



COURT OF APPEAL FOR ONTARIO

CITATION: R v. McBride, 2018 ONCA 323

DATE: 20180329

DOCKET: C61065

Watt, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rita Kathleen McBride

Appellant

Erin Dann, for the appellant

Mabel Lai, for the respondent

Heard: November 2, 2017

On appeal from the findings of the commission of criminal
    harassment made on November 15, 2012, by Justice George J. Brophy of the
    Ontario Court of Justice, and from the verdict of not criminally responsible on
    account of mental disorder entered on March 27, 2013, with reasons reported at
    2013 ONCJ 390.


Brown J.A.:

I.

OVERVIEW

[1]

The appellant, Rita McBride, was charged with five counts of criminal harassment,
    which alleged that between 2005 and 2012 she harassed Mark McBride by (i)
    following him from place to place, (ii) repeated communication, and (iii)
    threatening conduct and, further, harassed Mr. McBrides wife, Donna McBride,
    by (iv) repeated communication, and (v) threatening conduct.

[2]

On November 15, 2012 the trial judge found two counts of criminal
    harassment proven beyond a reasonable doubt on the basis that, given the
    history between the parties, by legally changing her last name from Boyd to
    McBride, the appellant had engaged in threatening conduct against the McBrides.
    The trial judge acquitted the appellant of the other three counts.

[3]

On March 27, 2013 the appellant was found not criminally responsible on
    account of a mental disorder (NCRMD) in respect of the two counts of criminal
    harassment by threatening conduct. Since that time, the appellant has been
    detained under the jurisdiction of the Ontario Review Board.

[4]

The appellant appeals the findings that her acts constituted criminal harassment
    and the NCRMD verdicts.

[5]

For the reasons that follow, I would allow the appeal from the NCRMD verdicts.
    I would set aside those verdicts and, in their place, substitute findings of
    guilt on the two counts of criminal harassment by threatening conduct under s.
    264(2)(d) of the
Criminal Code
. I would impose a conditional discharge
    on both counts, with a one-year period of probation.


II.

FACTS

[6]

The McBrides and the appellant lived in Ripley, a small town of about
    800 people.

The appellants 2005 convictions

[7]

Around 2000 or 2001, the appellant became enamoured of Mark McBride, who
    was married. She approached him and expressed her love. He rebuffed her. She
    persisted with efforts to make Mr. McBride take an interest in her. Those
    efforts included: attending at Mr. McBrides places of employment; depositing items
    in his vehicle; and leaving items on the porch of his home, where he lived with
    his wife and children.

[8]

In May 2005, the appellant peered through a window of the McBrides
    residence, scaring a pregnant Donna McBride. The following month, Mr. McBride
    found the appellant outside his residence in the early morning hours with a
    step ladder.

[9]

The appellant was charged with and pled guilty to criminal harassment
    and prowling by night. In September 2005, she was sentenced, and her probation
    order included a term prohibiting her from contacting the McBrides for two
    years.

The 2012 charges for criminal
    harassment by repeated following and communication: ss. 264(2)(a) and (b) of
    the
Criminal Code


[10]

In
    September 2007, when her probation expired, the appellant phoned the McBrides
    and told them she wanted to be step-mother to Marks three children.

[11]

In
    the fall of 2011, Mr. McBride thought the appellant was following him on the
    main road through the village. There were several other incidents in late 2011
    and 2012: while Donna McBride was walking with her children, the appellant
    slowed her car and waved at them; the appellant showed up at the first
    communion program of one of the McBride children, although there was evidence
    she occasionally attended the parish; the appellant attempted to engage Mr.
    McBride in conversation at a community centre in a nearby town, but he rebuffed
    her; and while Mr. McBride was cutting his lawn, the appellant passed back and
    forth in her car, stopped, and engaged him in a brief conversation.

[12]

Those
    incidents formed the basis of the charges against the appellant of criminal
    harassment by following Mr. McBride and repeatedly communicating with him and
    his wife. She was acquitted of those charges.

