



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dobson, 2018 ONCA 589

DATE: 20180628

DOCKET: C61119

Doherty, Pepall and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Dobson

Appellant

James C. Fleming, for the appellant

Eric H. Siebenmorgen and Amy Alyea, for the respondent

Heard:  June 4, 2018

On appeal from the convictions entered on January 15,
    2015, by Justice David Watt of the Superior Court of Justice for first degree
    murder, with reasons reported at 2015 ONSC 2865.

Doherty J.A.:


I



overview

[1]

The appellant killed his two friends and tried to kill himself. He was
    charged with two counts of first degree murder. The trial proceeded before a
    judge alone. The appellant advanced a not criminally responsible on account of
    mental disorder (NCR) defence. The defence argued that the appellant suffered
    from a mental disorder that rendered him incapable of knowing that it was
    wrong, in the circumstances, to kill his two friends.

[2]

The trial judge convicted. The appellant raises four grounds of appeal:

1. Did the
    trial judge misinterpret the phrase knowing that it was wrong in s. 16(1) of
    the
Criminal Code
, R.S.C. 1985, c.
    C-46
?

2. Did the
    trial judges finding that the appellant was not in a psychotic state at the
    time he killed his friends reflect a misapprehension of the evidence or an unreasonable
    finding of fact?

3. Should
    this court recognize the partial defence of diminished responsibility?

4. Should
    this court recognize the partial defence of suicide pact?


II



Facts

[3]

The facts of this tragic case are not in dispute and are fully set out
    in the reasons of the trial judge. Essentially, the appellant, his girlfriend,
    and another friend of theirs decided to commit suicide together so that their
    souls would travel to a different, divine world. The appellant claims to have
    been in contact with Satanistic beings who advised him about how to carry out
    the planned murder-suicide. They developed a plan whereby the appellant would
    ensure the deaths of his two friends, and then kill himself. Not surprisingly,
    expert psychiatric evidence called by both the defence and the Crown figured
    prominently at the trial.

[4]

It was common ground at trial that the appellant suffered from a
    significantly debilitating mental disorder at the time he killed his friends
    and that there was a causal relationship between his mental disorder and the
    killings. The defence experts diagnosed the illness as schizophrenia. The Crown
    experts were more inclined to a diagnosis of schizotypal personality disorder.
    The trial judge observed, correctly, that for the purposes of determining
    whether the appellant suffered from a mental disorder under s. 16, the exact
    diagnosis was not crucial.

[5]

Three of the four experts called agreed that the appellants mental
    disorder did not render him incapable of appreciating the nature and quality of
    his acts at the time of the killing. The defence did not take the position that
    the evidence showed that the appellant was incapable of appreciating the nature
    and quality of his actions.

[6]

All of the experts agreed that the appellant knew when he killed his
    friends that his actions were legally wrong. The experts, however, disagreed on
    whether the appellant knew that his actions were morally wrong, as that concept
    has been judicially interpreted.

[7]

The trial judge provided his understanding of the word wrong, at para.
    120:

Under the second branch of section 16(1), the term wrong
    refers to morally wrong, that is to say, contrary to the ordinary moral
    standards of reasonable men and women. What is morally wrong is not to be
    judged by the personal standards of the person charged but, rather, by his or
    her awareness that society regards the conduct as wrong. In other words, the
    exemption extends only to those accused of crime who, because of a mental
    disorder, are incapable of knowing that society generally considers their
    conduct to be immoral. [Citations omitted.]

[8]

The trial judge went on, at para. 121, to emphasize that the wrongness
    inquiry does not take place at a general or abstract level, but rather is directed
    at the accuseds capacity to understand that his actions, in the specific circumstances,
    would be regarded as wrong according to the moral standards of reasonable
    members of society.


III



grounds of appeal

(1)

Did the trial judge err in his interpretation of knowing that it was
    wrong in s. 16(1)?

[9]

Section 16(1) reads:

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.
[Emphasis added.]

