



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Downs, 2014 ONCA 20

DATE: 20140113

DOCKET: C53767

MacPherson, Rouleau and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey William Downs

Appellant

Michael Lacy and Julianna Greenspan, for the appellant

Susan Magotiaux, for the respondent

Heard: October 9, 2013

On appeal from conviction entered by Justice M.J. Nolan
    of the Superior Court of Justice, sitting with a jury, dated on March 11, 2010
    and the sentence imposed on May 25, 2010.

Rouleau J.A.:

INTRODUCTION

[1]

This was a difficult trial for the judge and jury. It was acknowledged
    that the appellant was suffering from schizophrenia, and that on February 18,
    2008, he brutally killed Joseph Kearley and injured Bruno De Bortoli. The
    central issue for the jury was whether, when the appellant caused the death and
    injuries, his mental disorder was such that he did not appreciate the nature
    and quality of his actions or did not know that they were morally wrong. If so,
    the appellant ought to be found not criminally responsible (NCR).

[2]

The experts who testified at trial were divided in their opinions. The
    jury weighed these competing opinions and concluded that the appellant was not
    NCR. The appellant appeals, arguing that errors were committed by the trial
    judge in the handling of the trial and in the charge to the jury. The appellant
    argues that the finding that he was criminally responsible is unreasonable and
    unsupported by the evidence. The appellant also argues that errors in the trial
    judges instructions respecting
mens rea
warrant ordering a new trial.

[3]

Given the divided opinion of the experts and the well documented mental
    illness of the appellant, it is clear that the NCR issue could well have gone
    either way. In my view, however, the trial judge worked very hard to ensure
    that the trial was conducted properly and that the case was put fairly to the
    jury. The instructions to the jury are correct. Although much of the medical
    evidence could well have supported an NCR finding, there was also medical
    evidence supporting the jurys conclusion. For the reasons that follow I would,
    therefore, dismiss the appeal.

FACTS

The assault

[4]

In the early hours of the morning of February 18, 2008, the appellant
    violently assaulted and killed 74 year old Joseph Kearley. In the course of
    that assault, the appellant also attacked three other men, including 65 year
    old Bruno De Bartoli who suffered significant injuries.

[5]

The appellant and the victims were residents of the Marentelle Rest Home
    in Windsor. The appellant was 35 years old and living at the rest home because
    he suffered from schizophrenia.

[6]

Staff were alerted to the beating when they heard loud thudding coming
    from upstairs. After a few minutes, they went upstairs to investigate and saw
    Mr. Kearley lying still on the floor in the hallway with blood covering his
    face. Mr. De Bartoli was behind him. The appellant was standing over Mr.
    Kearley punching him repeatedly and stomping on his face. The staff ran
    downstairs and called 911.

[7]

Mr. Kearley had multiple significant blunt force injuries on his head, face
    and neck. His skull and jaw were fractured in 10 places. His ribs were
    fractured in 10 places. He had no defensive wounds. There was obvious and
    significant injury to his face and blood coming from his mouth, ears and nose.
    The pathologist could not determine the exact mechanism of death but found that
    he died from blunt force trauma with possible contributions of lack of oxygen,
    strangulation from the injuries to the throat and massive blood loss.

The arrest and interview

[8]

When the police arrived, they found Mr. Kearley lying in the hallway.
    The appellant was standing barefoot in the hall with blood on his ankles and
    hands. As the police put him under arrest, the appellant said: I am sorry.
    That was bad of me. I hurt those people. Later, when the police cautioned the
    appellant, he said: I want to go back to prison. He remained calm and
    cooperative while he waited with Constable Tanner to be transported. One member
    of the rest home staff said he looked kind of somewhere else and was
    whispering to himself.

[9]

As the appellant was being walked out of the home, another resident made
    a comment, something like I hope you get it up the ass everyday with no lube.
    The appellant responded Ill be back here in a coupla days buddy.

[10]

Officers
    found the appellant to be calm and compliant during booking. He was later
    observed talking to himself in his cell in a calm but loud voice. No one could
    hear particular words.