The name change

[13]

Until
    their divorce in 2006 or 2007, the appellant was married to Dan Boyd. In
    February 2012, the appellant legally changed her last name to McBride.

[14]

At
    the time, she was working at a restaurant in a town near Ripley. In April 2012,
    the appellant told the restaurants bookkeeper that she had changed her last
    name to McBride. The bookkeeper asked for proof. The appellant provided a copy
    of the change of name certificate.

[15]

The
    bookkeeper made two copies of the certificate: one for restaurant payroll
    purposes, and the other she took to her friends, Mark and Donna McBride. The
    bookkeeper did not tell the appellant that she knew the McBrides or intended to
    provide them with a copy of the certificate.

[16]

About
    two weeks later, Donna McBride contacted the Ontario Provincial Police and told
    an officer about the appellants name change. Further investigation by the OPP
    revealed the appellant had purchased a wedding dress in 2006. Neighbours
    advised that the appellant had been looking into wedding venues.

[17]

The
    OPP obtained a warrant to search the appellants apartment for a wedding dress,
    journals, and other materials. No challenge was made to the warrant at trial.

[18]

The
    search revealed the appellant continued to have a significant interest in Mark
    McBride. The police found: a picture of Mark on her bedside table; newspaper
    clippings about his children; and a body pillow with his picture attached to
    it. Journals recorded the appellants sightings of Mark and Donna McBride. Also
    uncovered was draft language for invitations to a wedding between the appellant
    and Mark McBride.

[19]

At
    some point prior to the hearing of the appeal, the appellant changed her last
    name back to Boyd.

III.

APPEAL FROM THE FINDINGS of CRIMINAL HARASSMENT

A.

The offence of
    criminal harassment by threatening conduct

[20]

Sections
    264(1) and (2) of the
Criminal Code
set out the elements of the
    offence of criminal harassment by threatening conduct:

264. (1) No person shall, without lawful authority
    and knowing that another person is harassed or recklessly as to whether the
    other person is harassed, engage in conduct referred to in subsection (2) that
    causes that other person reasonably, in all the circumstances, to fear for
    their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists
    of



(d) engaging in threatening conduct directed at the
    other person or any member of their family.

[21]

In
R. v. Sim
, 2017 ONCA 856, 41 C.R. (7th) 416, at para. 16, this court
    summarized what constitutes threatening conduct for the purpose of s.
    264(2)(d):

In
R. v. Burns
, 2008 ONCA 6, 77 W.C.B. (2d) 402 
    relying on the judgment of the Yukon Territory Court of Appeal in
R. v.
    George
, 2002 YKCA 2, 52 W.C.B. (2d) 530  this court endorsed an objective
    standard for determining the
actus reus
of harassment by engaging in
    threatening conduct. At para. 2, the court wrote:

To establish harassment under s. 264(2)(d) of the
Criminal
    Code
, the Crown had to establish that the appellant engaged in
    threatening conduct. We accept the definition of threatening conduct given in
R. v. George
at para. 39 that, in order to meet the objectives of s.
    264, the threatening conduct must amount to a tool of intimidation which is
    designed to instill a sense of fear in the recipient.
The impugned conduct
    is to be viewed objectively, with due consideration for the circumstances in
    which they took place, and with regards to the effects those acts had on the
    recipient.
[Citation omitted in original. Emphasis added.]

B.

The reasons of the
    trial judge

[22]

The
    trial judge held the appellants conduct in changing her name and then taking
    it to her place of employment and effectively releasing it to the public
    constituted threatening conduct within the meaning of s. 264(2)(d). He found
    the appellant consciously and purposefully changed her last name to that of
    Mark McBride for whom she had great affection and interest.

[23]

The
    trial judge concluded the appellants conduct had harassed the McBrides, in the
    sense that they felt tormented, troubled, worried continually or chronically,
    plagued, bedevilled, and badgered:
R. v. Kosikar
(1999), 138 C.C.C.
    (3d) 217 (Ont. C.A.), at para. 25, leave to appeal refused, [1999] S.C.C.A. No.
    549.

