered a new psychiatric report. The author of this report, Dr. John
    Bradford, concluded that the appellant suffered from severe treatment resistant
    schizophrenia at the time of the commission of the offence and met the threshold
    to be found NCR. Based on this report, the appellant decided to appeal his
    conviction as well as the sentence.

[3]

The principal issue on the conviction appeal is whether the fresh
    evidence anchored in Dr. Bradfords psychiatric report is sufficient to sustain
    a determination, at this juncture, that the appellant was NCR when he killed
    Mr. Brown. The principal issue on the sentence appeal is whether a parole
    ineligibility period of 17 years is too harsh.

B.

FACTS

(1)

The parties and events

(a)

The homicide and the assault

[4]

On Saturday, December 15, 2007, at approximately 12:45 p.m., Hunter
    Brown, a 74-year-old man, was walking on his street delivering Christmas cards
    to his neighbours. The appellant, a 22-year-old Kitchener resident, had been
    seen standing at a nearby intersection looking straight ahead. The appellant
    and Mr. Brown were strangers to each other. Mr. Brown said hello to the
    appellant. The appellant said nothing. He took a large knife out of his pocket.
    He stabbed Mr. Brown more than 40 times, mostly in the head and face.

[5]

A neighbour heard the commotion through a window. She saw Mr. Brown on
    the ground being attacked by a man and then observed the man walking away from
    a motionless Mr. Brown. The neighbour said that the assailant was walking
    normally as if nothing happened.

[6]

Two days later, on December 17, Corey Speck, a 35-year-old man living in
    the same neighbourhood as Mr. Brown, was at home shovelling his driveway. After
    an exchange of a few words, the appellant attacked Mr. Speck, swiping him in the
    head. Mr. Speck was able to repel the attack and suffered no injury. He
    reported the incident to the police and was able to help locate and identify
    the attacker.

[7]

The appellant was arrested. He confessed to both the killing of Mr.
    Brown and the assault on Mr. Speck. He told police that he killed someone to be
    the wrong kind of person and that he walked around quite a bit on December 15
    looking for someone to kill and working up the courage to do it. He said that
    he killed Mr. Brown to please Satan and because he thought he was the right
    one. He also stated that the voices were telling me that [Mr. Brown] was a
    Christian. These voices wanted me to kill Christians and they keep on saying
    that.

[8]

Following his confession, the appellant was placed in a holding cell. He
    told an undercover police officer, who was posing as another inmate, that he
    needed to kill someone and he did it to save himself and that his boss made
    him do it. The appellant also stated he was going to use the insanity
    defence.

(b)

Pre-trial psychiatric history

[9]

Prior to trial, the appellant underwent assessments of his Fitness to
    Stand Trial and Criminal Responsibility. The Crown and the defence each retained
    psychiatrists to provide expert reports.

[10]

Dr.
    Derek Pallandi, the psychiatrist retained by the Crown, offered the opinion
    that the appellant did not suffer from a major mental illness and was fit to
    stand trial. He was of the view that the appellant was malingering. Dr.
    Pallandi relied on a psychology report prepared by Dr. Percy Wright. Dr. Wright
    noted that the appellant displayed no overt signs of thought disorder and was
    cognitively quite organized, but added that he was clearly a troubled man,
    possibly suffering from periods of depression. It was unclear to him whether
    the appellant had a psychiatric disorder. He strongly urged that caution be
    exercised in basing a s. 16 defence on self-reported symptoms. Dr. Pallandi
    concluded:

Summarily, I am of the opinion that Mr. LaPierre does not
    suffer from a major mental illness as typically defined from a psycholegal
    perspective. He is malingering psychotic and cognitive symptoms and likely has
    done so for some period of time in the past to gain admission to hospital.