[11]

When
    the appellant was asked if he knew why he was in the police station, he
    responded I hurt some people. First degree murder. I am going to Kingston
    Penitentiary, but I have some stops along the way. I am going to die in prison
    from AIDS. Im going to get out just before I die. I am going to grow some
    wings and fly.

[12]

When
    the appellant was asked if he wanted to call a lawyer, he initially said no and
    said Ill just go to prison. I dont need a lawyer. When asked whether he
    understood the charge and what a lawyer does, the appellant responded Murder
    one, and a lawyer represents you. The appellant later agreed to talk to
    counsel and, after two unsuccessful attempts, was able to speak to a lawyer.

[13]

During
    his booking and processing, the appellant complained that his wrist was broken.
    He told an officer My wrist hurts. I hurt it hurting somebody else. He told
    police I hit some guys in the face and they were bleeding. The appellant was
    later taken to the hospital for x-rays and, while at the hospital, was heard to
    say Cant believe the mess Im in. At various points he was seen talking or
    mumbling to himself and staring straight ahead. After taking his medical
    history, the doctor gave him medication for his schizophrenia. After seeing the
    doctor he told the police My ankles are broken. I cant walk. They put me in a
    room. I couldnt breathe. I couldnt stand. I couldnt even piss. When the
    police reminded him that he had been walking in the cell, he responded Okay,
    forget it then.

[14]

Upon
    his return to the police station, the appellant was asked where the blood on
    his hands and feet came from. The appellant originally responded that it was
    his blood but after being asked if he was injured, the appellant responded that
    he hit some guys in the face.

[15]

After
    speaking with counsel, the appellant gave a video-taped statement. The
    statement was played at trial and was the subject of comment by the experts.
    The appellant was able to give accurate information about himself and his
    family and background and his diagnosis of schizophrenia. He at times indicated
    that he hurt people and they provoked it and at other times he denied hurting
    people. He did not know why he had beaten the victims. He acknowledged asking
    for cigarettes and being denied. He said he felt bad for himself. He was at
    times unresponsive and also said he was dizzy and wanted to lie down and to see
    a psychiatrist.

[16]

In
    the course of the video-taped statement, the appellant did not mention God or
    any hallucinations or delusions. Detective Thomson testified at trial and said
    he thought that the appellant was exaggerating the situation and putting on an
    act in some parts of the statement. He agreed, however, that contradictions in
    a police interview were common.

Psychiatric history

[17]

It
    was acknowledged at trial that the appellant had been suffering from
    schizophrenia since about the year 2000. Two of his treating psychiatrists, Dr.
    Velehorschi and Dr. Villella and a nurse, Ms. Aussant, testified regarding the
    appellants treatment. Their evidence was to the effect that he had a history
    of delusions, including religiously themed thoughts, and that at times the
    appellant believed that God had directed him to do things or influence his
    actions and thinking. It was also noted that compliance with medications was a
    fairly common problem for the appellant and that missed medication could
    potentially destabilize him. All three testified that they did not believe the
    appellant to be malingering his symptoms.

[18]

It
    was accepted that the appellant had experienced symptoms of schizophrenia in
    the weeks before the attack. In January of 2008, the appellant locked three
    residents in their rooms at the rest home. He was acting in a violent and
    uncontrolled manner but was cooperative when police arrived. On February 4, the
    rest home staff took the appellant to the hospital because of bizarre and
    disruptive behaviour.

[19]

On
    February 12, 2008, the appellant visited the psychiatrist for a follow-up where
    his medications were changed. He was also referred to an intensive community
    treatment program.

[20]

In
    the period preceding the offence, staff at the home had become concerned about
    the appellant. The owner of the rest home, Ms. Zebic, thought that the
    appellant was not in his right mind, and rest home staff noted that he was
    talking to himself and pacing.

Jail Assessment

[21]

The
    appellant was seen by a nurse at the jail on the day of the offences. He
    appeared to the nurse to be disoriented and he reported hearing voices but did
    not mention God. He was agitated and did not want to answer questions. The
    nurse put him on suicide watch.

