The Defence Toolkit – April 8, 2023

This week’s top three summaries: R v DC, 2023 NSCA 20: #demeanor outside stand, R v RJM, 2023 MBCA 28: Browne v Dunn, and R v Peterson, 2023 ABKB 176: #NCRMD moral wrong

This week's top case deals with an unusual witness preparation issue: demeanour out of the stand. For great general reference on the law of witness presentation and assessment, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on the image below.

R v DC, 2023 NSCA 20

[March 30, 2023] Accused Demeanour Out of the Stand [Reasons by Bourgeois J.A. with Farrar J.A. concurring and Derrick J.A. providing concurring reasons]

AUTHOR’S NOTE: While defence counsel might be focusing on the Crown witness' evidence on the stand, their client is often having their own experience of this and may be reacting to it. In this case, the trial judge's attention became directed at the accused rather than the witness providing evidence on the stand. In reasons for judgment, the trial judge noted the impact the accused's failure to look the complainant in the face while she testified had on him. Here, the accused would not look the complainant in the face. In overturning the decision, the Court of Appeal noted the appellate jurisprudence on this topic from across the country. Some courts say it simply is not evidence (ie. we instruct jurors regularly that the only thing they are to consider is the testimony of witnesses on the stand) while others focus on the lack of fairness inherent in the judge paying attention to the accused in the dock and then making findings about it (ie. the defence is entitled to know the case to meet). For both of these reasons, a trial judge should not focus on the facial reactions of an accused to the testimony being given. 

Reasons for judgment:

[2] In October, 2019, the appellant, D.C., had sexual intercourse with the complainant, K.R. They were high school students, aged 17 and 16 respectively, at the time.

[3] The complainant said the sexual activity occurred without her consent, and went to police in April, 2020 to report the incident. The appellant was subsequently charged with sexual assault and choking to overcome resistance contrary to ss. 271 and s. 246(a) of the Criminal Code.

[4] Given his age, the appellant’s trial proceeded in the Youth Justice Court before the Honourable Judge Christopher Manning. The appellant and complainant were the only two witnesses called. The appellant acknowledged he and the complainant had sexual intercourse on the date in question, but testified the complainant consented to the activity and was a willing and engaged participant.

[5] The trial judge found the appellant guilty of sexual assault, but entered an acquittal in relation to the choking charge. The appellant was subsequently sentenced to a term of 60 days of custody, followed by 30 days of supervision in the community. Additionally, the trial judge imposed a further 18 months of probation.

Decision under appeal

[17] Near the outset of his reasons, the trial judge identified credibility as being the central issue in the case. He said:

Generally, the surrounding facts in these cases are not in dispute. There is no question that on October 18, 2019, D.C. and K.R. engaged in sexual intercourse in the bedroom of D.C. The question is whether this was a consensual act or a sexual assault and whether or not choking occurred, aimed to enable assist D., D.C. in committing the sexual assault. Credibility is, of course, the primary issue in this case. Credibility relates to the truthfulness or veracity of the evidence of the witnesses. ...

(Emphasis added)

[19] After reviewing the evidence of the complainant and appellant, the trial judge made the following observations regarding their respective demeanour:

I wanted to make a comment or two about demeanour. I observed K.R. testifying in the witness box next to me. I noticed that her whole body was visibly shaking during her testimony, and at times, she broke into tears. During her testimony, D.C., the accused did not look at her, but instead stared off into the corner of the courtroom on the opposite side of the room from where she was seated. I noted that initially and made several att. .., several purposeful efforts to watch this as her evidence continued. On each occasion when I checked this, the pattern was exactly the same. It seemed to be a very purposeful act. There can, of course, be many reasons why an accused would not make eye contact with a complainant in a case such as this, but the studious ignoring of the complainant by the accused was something I have never seen before in close to 40 years being in court on a regular basis. It was certainly not a case where the accused wanted to face his accuser.

As noted previously, when the defence elected to call evidence, D.C. was an engaging witness, responding appropriately to questions and maintaining eye contact with his counsel, with the Crown during cross-examination, and indeed with me. I’m well aware of the need to exercise extreme caution when considering evidence of demeanour (see, for example, the Ontario Court of Appeal in R. v. Trotter, paragraph 40), but I’m also aware of the statement of the Supreme Court of Canada in R. v. N.S. in 2012, confirming that the witness’ demeanour can be of value in assessing credibility. In this case, it is but one aspect of my assessment of credibility.

(Emphasis added)

[20] The trial judge then proceeded to assess the complainant’s credibility. He found her to be “a very credible witness” …

[21] It is clear the Snapchat messages, “a critical piece of evidence”, were central to the trial judge’s credibility assessment. He noted:

...The complainant indicated she initiated the conversation on the day following the incident at the home of D.C. She conceded the first words of the conversation were initiated by her, and although not captured by Exhibit 1, her opening words were, “Why didn’t you listen to me?” This is not the only part missing from the whole Snapchat exchange that took place between K.R. and D.C. Mr. Brown pointed out during cross-examination and emphasised in summation that there appears to be gaps and jumps, including the following:

(a) There are extenders of letters visible on page 7, but the corresponding portions of the letters do not appear on page 6, suggesting some portion is missing;

(b) There is a gap of six minutes between the last message on page 7 and the first message on page 8; and

(c) There is a gap of 14 minutes between the last message on page 8, 12:59, and the first on page 9, 1:13.

Analysis

[31] Before embarking on an analysis of the trial judge’s credibility assessments, I will set out the legal principles that govern an assessment of credibility, both generally, and in the context of sexual assault allegations.

