



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Richmond, 2016 ONCA 134

DATE: 20160218

DOCKET: C52528

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Richmond

Appellant

Apple Newton-Smith, for the appellant

Alison Wheeler, for the respondent

Heard: September 17, 2015

On appeal from the conviction entered on December 14,
    2006 by Justice Michael R. Dambrot of the Superior Court of Justice, sitting
    with a jury.

Cronk J.A.:

[1]

On March 13, 2004, Joycelyn Paul was found dead in the kitchen of the
    home she shared with her only son, the appellant, Andrew Richmond.  The
    circumstances were horrific.  Ms. Paul had been stabbed multiple times in the
    heart.  She had also been decapitated and her house had been set on fire.

[2]

On December 6, 2006, following a three-week trial before a judge and
    jury, the appellant was found guilty of the second degree murder of his mother. 
    The next day, the appellant raised the defence of mental disorder under s. 16
    of the
Criminal Code
, R.S.C. 1985 c. C-46, and a criminal
    responsibility hearing ensued.  On December 14, 2006, the jury rejected the
    appellants mental disorder defence and again found him guilty of second degree
    murder.  On February 1, 2007, the appellant was sentenced to life imprisonment,
    without parole eligibility for 12 years.

[3]

The appellant appeals his conviction.  He advances one main ground of
    appeal, in two ways.  First, he argues that the jurys rejection of his mental
    disorder defence was unreasonable because there was no rational foundation in
    the evidence for the jury to reject opinion evidence regarding his criminal
    responsibility set out in a pre-conviction, psychiatric assessment report. 
    Second, the jurys rejection of his defence was unreasonable in light of fresh
    evidence of a post-conviction, psychiatric assessment of his criminal
    responsibility.  He requests an order substituting a finding of not criminally responsible
    by reason of mental disorder (NCR) or, in the alternative, a new trial on the
    issue of criminal responsibility.

[4]

For the reasons that follow, I would dismiss the appeal.  In my view, the
    jurys verdict was reasonable and available to it on the evidence before it. 
    Further, the fresh evidence tendered by the appellant could not reasonably be
    expected to have affected the verdict, and the appellant has not adequately
    explained his failure to tender post-conviction, psychiatric assessment
    evidence at his NCR hearing.  Accordingly, I would deny leave to admit the
    fresh evidence on appeal.

I.

Background in Brief

(1)

The Offence

[5]

The appellant is an only child.  He was raised by his mother and lived
    at home.  In the fall of 2003, his mother sold the family home where she and
    the appellant had lived for many years.

[6]

In the months leading up to the sale and his mothers murder, the
    appellant had engaged in bizarre and alarming behaviour.  In brief, the
    relevant incidents included the following.

[7]

Ms. Paul told several people that the appellant was angry at her and
    unhappy with her decision to sell the house; that he had wanted to buy the
    house for $10 or $20; and that he had maintained that the house was his.  She
    also told a friend that the appellant had claimed that she was not his mother;
    that he had demanded to know the identity of his natural mother; and that he
    had said that he wanted to burn down their new house.  He also began making his
    own food because he did not trust his mother and thought that she was putting
    stuff in his food.

[8]

In addition, in mid-June 2003, the appellant called the police and
    claimed that he had been sexually assaulted by his uncle some 15 years earlier
    and that his mother had failed to stop the assault.  No charges were laid.  The
    appellants aunt also reported that the appellant had said he was planning to
    kill members of his family.  His uncle called the police when the appellant
    said that he was going to attack him because he knew that his uncle wanted to
    kill him.

[9]

Also in June 2003, the appellant was cautioned by the police for
    assaulting a cab driver and his mother obtained an order for his involuntary admission
    to a psychiatric facility.  The appellant discharged himself from hospital against
    medical advice.  His discharge summary indicated that his mother had reported
    changes in his behaviour in the preceding four to six weeks, including
    increased isolation and irritability.

[10]

About
    three months after his discharge from hospital, the appellant grabbed a
    stranger in the subway, spat in his face and pushed him down the stairs, saying
    dont you ever say that to me again.  He also glared at another person in the
    subway station and punched him in the eye, while talking to himself.

[11]

The
    sale of the family home closed in November 2003.  Four months later, at about
    11:00 p.m. on the evening of March 13, 2004, the appellant went to the door of
    a nearby neighbour and told her that there was a fire at his house.  When the
    neighbour declined to allow him to enter, the appellant left.  He walked 10 or
    15 minutes away and approached a strangers house.  When the occupant answered the
    door, the appellant said that his house was on fire.  This neighbour let him in
    and he used the telephone.  In doing so, he asked the neighbour what telephone
    number he should call and appeared unsure of where he lived.

[12]

After
    calling 911 and reporting the fire at his house, the appellant began to walk
    home.  He flagged down police officers who had been dispatched in response to
    the 911 call.  He told the police that his house was on fire and that he had
    called 911.  In response to the officers questions, he also said that he was uncertain
    if his mother was at home and offered various explanations for his own recent
    whereabouts.

[13]

On
    arrival at the house, firefighters discovered Ms. Pauls lifeless body.  She
    had sustained multiple wounds to the heart, various bruises around her eyes and
    stab wounds in her right ear, below her chin and on her left thigh.  She had
    also been decapitated and it appeared that efforts had been made to dismember
    parts of her body.  Ms. Paul had suffered extensive burns in the fire, covering
    more than 90 percent of her body.

[14]

The
    police found a blue barrel in the kitchen that appeared to have streaks of
    blood on both the interior and the exterior.  They also discovered seven knives
    in the kitchen, one of which had been broken in two.  Subsequent testing
    revealed the appellants blood on four of the knives.  A notebook was also found
    on top of the microwave in the kitchen.  It contained a handwritten note,
    apparently addressed to the appellant, setting out the name and contact information
    for Ms. Pauls financial advisor and indicating She has account for J. Paul,
    your mum, if anything should happen to me.