[11]

Dr.
    Julian Gojer, the psychiatrist retained by the defence, also concluded that a
    s. 16 defence was not available to the appellant. Dr. Gojer agreed that there
    was an embellishing of, or manufacturing of psychotic symptoms and that the
    appellant was likely to be able to appreciate the nature and consequences of
    his actions and know that what he was doing was morally wrong. Dr. Gojer did
    make a diagnosis of a personality disorder with borderline schizoid traits; he
    stated that a psychotic illness could not be ruled out and that it was possible
    that at the height of his distress he experienced psychotic symptoms.

(c)

The conviction and sentence

[12]

The
    appellant, who had been charged with first degree murder, decided not to
    advance an NCR defence. He pleaded guilty to second degree murder. The trial
    judge accepted the plea. The appellant does not challenge this proceeding.

[13]

Three
    days after the conviction, the trial judge imposed a sentence of life
    imprisonment with a period of parole ineligibility of 17 years. He identified
    many aggravating factors in support of this sentence  the killing was brutal
    and senseless, the degree and duration of force used were excessive, the
    killing occurred in broad daylight in a quiet residential neighbourhood, the
    appellant was armed with a hunting knife, the victim was 74 years old, unarmed,
    and much smaller than the appellant, the appellant went home and acted as
    though nothing had happened, he lied to the police until faced with the
    prospect of damning physical evidence, and ultimately he told the police that
    he had walked around looking for someone to kill.

(d)

Post-conviction psychiatric history

[14]

After
    the appellant was sentenced on January 21, 2010, he was assigned to Kingston
    Penitentiary. Six months later, on July 30, 2010, he was transferred to the
    Regional Treatment Centre (RTC) in Kingston. He stayed there for several
    years in the Psychosocial Rehabilitation Unit under the care of psychiatrist
    Dr. Stephen Hucker. In a letter dated June 18, 2013, Dr. Hucker noted that when
    the appellant was first admitted to the RTC in 2010 from Kingston Penitentiary,
    he was described as suffering from severe intractable schizophrenia.

[15]

Based
    on Dr. Huckers information, and within the framework of his sentence appeal,
    Tulloch J.A. ordered an assessment, pursuant to s. 672.11 of the
Criminal
    Code
, to determine whether the accused suffered from a mental disorder so
    as to exempt the accused from criminal responsibility by virtue of s. 16(1) of
    the
Criminal Code
at the time of the commission of the offences.

[16]

The
    court-ordered assessment was conducted by Dr. John Bradford. He interviewed the
    appellant multiple times over a 60-day period and carefully considered the
    medical material. He concluded that, from a forensic psychiatric standpoint,
    the appellant had a mental disorder  severe treatment resistant schizophrenia
     when he killed Mr. Brown and that he was not capable of knowing that this was
    morally wrong.

[17]

Following
    Dr. Bradfords report, there was a flood of supplemental reports from Dr. Pallandi,
    Dr. Gojer and Dr. Bradford himself. As well, Dr. Bradford was examined and
    cross-examined on his report, Dr. Pallandi was cross-examined and re-examined
    on his reports, and Dr. Gojer was cross-examined on his reports. I think it is
    fair to say that, on the ultimate question of whether an NCR defence was
    available to the appellant at the time of his trial in 2010, the three doctors
    answers would be: Dr. Bradford  Yes; Dr. Pallandi  No; Dr. Gojer  on the
    fence.

(e)

Sentence appeal  fresh evidence

[18]

On
    August 2, 2018, the appellant also filed a notice of application to admit fresh
    evidence on the sentence appeal relating to the period of parole ineligibility.
    The proposed fresh evidence includes Referral Decision Sheets for Voluntary Institutional
    Transfer and Offender Security Level; Assessments for Decision for Voluntary
    Institutional Transfer and Security Level; an Updated Correctional Plan;
    Program Performance Reports; and a 2013 Psychological/Psychiatric Assessment
    Report. These reports tend to show that the appellant has made good progress
    during his eight years in prison.

C.

issues

[19]

The
    issues on the appeal are:

1.

On the conviction appeal, should the fresh evidence tendered by the
    appellant be admitted?

2.

If the fresh evidence is admitted, what should be the disposition  an
    NCR declaration or a new trial limited to the NCR defence?