[32] Justice Derrick has recently addressed principles relating to the assessment of credibility, particularly in relation to allegations of sexual assault in R. v. Stanton, 2021 NSCA 57, at para. [67]. This included:

• The focus in appellate review “must always be on whether there is reversible error in the trial judge’s credibility findings”. Error can be framed as “insufficiency of reasons, misapprehension of evidence, reversing the burden of proof, palpable and overriding error, or unreasonable verdict” (R. v. G.F., 2021 SCC 20, para. 100).
• Where the Crown’s case is wholly dependent on the testimony of the complainant it is essential the credibility and reliability of the complainant’s evidence be tested in the context of all the rest of the evidence (R. v. R.W.B., [1993] B.C.J. No. 758, para. 28 (C.A.).
• Assessments of credibility are questions of fact requiring an appellate court to re-examine and to some extent reweigh and consider the effects of the evidence. An appellate court cannot interfere with an assessment of credibility unless it is established that it cannot be supported on any reasonable review of the evidence (R. v. Delmas, 2020 ABCA 152, para. 5; upheld 2020 SCC 39).
•  “Credibility findings are the province of the trial judge and attract significant deference on appeal” (G.F., para. 99). Appellate intervention will be rare (R. v. Dinardo, 2008 SCC 24, para. 26).
• Credibility is a factual determination. A trial judge’s findings on credibility are entitled to deference unless palpable and overriding error can be shown (R. v. Gagnon, 2006 SCC 17, paras. 10–11).
• Once the complainant asserts she did not consent to the sexual activity, the question becomes one of credibility. In assessing whether the complainant consented, a trial judge “must take into account the totality of the evidence, including any ambiguous or contradictory conduct by the complainant ...” (R. v. Ewanchuk, [1999] 1 S.C.R. 330, para. 61).
•  “Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events...” (Gagnon, para. 20).
• The exercise of articulating the reasons “for believing a witness and disbelieving another in general or on a particular point ... may not be purely intellectual and may involve factors that are difficult to verbalize ... In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization” (R. v. R.E.M., 2008 SCC 51, para. 49).
• A trial judge does not need to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence (R.E.M., para. 56).
• “A trial judge is not required to comment specifically on every inconsistency during his or her analysis”. It is enough for the trial judge to consider the inconsistencies and determine if they “affected reliability in any substantial way” (R. v. Kishayinew, 2019 SKCA 127, para. 76, Tholl, J.A. in dissent; aff’d 2020 SCC 34).
• A trial judge should address and explain how they have resolved major inconsistencies in the evidence of material witnesses (R. v. A.M., 2014 ONCA 769, para. 14).

[33] To the above I would add:

• The failure to articulate how credibility concerns are resolved, particularly in the face of significant inconsistencies in a complainant's testimony, may constitute reversible error, as an accused is entitled to know why the trial judge is left with no reasonable doubt ( v. Dinardo, 2008 SCC 24, para. 31).

[34] … I am satisfied the trial judge committed two fundamental and fatal errors in the assessment of the appellant’s credibility.

Reliance on out-of-box demeanour or behaviour

[35] This Court has previously cautioned trial judges about the peril of relying on out-of-box demeanour in assessing credibility. In R. v. N.M., 2019 NSCA 4, a trial judge’s reliance on an accused’s demeanour and behaviour while watching a complainant testify was found to undermine his credibility assessment and resulting conviction. The appellant says the same error arises here.

[38] The Crown says the leading decision on the use of out-of-box demeanour is a decision of the Ontario Court of Appeal, R. v. T.M., 2014 ONCA 854. In T.M., the Court dismissed the appellant’s challenge to his convictions relating to the historical sexual abuse of his daughter and step-daughter. One of the grounds of appeal alleged the trial judge had erroneously relied upon the appellant’s courtroom demeanour while listening to the testimony of other witnesses.

[39] In rendering the Court’s decision, Justice Laskin wrote:

[51] As is evident from this passage, the trial judge was commenting on the appellant’s demeanour during the complainants’ testimony and before the appellant himself testified. Yet, when the appellant did testify, the trial judge did not ask him to explain his demeanour, nor did he alert defence counsel that he may comment on it in his reasons.

[52] The appellant submits that the trial judge erred by relying on the appellant’s demeanour when he was not on the witness stand giving evidence as a basis to reject his evidence. He argues that what he did while sitting beside his lawyer at the counsel table during his daughters’ testimony had no probative value. Yet the trial judge relied on the appellant’s courtroom demeanour, and his reliance cannot be excused by a saving comment that he was only making an observation and not judging the appellant on his demeanour.

(Emphasis added)

[40] He further explained that the reliance on out-of-box demeanour carries higher risk of an accused being treated unfairly and the judge misinterpreting what was observed in the witness box:

[62] Of course, I accept that triers of fact -- judges and juries -- can draw inferences about a witness's credibility from the witness's demeanour while that witness is testifying. And that is so, as Lacourcière J.A. noted, even though the witness is not given an opportunity to explain any particular mannerisms while testifying. But most witnesses expect to be judged on their demeanour while testifying as well as on the substance of their evidence. They recognize that people communicate both verbally and non-verbally and that the two cannot always be separated. I do not think witnesses have the same expectation when they are not in the witness box.

[63] The third and related concern, which arises in the case before us and which I have just adverted to, is the potential unfairness of the trial judge's reliance on the accused's demeanour outside the witness box when the trial judge does not give the accused any opportunity to explain the accused's courtroom demeanour.

[64] The final concern relates to the first concern. Our court has emphasized that the probative value of an accused’s apparently calm reaction to an allegation of sexual abuse is highly suspect. Accused testify in the unfamiliar and stressful environment of the courtroom. Without a baseline to judge how they react to a stressful situation, their demeanour, even while testifying, is susceptible to misinterpretation. See R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.); R. v. Baltrusaitis (2002), 58 O.R. (3d) 161 (C.A.); and R. v. Bennett (2003), 67 O.R. (3d) 257 (C.A.), leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 534. And the risk of misinterpretation is even higher when the accused is not testifying, but is simply sitting in the courtroom.