[15]

Experts
    later determined that the fire at the appellants home had been set
    deliberately.

[16]

About
    10 and one-half months later, on February 2, 2005, the appellant was charged
    with first degree murder.

(2)

Litigation History

[17]

The
    appellants first trial commenced with pre-trial motions in the Superior Court
    on April 26, 2006.  On completion of the motions, the Crown requested an
    adjournment to permit a criminal responsibility assessment of the appellant. 
    For various reasons that are irrelevant to this appeal, a mistrial was declared
    and it was agreed that the pre-trial rulings would apply at the new trial.  The
    matter was then adjourned pending the availability of a bed for the appellant
    at the Centre for Addiction and Mental Health (CAMH) in Toronto.

[18]

On
    June 12, 2006, the appellant was admitted to the inpatient assessment unit at
    CAMH.  He presented with symptoms of acute psychosis, including paranoia,
    conceptual disorganization and grandiose delusions.  As a result, staff at CAMH
    concluded that a criminal responsibility assessment could not then be conducted
    and the administration of antipsychotic medication was commenced.  The
    appellants assessment was eventually undertaken in July 2006.

[19]

In
    his ensuing assessment report dated September 25, 2006, the appellants
    attending psychiatrist, Dr. Phillip Klassen of CAMH, diagnosed the appellant as
    suffering from schizophrenia.  As discussed in more detail below, he also
    expressed the opinion that the appellants circumstances presented an
    extremely strong circumstantial case for an NCR finding.

[20]

The
    appellants second trial began on November 16, 2006, and continued for three weeks. 
    No issue of his criminal responsibility was raised before the jury.  The
    appellant defended the case on the basis that the Crown had failed to prove, to
    the requisite criminal standard, that he had killed his mother.

[21]

The
    jury began its deliberations on the afternoon of December 4, 2006.  On the
    morning of December 6, it found the appellant guilty of second degree murder. 
    Shortly after the verdict, the defence indicated that it intended to raise the
    issue of criminal responsibility and to call Dr. Klassen, who was then away in
    Nunavut, to testify.  The trial judge expressed concern with the timeliness of
    this procedure and the possible effect it would have on the jury, as the mental
    disorder defence had not been raised previously at trial.

[22]

In
    the event, the NCR hearing commenced on the following day, Thursday, December
    7, 2006.  The defence called two civilian witnesses who had already testified
    at trial and the hearing was then adjourned pending Dr. Klassens return from
    Nunavut.  Dr. Klassen testified for the defence on Monday, December 11, 2006.

[23]

The
    Crown called no evidence.  It did not dispute that the appellant suffers from
    schizophrenia, instead arguing that the appellant had not met his burden under
    s. 16(3) of the
Criminal Code
to establish on a balance of
    probabilities that his mental illness rendered him incapable of appreciating
    the nature and quality of his act, or of knowing that it was wrong.

[24]

On
    December 14, 2006, after brief submissions by counsel and the trial judges
    charge on the NCR defence, the jury retired for deliberations.  After less than
    90 minutes, it returned its verdict rejecting the mental disorder defence and
    again finding the appellant guilty of second degree murder.

(3)

Expert Evidence at the NCR Hearing

[25]

Dr.
    Klassen testified that the appellant suffers from schizophrenia, with various
    psychotic-related symptoms.  In his September 25, 2006 report, Dr. Klassen
    indicated that, on admission to CAMH, the appellant presented with a history
    of, and ongoing, active psychosis, including auditory hallucinations, grandiose
    and paranoid delusions, significant thought form disorder and conceptual
    disorganization, and functional decline.

[26]

Following
    the administration of anti-psychotic medication, the appellants condition
    improved somewhat.  According to Dr. Klassen, as a result of this medication
    regime, the appellant came to recognize the nature of his mental illness and
    acknowledged some of his psychotic symptoms, including his auditory
    hallucinations.  However, he lacked insight into his other psychotic symptoms
    and continued to exhibit ongoing, severe psychosis.

[27]

Throughout
    his stay at CAMH in the months leading up to the NCR hearing, the appellant
    denied any involvement in the death of his mother and in the setting of the
    house fire.  He also refused to consent to any interviews by his assessment
    team with members of his family or his friends, including his former
    girlfriend.

[28]

Based
    on the information that was available to him, Dr. Klassen offered the opinion
    that there was an extremely strong circumstantial case for an NCR finding. 
    In Dr. Klassens view, at the time of the events in question, the appellant was
    suffering from a severe psychotic illness with typical symptoms of
    schizophrenia.  The circumstances of the crime, Dr. Klassen suggested, were
    indicative of an overkill phenomenon associated with a psychotic motivation. 
    Dr. Klassen explained this phenomenon in these terms: when a person is killed
    theyre sometimes killed more than you need to kill them, so to speak.

[29]

Dr.
    Klassen also suggested that the appellants conduct was related to his delusional
    belief that his family members, including his mother, were imposters intent on
    causing him harm.  Dr. Klassen indicated that the appellant felt that the
    imposter physically manifest as his mother was at the centre of a conspiracy
    against him and that she needed to be killed, indeed exterminated in a most
    definitive fashion in order to protect himself.

[30]

Dr.
    Klassen was unequivocal in his diagnosis of the appellants schizophrenia. 
    However, he offered a more qualified opinion regarding whether the appellant
    was incapable of appreciating the nature and quality of his acts, or of knowing
    that they were wrong, due to his mental illness.  During his testimony, Dr.
    Klassen made clear that his opinion that there was an extremely strong
    circumstantial case for an NCR finding was predicated on the balance of
    probabilities standard set out under s. 16(2) of the
Criminal Code
,
    rather than on any conclusion that the evidence in support of an NCR finding
    was overwhelming.