[10]

The
    appellant submits that the trial judge erred in construing the wrongness
    component of s. 16(1) as limited to a cognitive awareness of how society would
    regard the morality of the appellants actions. The appellant submits that
    wrongness also requires a consideration of volitional incapacity. In other
    words, did the appellant at the time he killed his friends have the capacity
    for rational judgment or choice? The Crown argues that the trial judge
    correctly captured the meaning of wrong in s. 16(1): see
R. v. Dobson
,
    2015 ONSC 2865, 327 C.C.C. (3d) 473, at paras. 120, 160, 161, 170.

[11]

Counsels
    arguments ranged over an extensive body of case law. Both, however, settled on
R.
    v. Oommen
, [1994] 2 S.C.R. 507 as the leading authority on the meaning of
    wrong in s. 16(1). They disagree as to what the case says.

[12]

In
Oommen
, the
    accused suffered from a mental disorder that manifested itself in delusions
    that people, including the victim who was staying with the accused, were
    conspiring to harm him. On the night of the homicide, the accused, in a
    delusional state, believing that his home was surrounded by his enemies and
    that the victim was about to stab him, shot and killed the victim. In fact, the
    victim was lying asleep on the floor when the accused shot her.

[13]

The accused asked a
    neighbour to call the police. When the police arrived, the accused told them:

I shot and killed a girl inside. She thought I was sleeping.
    She came with a knife. I had no other choice, so I shot her, okay.

[14]

The
    trial judge concluded that the NCR defence was unavailable as the accused had
    the capacity to know in general terms that society would regard killing another
    as wrong. At the same time, the trial judge acknowledged that in his delusional
    state, the accused believed that what he did was justified to save himself:
Oommen
,
    at p. 514.

[15]

McLachlin
    J., for a unanimous court, held that the trial judge had erred in focusing on
    the accuseds ability to understand right from wrong on a general level. She
    indicated that the trial judge should have focused on the accuseds capacity to
    know his act was wrong at the time of the killing and in the circumstances of
    the killing:
Oommen
, at pp. 522-23.

[16]

The
ratio
of
Oommen
is relatively narrow. However, in arriving at that
    conclusion, the court examined, in broader terms, the meaning of wrong in s.
    16(1).

[17]

The appellant submits
Oommen
stands for the proposition that the capacity to know
    ones act is wrong requires the capacity to make a rational choice about committing
    the act. If a delusional state precludes the making of a rational choice, the
    appellant maintains that
Oommen
holds that the accused does not have the capacity to know his act is
    wrong.

[18]

In advancing this
    position, the appellant refers to two passages in
Oommen
, at pp. 518 and 520, respectively:

The crux of the inquiry 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.



Thus the question is not whether, assuming the delusions to be
    true, a reasonable person would have seen a threat to life and a need for
    death-threatening force. Rather, the 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.

[19]

The Crown submits that
Oommen
does not suggest assessing the capacity of an
    accused to know that his actions were wrong exclusively by reference to his
    or her delusional perceptions. The Crown submits that it is not enough that the
    accused, in his delusional state, believed his acts were right according to
    his or her own moral code. On the Crowns approach, an accused can be found NCR
    only if that accused lacked the capacity to know that society would regard what
    he did, in the circumstances, as morally wrong. The Crown refers to two passages
    from
Oommen
in support
    of its position, at pp. 520 and 521, respectively:

The issue is whether the accused possessed the capacity present
    in the ordinary person to know that the act in question was wrong having regard
    to the everyday standards of the ordinary person



Finally, it should be noted that we are not here concerned with
    the psychopath or the person who follows a personal and deviant code of right
    and wrong. The accused in the case at bar accepted societys views on right and
    wrong. The suggestion is that, accepting those views, he was unable because of
    his delusion to perceive that his act of killing was wrong in the particular
    circumstances of the case. On the contrary, as the psychiatrists testified, he
    viewed it as right. This is different from the psychopath or person following a
    deviant moral code. Such a person is capable of knowing that his or her acts
    are wrong in the eyes of society, and despite such knowledge, chooses to commit
    them.