[22]

On
    February 21, 2008, the appellant was seen by Dr. Child and was found to be
    speaking rationally and normally. He was on medication at the time.

Appellants Evidence

[23]

The
    appellant testified that his medications were screwed up and that he did not
    feel together in his brain during the time leading up to the offences. He was
    able to recall some of the events in question. He testified that he could not
    sleep that night because of changes to his medication. At some point, while in
    bed, he heard an animal-like figure in a tree outside the rest home. He
    testified that he believed this was God and, as a result he felt scared and was
    shaking. When he left his room and went to the common room, he saw lettering
    and numbering on the walls. With respect to why he started kicking and hitting
    Mr. Kearley, the appellant could only explain that he was supposed to meet God
    that night, to be closer to God, and because God told [him] to do it.

[24]

The
    appellant acknowledged that Mr. Kearley had not provoked him. He acknowledged
    that he may have said that Mr. Kearley was a bum or was going to hell but he
    nonetheless liked Mr. Kearley and thought of him as a friend. He may have asked
    Mr. Kearley for cigarettes before the attack.

[25]

The
    appellant testified that he did not know what he was doing when he was kicking
    Mr. Kearley. He said that he did not believe it was wrong at the time and did
    not know he was going to kill Mr. Kearley. The appellant had no recollection of
    the other assaults he committed and did not really remember being arrested or
    making various statements to police.

Expert Assessments

[26]

The
    court ordered assessment was conducted by a psychiatrist, Dr. Komer. He met
    with the appellant approximately 20 times during the 60 day NCR assessment
    conducted in 2008. Dr. Komer found the appellant difficult to assess. He
    confirmed that the appellant was suffering from schizophrenia and did not think
    that the appellant was malingering, although he agreed that this was a
    possibility. He concluded that the appellants illness was active at the time
    he committed the offences. Dr. Komers opinion was that the appellant likely
    appreciated the nature of his acts but lacked an understanding of wrongfulness.
    He concluded that the appellant was likely NCR on account of his mental
    disorder when he committed the offences.

[27]

Dr.
    Litman is a psychologist who assessed the appellant as part of Dr. Komers
    clinical team. Dr. Litman conducted two psychometric assessments of the appellant
    and interviewed him once. Dr. Litman was unable to testify at trial but his
    report was read in and relied upon by Dr. Komer. Dr. Litman concluded that the
    appellant was likely not criminally responsible but found that he was
    malingering psychiatric symptoms.

[28]

The
    Crown sought and obtained a second opinion on criminal responsibility. The
    assessment was carried out by Dr. Dickey, a psychiatrist. Dr. Dickey met with
    the appellant three or four times for a total of around two hours. He reviewed
    the opinions of Dr. Komer and Dr. Litman as well as police files. Dr. Dickey
    was unable to conclude that [the appellant] would clearly qualify for a
    defence of not criminally responsible. Dr. Dickey acknowledged that he was not
    far off from Dr. Komers opinion. However, he did not see evidence of florid
    and active symptoms of schizophrenia around the time of the offence that would
    impact on the appellants appreciation of the wrongfulness of his acts. He
    found that the changing nature of the reported hallucinations of God in the
    trees, including the form, colour, time and character of the alleged
    hallucinations strongly supported the conclusion that the appellant was
    malingering in his post-defence assessments. The appellant had not reported any
    religious hallucinations in his many statements to police and had not mentioned
    seeing God in the trees or feeling compelled by God to kill or beat anyone
    until April 8, almost two months after the offences.

[29]

Dr.
    Wright is a forensic psychologist who assessed the appellant as part of Dr.
    Dickeys team. Dr. Wright met with the appellant for 2.5 hours and reviewed
    case records. Dr. Wright concluded that it was quite unlikely that the
    appellant lacked knowledge of moral wrongfulness of his acts. Dr. Wright opined
    that the appellant was malingering symptoms of a mental disorder because some
    of the appellants descriptions of his hallucinations were inconsistent.