[31]

Dr.
    Klassen also candidly acknowledged gaps in the information on which his
    criminal responsibility assessment of the appellant had been based.  First, as
    described above, because the appellant denied any involvement in the offence,
    Dr. Klassen had no account from him of the circumstances surrounding the death
    of Ms. Paul.  Moreover, due to the timing of the jurys initial verdict and his
    own absence in Nunavut, Dr. Klassen was unable to interview the appellant
    before testifying at the NCR hearing.  The resulting absence of any account of
    the killing from the appellant led, in Dr. Klassens words, to an element of
    piecing things together.  Second, the appellants assessment team had been
    unable to interview any of the appellants family members or friends to aid in
    his criminal responsibility assessment.

[32]

Dr.
    Klassen agreed on cross-examination that the opportunity to interview or
    interact with the appellant was an important part of his assessment of the
    appellants criminal responsibility and that the lack of an account of the
    killing from the appellant prevented him from offering a definitive opinion on
    this central issue:

Q.      You have some transcripts before you; you have some
    collateral information, significant degree of that information, but would you
    characterize your interviews or interaction with him as an important part in
    your determination as to whether hes criminally responsible?

A.      Yes.



Q.      So its a strong circumstantial case?

A.      Thats my  yes, thats my opinion.

Q.      You cant say  can you  you cant say definitively,
    youre saying its a circumstantial case, is that right?

A.      Right.

Q.      Okay?

A.      Im saying  I mean, the critical missing element, as
    youve quite correctly pointed out apart from the shocking loss of this mans
    health care record by our facility, but apart from that is the fact that Mr.
    Richmond has not, in my opinion, truly spoken to us of what he knows of the
    murder of his mother.  But I think its a strong circumstantial case which is
    why I  Im sort of saying on the balance of probabilities, but its a
    circumstantial case.

[33]

Nevertheless,
    Dr. Klassens opinion remained that the appellant was delusional and had
    deteriorated significantly to the point where his capacity for choice
    regarding his family had been lost.

II.       Fresh Evidence

(1)     Parties Positions

[34]

On
    appeal, the appellant seeks leave to file a post-conviction, criminal
    responsibility assessment report by Dr. Klassen, dated January 15, 2015, as
    fresh evidence.  The appellant argues that this report addresses the missing
    piece relied on by the Crown at the NCR hearing to challenge the foundation
    for Dr. Klassens opinion because it provides an account, by the appellant, of
    Ms. Pauls murder.  Further, the appellant says that the report meets the
    criteria for admission as fresh evidence and that it is in the interests of
    justice to admit it.

[35]

The
    Crown opposes the admission of the fresh evidence.  While the Crown
    acknowledges that, for the most part, the report in question is admissible
    under the rules of evidence as expert opinion evidence, it contends that the
    evidence could not reasonably be expected to have affected the jurys verdict. 
    Further, the appellant has failed to offer any meaningful explanation for his
    failure to tender the evidence at the NCR hearing.

(2)     Nature of the Fresh Evidence

[36]

Dr.
    Klassen met with the appellant in February 2014, almost 10 years after Ms.
    Pauls death and approximately seven and one-half years after the date of his
    original report, to reassess his criminal responsibility in light of his
    conviction for his mothers murder.  For the first time, the appellant provided
    Dr. Klassen with an account of the events leading up to and surrounding his
    mothers death.

[37]

As
    outlined by Dr. Klassen in his 2015 report, the appellant stated that, during
    an argument about money, Ms. Paul slapped the appellant twice.  The appellant
    slapped her to stop her from hitting him again.  The appellant said he struck
    Ms. Paul in the head after she swung a knife at him.  At this point, Ms. Paul
    fell and the appellant noticed blood coming out of her ear. The appellant told
    Dr. Klassen that he was afraid his mother was dead and so he tried to cut up
    the body but when this failed he had to play it up like someone else did it.

[38]

The
    appellant said that he left the house and came back to find it on fire. He told
    Dr. Klassen that he thought the fire started because his mother had been
    cooking on the stove. The appellant reiterated that he only hit his mother once
    and that no weapons were involved. After further discussion, the appellant said
    that he probably poked her in the heart one time to make sure his mother was
    dead. He explained that he tried to cut off his mothers head and hands to
    avoid detection, but that after decapitating his mother he could not remove her
    hands. After taking a shower, the appellant left the house.

[39]

The
    appellant told Dr. Klassen that he felt his mother was an imposter on the night
    in question. He said that he felt like the leader, the worst person, was gone
    after he left the house. When asked why he had not told Dr. Klassen any of this
    information before, the appellant said that of course you never want to go
    into jail.

[40]

Based
    on his February 2014 reassessment of the appellant, Dr. Klassen reaffirmed his
    previous diagnosis of schizophrenia.  He also noted that the appellant
    continues to have symptoms of psychosis as part of his schizophrenia and, while
    partially treated, likely has a treatment-resistant form of the illness.

[41]

Dr.
    Klassen also revisited the question of the appellants criminal
    responsibility.  In so doing, he wholly discounted the appellants account of
    the critical events.  Dr. Klassen explained that: i) the appellants
    self-report has not allowed mental health assessors to create a cogent
    narrative with respect to his mental state at the material time; ii) the
    appellant had variously presented as vague, or reported poor recall; and iii)
    in the alternative, the appellant reported a highly improbable scenario
    involving self-defense, and having no involvement with the setting of the
    fire(s), with the result that his account was completely inconsistent with
    available forensic data.