(Emphasis added)

[41] In concluding the judge’s reliance on the appellant’s out of box demeanour did not give rise to error justifying intervention in the circumstances of that case, Justin Laskin explained:

[67] What then of the trial judge’s finding concerning the appellant’s credibility? I would be troubled by the trial judge’s rejection of the appellant’s evidence if I thought it was based solely or even primarily on the appellant’s demeanour outside the witness box. But I do not think that it was. Even discounting the trial judge’s saving comment, at most he placed modest reliance on the appellant’s courtroom demeanour. I do not think any “manifest unfairness” arises from his having done so. He gave other cogent reasons for rejecting the appellant’s evidence.…

[43] The Quebec Court of Appeal takes a less forgiving view of out-of-box demeanour being used to assess credibility. In Parkinson-Makara v. R., 2012 QCCA 2011, the accused was detained in a provincial jail awaiting sentencing when he was charged with three new counts of uttering death threats and criminal harassment. The complainants included a correctional officer who testified she had been harassed and intimidated by the accused during his detention. In his reasons for conviction, the trial judge took note of the accused’s aggressive behaviour in the courtroom and found this supported the correctional officer’s testimony she had felt intimidated by their exchange. The trial judge concluded his courtroom behaviour and demeanour also impacted negatively on the accused’s credibility.

[44] The Court of Appeal allowed the appeal, finding it was a fundamental error for the trial judge to rely on “irrelevant” information in her assessment of the issues, including credibility. The Court (Hilton, St. Pierre and Gascon, JJ.A) wrote:

[3] In the main, his appeal focuses on various grounds related to the fairness of the trial in the manner it was conducted by the trial judge. It also brings into question whether the trial judge improperly took account of irrelevant factors in his determination of Mr. Parkinson-Makara's guilt on the counts for which he was found guilty.

And later:

[26] The unanimous reasons delivered on behalf of this Court emphasized that the only relevant considerations it belonged to a trial judge to assess were those that arose from the accused's testimony as a witness. ...

[27] These grounds alone are sufficient to set aside the verdicts of conviction,

since it is apparent the judge's assessment of the appellant's behaviour in the courtroom but outside the witness box had an impact on his conclusion that the appellant did commit the offences for which he was found guilty. In principle, therefore, a new trial should be ordered on all three counts. ...

(Emphasis added)

[45] The Alberta Court of Appeal has also found that a trial judge’s reliance on an accused’s behaviour in the courtroom is problematic, giving rise to sufficiency of reasons and trial fairness concerns. In R. v. Salai, 2007 ABCA 30, an appellant, convicted of trafficking, asserted the trial judge had improperly relied upon her observation of his behaviour while a defence witness was testifying. In her reasons the trial judge noted she had viewed the appellant gesturing or signalling to the witness as he was testifying. She found this conduct impacted negatively on both the witness’s and the appellant’s credibility.

[46] In allowing the appeal, Justice Berger for the Court explained:

[13] The absence of recited factual underpinnings for the judge’s conclusory statement regarding “signalling”, in my view, undermines the ability of this Court to engage in meaningful appellate review of the conclusion reached: R. v. Sheppard, [2002] 1 S.C.R. 869. Also, the failure to afford to counsel any opportunity to address the matter before adjudicating on its significance constitutes an error of law in these circumstances. The trial judge first mentioned the alleged misconduct involving the witness and the Appellant when she gave her reasons for finding the Appellant guilty.

[15] There is, in my opinion, a qualitative difference between taking account of a witness’s demeanour in assessing his or her credibility and relying upon perceived conduct that the judge concludes is consistent with an attempt to interfere with a witness’s oath and to thereby obstruct justice. The trial judge’s conclusion that the signalling impacted Fouquette’s credibility was based on more than an assessment of Fouquette’s demeanour on the witness stand. Rather, it was based, to some undisclosed degree, on actions extraneous to Fouquette occurring outside the witness stand and involving someone else in the courtroom. Absent timely disclosure of her observations, there was no opportunity for counsel to make diligent inquiry to ascertain whether the trial judge’s observations and conclusions were accurate, or whether she misinterpreted something entirely innocuous. On this record, there is no way of knowing what the trial judge had in mind when she perceived “signalling” between Fouquette and the Appellant. Counsel were, accordingly, precluded from addressing the trial judge’s concerns. Meaningful appellate review, in the result, is also thwarted.

(Emphasis added)

[48] I take no issue with the case authorities cited by the trial judge regarding the use of a witness’s demeanour evidence. However, those authorities do not address nor endorse the use of an accused’s out-of-box demeanour or behaviour as being available tools in assessing credibility. Those cases speak only to testimonial demeanour. The trial judge did not acknowledge this Court’s prior warning about the use of out-of-box demeanour, nor seemingly turn his mind to the appropriateness of its use in the case before him. He did not provide the appellant with an opportunity to address the conduct he determined to be the purposeful “studious ignoring of the complainant”.

[49] I have no doubt the trial judge’s observations of the appellant significantly informed his credibility assessment. The trial judge’s own words underscore the appellant’s conduct in the courtroom made a marked impression on him, so much so that he continued to monitor the appellant’s behaviour during the course of the complainant’s testimony….

[50] I agree with the Quebec Court of Appeal that the behaviour demonstrated by an accused outside of the witness box is not usually relevant.1 That is, quite simply, because such conduct is not evidence. When the trier of fact is a jury, it is instructed to rely only on evidence which has been properly placed before it. In the Canadian Judicial Council – National Judicial Institute Model Jury Instructions, it is suggested that jurors be told:

You must consider only the evidence presented in the courtroom. Evidence is the testimony of witnesses and things entered as exhibits. It may also consist of admissions.

[51] It would constitute misdirection if jurors were told they could observe an accused’s behaviour and demeanour while listening to other witnesses, and use their interpretation of that conduct as part of determining guilt or innocence. It should be no different when the trier of fact is a judge alone.

[52] I further agree with the Alberta Court of Appeal that the use of an accused’s courtroom behaviour outside of the witness box, gives rise to serious trial fairness concerns. It is a foundational principle that an accused is entitled to know the case against them, and to be able to respond accordingly. An accused has the ability to respond to evidence introduced during trial by choosing to call evidence, by discussing evidence in their submissions, or both. The same cannot be said of a judge’s observations of behaviour outside of the witness box which are only disclosed at the time of conviction.