[20]

The
    Crown further submits that its interpretation of the meaning ascribed to
    wrong in
Oommen
is consistent with earlier Supreme Court of Canada
    jurisprudence. In
R. v. Chaulk
, [1990] 3 S.C.R. 1303, the seminal case
    on the meaning of wrong in s. 16, Lamer C.J.C., for the majority, said, at p.
    1357:

The accused will not benefit from substituting his own moral
    code for that of society. Instead, he will be protected by s. 16(2) if he is
    incapable of understanding that the act is wrong according to the ordinary
    moral standards of reasonable members of society.

[21]

In
R. v. Ratti
,
    [1991] 1 S.C.R. 68, a case in which the accused, like the accused in the
    present case, suffered from schizophrenia, the Chief Justice explained the
    meaning of wrong, at p. 80, in these terms:

In accordance with our decision in
Chaulk
, the trier
    of fact must be directed to consider whether the appellant was rendered
    incapable, by reason of disease of the mind or natural imbecility, to know
    that his act was morally wrong in the circumstances. 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 the original.]

[22]

It may be that different extracts from
Oommen
are open to different interpretations, however, the
    Crowns interpretation of
Oommen
is consistent with the interpretation adopted in an
    unbroken line of authority in this court: e.g. see
R. v. Ross
, 2009 ONCA 149, at paras. 24-27;
R.
    v. Woodward
, 2009 ONCA 911, at para.
    5;
R. v. Guidolin
,
    2011 ONCA 264, at paras. 17-18;
R. v. Szostak
, 2012 ONCA 503, 111 O.R. (3d) 247, at paras. 56-58;
R.
    v. Campione
, 2015 ONCA 67, 321 C.C.C.
    (3d) 63, at para. 30.

[23]

A
    recent description of the wrongfulness inquiry under s. 16(1) from this court
    is found in
Campione
,
at paras. 39-41:

The ultimate issue for the jurors to determine was whether  in
    spite of her delusions and any honest belief in the justifiability of her
    actions  the appellant had the capacity to know that those actions were
    contrary to societys moral standards. The centrepiece of the inquiry is her
    capacity to know and to make that choice; it is not the level of honesty or
    unreasonableness with which she may have held her beliefs. Concentrating on the
    latter unduly complicates the inquiry for the very reason the appellant raises
    in support of her argument; it leads to the application of reasonableness
    considerations to the appellants delusions and subjective belief.



In short, a subjective, but honest belief in the justifiability
    of the acts  however unreasonable that belief may be  is not sufficient,
    alone, to ground an NCR defence, because an individual accuseds personal sense
    of justifiability is not sufficient. The inquiry goes further.
The accused
    persons mental disorder must also render him or her incapable of knowing that
    the acts in question are morally wrong as measured against societal standards,
    and therefore incapable of making the choice necessary to act in accordance
    with those standards.
[Emphasis added.]

[24]

In my view,
Oommen
,
    as interpreted in the judgments of this court, holds that an accused who has
    the capacity to know that society regards his actions as morally wrong and
    proceeds to commit those acts cannot be said to lack the capacity to know right
    from wrong. As a result, he is not NCR, even if he believed that he had no
    choice but to act, or that his acts were justified. However, an accused who,
    through the distorted lens of his mental illness, sees his conduct as
    justified, not only according to his own view, but also according to the norms
    of society, lacks the capacity to know that his act is wrong. That accused has
    an NCR defence. Similarly, an accused who, on account of mental disorder, lacks
    the capacity to assess the wrongness of his conduct against societal norms
    lacks the capacity to know his act is wrong and is entitled to an NCR defence.

[25]

There was evidence from
    the defence experts that the appellant did not know his acts were wrong in the
    sense defined in the preceding paragraphs. Dr. Rootenberg opined:

During the material time, Mr. Dobsons mental state was so
    thought disordered that he was unable to rationally consider whether his
    actions were right or wrong in a way most people would ordinarily be able to do
    so.

[26]

Dr.
    Chaimowitz expressed a similar opinion:

I believe he felt compelled to do what he did based on the
    belief system that was epitomized by his delusional ideas and framed by the Satanic
    system  I believe his psychotic symptoms were sufficient in intensity to
    deprive him of the ability to recognize what he was doing was wrong from a
    moral perspective

[27]

The
    Crown experts offered a contrary opinion, relying in part on the appellants
    statements to them that he knew that society would regard the killing of his
    friends as morally wrong.