[42]

As
    a result of these and other factors, Dr. Klassen stated that he had very
    little confidence in [the appellants] self-report and expressed the view that
    it was necessary to put aside [the appellants] self-report and address the
    issue of criminal responsibility by looking largely at collateral material and
    at observable illness symptoms.

[43]

Dr.
    Klassen concluded that, from a psychiatric perspective, an NCR defence was
    available to the appellant.  He reasoned that while the appellant was likely
    aware that he was killing his mother, he believed that she was a malevolent
    imposter. Given his psychotic symptoms, the appellant was significantly
    compromised with respect to his rational perception, rational choice, and the
    ability to appreciate the nature and quality of his acts at the time of the
    murder.  Dr. Klassen noted that while the appellant was likely aware of the
    legal wrongfulness of his actions, his appreciation of their moral wrongfulness
    was, again, significantly compromised. Dr. Klassen concluded that the
    appellants moral reasoning was driven largely by psychosis at the time of
    the murder and that he likely felt morally justified because of paranoid and
    grandiose delusions he was experiencing at the time.

III.      Issues

[44]

I would frame the issues on appeal as follows:

(1)

Was
    the jurys verdict reasonable when rendered?

(2)

Should
    leave be granted to admit Dr. Klassens 2015 report as fresh evidence on
    appeal?

(3)

If the
    answer to (2) is yes, does the fresh evidence compel a new hearing on the
    question of criminal responsibility?

IV.     Analysis

(1)

The Jurys Verdict was Reasonable

[45]

The
    appellant challenges the jurys rejection of his mental disorder defence and,
    hence, the reasonableness of the jurys verdict, on two grounds.  First, he argues
    that, contrary to the Crowns position at the NCR hearing and on appeal, there
    were no material deficiencies in the foundation for Dr. Klassens opinion that
    the appellant was not criminally responsible for his mothers murder.

[46]

Second,
    the appellant submits that, in light of the manner in which the criminal
    responsibility hearing unfolded, the jury would have been especially skeptical
    of the appellants mental disorder defence, leading to heightened concern that
    the appellant was wrongfully convicted.

[47]

I
    will consider these arguments in turn.

(a)

Deficiencies in Dr. Klassens opinion on criminal responsibility

[48]

The appellant concedes that there was ample evidence on which the jury could
    conclude that he had killed his mother.  However, based on Dr. Klassens
    evidence at the NCR hearing, he argues that there was uncontradicted expert
    evidence before the jury that, at the time of his mothers death, he was
    suffering from acute and untreated schizophrenia, he had been exhibiting
    behaviour that was clearly psychotically-motivated, and he had deteriorated to
    the point that his capacity for rational perception regarding his family had
    been lost.

[49]

In
    these circumstances, the appellant says, the jurys rejection of his NCR
    defence lacked any evidentiary foundation.  Consequently, its ensuing verdict
    was unreasonable.

[50]

I
    disagree.  I turn first to the applicable legal principles.

[51]

Section
    16(1) of the
Criminal Code
exempts an accused from criminal
    responsibility where the accused lacks the capacity to know that the act he is
    committing is wrong.  Section 16(1) states:

No person is criminally responsible for an act committed or an
    omission made while suffering from a mental disorder that rendered the person
    incapable of appreciating the nature and quality of the act or omission or of
    knowing that it was wrong.

[52]

In
R. v. Oommen
, [1994] 2 S.C.R. 507,
at p. 518, the Supreme Court explained the nature of the inquiry under s. 16(1):

The crux of the inquiry [under s. 16(1)] is whether the accused
    lacks the capacity to rationally decide whether the act is right or wrong and
    hence to make a rational choice about whether to do it or not.  The inability
    to make a rational choice may result from a variety of mental disfunctions; [T]hese
    include  delusions which make the accused perceive an act which is wrong as
    right or justifiable, and a disordered condition of the mind which deprives the
    accused of the ability to rationally evaluate what he is doing.

[53]

And
    further, at p. 520:

[T]he real question is whether the accused should be exempted
    from criminal responsibility because a mental disorder at the time of the act
    deprived him of the capacity for rational perception and hence rational choice
    about the rightness or wrongness of the act.

[54]

Not
    every mental disorder, even those that are delusion-driven, will trigger a s.
    16 defence.  The concept of wrong embodied in s. 16(1) contemplates knowledge
    that an act was morally  not legally  wrong in the circumstances, according
    to the ordinary moral standard of reasonable members of the community.  In
R.
    v. Ratti
, [1991] 1 S.C.R. 68,
at p. 113, the Supreme Court, citing its earlier decision in
R. v. Chaulk
, [1990] 3 S.C.R. 1303
, explained:

It is not sufficient to decide that the appellants act was a
result
of his delusion.
Even if
    the act was motivated by the delusion, the appellant will be convicted if he
    was capable of knowing, in spite of such delusion, that the act in the
    particular circumstances would have been morally condemned by reasonable
    members of society.
[Emphasis in original.]

See also
R. v. Campione
, 2015 ONCA 67, 329
    O.A.C. 245, at paras. 3031;
R. v. Woodward
, 2009 ONCA 911, at para.
    5.

[55]

In
    this case, there is no doubt that the appellant suffers, and has suffered for
    many years, from a severe psychotic illness  schizophrenia  with symptoms
    that include auditory hallucinations, grandiose and paranoid delusions, and
    thought disorder and conceptual disorganization, among others.  The question,
    however, is not whether he was mentally ill or acted out of delusions when he
    killed his mother but, rather, whether he was NCR within the meaning of s. 16
    of the
Criminal Code
.  See
Woodward
, at para. 3.