3.

On the sentence appeal, should the period of parole ineligibility be
    reduced?

D.

analysis

(1)

Conviction appeal  fresh evidence

[20]

The
    appellants essential position is that the fresh evidence, especially the
    diagnosis of Dr. Bradford, conclusively establishes that the appellant was
    profoundly misdiagnosed, particularly by Dr. Pallandi, prior to his trial. The
    appellants true condition when he killed Mr. Brown in December 2007 was that
    he suffered from the mental disorder, severe treatment resistant schizophrenia.

[21]

Against
    the backdrop of this diagnosis, if the trial had proceeded, the appellant would
    have been able to avail himself of a very triable, and likely successful,
Criminal
    Code
s. 16 defence.

[22]

In
R. v. Palmer
, [1980] 1 S.C.R. 759 at 775, the Supreme Court of Canada
    set out the four criteria that should be considered if an appellant seeks leave
    to introduce fresh evidence on an appeal:

·

the evidence should generally not be admitted if, by due
    diligence, it could have been adduced at trial;

·

the evidence must be relevant in the sense that it bears upon a
    decisive or potentially decisive issue in the trial;

·

the evidence must be credible in the sense that it is reasonably
    capable of belief; and

·

it must be such that if believed it could reasonably, when taken
    with the other evidence adduced at the trial, be expected to have affected the
    result.

[23]

The
    appellant can easily establish the first three of the
Palmer
criteria.
    Dr. Bradfords evidence could not have been adduced at trial. There was no
    trial  the appellant pleaded guilty. The evidence is highly relevant  it
    bears on the potentially decisive issue of whether the appellant was NCR when
    he killed Mr. Brown. Finally, the evidence is credible  Dr. Bradford is an
    experienced and highly respected psychiatrist in the criminal justice system.

[24]

The
    crux of the matter on this issue is the fourth
Palmer
criterion  could
    Dr. Bradfords evidence, if believed, and taken together with the other
    evidence, have affected the result?

[25]

There
    is no question that Dr. Bradfords evidence is strong and clear.

[26]

On
    the question of diagnosis, Dr. Bradford says:

From a forensic psychiatric standpoint, with a reasonable
    degree of certainty, in my opinion, Mr. LaPierre was clearly suffering from a
    mental disorder, specifically treatment resistant schizophrenia, prior to; at
    the material time of the index offences; and subsequently.

[27]

And,
    on the ultimate question  the effect of this disease on the appellants state
    of mind when he killed Mr. Brown  Dr. Bradford says:

At the time of the index offences Mr. LaPierre would not have
    been in control of his operating mind in terms of making rational decisions.
    Furthermore, he was driven by a delusional belief that most people killed and
    that he had to kill in order to save his soul. In my opinion, this would fit
    the definition of the second branch of Section 16(1) of not knowing that what
    he was doing was wrong in terms of moral wrongfulness subject of course to the
    legal definitions and interpretation of this section of Section 16(1). This is
    my opinion, however, based on a reasonable degree of medical certainty.

[28]

I
    begin my analysis with two contextual points.

[29]

First,
    the appellant argues, relying on the evidence of Dr. Bradford, that he was
    misdiagnosed during his pre-trial forensic assessment. He seeks to hold Dr.
    Pallandi and Dr. Gojer, as well as the psychologists with whom they worked,
    responsible for this. Yet it was found by the trial judge, and even accepted by
    the appellants trial counsel, that the appellant, by his own conduct,
    frustrated the attempts by health care professionals, including those retained
    by his own counsel, to properly diagnose him. As stated by the trial judge in
    the context of the parole eligibility determination:

I am left without any expert evidence as to how long any
    appropriate form of treatment would take and no information as to the likely
    rate of success of any such treatment. The lack of such relevant information 
    is largely the result of efforts by Mr. LaPierre in feigning, exaggerating,
    malingering and generally being manipulative with mental health care
    professionals in his efforts to achieve what he thinks to be a favourable
    result.