[28]

The
    trial judge considered these opinions at length. He also considered the
    appellants conduct leading up to the killings and many statements the
    appellant made to first responders and the police:
Dobson
, at paras.
    136-55.

[29]

As
    I read the trial judges reasons, he was prepared to accept that the appellant,
    applying his distorted sense of right and wrong, may have seen his actions as
    right. However, the appellant reached that conclusion having the capacity to
    know that society would regard the acts as morally wrong. The trial judge said,
    at para. 163:

It is perhaps implicit in Mark Dobsons explanation of why it
    was he unlawfully killed Mary Hepburn and Helen Dorrington and tried to kill
    himself that he viewed his conduct as morally justified, since it would result
    in their souls being together in a better place. But Mark Dobsons own views
    about the moral justification for his conduct, which as even he points out, are
    contrary to the teachings of the Joy of Satan, is a different issue than that framed
    by the second branch of section 16(1)  his capacity to know how others in the
    community would assess the morality of his acts. These were acts that Mark
    Dobson knew were legally wrong. In those circumstances, I simply cannot accept
    that he was incapable of knowing that the same acts in the circumstances would
    be regarded as morally wrong by members of the community. [Citations omitted.]

[30]

Ultimately,
    after a thorough review of all of the evidence, the trial judge concluded that
    the appellant had failed to establish, on the balance of probabilities, that he
    did not have the capacity to know that his actions would be viewed as morally
    wrong in the eyes of reasonable members of the community:
Dobson
, at
    paras. 170-71. His analysis reflects a proper understanding of the meaning of
    wrong as reflected in the post-
Oommen
jurisprudence of this court.
    It also demonstrates a full appreciation of the relevant evidence.

(2)

Did the trial judges finding that the appellant was not in a psychotic
    state when he killed his friends reflect a misapprehension of the evidence or
    an unreasonable finding of fact?

[31]

The
    appellant submits that the trial judges finding that the appellant was not in
    a psychotic state at the time of the homicides is irreconcilable with his
    finding that the appellant suffered from schizophrenia. Counsel submits that
    these conflicting findings can be explained only by a material misapprehension
    of the evidence or an unreasonable assessment of the evidence.

[32]

This
    submission fails for two reasons. First, the expert evidence that the appellant
    suffered from schizophrenia did not compel the conclusion that the appellant
    was in a psychotic state at the time of the killings. Psychotic delusions are a
    feature of schizophrenia, but those diagnosed with the disorder do not
    necessarily experience such symptoms at all times.

[33]

Second,
    the trial judge did not actually make a finding that the appellant was not in a
    psychotic state at the time of the killings. Rather, he declined to make a
    finding that the appellant was in a psychotic state:
Dobson
, at para.
    165. The distinction is important, given that the appellant had the onus of
    proof on the NCR claim. In declining to make the finding, the trial judge
    adverted to concerns about the reliability of information provided to the
    psychiatrists by the appellant. In my view, the trial judge, as the trier of
    fact, was entitled to take that view of the evidence.

(3)

Should the court recognize the partial defence of diminished
    responsibility?

[34]

The
    appellant asked the court to recognize diminished responsibility as a partial
    defence to murder. The proposed defence would reduce what is defined in the
Criminal
    Code
as murder to manslaughter where mental disorder impairs the accuseds
    capacity to appreciate the nature and quality of the act, or know that it was
    wrong. The appellant points to various common law jurisdictions, notably
    England and Wales where a statutorily-created defence of diminished
    responsibility has existed for years:
Homicide Act 1957
(5 & 6
    Eliz. 2, c. 11), s. 2.

[35]

The
    appellant submits that s. 8(3) of the
Criminal Code
gives Canadian
    courts the power to recognize (
i.e.
create) a common law defence of
    diminished responsibility.