[30]

In
    his cross-examination of Dr. Wright, defence counsel highlighted a number of
    records that Dr. Wright had not been aware of when he formed his opinion. These
    included hospital records showing that the appellant had reported thinking
    another resident had a knife in the weeks before the offence, reports regarding
    treatment the appellant had received in the years prior to the offence that emphasized
    his history of religious preoccupation, hospital records from February 4, 2008
    referring to auditory hallucinations and talking to God, medication logs and
    some of the appellants utterances in police custody. Dr. Wright testified
    that, even with all of this new information, his overall opinion that the
    appellant was criminally responsible did not change.

[31]

As
    to the appellant having reported that God had directed him, Dr. Wright
    testified it was unusual that the appellant had a delusion so strong as to
    compel him to commit these offences and yet, did not remember the specifics of
    the delusion. Dr. Wright thought that it was unusual that the appellant would
    be labouring under such a fixed delusion and yet made no mention of the
    delusion or religious themes whatsoever in the police interviews and
    statements.

Trial Proceedings

[32]

The
    appellant admitted the
actus reus
of the killing and the aggravated
    assault. He argued that he was not criminally responsible by reason of his
    mental disorder. The Crown admitted that the appellant suffered from a mental
    disorder but argued that he was criminally responsible and had the necessary
mens
    rea
for second degree murder and aggravated assault.

[33]

The
    jury was instructed to accept that the
actus reus
had been proven and
    that their task was to determine criminal responsibility on a balance of
    probabilities standard. They were told that the onus was on the appellant to
    show that he was NCR. If they found that the appellant did not meet this onus,
    then the jury was to consider the intent for murder and aggravated assault. That
    intent had to be established beyond a reasonable doubt.

[34]

The
    jury found that the appellant had not made out a defence of NCR and convicted
    him of second degree murder and aggravated assault.

ISSUES

[35]

There
    are four issues raised in this appeal:

1)

was the verdict
    reasonable and supported by the evidence?

2)

did the trial judge
    err by failing to adequately instruct the jury on the steps to follow in their
    analysis and on the proper use of protected statements in that analysis?

3)

did the trial judge
    err by instructing the jury that they could use evidence of alleged malingering
    to infer that the appellant had the intent to kill? and

4)

did the trial judge
    err by telling the jury that the appellants ability to recall the events was
    relevant in determining whether he was NCR at the time of the offences?

1)       Was the Verdict Reasonable and Supported by the
    Evidence?

[36]

Determining
    whether a person who suffers from a mental illness is criminally responsible
    for his actions and is capable of having the subjective foresight required to
    be convicted of second degree murder is, by its very nature, very difficult for
    juries to assess. In the appellants submission, judicial experience has taught
    us that there are greater risks of miscarriages of justice in cases of this
    nature making them ripe for appellate review through an assessment of the
    reasonableness of the verdict.

[37]

The
    Supreme Court of Canada commented on this issue in
R. v. Molodowic
, 2000
    SCC 16, [2000] 1 S.C.R. 420, at para. 13:

This  is a case in which the weight of judicial experience
    must be brought to bear on the assessment of the reasonableness, as a matter of
    law, of the conclusion reached by the jury. There is a real danger, which
    manifested itself here, that a jury will be unduly sceptical of a defence
    that is often perceived as easy to fabricate and difficult to rebut. This is
    particularly so when the actions of the accused present a large component of
    rationality, as they do in a case such as this where it is conceded that the
    appellant knew what he was doing and realized that his actions were prohibited
    by law.

[38]

In
    the appellants view, the jurys conclusion in this case was, as it was in
Molodowic
,
    the product of an unreasonable verdict.

[39]

The
    appellant argues that on a reasonable assessment of the evidence as a whole, it
    is clear that the appellant had established on a balance of probabilities that
    he was not criminally responsible. Any other finding was simply legally
    unreasonable.