[56]

The
    Crown contends that, although there was a viable defence of mental disorder,
    the appellant failed to meet his burden under s. 16(3) of the
Criminal Code
to establish at the NCR hearing, on a balance of probabilities, that his mental
    illness rendered him incapable of appreciating the nature and quality of his
    act, or of knowing that his act would have been viewed as morally wrong by
    reasonable members of society.  I agree.

[57]

The
    appellant did not testify at trial or at his NCR hearing.  The only medical
    evidence before the jury in support of his mental disorder defence was that of
    Dr. Klassen.  But the jury was not obliged to accept Dr. Klassens opinion that
    there was a strong circumstantial case for an NCR finding, even though his
    opinion was not contradicted by Crown expert evidence:
R. v. Molodowic
, 2000 SCC 16, [2000] 1 S.C.R. 420,
at
    paras.
78;
R. v. Grandbois
(2003), 174 C.C.C. (3d)
    181 (Ont. C.A.), at para.
24.  Rather, the jury was entitled to assess
    the probative value of Dr. Klassens evidence in the same manner as any other
    evidence.  Further, in weighing Dr. Klassens expert evidence, the jury was
    entitled to examine its factual foundations and to accord less weight to Dr. Klassens
    opinion if it was not based on facts proven at trial, or where it was based on
    factual assumptions with which the jury disagreed:
Molodowic
, at para.
    7.

[58]

Molodowic
instructs that where there is expert opinion evidence that an accused is NCR, a
    reviewing court must consider whether there was a rational basis for rejecting
    it.  Justice Huband of the Manitoba Court of Appeal, whose dissenting opinion
    was approved by the Supreme Court, explained that a rational basis for
    rejecting expert evidence may arise if there is some discernible flaw in the
    experts reasoning or because the opinion was formulated on too fragile a
    factual basis or because the opinion conflicts with inferences one might
    logically draw from other evidence:
R. v. Molodowic
(1998), 126 Man.
    R. (2d) 241, at p. 252.

[59]

However,
    the Supreme Court in
Molodowic
also cautions, at paras. 13 and 15, of
    the real danger that juries can be unduly skeptical of a psychiatric defence,
    which is often perceived as easy to fabricate and difficult to rebut.  For
    this reason, 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 and the appreciation of the import of expert psychiatric evidence
    must be a realistic and reasonable one.  See also
R. v. W.H.
, 2013
    SCC 22, [2013] 2 S.C.R. 180, at para. 29.

[60]

On
    appeal, the Crown renews its argument, advanced at the NCR hearing, that Dr.
    Klassens opinion regarding the appellants criminal responsibility was flawed
    in two significant respects.  First, it rested on a deficient factual
    foundation because Dr. Klassen did not have the benefit of any meaningful
    account from the appellant about the offence and because the appellant refused
    to allow the assessment team to interview any of his family members or his
    friends, including his former girlfriend.  Second, in forming his opinion, Dr.
    Klassen relied on both a phenomenon reported in the psychiatric literature 
    the overkill phenomenon  and an imposter theory, the applicability of which
    were significantly undermined on cross-examination.

[61]

I
    agree with both aspects of the Crowns argument.  The Crown established at the
    NCR hearing that Dr. Klassens opinion rested on a fragile and incomplete
    foundation.  This afforded a rational basis for the jurys rejection of his
    opinion regarding the appellants criminal responsibility.  Consequently, on
    the evidence tendered at the NCR hearing, the jurys verdict was not
    unreasonable.

[62]

Absence
    of any account of events by the appellant
.  The appellant argues that Dr.
    Klassens inability to conduct a post-conviction interview with the appellant
    prior to testifying at the NCR hearing was not critical to Dr. Klassens
    opinion on criminal responsibility.  In effect, the appellant contends that the
    absence of any account of events by him was immaterial to the probative value
    of Dr. Klassens opinion that he was NCR at the time of his mothers death.  I
    am unable to accept this contention.

[63]

First,
    in my view, Dr. Klassens own testimony confirms that an account of events by
    the appellant may well have significantly affected his assessment of the
    appellants criminal responsibility.

[64]

Throughout
    his testimony, Dr. Klassen repeatedly stressed that, in his view, it was more
    probable than not that the appellants murder of Ms. Paul was driven by
    psychotic issues.  However, he also emphasized that this opinion was based
    not only on the appellants history of delusions and hallucinations but, as
    well, on the absence of any evidence of a non-psychotically-driven explanation
    for the appellants actions.  In other words, Dr. Klassens opinion rested in
    part on what he called the absence of any compelling alternative motivation
    for the murder.

[65]

Read
    in this light, Dr. Klassens testimony supports the conclusion that an account
    of events from the appellant himself would have figured prominently in the assessment
    teams evaluation of his criminal responsibility.  For example, in his
    testimony, Dr. Klassen qualified his opinion on criminal responsibility by
    noting that the treatment team, [didnt] have it, so to speak, from Mr.
    Richmond himself.  He also agreed that his inability to have a meaningful
    post-conviction interview or interviews with the appellant was both relevant
    and unusual, and that this factor undermined his ability to give a comprehensive
    opinion with regard to [the appellants] criminal responsibility. He also
    agreed that interviews or interaction with the appellant were an important
    part of the determination whether the appellant was criminally responsible.

[66]

Based
    on this evidence, the Crown did not overreach in portraying the absence of a
    post-conviction interview or interviews with the appellant, and the absence of
    any account of the murder by the appellant, as material gaps in the factual
    foundation on which Dr. Klassens opinion rested.

[67]

I
    would add that the absence of any account of the murder by the appellant took
    on greater significance in this case because the appellant neither testified at
    trial nor provided a statement to the police regarding the murder.  As a
    result, there was a complete absence at the NCR hearing of any narrative from the
    appellant concerning his role in his mothers death.

