



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Palmer, 2015 ONCA 329

DATE: 20150512

DOCKET: C53234

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dwayne Palmer

Appellant

Delmar Doucette, for the appellant

John Patton, for the respondent

Heard: November 10, 2014

On appeal from the convictions entered by Justice Silja S.
    Seppi of the Superior Court of Justice on November 3, 2010, sitting with a jury.

By the Court:

[1]

The appellant appeals from his November 3, 2010 convictions on two
    counts of second degree murder. At trial, although he testified that he had no
    memory of the events, the appellant did not contest that on April 30, 2008 he
    stabbed to death two strangers at the Red Maple Plaza in Brampton. He testified
    that he had no intention that day of killing anyone but himself.

[2]

At the time of the homicides, the appellant was 28 years old, lived with
    his mother and had been unemployed for three years. According to him, on the
    day in question, he left his house with two knives with the intention of
    committing suicide. He took a series of buses via downtown Brampton to the Bramalea
    City Centre, on to the Westwood Mall in Mississauga, then to Toronto and then back
    to the Westwood Mall. He returned to Brampton and got off the bus near the Red
    Maple Plaza. He claims that before leaving his home he filled a water bottle
    with a mixture of vodka and overproof rum and drank from it while on the bus.
    Just before arriving at the plaza he took some Tylenol 3 tablets containing
    codeine.

[3]

At the plaza, the appellant was observed approaching the 52-year old
    female deceased, who was unknown to him, as she returned to the parking lot
    from a dental clinic she had been visiting. He took possession of her keys; she
    resisted and he stabbed her four times in the back. He approached her, bent
    over her body and looked at her and then turned the knife on himself. The
    female deceaseds 53-year old husband, who was also unknown to the appellant,
    came to her aid and had an altercation with the appellant during which he was
    stabbed seven times. Witnesses then saw the appellant stab himself in the
    throat several times. After the police arrived, the appellant slit his own
    throat causing a deep cut. As he attempted to slit his throat a second time, a
    police officer tasered him thereby disabling him.

[4]

A police officer at the scene heard the appellant say, Im dying. Im
    dying. An attending paramedic testified that the appellant made the following
    statements more than once: Am I going to die today and I am not going to die
    today.

[5]

In March 2009, the defence retained Dr. Gojer, a forensic psychiatrist. After
    meeting with the appellant, Dr. Gojer recommended that a further assessment be
    done to determine whether the appellant was schizophrenic. The appellant was
    sent to Penetanguishene Mental Health Centre (PMHC), where Dr. Pallandi, the
    consulting forensic psychiatrist assigned to his care, assessed him three
    times. Dr. Pallandi reported that the appellant engaged in problematic
    behaviours at PMHC, including muteness, atrocious personal hygiene and the
    deliberate collecting and spreading of urine and faeces. A treatment order was
    sought and obtained. Although initially found to be unfit to stand trial and
    repeatedly described as an enigma, the appellant was eventually found to be
    fit. Dr. Pallandi, in his discharge summary dated July 28, 2010, stated his final
    diagnosis as: Antisocial Personality Disorder.

[6]

Just prior to trial, Dr. Gojer assessed the appellant for a second time to
    determine whether he qualified for a defence of not criminally responsible.
    While the appellant displayed negative symptoms (flat affect, monotony of
    speech, and apparent disconnection from what was happening), when interviewed
    he did not describe positive symptoms, such as hallucinations. In the absence
    of positive symptoms, Dr. Gojer determined that the appellant was suffering
    from a psychotic illness, most likely schizophrenia, but that there was nothing
    in his history that would lead him to conclude that the appellant had a s.
    16(1) defence available to him.

[7]

At trial, the Crown advanced a theory of robbery-homicide. Dr. Gojer
    gave evidence for the defence aimed at raising a doubt concerning whether the
    appellant had the intention to commit murder.

[8]

Dr. Gojer testified that he could only provide a differential diagnosis
    of an undefined psychotic illness. He testified that he spoke to the
    appellants mother prior to the trial. She told him that for about two months
    prior to the homicides the appellant had become more withdrawn, was isolating
    himself in his room, appeared to be talking to himself and laughing to himself,
    would stay up all night and would not make good eye contact. She described this
    as a change in his behaviour.