[40]

The
    appellant also points to three errors that compromised the jurys ability to
    arrive to a just result, and no doubt contributed to their having reached an
    unreasonable verdict:


i.

the Crown led evidence that was contrary to the agreed facts that the
    appellant was suffering from a major mental illness (schizophrenia) and that
    there was no animosity between the appellant and the deceased;


ii.

the trial judges instructions did not adequately convey to the jury the
    fact that Dr. Wrights evidence was minimally probative and entitled to little
    weight; and


iii.

it was inappropriate for the Crown to repeatedly display to the jury the
    graphic photos of the murder particularly in light of the defences admission that
    the appellant had caused the death of Mr. Kearley.

[41]

I
    will deal with each of these three points in turn.

i.        Did
    the Crown lead evidence contrary to the agreed statement of facts?

[42]

Prior
    to trial, the parties had worked out an agreed statement of facts. It included
    the fact that the appellant was suffering from a major mental illness
    (schizophrenia) and that, prior to the offences, there were no known
    difficulties or arguments between the appellant and the victims. The appellant
    argues that the Crown, in its submissions and in the evidence led at trial,
    undermined these agreed statements. This would have confused the jury and have
    suggested to them that the appellant was motivated by
animus
and,
    further, that he was a malingerer who did not in fact suffer from
    schizophrenia.

[43]

I
    do not view the evidence led by the Crown or its submissions to be contrary to or
    to undermine the agreed statement of facts. I agree that a good deal of
    evidence was led that suggested that the appellant may be malingering in the
    sense of exaggerating or feigning particular symptoms of schizophrenia. It was,
    however, never suggested that he did not suffer from the condition. By stating
    that the appellant may have amplified or created symptoms of his mental
    illness, the trial judge was not suggesting that the admitted diagnosis was
    wrong. The issue for the jury was not whether the appellant was schizophrenic;
    it was whether some of the symptoms he described to the psychiatrist and in his
    testimony at trial were exaggerated or real.

[44]

With
    respect to the issue of
animus
, the evidence relied on by the
    appellant is testimony from a witness who recalled that the appellant had referred
    to one of the victims as a bum and suggested that the assault may have been
    over a victims refusal to share his cigarettes. This evidence does not
    contradict the agreed statement of facts. It does not suggest that there were known
    difficulties or arguments prior to the commission of the offences.

[45]

There
    was not, in my view any attempt by the Crown to resile from the agreed
    statement of facts.

ii.       Did
    the trial judges instructions adequately signal the weaknesses associated with
    Dr. Wrights evidence?

[46]

The
    appellant argues that, in the course of cross-examination, it was shown that,
    in preparing his report and reaching his opinion, Dr. Wright failed to take
    into account important and relevant information. In the appellants submission,
    the trial judges instruction was insufficient to protect against the
    possibility that the jury would place undue weight on Dr. Wrights evidence.
    The trial judges instruction simply noted for the jury that the appellant had
    shown that there were certain facts of which he had not been made aware before
    when he had formed his opinion. You could determine the weight to be put on
    that evidence.

[47]

I
    see no error in the trial judges treatment of Dr. Wrights evidence. The
    weaknesses in Dr. Wrights evidence, including his failure to review many
    psychiatric and medical records, were emphasized in the appellants closing
    arguments and, as noted above, the trial judge cautioned the jury accordingly.
    In other parts of her charge, the trial judge referenced the appellants
    submission that Dr. Komers evidence should be given more weight because of the
    greater contact he had with the appellant and because he would know the
    appellant much better than Dr. Wright. No more was requested by trial counsel
    and no more was required.

iii.      The
    use of the photographs

[48]

The
    Crown initially sought to admit over 600 photos of the crime scene, autopsy and
    the injuries to the victims. During a pre-trial motion, the appellant
    challenged approximately 60 of the photos and was successful in having all but
    three excluded. Ultimately, approximately 200 photographs were filed in a
    binder as an exhibit at trial.