[68]

Absence
    of interviews with the appellants family members and former girlfriend
. 
    I reach a similar conclusion regarding the significance of Dr. Klassens
    inability to interview any of the appellants family members or his former
    girlfriend.  Again, Dr. Klassens own testimony undercuts the claim that these
    interviews were inconsequential to his assessment of the appellants criminal
    responsibility.

[69]

The
    only information available to Dr. Klassen from the appellants family and
    friends was based on the transcripts of their testimony at the appellants
    preliminary inquiry, or transcripts of available police interviews.  Dr.
    Klassen testified that, if the appellants assessment team had been able to
    contact these individuals directly, they may have obtained additional and
    different information from them.

[70]

Dr.
    Klassen agreed on cross-examination that, although the information from the
    appellants family members and friends contained in the available transcripts
    was actually fairly good, family members and, especially the appellants
    former girlfriend, were important sources of collateral information.  The
    information to be gleaned from them in direct interviews by experienced mental
    health professionals, therefore, would have assisted in the appellants
    criminal responsibility assessment.

[71]

Further,
    since no transcripts of any interviews with the appellants former girlfriend
    or closest friend were available, Dr. Klassen and the other members of the
    assessment team had no information from either of them.  As a result, Dr.
    Klassen agreed that his criminal responsibility report was not as complete as
    he would have liked.

[72]

The
    Crown acknowledges that the absence of direct information from members of the
    appellants family, his former girlfriend, and his closest friend is a less significant
    gap in the factual foundation for Dr. Klassens opinion than is the lack of an
    account of the killing from the appellant.  I agree.

[73]

Nonetheless,
    based on Dr. Klassens description of the importance of direct information from
    the appellants family and friends, the appellants refusal to permit contact
    with these individuals by the assessment team afforded another rational basis for
    the jury to question the factual foundation for Dr. Klassens opinion.  It is
    clear from Dr. Klassens evidence that interviews with these individuals by experienced
    mental health professionals may have provided a better elaborated picture in
    whatever direction.  It follows that information from these sources may not
    have supported the appellants mental disorder defence.

[74]

The
    overkill phenomenon and the imposter theory
.  Dr. Klassen relied on the
    overkill phenomenon and the theory that the appellant was experiencing
    imposter delusions in respect of his family at the time of the murder to inform
    his criminal responsibility opinion.

[75]

Dr.
    Klassen testified that the psychiatric overkill phenomenon, which involves
    the killing of a person more than you need to kill them, is often associated
    with a major mental illness.  In his opinion, Ms. Pauls violent death was
    consistent with this phenomenon given the multiple stab wounds, decapitation,
    and efforts by the appellant to inflict harm on Ms. Pauls body after she was
    dead.  In particular, the overkill phenomenon reinforced Dr. Klassens
    opinion that, at the time of the murder, the appellant was experiencing
    psychotic delusions that impaired his ability for rational perception and
    rational choice.

[76]

In
    addition, in Dr. Klassens view, there were indications that the appellant
    believed that his family members, especially his mother, were imposters.  In
    his opinion, this also supported the conclusion that the appellant was
    experiencing a number of psychotic delusions, and potentially hallucinations,
    at the time of the murder.

[77]

There
    are several difficulties with these hypotheses.  First, Dr. Klassen confirmed
    in his evidence that, throughout his interactions with the appellant at the
    time of the assessment, the appellant consistently referred to Ms. Paul as his
    mother, never suggested that she was not his real mother in any serious
    terms, and did not correct Dr. Klassen when he referred to Ms. Paul as the
    appellants mother.

[78]

Thus,
    the appellants own conduct during his interactions with Dr. Klassen did not
    support the thesis that he was labouring under the delusion that Ms. Paul was
    not his mother but, rather, an imposter.

[79]

Second,
    Dr. Klassen initially appeared to accept that the imposter theory was a
    material aspect of his opinion on criminal responsibility.  On
    cross-examination, Dr. Klassen agreed that this theory was central or a
    significant aspect of his opinion that the appellant was NCR.  He suggested
    that, while there was some uncertainty, piecing together the available
    information, he would posit that thats what was happening.

[80]

However,
    when questioned later by the trial judge about whether he would still view the
    appellant as NCR even if he was wrong about the imposter theory, Dr. Klassen
    stated that this issue was not at the core of his thinking because: i) it is
    paranoid thinking that drives psychosis in an imposter situation, not the
    imposter thoughts themselves; and ii) even if all aspects of the case did not
    fit together perfectly, it remained his view that the appellant had
    deteriorated to the point that he was unable to make rational choices about his
    family.

[81]

In
    these circumstances, the jury was entitled to view Dr. Klassen as having given
    inconsistent evidence regarding the importance of the imposter theory to his
    criminal responsibility opinion.  If so, it was open to the jury to perceive
    this as an additional discernible flaw in Dr. Klassens opinion.

[82]

Third,
    in respect of Dr. Klassens reliance on both the overkill phenomenon and the
    imposter theory, the jury was entitled to come to its own view of the
    evidence.  With respect to the overkill phenomenon, on the entirety of the
    evidence before it, the jury could have concluded that the appellants actions
    in decapitating his mother, attempting to dismember her body, and setting the
    house on fire were consistent with a deliberate attempt by him to conceal the
    killing.  As this conclusion would be inconsistent with Dr. Klassens view of a
    psychosis-driven course of conduct, the jury may well have viewed Dr. Klassens
    reliance on the overkill phenomenon as another weakness in his opinion.

[83]

To
    conclude on this issue, Dr. Klassen acknowledged that a person suffering from
    schizophrenia may still be criminally responsible at law.  The defence bore the
    burden of proof to establish the appellants mental disorder defence.  And it
    was for the jury to assess the reliability and probative value of Dr. Klassens
    criminal responsibility opinion.