[24]

He
    then considered whether the appellant knew the complainants were harassed and
    held that she was at best wilfully blind and clearly reckless.

[25]

He
    then considered whether the McBrides in fact feared for their safety or the
    safety of anyone known to them and, if so, whether that fear was reasonable in
    all the circumstances. He stated the evidence clearly showed the McBrides
    feared for their safety and the safety of their family generally. He found
    their fear reasonable in the circumstances because the appellants continuous
    pursuit of Mark McBride for over a decade had created uncertainty in the
    complainants about what the appellant might do:
R. v. Wisniewska
, 2011
    ONSC 6452, at para. 38. As a result, the trial judge found the appellant had
    committed the two counts of criminal harassment by threatening conduct.

C.

Analysis

[26]

On
    her appeal from those findings, the appellant advances two submissions as to
    why her behaviour was not threatening conduct within s. 264(2)(d) of the
Criminal
    Code
.

Was the conduct directed at the
    complainants?

[27]

First,
    she submits that her acts were not directed at the complainants. She informed
    her employer, not the McBrides, of her name change. They only learned about the
    name change because the restaurants bookkeeper passed the information on to
    them. Since her conduct was not directed at the McBrides, the appellant argues it
    could not amount to threatening conduct.

[28]

I
    do not accept this submission. Threatening conduct can be directed at a
    person where the communication was made to a third party with the knowledge and
    intent that it would be passed on to the targeted person:
R. v. Sauvé
,
    2007 ONCA 888, at para. 2, leave to appeal refused, [2008] S.C.C.A. No. 149.

[29]

In
    the present case, the appellant and the McBrides lived in the same small
    community. In her statement to the police, which was filed as an exhibit at
    trial, the appellant acknowledged that she knew and intended Mark McBride would
    learn about her name change:

Officer: Okay. So, yeah, you took Marks name, thats ah,
    thats a choice that you made.

Appellant: It is a choice, yeah. And I wanted to tell him, and
    I said no, because you know what, hell find out.

Officer: Mm-hmm.

Appellant: On his own.



Appellant: But I thought it would be better for (sigh), I
    thought it would be better to come from me than someone else. Um, and then I
    thought no.

Officer: Mm-hmm.

Appellant: Ill just keep that to myself.



Officer: [A]nd thats what Im trying to understand

Appellant: Its better to

Officer:  is the motive behind the name change.

Appellant: Its trying, I try to be so honest with him.



Officer: So is this a way of um, of expressing your feelings
    towards him, by taking his name?

Appellant: Not so much feelings as um, where I stand. This is
    what I believe and its final.

Officer: So you

Appellant: And Im not, Im not, Im not gonna waiver.



Appellant: It tells, I want Mark to under  it tells Mark that
    this is Ritas decision and choice.

Officer: Mm-hmm, mm-hmm. Okay. It tells him sort of

Appellant: Where I stand.

Officer: Where you stand with him.

Appellant: Without saying too much. Without saying anything to
    him.



Officer: And thats your way of telling him

Appellant: Yeah, yeah, Im here.

Officer: Mm-hmm, okay. Um

Appellant: I know I probably should have said something.

Officer: Mm-hmm.

Appellant: At the time, no, hell figure it out.

[30]

That
    evidence provided ample support for the trial judges findings that by formally
    changing her name and telling her employer, the appellant effectively released
    it to the public, knowing and intending that Mark McBride would find out about
    it.

Did the conduct amount to a tool
    of intimidation?

[31]

Second,
    the appellant contends her name change could not be construed as threatening in
    the sense of being a tool of intimidation. She argues that the trial judge
    failed to explain how, viewed objectively and in the context of the history of
    the parties, obtaining a lawful name change would convey a message meant to
    intimidate the McBrides.

[32]

I
    am not persuaded by this submission.