[54] I am satisfied that in these circumstances, it was improper for the trial judge to utilize his observations of the appellant’s courtroom behaviour as a factor in his assessment of credibility. Basing his credibility assessment, even partially on factors the appellant had no ability to respond to, constituted an error of law. I would allow the appeal on the basis of this error alone.

Reliance on stereotypical reasoning or impermissible generalization?

[55] The appellant says the trial judge impermissibly assessed the believability of his evidence “by comparing it to an arbitrary expected standard of human behaviour”. …

[60] … He said:

I have some difficulty with his description of what happened at the complainant’s work. As K.R. was getting out of his vehicle, he says she made threats to him to say “rape” in the event that anyone found out that they’d had sex that afternoon. He said he made no real attempt to stop and talk to her – she was, a, she, of course, was a friend of his nor to do so later that evening or indeed the next morning.

[61]  Later in his decision the trial judge returned to this concern, and noted:

He didn’t make any effort to stop her or to talk to her or find out why she would say such a thing.

[62]  With respect, I am satisfied the trial judge utilized an assumption, not grounded in the evidence, about how a person would respond when falsely accused of sexual assault. He held the appellant’s behaviour up against the assumption an innocent accused would confront a complainant in such circumstances, and it clearly informed his credibility assessment. In doing so, the trial judge erred in law. I would also allow the appeal on this basis.

Disposition

[92] For the reasons above, I would allow the appeal, quash the appellant’s conviction, and order a new trial on the sexual assault charge.

Concurring Reasons [of Derrick J.A.]:

[93] I have had the benefit of reading the reasons of my colleague, Justice Bourgeois. I am in agreement that the appeal should be allowed on the grounds of errors committed by the trial judge in his assessment of the appellant’s credibility….

Out-of-Box Demeanour

[103] The appellant’s out-of-box demeanour should have played no role in the trial judge’s assessment of his credibility. I agree it constituted reversible error requiring the appellant’s conviction to be set aside and a new trial ordered.

R v RJM, 2023 MBCA 28

[March 23, 2022] Browne v Dunn: Judge must give opportunity for submissions - Not every inconsistency need be put to witness [Reasons by Lori T. Spivak J.A. with Diana M. Cameron and Christopher J. Mainella JJ.A. concurring]

AUTHOR’S NOTE: Browne and Dunn is fundamentally a rule about fairness to all parties. Judges who spring credibility findings based on its application on the parties without seeking submissions run afoul of it and often cause successful appeals. Also, not every inconsistency needs to be put to the witness: the rule is only triggered when the contradiction relates to a matter of substance. There two errors are the bread and butter of successful appeals resulting from misapplication of this rule at the trial level. 

[1] The accused was convicted of sexual assault and sexual interference in relation to his younger sister (the complainant), on two occasions between July 14, 2013 and September 30, 2017. The conviction for sexual assault was judicially stayed (see Kienapple v The Queen, [1975] 1 SCR 729). A sentence of 42 months’ imprisonment was imposed.

[2] The accused appeals his conviction on the grounds that the trial judge erred in his application of the rule in Browne v Dunn (1893), [1894] 6 R 67 at 70-71 (HL (Eng)) (the rule) resulting in an unfair trial, and that he misapprehended the evidence.

The Trial Judge’s Decision

[15] In his reasons for conviction, the trial judge recognized the principles outlined in R v W(D), [1991] 1 SCR 742 applicable to the accused’s evidence and the burden of proof on the Crown. In assessing the accused’s testimony, he noted that the accused “spoke of matters . . . as being matters of fact, but on numerous occasions those matters were never put to the specific witness being referenced”. While the trial judge indicated he was not inferring a breach of the rule in each scenario and that many of the accused’s assertions came with no background, he went on to state: “Having said that, there were many times [the accused] clearly came into conflict with the rule in Browne v Dunn that I will certainly highlight” (emphasis added).

[16] The trial judge then referred “[b]y way of examples” to a number of areas of the accused’s testimony including:

• that the accused testified that due to the issues the older sister faced, he was cast in the role of the older responsible brother yet never put this to the mother;
• that the accused testified that the grandmother was not capable of looking after anyone and this was the reason why the mother was placed in foster care, but never explored this with the mother;
• that the accused denied the mother’s testimony that she took the children to counselling after the assault by the stepfather, but never challenged the mother on this assertion in cross- examination;
• that the accused never explored with the mother his testimony that a source of their conflict was that she could not accept that he did not have mental health issues;
• that the accused did not cross-examine the mother on his account of how he left the family home; and
• that the accused never raised with the sister his evidence that they reached a truce while the stepfather remained in the home.

[18] In rejecting the accused’s evidence, the trial judge reiterated that, while he was not “suggesting that there was a continuous breach of the rule” there are some clear examples of the breach of the rule and “what becomes evident is the accused possesses a limited memory of the events that may have occurred.”

[19] In convicting the accused, the trial judge found the complainant to be straightforward and detailed noting that, “she did not resile from her position [that the] accused assaulted her on more than one occasion.” He concluded that this, together with the supportive evidence of the sister and the mother was sufficient to prove the accused’s guilt of the third and fourth incidents beyond a reasonable doubt.

Standard of Review

[22] Questions of trial fairness are reviewable on a standard of correctness (see R v Schmaltz, 2015 ABCA 4 at para 13; and R v Dowd, 2020 MBCA 23 at para 22).

[23] Whether the rule is engaged is a question of law reviewable on a standard of correctness. If a trial judge is satisfied that there is a breach of the rule they have a broad discretion to determine the appropriate remedy. The extent of the rule’s application is within the discretion of the trial judge which, absent an error in principle, is entitled to deference (see R v Lyttle, 2004 SCC 5 at para 65; R v Drydgen, 2013 BCCA 253 at para 22; R v Dexter, 2013 ONCA 744 at para 22; R v Abdulle, 2016 ABCA 5 at para 10; Chandroo c R, 2018 QCCA 1429 at para 13; R v Willis, 2019 NSCA 64 at para 9; Dowd at para 21; and R v Cupid, 2021 ABCA 386 at para 22).