The nature and extent of his mental difficulty remains
    undetermined, largely as a result of his own choices as to how to interact over
    the years with mental health professionals. He has tried to influence them to
    his own advantage. As a result, he stymied them in their efforts to find out
    what is wrong with him and what can be done about it.

[30]

Second,
    due to the progressive and changing nature of major mental disorders, including
    schizophrenia, it cannot be definitively inferred that a condition described as
    severe treatment resistant schizophrenia in 2010 existed in that form in 2007
    when the killing took place. In the appellants case, there is compelling
    evidence that his mental condition deteriorated sometime between the 2009
    pre-trial assessment and his post-sentence arrival at the RTC in July 2010. Dr.
    Gojer pointed this out, and the appellant appears to acknowledge this
    deterioration, saying in his factum at para. 27, The appellants mental condition
    acutely deteriorated as he made his way into the penitentiary system after
    sentence was imposed on January 21, 2010. The appellant was admitted to the
    Millhaven Assessment Unit (MAU) on February 10, 2010. The appellant was
    ultimately transferred from KP to RTC within his first two months in federal
    custody.

[31]

Against
    this backdrop, I turn to a consideration of Dr. Bradfords opinion which serves
    as the foundation for the appeal. In the end, I do not think that Dr.
    Bradfords ultimate conclusion, namely, that the appellant, at the time he
    killed Mr. Brown, did not know that what he was doing was wrong in terms of
    moral wrongfulness, is sustainable. I say this for several reasons.

[32]

First,
    Dr. Bradford himself recognized that the concept of moral wrongfulness has
    different meanings in medical and legal contexts (he qualified his ultimate
    conclusion set out above, with subject of course to the legal definitions and
    interpretation of  Section 16(1)). In my view, Dr. Bradfords ultimate
    conclusion about the appellants knowledge of moral wrongfulness is
    inconsistent with the legal definition of those words.

[33]

The
    legal definition of moral wrongfulness is set out in
R. v. Oommen
,
    [1994] 2 S.C.R. 507, and was summarized by this court in
R. v. Woodward
,
    2009 ONCA 911, at para. 5: [T]he court must determine whether the appellant
    was
incapable
of understanding that his acts were wrong according to
    the ordinary moral standards of reasonable members of the community (emphasis
    in original).

[34]

Dr.
    Bradford was aware of this legal definition. In cross-examination, he answered
    a question in this fashion:

Q. And you agree that it's not enough that the act was a result
    of a delusion, that if the accused was capable of knowing that in spite of a
    delusion,
that the act in the particular circumstances
    were wrong on a societal standard?

A. Yeah.
That's a legal test.
[Emphasis added.]

[35]

However,
    in his reports and in cross-examination on his reports, Dr. Bradford
    consistently grounded his analysis in the appellant's subjective views about
    his thoughts and behaviour; he spoke of the appellant's "internal
    motivation" for what he had done, not "the ordinary moral standards
    of reasonable members of the community": see
Woodward
. Dr.
    Bradford's ultimate conclusion about "moral wrongfulness is, therefore,
    grounded in the medical, not the legal, definition of that term.

[36]

Second,
    the appellant's actions surrounding his killing of Mr. Brown belie a legitimate
    NCR defence. Before the killing, the appellant was seen in a busy section of Kitchener.
    He moved from there to a quiet residential neighbourhood. He admitted that he
    walked around for quite a while looking for someone to kill. There appeared to
    be no one else around (at least outdoors) when the appellant attacked Mr.
    Brown. Immediately after the attack, a woman in a nearby house saw the attacker
    walk away quickly. When the appellant got home, he changed his toque because he
    didnt want to go to jail, changed his jacket, and cleaned the blade of his
    knife and put it in a drawer. In the view of his father who spent time with him
    that evening, the appellant seemed fine.