[49]

Several
    of the photos of the crime scene and of the deceased were graphic, and viewing
    them may have made the jury uncomfortable. The Crown showed them to the jury
    four times through various witnesses. In the appellants view, there was no
    reason to do so in light of the appellants admission that he had caused the
    death and, in any event, any relevance was outweighed by the prejudicial impact
    of showing them to the jury. The appellant argues that the photos would have inflamed
    and alienated the jury.

[50]

The
    Crown notes, correctly in my view, that there was a ruling that the photographs
    were relevant and admissible as they allowed the jury to assess the sustained
    and vicious nature of the attack. This went on the one hand to support the
    Crowns position that intent could be inferred from the sustained and
    purposeful violent course of conduct. On the other hand, it also supported the
    appellants submission that the severity of the aggression was consistent, in
    Dr. Komers view, with the lack of criminal responsibility.

[51]

No
    appeal was taken from the judges ruling on admissibility. Further, the trial
    judge closely monitored the showing of the photos to the jury, ensuring that
    repetitive showing was limited and that the photos not be displayed on the
    screen any longer than necessary. While it is unfortunate that the jury was
    exposed to such violent images, there is no reason to assume that the jury
    would have been inflamed and would not have applied the law dispassionately, as
    they were required to.

iv.      Was
    the verdict reasonable?

[52]

I
    acknowledge that there was considerable evidence led at trial tending to show
    that the appellant was not criminally responsible at the time he committed the
    offence. He was schizophrenic, his mental health had shown signs of
    deterioration in the period leading to the offence and some of the experts
    supported a finding of NCR. Further, Dr. Wrights contrary opinion was
    certainly weakened in cross-examination and the jury heard a good deal of
    evidence suggesting that Dr. Wrights conclusion that the appellant was
    malingering was simply wrong.

[53]

In
    other words, a jury could very well have ruled in the appellants favour.

[54]

However,
    there was evidence, including expert evidence, going the other way. It was by
    no means an overwhelming case for either party. Faced with differing expert
    opinions on the NCR issue, the jury had a difficult decision to make. Nevertheless,
    it was the appellants burden to establish that he was NCR, and the jury was
    entitled on this record to find that he had not met that burden. The appellant
    has not shown any error in the trial judges careful treatment of the evidence
    and her charge on this issue. There is no basis for this court to intervene.

2)       Instructions
    to the jury on the steps to follow in their analysis and on the proper use in
    that analysis of protected statements

[55]

This
    case proceeded as a one stage, blended jury trial. The jury had two principal
    tasks. First, they had to determine whether, on a balance of probabilities, the
    appellant had established that he was NCR. If they concluded that the appellant
    had not met his burden, the jury was then to move on to the second stage of
    determining whether the appellant had formed the specific intent for murder.

[56]

It
    was incumbent on the trial judge to properly instruct the jury on the
    distinction between the two steps, including the differences in the onus and burden
    of proof, and on the evidence that could and could not be used by the jury in
    reaching their decision on both of these steps. In the appellants submission,
    the trial judges instruction did not provide the jury with sufficient guidance
    on how to carry out its analysis.

[57]

Further,
    the appellant argues that the trial judge erred in her instructions relating to
    the use that could be made of protected statements made by the appellant to the
    medical personnel who assessed his mental health. The appellant had made
    various utterances while on the assessment ordered by the court pursuant to s.
    672.11 of the
Criminal Code
. These statements are deemed to be
    protected by operation of s. 672.21 of the
Criminal Code
. Although
    the appellant consented to the admission of these statements for the purpose of
    assessing whether he was NCR, the appellant argues that this evidence could not
    be used by the jury in determining whether the Crown had proven intent.

i.

The adequacy of the instruction to the jury on the steps of analysis
    required

[58]

The
    steps of analysis portion of the charge is modelled after the Ontario specimen
    jury instructions. In her instructions, the trial judge told the jury that they
    were first to consider the criminal responsibility of the appellant on a
    balance of probabilities standard, and that on this issue the onus was on the
    appellant. She reminded the jury that mental disorder was admitted and then
    explained the law relating to an NCR determination. She also reviewed some of
    the relevant evidence.