Analysis and Decision

The Rule—Governing Principles

[24]  In Dowd, Mainella JA explained the rule as follows (at para 5):

To ensure credibility assessments are made as a result of a fair and orderly trial process, the rule requires that, where a party intends to later impeach a witness on a matter of significance to the facts in issue by contradictory evidence or in closing argument, the witness must be confronted with the contrary position during cross-examination so that [he or she may] have the opportunity of responding to it.

[25]  The rule is rooted in concerns about fairness: (1) fairness to the witness who should have an opportunity to address the contested point;

(2) fairness to the opposing party, who should have notice of what aspects of its witness’s evidence are contested; and (3) fairness to the trier of fact, who may not otherwise have the necessary information to properly assess the witness’s credibility (see R v Quansah, 2015 ONCA 237 at para 77).

[26] Any failure to cross-examine must relate to a matter of substance, not an issue of little significance (see Quansah at para 81; Abdulle at para 11; and R v Paris (2000), 150 CCC (3d) 162 at para 23 (Ont CA)). If the matter is minor or of insufficient significance, the rule is not engaged and no remedy is necessary (see Abdulle at para 13).

[27] If the Crown considers that the rule has been violated, it has an obligation to make a timely objection (see Quansah at para 124; and Dowd at para 26).

[28] Where a trial judge has concerns about the potential breach of the rule, it is generally required, in the interests of trial fairness, that they raise this with counsel prior to rendering a decision on the matter (see Cupid at para 16). I will say more about this later.

[29] Even if a party has violated the rule, it is up to the trier of fact to determine how much weight, if any, should be placed upon the failure to cross-examine a witness about a particular matter. As I already mentioned, if a trial judge determines that the rule has been breached, they have a broad discretion to determine an appropriate remedy. This includes: (1) recalling the witness who was not cross-examined; (2) taking the breach of the rule into account when assessing a witness’s credibility, or (3) disallowing the challenge to the credibility of the witness on a point not covered in cross- examination (see R v SCDY, 2020 ABCA 134 at para 69). The discretion of the trial judge in responding to a breach of the rule is governed chiefly by the relative importance of the evidence in question to the outcome of the case (see Chandroo at para 16).

Was the Fairness of the Accused’s Trial Compromised by the Trial Judge’s Invocation of the Rule?

[34] As I have already highlighted, the Crown never raised any objection about a violation of the rule—neither during the accused’s testimony nor during closing argument. Likewise, the trial judge did not raise any concern about a potential breach of the rule with any of the parties. This did not surface until the trial judge invoked the rule in his decision.

[37]  To begin with, I do not accept that the trial judge’s application of the rule was merely a minor aspect of his general concern about the accused’s evidence. To the contrary, it is apparent from an examination of the trial judge’s decision as a whole, that he found multiple breaches of the rule, which was integral to his rejection of the accused’s evidence.

[38] After noting the test in W(D) and turning to an assessment of the accused’s evidence, the trial judge stated unequivocally, “there were many times [the accused] clearly came into conflict with the rule”. I have considerable difficulty with the Crown’s position that many of the examples he described were not findings of a breach of the rule, but rather illustrations of a general concern about assessing the accused’s evidence in a vacuum and an indication of the areas he would have liked further explored with the Crown witnesses.

[42] At the end of the day, it is obvious from the trial judge’s own words that he relied on many breaches of the rule to diminish the weight of the accused’s testimony which influenced his ultimate finding of guilt beyond a reasonable doubt.

[43] As Healy JA noted in Chandroo, and highlighted in Dowd, generally speaking, in the absence of a formal objection by a party to a breach of the rule, before invoking the rule, a trial judge should solicit the submissions of counsel on whether the rule was breached and if so, in deciding on an appropriate remedy (see Chandroo at paras 15, 21; and Dowd at para 28).

[44]  Similarly, as more recently explained in Cupid (at para 22):

. . . [A]s a general rule, it will be a legal error for the [trial judge] to fail or decline to afford counsel an opportunity to make submissions in advance of an evidentiary ruling. The effect of that error, however, will often be a fact-specific inquiry. There is no fixed or inviolable rule which mandates that a failure to hear from counsel will necessarily result in trial unfairness. . . . All of the circumstances must be considered to determine the import of such an error, including the nature and extent of the error and its significance to the verdict.

[45]  In Cupid, unlike this case, the trial judge erroneously invoked the rule in relation to peripheral matters and gave reduced weight to two aspects of the accused’s evidence without raising the issue with counsel….

[46] Contrary to the Crown’s suggestion, there are parallels to Dowd. As here, the trial judge in Dowd drew negative inferences against the accused for failing to cross-examine Crown witnesses as part of her adverse assessment of his credibility. Given the significance of this evidence and the importance of the accused’s credibility to decide the case, the procedure used to find a breach of the rule and to remedy the consequence, without objection by the Crown and any input from counsel, did not fall within her discretion and compromised the fairness of the trial (see Dowd at paras 23-24).

[47] In this case, the trial judge’s perception that the rule was breached multiple times was fundamentally connected to his rejection of the accused’s evidence and ultimate finding that the offences were proved beyond a reasonable doubt. Significantly, the Crown did not object to a breach of the rule. The accused had no notice that compliance with the rule was an issue and had no opportunity to respond. The fairness of the trial was compromised by the trial judge’s invocation of the rule.

The Trial Judge Erred in His Application of the Rule

[49] I agree with the accused that the trial judge erred in mistakenly determining that the accused had not cross-examined a witness on an issue and that a breach of the rule had occurred, and in misapplying the rule to insignificant matters. The following are illustrative of these errors.