[84]

There
    was no evidence from the appellant about why he killed his mother or what he
    was thinking and experiencing at the time of her death.  However, there was
    evidence establishing gaps in the factual foundation for Dr. Klassens opinion
    and other potential flaws in his analysis of the appellants criminal
    responsibility.

[85]

Further,
    in key respects, Dr. Klassens evidence was qualified and, without any account
    of events from the appellant, speculative.  The basis for his opinion was undermined
    on cross-examination.  It cannot be said that the evidence overwhelmingly made
    out a mental disorder defence.

[86]

In
    these circumstances, although the jury could have returned an NCR verdict, the
    evidence and, importantly, the absence of evidence, was also capable of
    supporting the conclusion that the appellant had failed to make out his mental
    disorder defence on a balance of probabilities.  I am therefore not persuaded that
    the jurys verdict was unreasonable.

(b)

Procedure leading to NCR hearing

[87]

As
    the Supreme Court explains in
Molodowic
and
R. v. W.H.
,
    judicial experience demonstrates a real danger that juries may view psychiatric
    defences, like a mental disorder defence, with undue skepticism.  This risk of
    prejudice in relation to psychiatric defences can create a risk of an unjust
    conviction.  I have approached my analysis of the reasonableness of the jurys
    verdict in this case with this risk in mind.

[88]

The
    appellant argues that this risk was particularly acute in this case because of
    the procedure leading to the NCR hearing that unfolded at trial.  He submits
    that there is an atypically high danger the jury unfairly discounted his mental
    disorder defence because of that procedure.

[89]

I
    would reject this submission on the facts of this case.

[90]

There
    is no claim here of hearing unfairness.  Nor, in my view, would such a claim be
    sustainable.  The NCR hearing proceeded post-verdict at the explicit request of
    the defence.  Although the trial judge expressed surprise at the defence timing
    in raising this defence, counsels submissions following the jury verdict
    confirmed that both sides had contemplated this initiative.

[91]

Further,
    I see no procedural unfairness to the appellant arising from Dr. Klassens failure
    to interview the appellant after the appellants conviction and before
    testifying at the NCR hearing.  The timing of the defence disclosure that it
    intended to raise the criminal responsibility issue was within the control of
    the defence.  The defence elected to call Dr. Klassen knowing that he was away in
    Nunavut and was unable to testify until Monday, December 11, 2006  four days
    after the original jury verdict.  Following that verdict, the defence did not
    request an adjournment to permit Dr. Klassen an opportunity to meet with the
    appellant.  Nor did it seek an NCR hearing by a judge alone.  To the contrary,
    the record suggests that the defence was prepared to proceed with the NCR
    hearing, before the jury, on December 7, 2006.  This is what occurred.

[92]

In
    the event, the defence was permitted to call all its evidence, including that
    of Dr. Klassen, as part of a full NCR hearing.  At no point did the defence
    raise with the trial judge any suggestion of hearing unfairness or prejudice to
    the appellant in relation to the NCR hearing.

[93]

Finally,
    I am not prepared to assume, on this record, that the jury did not perform its
    assigned task impartially and in accordance with the law.

[94]

Accordingly,
    I see no basis for appellate interference with the jurys verdict on this
    ground.  I turn now to the issue of the admissibility of the fresh evidence
    tendered on appeal.

(2)

Admissibility of Fresh Evidence

[95]

The
    test for the admission of fresh evidence on appeal is well-settled.  The
    admissibility of Dr. Klassens 2015 report depends on three inquiries:

1)

Is the fresh evidence
    admissible under the generally applicable rules of evidence in criminal
    proceedings?

2)

Is the evidence
    sufficiently cogent to warrant its admission?

3)

What is the
    explanation for the failure to tender the evidence at trial, and should that
    explanation affect the admissibility of the fresh evidence on appeal?

See
R.
    v. Hartman
, 2015 ONCA 498, 326 C.C.C. (3d) 263, at para. 18;
R. v.
    Reeve
, 2008 ONCA 340, 233 C.C.C. (3d) 104, at paras. 6568;
R. v.
    Truscott
, 2007 ONCA 575, 225 C.C.C. (3d) 321, at paras. 80102.

[96]

More
    generally, evidence is admissible on appeal in a criminal case under s. 683(1)
    of the
Criminal Code
if its receipt is in the interests of justice:
Hartman
,
    at para. 18.

[97]

As
    I have said, the Crown concedes that the fresh evidence satisfies the first admissibility
    inquiry.  Accordingly, only the second and third inquiries are at issue.  In
    that regard, the Crown submits that the fresh evidence fails to meet the second
    criteria  cogency  because it could not reasonably be expected to have
    affected the result at trial.  The Crown further maintains that the third
    criteria  due diligence  is not met as the appellant has not offered a
    meaningful explanation for his failure to tender post-conviction, psychiatric assessment
    evidence at his NCR hearing.

[98]

First,
    the cogency inquiry.  In
Hartman
, this court explained, at para. 20,
    that this inquiry addresses three aspects of the evidence tendered as fresh
    evidence on appeal:

The proffered evidence must be relevant, in that it bears upon
    a potentially decisive issue at trial.  The evidence must also be credible, in
    that it is reasonably capable of belief.  Finally, the evidence must be
    sufficiently probative, in that it could reasonably be expected to have
    affected the result when taken with the other evidence adduced at trial and on
    appeal.

[99]

In
    this case, the Crown does not dispute that Dr. Klassens 2015 report is
    relevant and, as opinion evidence from a qualified expert, that it is reasonably
    capable of belief.  The Crown contends, however, that it falls short of the
    third cogency requirement, that is, it could not reasonably be expected to have
    affected the result at trial.