[59]

After
    this review, the trial judge moved to the second stage of considering intent
    for murder and aggravated assault. The trial judge instructed that here, the
    onus was on the Crown, and that intent had to be proven beyond a reasonable
    doubt. The trial judge was careful to ensure that the jury understood that the
    appellants mental condition remained relevant. She told the jury: Evidence of
    mental illness or mental disorder, falling short of a finding that he is not
    criminally responsible, should be considered along with all the other evidence
    in determining whether Mr. Downs had the intent required for murder .

[60]

The
    trial judges review of the evidence and guidance as to how the jury should
    carry out their analysis of the issues was proper and would not, as the
    appellant suggests, have confused the jury. So long as the evidence is put to
    the jury in a manner that will allow it to fully appreciate the issues and the
    defence presented, the charge will be adequate: C. Granger,
The Criminal
    Jury Trial in Canada
, 2nd ed. (Scarborough: Carswell, 1996), at p. 249,
    cited with approval in
R v. Daley
, 2007 SCC 53, at para. 57. In this
    case, given that intent had to be determined on the whole of the evidence,
    including evidence of mental condition but excluding the protected statements,
    it was not an error to mention both criminal responsibility and intent when
    reviewing particular portions of evidence, as suggested by the appellant. Other
    than the protected statements, the evidence on mental state was relevant to
    both issues. Further, the trial judge was careful to give the jury the defence
    counsels theory along with relevant supporting points of evidence highlighted
    in exactly the form created by defence counsel. This would have helped ensure
    that the jury understood the appellants position as well as the steps required
    to determine the two legal issues.

ii.

The limited use that could be made of protected statements

[61]

As
    set out earlier, utterances made by an accused in the course of a court-ordered
    assessment pursuant to s. 672.11 of the
Criminal Code
are
    presumptively inadmissible at an accuseds trial. The appellant consented to
    the protected statements being admitted for the limited purpose of assessing
    whether he was NCR. The appellant acknowledges that the trial judge correctly
    instructed the jury that they could not consider the protected statements to
    determine whether the appellant had the requisite intent to commit murder. The
    appellant argues, however, that the trial judge undermined this instruction by
    telling the jury that they could consider the appellants after-the-fact
    conduct and motive in deciding whether the Crown had proven
mens rea
.
    In the appellants submission, this instruction, when combined with the Crowns
    submission that the appellant was angry, unhappy at the home and was
    malingering, would have confused the jury. This, the appellant explains, is
    because the evidence of anger, unhappiness and malingering could, almost
    exclusively, be found in the protected statements.

[62]

I
    would not give effect to this ground of appeal. Contrary to the appellants submission,
    there is considerable evidence in the record beyond the protected statement
    that supports the inference that the appellant was unhappy and angry at the
    home. I also disagree with the suggestion that the Crown relied on the
    appellants malingering to show intent. The Crown did not rely on the protected
    statements but rather relied on the post-arrest statements and conduct of the
    appellant, including evidence of malingering, to support its submission that
    the appellant was aware of his actions as well as their wrongfulness, thereby
    establishing criminal responsibility. The jury was not told that it could use
    the appellants malingering, months after the offence, to demonstrate intent. To
    establish intent, the Crown relied principally on the violent nature of the
    offences as well as utterances made by the appellant that were admitted on
    consent.

[63]

There
    was no unfairness in the way the Crown sought to use the protective statements or
    in the trial judges instructions. The jury would have understood the limited
    use to which they could be put.

3)       Did
    the trial judge err by instructing the jury that they could use evidence of
    alleged malingering to infer that the appellant had the intent to kill?

[64]

The
    appellant submits that in the portion of the charge dealing with post-offence
    conduct, the trial judge effectively told the jury that the appellants post-offence
    conduct, including the allegation that he was malingering, could be considered
    in deciding whether the appellant had the necessary intent.