[33]

For
    the purposes of s. 264(2)(d), threatening conduct must amount to a tool of intimidation
    which is designed to instill a sense of fear in the recipient:
R. v. Burns
,
    2008 ONCA 6, at para. 2, citing
R. v. George
, 2002 YKCA 2, 162 C.C.C.
    (3d) 337, at para. 39. Instilling a sense of something undesirable to come
    constitutes engaging in an act designed to instill a sense of fear:
George
,
    at para. 41. To determine whether conduct is designed to instill a sense of
    fear in the recipient requires focusing on the effect of the accuseds conduct
    on a reasonable person in the shoes of the target of the conduct:
Sim
,
    at para. 20.

[34]

That
    is precisely what the trial judge did, as his reasons disclose where he stated:

[The appellant] consciously and specifically chose the name
    McBride. Which in the context of this case, is an action on her part which with
    everything that has happened with the prior criminal harassment convictions,
    with the anger that she knew that Mr. McBride was experiencing, that she agrees
    in the transcript  she knew how Mr. McBride would feel upon finding out about
    this name change, with the reality  knowing that she is doing this and being
    willfully blind or careless or reckless with reference to the impact it was
    going to have. Given the overall context, it seems to me that this act on her
    part knowing as she testified or states in her statement that Mr. McBride will
    find out about it and knowing that he will be upset and angry about it. When I
    look at all of that and put it all together, it seems to me that she has
    engaged in conduct which is of a threatening nature and is to be looked at in
    that regard.

[35]

The
    trial judge then went on to find that the uncertainties in the minds of Donna
    and Mark McBride about what Rita McBride is capable of, in light of the
    factual context, gave rise to a fear that was in all of the circumstances
    reasonable. As noted by the trial judge, this factual context included the
    appellants past unwanted presence on the McBrides property, her completely
    undue and obsessive interest in Mark McBride and her comment about wanting
    to be step-mother to the McBride children, made soon after her completion of
    probation.

[36]

The
    trial judges reasoning does not disclose any error in law. He properly took
    into account the course of events that had led to the appellants name change.
    I see no error in his finding that the Crown had established the
actus reus
of the offence. Consequently, I would dismiss the appeal from the findings that
    the appellant committed the acts of criminal harassment.


IV.

APPEAL FROM THE FINDING OF NOT CRIMINALLY RESPONSIBLE ON ACCOUNT OF A
    MENTAL DISORDER

The finding of NCRMD

[37]

The
    Crown raised the issue of whether the appellant was not criminally responsible on
    account of a mental disorder. The defence opposed the making of such an order.
    At the NCRMD hearing, the Crown called Dr. Hillary Mantle, who was accepted as
    an expert in forensic psychiatry. The defence did not call any expert evidence.
    However, the appellant testified at the hearing.

[38]

In
    attempting to rebut the statutory presumption that a person does not suffer
    from a mental disorder so as to be exempt from criminal responsibility, the
    Crown relied solely on the second branch of s. 16(1) of the
Criminal

Code
 that is, the Crown argued the appellant suffered from a mental disorder that
    rendered her incapable of knowing that the act was wrong. The Crown did not
    lead evidence from its expert witness on, nor did it make any submissions about,
    the first branch of s. 16(1), whether the appellant was incapable of
    appreciating the nature and quality of her act.

[39]

The
    trial judge accepted Dr. Mantles opinion that the appellant suffered from a
    mental disorder, Delusional Disorder, Erotomanic Type, which the trial judge
    found was a disease of the mind within ss. 2 and 16(1) of the
Criminal Code
.
    The central theme of Delusional Disorder, Erotomanic Type, is that another
    person is in love with the individual who has the delusion.

[40]

The
    trial judge, at para. 83, concluded that the mental disorder that she suffered
    from caused her to not know that it was wrong to take the actions she took.

The position of the appellant

[41]

The
    appellant submits the verdict of NCRMD was tainted by legal error. She does not
    take issue with the trial judges finding that, at the time of the offences,
    she was suffering from a mental disorder. Nor does she suggest her conduct was
    unrelated to a mental disorder. However, the appellant contends the NCRMD
    verdict should be set aside because it was not supported by evidence that, by
    reason of her mental disorder, the appellant was incapable of knowing her
    conduct was wrong.

[42]

In
    this regard, the appellant advances two arguments.