[50] The trial judge incorrectly concluded that the mother was not cross- examined on the accused’s testimony that a source of their conflict was her refusal to accept that he did not have mental health issues. In fact, the mother was cross-examined about their arguments related to the accused’s mental health and their disagreement as to his need for medication. She agreed in cross-examination that they had many arguments about him not taking his medication and indicated that she was always trying to get him to take medication and get help but “[h]e would always . . . really not want to accept his reality.” The accused did not unfairly choose to lead evidence on this issue without first putting it to the mother. I fail to see how this was a breach of the rule.

[52] I turn now to the trial judge’s errors in applying the rule to collateral matters and drawing adverse inferences against the accused on that basis.

[53] Compliance with the rule does not require every scrap of evidence on which a party desires to contradict the witness be put to that witness in cross-examination (see Quansah at para 81). The rule is only triggered when the potential contradiction relates to a matter of substance. As Doherty JA observed in Paris, where the evidence is of little significance in the overall context of the case, the failure to cross-examine will have no effect of significance on the accused’s credibility (see para 23; and Abdulle at para 11).

[54] The first example highlighted by the trial judge as a breach of the rule was the failure to cross-examine the mother on the accused’s claim that he took on the role of older brother due to some of the older sister’s medical issues. The fact that the accused felt he had the responsibility of the eldest child was not material to the allegations. Additionally, the trial judge faulted the accused for failing to cross-examine the mother on his claim, that the grandmother was not capable of looking after anyone, and his denial that they attended counselling after the incident with the stepfather, as the mother contended. These were also matters of insufficient substance to amount to a violation of the rule.

[55] Lastly, I point out the trial judge also expressed a concern about the accused’s failure to cross-examine the sister regarding his evidence that, while their relationship was antagonistic, they had come to a truce while the stepfather remained in the home. The accused’s relationship with the sister was material; he testified that they never got along, and she blamed him for the stepfather’s removal from the home. He argued that her animus towards him was a motive to fabricate her evidence. However, the nature of the accused’s relationship was raised with the sister during cross-examination. It was specifically put to her and she agreed that she blamed the accused for the stepfather leaving. Whether they had reached “a deal” for a time, as the accused testified, was an inconsequential detail.

[56] Moreover, not only were the above matters peripheral, but the accused’s evidence about taking on the role of older brother and his denial of attending family counselling arose during cross-examination by the Crown. The rule does not apply to a situation where the contradictory evidence is elicited during cross-examination of the accused (see R v Graziano, 2015 ONCA 491 at para 35; R v Martin, 2017 ONCA 322 at para 11; and R v Loucks, 2019 ONSC 5334 at para 13).

Conclusion

[68] In the result, I would allow the appeal, quash the convictions and order a new trial on both counts.

R v Peterson, 2023 ABKB 176

[March 27, 2023] NCRMD: Knowledge that the Acts are Wrong [Justice W.N. Renke]

AUTHOR’S NOTE: To be declared not criminally responsible for an act, either the accused or the Crown (depending on who seeks to displace the presumption of sanity) has to prove on a balance of probabilities that they were suffering from a mental disorder and that it rendered them either incapable of appreciating the nature and quality of their act or knowing the their acts were wrong. Here, the court provides an in depth discussion of what the knowledge of wrongfulness requires. It is not the knowledge of legal wrongfulness, but rather moral wrongfulness. If the disease of the mind caused the person to be incapable of knowing their action was not morally justified, that is sufficient.

[1] On September 29, 2022 I found Mr. Peterson guilty of three offences:

• On or about the 21st day of December, 2020, at or near Edson, Alberta, [he] did unlawfully wound, maim, or disfigure Christopher Paradis, thereby committing an aggravated assault, contrary to section 268 of the Criminal Code of Canada.
• On or about the 21st day of December, 2020, at or near Edson, Alberta, [he] did break and enter a certain place to wit a dwelling house and commit the indictable offence of robbery, contrary to section 348(1)(d)/344(1)(b) of the Criminal Code of Canada.
• On or about the 21st day of December, 2020, at or near Edson, Alberta, [he] did, without lawful authority, confine Christopher Paradis, contrary to section 279(2) of the Criminal Code of Canada.

[2] The charges arose from an entirely chance encounter between two complete strangers at about 5:00 a.m. on December 21, 2020 in the parking lot of the Aries Motel in Edson, Alberta. A machete was displayed, a purported citizen’s arrest occurred, and the complainant received very serious injuries and was hospitalized for months. The trial decision is reported at 2022 ABKB 728.

[4] The Crown applied under s. 672.12 of the Criminal Code for an assessment order respecting whether Mr. Peterson was, at the time of committing the offences, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of s. 16(1) of the Criminal Code. I granted the order. (See R v Swain, [1991] 1 SCR 933, Lamer CJC at 986-989 respecting the constitutionality of this process.)

[6] Under s. 672.34, I must now determine whether at the time of committing the acts that formed the bases of the offences, Mr. Peterson was suffering from mental disorder so as to be exempt from criminal responsibility by virtue of s. 16(1) and whether I must render a verdict that Mr. Peterson committed the acts but is not criminally responsible on account of mental disorder.

[10] I will consider s. 16(1) of the Criminal Code and the special verdict of not criminally responsible on account of mental disorder, whether at the time of the attack Mr. Peterson suffered from a “mental disorder,” and, if so, whether the mental disorder rendered him incapable of appreciating the nature and quality of his acts or whether the mental disorder rendered him incapable of knowing his acts were wrong.

[13] …We should not punish a person for his or her acts if the person could not understand what was done or could not understand that what was done was wrong. As Justice Dickson, as he then was, noted in R v Cooper, [1980] 1 SCR 1149 at 1159,

The principle was expressed long ago in Hawkins, Pleas of the Crown 1 (2d ed. 1724) where it is said:

The Guilt of offending against any Law whatsoever, necessarily supposing a wilful Disobedience can never justly be imputed to those, who are either uncapable of understanding it, or of conforming themselves to it .... (at p. 1)

[14] Justice McLachlin, as she then was, dissenting in R v Chaulk, [1990] 3 SCR 1303, but not on this point, …

[15] Justice McLachlin continued:

Where a person lacks this capacity for choice because he or she is not capable of knowing that his or her acts are wrong, the moral justification for attribution of responsibility and punishment will be absent for, as Ferguson, op. cit., observes at p. 140, “It is immoral to punish those who do not have the capacity to reason or to choose right from wrong”.