[100]

It is important
    to emphasize with respect to this challenge that the appellant, who bears the
    burden under s. 16(3) of the
Criminal Code
to establish that he was
    suffering from a mental disorder so as to be exempt from criminal
    responsibility, does not have to persuade this court that Dr. Klassens fresh
    opinion should be accepted.  Rather, the relevant test is whether the fresh
    evidence, if believed, when taken with the rest of the evidence, could reasonably
    lead the jury to conclude on the balance of probabilities that the appellant
    was NCR when he killed his mother.  See
R. v. Ross
, 2009 ONCA 149, 246
    O.A.C. 201, at para. 19;
Hartman
, at para. 37.

[101]

The appellant
    argues that the fresh evidence satisfies this aspect of the cogency inquiry because
    it pertains to a post-conviction, psychiatric assessment of the appellants
    criminal responsibility and supplies, for the first time, the appellants
    account of his mothers killing.  In these important respects, the appellant
    says, the fresh evidence responds to and fills a gap in the factual foundation
    for Dr. Klassens criminal responsibility opinion.  Thus, the fresh evidence,
    if believed and taken with the rest of the evidence at trial, could reasonably
    have affected the jurys assessment of the appellants mental disorder defence.

[102]

I see at least
    three difficulties with this argument.  First, as detailed earlier in these
    reasons, Dr. Klassen placed no reliance on the appellants self-report of
    events, once supplied.  To the contrary.  Dr. Klassen regarded the appellants
    account as vague, essentially incoherent regarding the appellants mental health
    at the time of the murder, highly improbable, and completely inconsistent with
    available forensic data.  Dr. Klassen therefore wholly disregarded the
    appellants account and re-assessed his criminal responsibility based on other
    available information.

[103]

As a result, the
    fresh evidence does not meaningfully fill a gap in the factual foundation for Dr.
    Klassens opinion that was before the jury in 2006.  At the time of the NCR
    hearing, the jury had no evidence regarding the appellants version of events regarding
    the killing.  And, for the reasons outlined by Dr. Klassen, there is still no
    reliable narrative of events from the appellant and his account did not figure
    in the formulation of Dr. Klassens opinion.

[104]

Second, and
    importantly, the appellants statements to Dr. Klassen at his February 2014
    interview, as outlined in Dr. Klassens 2015 report, do not entirely support
    the appellants NCR defence.  Indeed, in some respects, they significantly
    undercut it.

[105]

According to Dr.
    Klassen, the appellant told him that he and his mother got into a heated
    argument about money, that she slapped him, and that she waved a knife at him.
    This account, the only account of the murder available from the appellant,
    offers some support for a non-psychotic alternative motivation for murder. This
    potential non-psychotic motivation is inconsistent with Dr. Klassens original
    opinion that there was no compelling alternative [
i.e.
non-psychotic]
    motivation for the murder.  Recall also that the appellant told Dr. Klassen that
    he had not furnished his version of events earlier because of course you never
    want to go into jail.  Given this evidence, it would be open for the jury to
    reject the appellants contention that he did not appreciate the nature and
    quality of his act, or know that it was wrong.

[106]

Third, Dr.
    Klassen expresses no more certainty in his 2015 report regarding the
    appellants criminal responsibility than in his 2006 report.  This is not
    surprising given that Dr. Klassen concluded that he could not rely on the
    appellants account of the murder. But the fact remains that just as the jury
    was entitled to disagree with Dr. Klassens equivocal opinion at the NCR
    hearing in 2006, so too would it be entitled to disagree with the equivocal
    opinion expressed in his 2015 report.

[107]

These concerns
    with Dr. Klassens 2015 report, viewed as a whole, persuade me that the fresh
    evidence could not reasonably be expected to have affected the result at trial.

[108]

Given this
    conclusion, it is not strictly necessary to address the due diligence inquiry
    for the receipt of fresh evidence on appeal.  However, for the sake of
    completeness, I would add that I am also of the view that the appellant has not
    offered a meaningful explanation for his failure to tender post-conviction,
    psychiatric assessment evidence at his NCR hearing. I say this for two reasons.

[109]

First, as
    outlined above, the defence chose to proceed with the NCR hearing immediately
    after the jurys initial verdict, knowing that Dr. Klassen was in Nunavut and
    would be unable to re-assess or re-interview the appellant prior to testifying.
    The defence did not seek an adjournment and was content to proceed knowing that
    Dr. Klassen did not have the benefit of an account of the murder from the
    appellant.

[110]

Second, while
    the lack of due diligence may not be determinative on its own, the fresh
    evidence is not sufficiently compelling to justify its admission. As stated by
    Doherty J.A. in
R. v Maciel
, 2007 ONCA 196, 265 C.C.C. (3d) 201, at
    para. 50, when the fresh evidence could have been led at trial, some added
    degree of cogency is necessary before the admission of the evidence on appeal
    can be said to be in the interests of justice.

[111]

There is no
    added degree of cogency in this case.  Dr. Klassens 2015 report offers nothing
    reliable that is substantially new to the evidence that was before the jury at
    the appellants NCR hearing. The failure to offer a meaningful explanation for
    not tendering post-conviction, psychiatric assessment evidence at the NCR
    hearing, coupled with the fresh evidences lack of cogency, compels me to
    conclude that the evidence is not admissible.

V.      Disposition

[112]

For the reasons
    given, I would deny leave to admit the fresh evidence and dismiss the appeal.

Released:

FEB 18 2016                          E.A. Cronk J.A.

EAC                                       I agree G.J.
    Epstein J.A.

I agree
    David Brown J.A.