[43]

First,
    the factual findings made by the trial judge about her
mens rea
for
    the offence of criminal harassment are irreconcilable with the findings he made
    in support of the NCRMD verdict.

[44]

Second,
    the trial judge improperly focused on the appellants subjective belief that
    she did not do anything wrong by changing her last name to McBride. The
    appellants subjective belief in the legitimacy of her actions was not the
    proper focus for a s. 16(1) inquiry. In support of this submission, the
    appellant relies on the decision of this court in
R. v. Campione
, 2015
    ONCA 67, 321 C.C.C. (3d) 63, where, at para. 31, the court, citing
R. v.
    Ross
, 2009 ONCA 149, 246 O.A.C. 201, at para. 27, stated that a
    subjective belief by the accused that his conduct was justifiable will not
    spare him from criminal responsibility even if his personal views or beliefs
    were driven by mental disorder, as long as he retained the capacity to know
    that it was regarded as wrong on a societal standard.

[45]

Instead,
    the trial judge should have inquired into whether a mental disorder rendered
    the appellant incapable of understanding the moral wrongfulness of her conduct.
    Although the appellant may have been mistaken about whether changing her name
    could make out the offence of criminal harassment, the evidence demonstrated
    the appellant understood society would view any continuing efforts on her part
    to pursue a relationship with Mark McBride as morally and legally wrong.

The position of the Crown

[46]

The
    respondent Crown submits that although the trial judge did not use the most
    precise language when conducting his analysis on the second branch of s. 16(1),
    his reasons correctly stated the law and, when read as a whole and in their
    proper context, demonstrate that he properly focused on the appellants
    inability to rationally evaluate her conduct. The evidence entitled the trial
    judge to conclude that the appellant both did not, and could not, rationally
    evaluate her conduct and recognize, as any ordinary citizen who knew the
    lengthy history would, that it was morally wrong.

[47]

The
    Crown disagrees with the assertion that the trial judges factual findings regarding
    the commission of the acts cannot be reconciled with those made in the NCRMD decision.
    While the trial judge found the appellant formed the necessary appreciation for
    the factual impact of her conduct on the McBrides, he concluded she was unable
    to appreciate the moral quality of that impact. The two findings can coexist
    without difficulty.

Analysis

[48]

The
    Crown sought to establish, on the balance of probabilities, that the appellant
    was not criminally responsible for her acts because at the time she was
    incapable of knowing that her acts were wrong:
Criminal Code
, s.
    16(1). Under this second branch of s. 16(1), the court must determine whether
    an accused was rendered incapable, by the fact of his mental disorder, of
    knowing that the act committed was one that he ought not have done:
R. v.
    Chaulk
, [1990] 3 S.C.R. 1303, at p. 1354. Or, as put in
R. v. Oommen
,
    [1994] 2 S.C.R. 507, at p. 520: 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.

[49]

The
    trial judge was satisfied the Crown had met its burden under the second branch
    of s. 16(1). He set out his analysis at para. 82 of his reasons:

The question is did she know that what she was doing was
    wrong in terms of what an ordinary member of society would appreciate was
    wrong, whether it was legally permissible or not.
Surely an ordinary
    citizen would understand that with the lengthy history that was in place, with
    the previous conviction for criminal harassment and with the extended time on
    probation that had been imposed on Ms. McBride that there was something wrong
    about continuing to pursue this man against all logic and common sense.
Her
    delusion with respect to his relationship with her caused her to not understand
    what she was doing was wrong.
She did not have that insight. She thought
    it was acceptable because it was legal, in her mind, and the consequences
    simply did not occur to her.
It was not being willfully blind, which
    implies knowledge but not caring, but rather she was simply unaware of the
    implications of her actions. She did not know it was wrong.
[Emphasis
    added.]

[50]

The
    Crown acknowledges that in this analysis the trial judge used language that
    appeared to focus on the appellants knowledge, not her capacity to know.
    Nevertheless, the Crown submits the trial judges linguistic imprecision did
    not reflect legal error.

[51]

I
    am not persuaded by this argument, for several reasons.