[36]

The
    appellant does not raise a constitutional challenge. He does not argue that the
    definition of murder in the
Criminal Code
is unconstitutional, absent
    the partial defence of diminished responsibility. Nor does the appellant
    suggest that any provision in the
Charter
constitutionally commands
    the creation of the diminished responsibility defence. The appellant does argue
    that criminal law principles, particularly the principle of fair labelling
    should cause this court to recognize that those who commit murder while
    suffering from a mental disorder that negatively impacts on their
    responsibility for their actions, are inherently less culpable than persons who
    commit the same act, but do not suffer from a mental illness. The appellant contends
    that a manslaughter verdict, coupled with the broad sentencing discretion
    available for that offence, would properly reflect the different levels of
    culpability.

[37]

This
    issue was not raised at trial. More importantly, in my view, it is an issue
    that can only be properly addressed by Parliament. The
debate
over the need for and the contours of a
    diminished responsibility defence has gone on for over 60 years in most of the
    common law world. Various law reform bodies have made various recommendations
    and various legislatures have had various responses. To date, Parliament has
    chosen not to go down the road of diminished responsibility.

[38]

As
    the academic literature and various law reform commission reports demonstrate,
    there are many difficult policy questions that must be addressed in deciding
    whether to recognize a defence of diminished responsibility and, if so, what
    the defence should be and what dispositions should follow from a finding of
    diminished responsibility. Those questions are complex and contentious. Informed
    decisions require long and careful study with input from various disciplines
    and stakeholders. None of that is available to a court deciding a single case.
    The adversarial process is singularly unsuited to the wise resolution of the
    multi-faceted and difficult policy issues raised by the consideration of
    diminished responsibility as a partial defence to murder.

(4)

Should this court recognize the partial defence of suicide pact?

[39]

This
    issue was also not raised at trial. The appellant again invokes s. 8(3) of the
Criminal
    Code
and urges the court to recognize the common law defence of suicide
    pact. According to the appellants submission, that defence would give the
    survivor of the suicide pact a partial defence to what would otherwise be
    murder. The appellant submits that the survivor should be convicted of
    manslaughter. As with the diminished responsibility defence, he argues that a
    manslaughter verdict would more accurately reflect the culpability of the
    survivor of the suicide pact.

[40]

The
    appellant refers to
R. v. Gagnon
(1993), 84 C.C.C. (3d) 143, 24 C.R.
    (4th) 369 (Que. C.A.). In
Gagnon
, the accused and his girlfriend decided
    to commit suicide. They laid on a bed with the girlfriend on top of the accused.
    The accused fired a single bullet into both bodies. The bullet killed the
    girlfriend and injured the accused.

[41]

The
    court in
Gagnon
accepted a very narrow suicide pact defence. That
    defence was available only when the parties formed a common and irrevocable
    intention to commit suicide together, simultaneously by the same event and the
    same instrumentality, and where the risk of death was identical for both:
Gagnon
,
    at p. 155. The court distinguished a true suicide pact from a murder-suicide
    pact in which one person agreed to first kill the other and then kill himself.
Gagno
n
    would not have extended the suicide pact defence to the murder-suicide
    situation.

[42]

This
    case involves a double murder-suicide. The very narrow defence outlined in
Gagnon
, which led to an outright acquittal on the murder
    charge,
does not assist the appellant. His defence, if any, as with
    most people who kill pursuant to a suicide pact, lay under the NCR provisions
    in s. 16.

[43]

Furthermore,
    it is implicit in this submission that this court recognizes a partial common
    law defence to murder if a person kills another pursuant to a suicide pact. No
    such defence has been recognized by this court. Nor should it be recognized in
    the context of an appeal in which the defence would not be available on the
    facts.

[44]

In
    any event, for the same reasons outlined in reference to the proposed defence
    of diminished responsibility, the question of whether a person who kills
    pursuant to a suicide pact should have a partial defence to murder is probably
    a matter that
is much better addressed by
    Parliament.


IV



conclusion

[45]

I
    would dismiss the appeal.

Released: DD  JUN 28 2018

Doherty J.A.

I agree S.E. Pepall J.A.

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