Justice McLachlin stated that “criminal responsibility is appropriate only where the actor is a discerning moral agent, capable of making choices between right and wrong:” Chaulk at 1397. See R v Bouchard-Lebrun, 2011 SCC 58, Lebel J at para 49.

[16] Under s. 16(2) of the Criminal Code, everyone is presumed “not to suffer from a mental disorder so as to be exempt from criminal responsibility.” That is, the assumption of the criminal law is that every person accused of an offence has the capacity to be criminally responsible. An accused who seeks the protection of s. 16(1) bears the burden of proving that the assumption or presumption of sanity does not apply to him or her: Criminal Code s. 16(3). If the Crown seeks a not criminally responsible verdict, the Crown bears the burden of establishing that the presumption of sanity does not apply.

[17] The burden of proof that must be satisfied to overcome the presumption of sanity is proof on a balance of probabilities: Criminal Code s. 16(2).

[20] Subsection 16(1) has three elements. No person is criminally responsible for an act committed

• while suffering from a mental disorder, if
• that mental disorder rendered the person incapable of appreciating the nature and quality of the person’s acts, or
• that mental disorder rendered the person incapable of knowing that the acts were wrong

Therefore, I must answer three questions: Did Mr. Peterson suffer from a mental disorder when he committed the acts that formed the basis of the charged offences? If so, did he lack the capacity to understand the nature and consequences of his acts because of that mental disorder? Did he lack the capacity to know what he did was wrong because of that mental disorder?

II. Did Mr. Peterson suffer from a “Mental Disorder”?

A. Disease of the Mind

[21] Section 2 of the Criminal Code defines mental disorder as a “disease of the mind.” “Disease of the mind” is not defined by the Criminal Code but by common law. Whether a condition is characterized as a “disease of the mind” is a question of law decided by a judge, but the determination is based on medical, psychiatric, or psychological evidence: R v Parks, [1992] 2 SCR 871, LaForest J at 898; R v Stone, [1999] 2 SCR 290, Bastarache J at para 195; Bouchard-Lebrun at paras 61-62; R v SH, 2014 ONCA 303 at paras 75-76, 79. What this means is that psychiatrists or psychologists, for example, may consider a condition to be a “disease of the mind,” but the law may not. Psychiatrists or psychologists may not consider a condition to be a “disease of mind,” but the law may. The judge must decide whether the accused’s mental condition qualifies at law as a “disease of the mind.”

1. Cooper

[22] Justice Dickson set out the fundamental approach to “disease of the mind” in Cooper at 1159. Disease of the mind includes any illness, disorder or abnormal condition that impairs a person’s mind and its functioning. It does not include states that an accused has created, for example, by voluntarily drinking alcohol or taking drugs. It does not include temporary mental states, such as hysteria or concussion: see Bouchard-Lebrun at paras 39 and 59; SH at para 80.

2. Stone

[23] More recently, in Stone the Supreme Court described another approach to whether an accused was suffering from a “disease of the mind” at the time of his or her act. This approach requires a holistic consideration of whether:

• the conduct was “internally” caused
• whether the accused poses a continuing risk of danger to others
• whether policy factors count against classifying the accused’s condition as a “disease of the mind.”

[24] The Cooper and Stone approaches are complementary. Stone’s holistic approach extracts and focuses on the legal and policy elements of the Cooper approach, permitting development of the scope of “disease of the mind” in light of developments in science and novel factual circumstances.

(a) Internal Cause

[27]  At para 71 of Bouchard-Lebrun, Justice LeBel wrote that:

[71] The internal cause factor ... involves comparing the accused with a normal person. In [Stone], Bastarache J. noted that “the trial judge must consider the nature of the trigger and determine whether a normal person in the same circumstances might have reacted to it by entering an automatistic state as the accused claims to have done” (para. 206). The comparison between the circumstances of the accused and those of a normal person will be objective and may be based on the psychiatric evidence. The more the psychiatric evidence suggests that a normal person, that is, a person suffering from no disease of the mind, is susceptible to such a state, the more justified the courts will be in finding that the trigger is external. Such a finding would exclude the condition of the accused from the scope of s. 16 ....

(b) Continuing Danger

[28] An assessment of continuing danger does not depend on a prediction of violence. Rather, the assessment considers an accused’s psychiatric history and the likelihood of recurrence of the events or circumstances giving rise to violence, or the “triggers” for violence. Justice Bastarache wrote in Stone that “[t]he greater the anticipated frequency of the trigger in the accused’s life, the greater the risk posed to the public:” at para 217; Bouchard-Lebrun at para 73; see R v Luedecke, 2008 ONCA 716, Doherty JA at paras 91 and 111.

(c) Policy Factors

[30] Policy factors turn on the type of condition alleged to be a “disease of the mind” and whether, for example, symptomatic conduct could be easily feigned: Stone at paras 203-218. Justice LeBel added in Bouchard-Lebrun at para 75 that:

[75] .... The main policy consideration continues to be the need to protect society from the accused through the special procedure set out in Part XX.1 of the Criminal Code. Thus, if the circumstances of a case suggest that a pre‐existing condition of the accused does not require any particular treatment and is not a threat to others, the court should more easily hold that the accused was not suffering from a disease of the mind at the time of the alleged events.

B. Evidence

1. Dr. Will’s Conclusions

[31] Dr. Will’s opinion was that the following diagnoses apply to Mr. Peterson (Will Report at p. 20):

• schizophrenia, multiple episodes, currently in acute episode
• cannabis use disorder, in sustained remission in a controlled environment
• stimulant use disorder, in sustained remission in a controlled environment
• queried - unspecified neurodevelopmental disorder.