[65]

I
    disagree. There is no mention at all of intent in the brief post-offence conduct
    instruction. The instruction on post-offence conduct was tailored to the unique
    circumstances of this case. Some post-offence conduct, including evidence that
    the appellant was malingering, may have had relevance in deciding the
    appellants NCR defence. In pre-charge submissions, the Crown expressed
    uncertainty, however, as to whether malingering should be referred to in the
    charge as an example of post-offence conduct. The trial judge indicated she was
    grappling with the issue but had determined that it made some sense to put it
    there. Defence counsel agreed with the proposed instruction, interjecting as
    follows:

It makes absolute sense because the Crowns theory is that my
    client, as a result of the death of Mr. Kearley, malingered, so that he could
    get out of going to prison. Hes made that very clear throughout his case and
    his closing to the jury. That is post-offence conduct, so that is exactly where
    it should be, your honour.

[66]

The
    instruction was appropriate in the circumstances and would not have resulted in
    the jury improperly using the post-offence evidence of malingering to infer the
    intent for murder.

4)       Did
    the trial judge err by telling the jury that the appellants ability to recall
    the events was relevant in determining whether he was NCR at the time of the
    offences?

[67]

In
    her charge to the jury, the trial judge instructed the jury that if they
    believed the appellant when he stated that he did not remember and was not
    conscious of hitting, punching and kicking the victims, in combination with the
    other evidence they accepted, the appellant would not be capable of
    appreciating the nature and quality of his actions and they must find him NCR
    on account of mental disorder. That was clearly wrong. The Crown properly
    requested a recharge to clarify that the ability to recall the events at a
    later date was not relevant. Consciousness at the time of events was, however,
    relevant to the appellants ability to appreciate the nature and consequences
    of his actions. For that reason the trial judge recharged the jury as follows:

As an example, if you believe [the appellant], that he does not
    remember and was therefore not conscious of hitting, punching, kicking or
    stomping Mr. Kearley or Mr. De Bortoli, at the time he did those actions, as a
    result of his mental disorder, in combination with the other evidence you
    accept, he would not be capable of appreciating the nature and consequence of
    his actions, then you must find [the appellant] not criminally responsible on
    account of mental disorder, your deliberations would be over.

Defence counsel agreed that the original charge had
    been an error and did not object to the proposed re-charge.

[68]

On
    appeal, the appellant argues that, because the various statements made to the
    police and others on the day of his arrest showed that the appellant was able
    to recall the events immediately after they happened and that he was also able
    to recall the events during some of the assessments carried out in the ensuing
    months, the trial judge erred in her recharge. She should have said that the appellants
    ability to recall his actions was irrelevant in assessing the applicability of
    the NCR defence. In the appellants submission, if the jury understood that the
    inability to remember was a prerequisite to the appellant being able to avail
    himself of the defence of NCR, the recharge might have been relied on by the
    jury to reject the NCR defence.

[69]

I
    acknowledge that a better example could have been selected. However, in my view
    there is no unfairness or disadvantage to the appellant in the recharge.
    Contrary to the appellants submission, the example did provide a basis on
    which the jury could find the appellant NCR. The appellant testified that he
    was not in control of his body at the time of the offences and could not recall
    the details of the killing or anything at all about the beating of the other
    man. In common sense terms, this evidence, if accepted by the jury, could have
    been interpreted as the appellant not being conscious or remembering much of
    what he did at the time of the offence, and therefore, that the appellant lacked
    the capacity for rational choice or understanding. If so, the jury could well have
    concluded that the appellant was NCR.

CONCLUSION

[70]

This
    was not an overwhelming case for either party. Assessing mental disorder,
    capacity and intent is not a science and the lines defining them are not black
    and white. The jury was given the responsibility of sorting through conflicting
    impressions, subjective opinions and differing perspectives on what the appellant
    was thinking and why. The trial judge did an admirable job in her handling of
    the trial. The instructions she gave to the jury equipped the jurors for their
    task, and their conclusion was available on the evidence.

[71]

For
    these reasons, I would dismiss the appeal.

Paul Rouleau J.A.

I agree J.C.
    MacPherson J.A.

I agree G. Strathy
    J.A.

Released: January 13, 2014