[52]

First,
    although the trial judge properly directed himself on the law, identifying the
    applicable principles as those summarized by this court in
R. v. Szostak
,
    2012 ONCA 503, 111 O.R. (3d) 241, his reasons disclose that when applying those
    principles he misdirected his attention to the question of whether the
    appellant knew her act was wrong, instead of focusing on the principal issue of
    whether the appellants mental disorder rendered her incapable of knowing her
    act was wrong.

[53]

That
    amounted to an error of law. The second branch of s. 16(1) focuses on the
    capacity of the accused to understand that her act was wrong at the time
    of committing the act:
Oommen
, at p. 520; and
Szostak
, at
    para. 56. As stated in
Oommen
, at p. 518: 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.

[54]

Second,
    the trial judges treatment of the evidence does not signal that the language
    of his analysis merely reflected linguistic imprecision, as opposed to conceptual
    confusion.

[55]

His
    treatment of Dr. Mantles evidence seemed to shift the focus of analysis back
    and forth between whether the appellant knew her name change was wrong and whether
    her mental disorder rendered her incapable of knowing it was wrong. This
    conflation of the issues can be seen in paras. 32, 40 and 41 of his reasons:

Dr. Mantle then says that she is of the view that the second
    arm of the test in section 16, that is to say with respect to wrongfulness, is
    applicable. Ms. McBride
knew
that there were some things she was not
    supposed to do because of previous experience. For example, she knew she should
    not phone Mr. McBride or go on to his property. But because of her fixed
    delusions she was not able to think about the behaviour she was engaging in,
    that is to say the name change, and see that it was wrong. From a moral
    standpoint something sanctioned by the Lord could not be wrong.
Her
    delusion clouded her ability to understand that what she was doing was morally
    wrong and would cause harm to the victims
.



In cross-examination Dr. Mantle confirmed that Ms. McBride knew
    that she was changing her name, but
in Dr. Mantles opinion Ms. McBride did
    not understand that what she was doing by changing her name was wrong
. She
    could not work through the consequences of what she was doing and how it would
    impact on other people and could be seen as threatening. She could indeed
    understand that some things were wrong from a legal perspective, for example by
    going to the victims property or calling them on the telephone, and she also
    knew that the victim would react to the name change and that if she asked him
    about it he probably would have said not to do it.

Ms. McBride told Dr. Mantle that she wanted the name change out
    of love for Mr. McBride and also said that it was to be about closure.
Dr.
    Mantle does not believe that Ms. McBride understood that the name change was
    wrong
. Ms. McBride did not see her behaviours as threatening and did not
    understand that the average person would think that the name change was
    threatening. [Emphasis added.]

[56]

Further,
    the trial judge did not advert to the following equivocal evidence about the
    appellants capacity to know her act was wrong elicited from Dr. Mantle on
    cross-examination:

Q:
She was capable of knowing that he might be upset by the
    name change. Wasnt she?

A:
She, she may well have been. She indicated that she knew
    that he was going to find out about it.

Q: So she was capable of knowing that he would find out about
    it?

A: At that time she had indicated to me  that she knew that he
    would find out about it or figured he would find out about it .

Q: And she was capable of knowing that her action might be
    wrong. Wasnt she?

A: Which action?

Q: Her action in changing her name.

A: I, I dont believe that she understood that that was wrong.
    She was taking the name for this man out of love  and
I dont believe
    that she understood that that could be wrong in terms of how it could, the, the
    impact that could have on other people and be seen as a threat.
In fact,
    at, its my understanding she did not see her behaviour as threatening. That
    was not her intent was to be threatening from what she explained. [Emphasis
    added.]

[57]

Finally,
    I accept the appellants submission that the trial judges findings regarding
    the appellants capacity to know whether her act was wrong are difficult to
    reconcile with the factual findings he made in concluding she had committed
    criminal harassment by threatening conduct. At para. 82 of his NCRMD ruling,
    the trial stated:

Her delusion with respect to his relationship with her caused
    her to not understand what she was doing was wrong. She did not have that
    insight. She thought it was acceptable because it was legal, in her mind, and
    the consequences simply did not occur to her. It was not being willfully blind,
    which implies knowledge but not caring,
but rather she was simply unaware
    of the implications of her actions. She did not know it was wrong
.
    [Emphasis added.]