[9]

Although he considered catatonic schizophrenia, Dr. Gojer testified that
    his ultimate opinion remained uncertain and he could not opine on a balance of
    probabilities that the appellants major mental illness had been so severe and
    his thought processes so disorganized as to displace the presumption of sanity.

[10]

The
    appellant raises several issues on appeal. As his primary ground, he seeks to
    show that he was not criminally responsible at the time of the killings by
    introducing fresh evidence on appeal. For the reasons that follow, we consider
    this ground dispositive of the issues on appeal.

[11]

On
    September 12, 2012 appellate counsel visited the appellant at Kingston Penitentiary
    to prepare for the appeal and formed the lay opinion that the appellant was
    suffering from mental disorder. On November 28, 2012 Dr. Bradford, a forensic
    psychiatrist, saw the appellant at the Regional Treatment Centre. He reviewed
    the appellants penitentiary records and concluded that he was seriously mentally
    ill suffering from Schizophrenia, Catatonic type. Rosenberg J.A. granted a
    consent order that the appellant be transferred to the forensic treatment unit
    of the Brockville Mental Health Centre for a sixty day post-conviction assessment
    by Dr. Bradford.

[12]

Dr.
    Bradford provided an opinion letter dated June 14, 2013 in which he concluded
    that the appellant currently suffered from Schizophrenia, Catatonic Type, Continuous,
    with prominent negative symptoms and further that he was severely mentally ill
    prior to the index offences and at the time of the index offences. His opinion
    concluded that Mr. Palmer would have come within the terms of Section 16 of
    the Criminal Code of Canada at the material time of the index offences.

[13]

Drs.
    Gojer and Pallandi were then asked if Dr. Bradfords report affected their
    previous opinions. Dr. Gojer responded that he was now confident that the
    diagnosis of schizophrenia is not in dispute, and opined that the appellants
    illness is Schizophrenia with prominent features of Catatonia. He concluded
    that, on the balance of probabilities, the appellant did meet the test for s.
    16 at the time of the index offences. Dr. Pallandi was now similarly persuaded
    that a diagnosis of schizophrenia is appropriately applied to the appellant and
    that, on the balance of probabilities, the presumption of criminal
    responsibility in this case at the time of the offences could reasonably be
    displaced.

[14]

With
    respect to the second branch of the s. 16 test (whether the major mental
    illness rendered the appellant incapable of appreciating the nature and quality
    of his acts or of knowing that they were wrong at the time of the offences),
    the three doctors said the following in their post-conviction reports:

Dr. Bradford:

[I]n my opinion, an unprovoked attack against a complete
    stranger/strangers in a public place in broad daylight followed by a bizarre
    suicide attempt is strongly indicative of a severe mental illness at the time
    of the index offences. This is further indication that Mr. Palmer would not
    have been aware that what he was doing was wrong or even aware of the physical
    nature of his actions if he was in a significantly confused state. In my
    opinion Mr. Palmer would have come within the terms of Section 16 of the
    Criminal Code of Canada at the material time of the index offence.

Dr. Gojer:

Given the unpredictability of his actions secondary to his
    mental illness, the severe nature of his illness, his disorganized thinking, it
    would be more likely than not that he would not have been able to weigh the
    pros and cons of his actions, exercise rational choice or know that what he was
    doing was morally wrong.  It is therefore my opinion that Mr. Palmer does
    meet, on the balance of probabilities, the test for Section 16.1 of the
    Criminal Code of Canada.

Dr. Pallandi:

Concerning the second question, that being his criminal
    responsibility, notwithstanding the concerns I have identified above, with the
    additional information that has been made available to me, I am persuaded that
    on the balance of probabilities, that the presumption of criminal
    responsibility in this case can reasonably be displaced, from a clinical
    perspective, and that a defence of Not Criminally Responsible should reasonably
    be available to Mr. Palmer.