[37]

Third,
    the appellant's own utterances near the time of the killing also belie a
    legitimate NCR defence. When the appellant confessed to the killing during a
    police interview three days later, he said:

Q. And then what did you do Trevor?

A. I did the wrong thing.

Q. What was the wrong thing?

A. (crying) I did the wrong thing and killed him.

Q. You killed him how Trevor?

A. With a knife.

Q. And where did you stab him?

A. The quickest way to die.

Q. And what way is that?

A. In the face.

[38]

Further,
    Dr. Gojer, in his report dated December 12, 2009, recorded the following
    admission:

With further interviewing, I challenged him on the authenticity
    of the voices that he had described. He did not retract his assertions that the
    voices were experienced by him but described them as paranormal phenomena. He
    admitted that he was concerned about his future, the nature of the charges he
    was facing and that it was possible that he had begun to dwell on thoughts of
    isolation, alienation from society and that thoughts that he had of God and
    Satan became prominent in his mind to the extent that he found life unbearable.
    He felt angry towards the world and began to think of Satan as influencing his
    thoughts and actions. In this context he became angry with Christians and felt
    that he had to appease Satan.
He said that he was aware that killing was
    legally and morally wrong
. [Emphasis added.]

[39]

Fourth,
    when he was placed in a cell three days after the homicide, the appellant told
    an undercover police officer who was pretending to be a fellow inmate that he
    was going to use the insanity defence. In cross-examination, Dr. Bradford
    acknowledged some of the detail relating to this statement:

Q. From my review of Constable Laynes evidence, there was also
    an indication beyond just saying that he wanted to use the insanity defence,
    that he thought he would be NCR and hoped to get 7 to 12 years. Do you recall
    that detail as to providing a specific time range for his incarceration which
    he hoped to achieve?

A. I believe so. I could check if you like.

Q. So, you accept that he actually gave a time range for when
    he expected to hope to be out after an NCR defence?

A. Right.

[40]

Taking
    these factors together, I am prepared to accept Dr. Bradfords diagnosis of the
    appellant, namely, that he suffered from schizophrenia when he killed Mr.
    Brown. I am also prepared to accept that there may well have been a causal
    relationship between the appellants illness and the criminal offences he
    committed in December 2007. However, these two conclusions are not enough to
    establish that at the material time the appellant was incapable of knowing that
    his conduct was wrong according to the ordinary moral standards of reasonable
    members of society. Dr. Bradfords evidence was, overwhelmingly, directed to
    the appellants subjective belief that his conduct was justified and not to his
    awareness of societal moral standards, as required by
Oommen
and
Woodward
.
    Accordingly, I would not give effect to this ground of appeal. I would not
    admit the fresh evidence because it could not reasonably be expected to have
    affected the result at the trial.

(2)

Remedy

[41]

In
    light of my conclusion on the first issue, this issue does not arise.

(3)

The sentence appeal
[1]

[42]

The
    appellant contends that the 17-year period of parole ineligibility imposed by
    the trial judge in 2010 is too long. In support of this position, the appellant
    has filed an Application Record to Admit Fresh Evidence on Sentence Appeal of
    Parole Ineligibility. The material in this record establishes that the
    appellant has made progress during his incarceration in the federal
    penitentiary system. Indeed, in an internal report dated July 3, 2018 dealing
    with a proposal to transfer the appellant to a minimum security unit at Collins
    Bay Institution, Correctional Service Canada noted, There are no incompatibles
     to prevent the transfer. Also, there are no physical or mental health care
    concerns that will preclude as noted in consultations with health care and
    psychology.

[43]

I
    see nothing in the trial judges reasons that would suggest that a 17-year
    period of parole ineligibility was unfairly imposed or too harsh. The recent
    fresh evidence does not change this conclusion.

E.

disposition

[44]

I
    would dismiss the conviction and sentence appeals.

Released: JCM OCT 4 2018

J.C. MacPherson
    J.A.

I agree. Grant
    Huscroft J.A.

I agree. I.V.B.
    Nordheimer J.A.





[1]
The court did not call on the respondent to address this issue at
    the appeal hearing.