[58]

Yet,
    in concluding the appellant had committed the act, the trial judge had stated,
    in part:

[S]he knew how Mr. McBride would feel upon finding out
    about this name change  knowing that she is doing this and being wilfully
    blind or careless or reckless with reference to the impact it was going to have
.
    Given the overall context, it seems to me that this act on her part knowing as
    she testified or states in her statement that Mr. McBride will find out about
    it and knowing that he will be upset and angry about it. When I look at all of
    that and put it all together, it seems to me that she has engaged in conduct
    which is of a threatening nature and is to be looked at in that regard.



And without dealing with issues that will arise under Section
    672 if we get there,
it clearly seems to me that [the appellant] was at
    best wilfully blind as to what this meant from Donna and Mark McBrides
    perspective and clearly it was reckless as to what that would do to them
.
    [Emphasis added.]

[59]

The
    Crown submits that those findings can co-exist on the basis that the trial
    judges findings in respect of whether the appellant committed the act related
    to her understanding of the factual impact of her conduct, whereas those made
    at the NCRMD hearing went to her understanding of the moral quality of the
    impact. I cannot accept this submission. Those findings overlap far too much to
    support the fine distinction the Crown advances. In my view, the comments indicate
    confusion by the trial judge both about: (i) the distinction between the issues
    of capacity to know that an act is wrong and knowing that an act is wrong; and
    (ii) the effect of prior findings regarding the appellants
mens rea
on the subsequent inquiry under s. 16(1).

[60]

For
    these reasons, I conclude the NCRMD verdict was tainted by legal error and
    should be set aside.


V.

REMEDY AND SENTENCE

[61]

The
    parties agreed that if the appellant did not succeed on her appeal from the
    findings she committed criminal harassment and if the verdict of not criminally
    responsible by reason of mental disorder were set aside, then pursuant to s.
    686(4)(b)(ii) of the
Criminal Code
this court should substitute
    convictions on the charges under s. 264(2)(d). I think that is the proper
    order. Accordingly, I would set aside the NCRMD verdict and enter convictions
    against the appellant on the two counts of criminal harassment by threatening
    conduct under s. 264(2)(d).

[62]

The
    appellant, relying on
R. v. Guidolin
, 2011 ONCA 264, 280 O.A.C. 387,
    and
R. v. Evans
, 2012 ONCA 412, 294 O.A.C. 63, submits that, given the
    lengthy time spent in custody, no further sentence is appropriate, and
    therefore a sentence of time served should be entered.

[63]

The
    respondent argues that the appropriate sentence would be a conditional
    discharge, with a one-year period of probation. A term of the probation order would
    require the appellant to have no contact with Mark and Donna McBride.

[64]

I
    am satisfied that the almost six years the appellant has spent in custody far exceeds
    the range of any sentence the appellant would have received had she pled guilty
    to the charges upon her arrest in May 2012. No further incarceration can be
    justified on any applicable sentencing principle. A conditional discharge with a
    one-year probation order would be a fit sentence in the circumstances, one that
    is in the best interests of the appellant and not contrary to the public
    interest.

VI.

DISPOSITION

[65]

For
    the reasons set out above, I would allow the appeal from the verdict of not
    criminally responsible on account of mental disorder. I would set aside the
    NCRMD verdict and, in its place, substitute findings of guilt on the two counts
    of criminal harassment by threatening conduct under s. 264(2)(d) of the
Criminal
    Code
. I would impose a conditional discharge on both counts, with a
    one-year period of probation, to be served concurrently. The probation order
    shall contain the terms set out in s. 732.1(2) of the
Criminal Code
,
    with the non-communication term to include Mark McBride, Donna McBride and
    their children.

Released: DW Mar 29 2018

David Brown J.A.
I agree. David Watt J.A.
I agree. L.B. Roberts J.A.