[15]

We
    reject the Crowns submission that the fresh evidence does not meet the
R.
    v. Palmer
,
[1980] 1 S.C.R. 759 criteria. The evidence was not
    available prior to trial; it bears on the appellants not criminally
    responsible defence; it is credible, cogent and reliable evidence and it could
    reasonably have affected the outcome of the trial. We therefore admit the fresh
    evidence.

[16]

Having
    admitted the fresh evidence, the only issue before us is the remedy. In our
    view, rather than order a new trial, this is a proper case for this court to
    enter a verdict of not criminally responsible.

[17]

In
R. v. I.E.M.
(2003),
173
    C.C.C. (3d) 515
(Ont. C.A.)
, at paras 46-47, this court explained, quoting
    from
R. v. Warsing
,
[1998] 3 S.C.R. 579, that when a not
    criminally responsible defence is raised for the first time on appeal the presumptive
    remedy is a finding of not criminally responsible unless the facts are complex
    and the court concludes that further evidence is required at a new trial:

Finally, there remains the matter of remedy. Section 686(1)(d)
    of the
Criminal Code
gives this court the jurisdiction to set aside a
    conviction and find the appellant not criminally responsible on account of
    mental disorder. Indeed when the NCRMD defence is raised for the first time on
    appeal this, rather than a new trial, would appear to be the presumptive
    course. Major J. said this at para. 65 of
Warsing
:

It is my opinion that it is in the interests of justice that
Mailloux
be read to recognize that where the defence of NCRMD is not
    raised at the trial and if the court of appeal concludes that it cannot make a
    determination with respect to NCRMD it is within the jurisdiction of the court
    of appeal in avoiding a miscarriage of justice, to order a new trial. In most
    cases it is likely that the court of appeal would have sufficient evidence to
    determine the NCRMD question.
It is only in cases where
    the facts are complex and the court concludes that further evidence is required
    that a new trial would be ordered.
[Emphasis added.]

The ultimate issue presented to this court is simple: has the
    appellant established the NCRMD defence on a balance of probabilities? In my
    view she has and a new trial is not required. The facts, including the fresh
    evidence, are not complex. The psychiatric evidence is strong and
    uncontradicted. The Crown has been unable to point to anything in the
    appellant's medical records since being in prison that is, in the least,
    inconsistent with Dr. Ben-Aron's opinion. Indeed those records appear entirely
    consistent with it. I do not think that any further evidence is required to
    dispose of this issue.

[18]

In
    this case, although the circumstances of the offence are horrific, the
    evidentiary record is complete.
On the oral
    hearing, the Crown did not give any indication that it would seek a further
    psychiatric opinion, despite the court asking on several occasions why the
    jury would not accept the opinions of the three psychiatrists.

[19]

Moreover,
    the evidence is strong, uncontradicted and consistent.  All three psychiatrists
    provided reports to confirm their opinions and all were extensively
    cross-examined by the Crown for the purpose of the fresh evidence application.
    The fresh evidence was detailed in terms of the investigations and analysis by the
    three doctors. The three
psychiatrists are
    unanimous in their opinions. Further, the appellants mother repeated her
    observations originally given to Dr. Gojer on the appellants pre-offence change
    in behaviour to: (1) a Brockville Mental Health Centre social worker while the
    appellant was there for his post-conviction assessment; and (2) in an
    affidavit, which was filed as part of the fresh evidence.

[20]

We
    have reviewed the record. We are satisfied on the basis of our review that the
    appellant has proved the defence of not criminally responsible on a balance of
    probabilities.

[21]

The
    appeal is allowed, the convictions are set aside and verdicts of not criminally
    responsible on account of mental disorder are substituted. In accordance with
    s. 672.46 of the
Criminal Code

the appellant will remain in
    custody pending a disposition hearing by the Review Board pursuant to s. 672.47.
In accordance with s. 672.45(1.1), the appellate record, including
    the fresh evidence application, will be sent to the Review Board without delay.

Released:

MAY 12 2015                                   K.
    Feldman J.A.

KF                                                   Janet
    Simmons J.A.


S.E.
    Pepall J.A.