[32]  Dr. Will wrote that:

During his admission to AHE, Mr. Peterson exhibited signs of psychotic disorder. Specifically, he expressed grandiose beliefs (e.g. that he was a police officer or a divinity); bizarre beliefs (i.e. that individuals are capable of communications in a manner similar to telepathy); and appeared to experience auditory hallucinations (e.g. overheard to respond to unseen stimuli; described to the undersigned perceiving “communications” from police officers).

(f) The Offence

[57] When he arrived in Edson, Mr. Peterson stopped at the Aries Motel. Dr. Will stated that he was vague in explaining why he stopped there. He saw Mr. Paradis. After their initial interaction, Mr. Paradis went into his motel room and shut the door. Dr. Will wrote that:

Mr. Peterson said he then perceived a voice, which he believed was “direct orders” to “get in there” and arrest Mr. Paradis. Mr. Peterson told her “I was under the influence that I was listening to a high-ranking officer and I assumed the proper thing to do was to arrest him.”

[58] Mr. Peterson’s trial testimony was consistent with what Mr. Peterson told Dr. Will. The following is my account of the relevant portions of Mr. Peterson’s testimony, from paras 150- 152 of the trial decision:

[150] Mr. Peterson testified that when he was across the street, he contacted an officer. He said he confirmed with an officer that the police were on their way. He did not remember who he talked to. The communication was by way of telecommunication, using electricity from the human body. This allowed him to communicate with the police without using a telephone. He said it was common for him to communicate in this way with officers. In cross-examination Mr. Peterson said that there were officers listening to him right now. “I talk to them every day.”

[151] Mr. Peterson said that “they authorized me to arrest him.” In cross- examination he said he got a direct order to go back and arrest Mr. Paradis. He went back across the street to do so.

[59] Mr. Peterson told Dr. Will that he complied with the direction “to arrest the guy for threatening me with a machete.” Mr. Peterson told Dr. Will that he did not use excessive force during the arrest. He said “when my life is on the line, it’s whatever it takes for my life to not be at risk ... any force necessary.”

(g) Post-Arrest Presentation

[62] Mr. Peterson’s post-arrest presentation, which was referred to by Dr. Will, is described in the trial decision at paras 103-106:

[103] At this time, Mr. Peterson was in the phone room. He told Cst. Heavener that he did not want to talk to a lawyer. Cst. Heavener explained Mr. Peterson’s charges to him and explained how he could contact a lawyer. Mr. Peterson was left in the phone room to contact a lawyer for about 45 minutes. Cst. Heavener did not believe that Mr. Peterson contacted a lawyer.

[104] Cst. Heavener told Cpl. Carling Grasdal that Mr. Peterson was not making a call to a lawyer. Cpl. Grasdal went to the phone room, opened the door, and asked him if he knew what he was under arrest for, if he knew the seriousness of his charges. She testified that he didn’t appear to understand. She told him he was under arrest for attempted murder and possession for the purpose of trafficking and the charges were serious. She told him he needed a lawyer. She explained to him how to dial out to talk to a lawyer.

[105] Cpl. Jody Mattinson and Cst. Aldrin Merlin also assisted Mr. Peterson with talking to a lawyer. Cpl. Mattinson, who was monitoring Cst. Merlin’s efforts, testified that Cst. Merlin was struggling to get Mr. Peterson to use the phone. Mr. Peterson was in the phone room, just staring at the wall, not calling.

[106] Cpl. Mattinson testified that Mr. Peterson “seemed spacey.” He was making no eye contact. He stared into space. He did not attempt to make contact with a lawyer but sat facing the wall. Cpl. Mattinson offered to dial a lawyer for Mr. Peterson. He told Mr. Peterson that he needed to talk to a lawyer. Cpl. Mattinson said that Mr. Peterson did not grasp the gravity of the circumstances he was in. Cpl. Grasdal also testified that Mr. Peterson did not appear to understand the seriousness of the circumstances he was facing. She testified that he “looked at us blankly.”

(h) Presentation at Trial

[63] By way of corroboration and as further evidence of Mr. Peterson’s delusions, in the course of cross-examination on September 27, 2022, Mr. Peterson maintained he was an RCMP officer four times, and denied that it was not true that he was not a member of the RCMP. He referred to being Jesus Christ. He described communication by telecommunication with members of the RCMP, accomplished by means of the electricity of the human body. On September 28, he made comments on “manifestation,” and its reflection on the ecosystem and everything in the economy….

(i) Presentation at AHE

[68] He told Dr. Will that he is a police officer or peace officer. His training began when he was 13, in air cadets. At the time of the offences, he was working for Edson RCMP. He received regular briefings through telecommunication, which he likened to telepathy. It allowed individuals to communicate without speaking.

C. Did the evidence support the finding that Mr. Peterson did not suffer from a “disease of the mind”?

1. Malingering

[70] Dr. Will was asked whether Mr. Peterson was “malingering,” whether he had fabricated his account or was feigning mental disorder.

[71]  In her view, Mr. Peterson was not malingering.

[72]  His symptoms and reported beliefs have been consistent for years.

[73]  Had he been malingering, he would have been expected to have been more open and

forthcoming with Dr. Will, his assessor, who was in a position to advance his interests. Instead, he was guarded with her and open and forthcoming with other staff.

2. Causation by Drugs

[76] Mr. Peterson did report having used methamphetamine. Dr. Will confirmed that methamphetamine use can cause psychotic symptoms. However, Dr. Will pointed out that Mr. Peterson had been in custody since December 2020. It is likely that he has not had access to methamphetamine during that time. His symptoms have persisted. The most likely cause of his symptoms, then, is schizophrenia.

[80]  Mr. Peterson’s mental condition was not caused by the ingestion of drugs.

D. Did Mr. Peterson suffer from a “disease of the mind”?

[81]  Dr. Will concluded that Mr. Peterson suffered from schizophrenia to the point of having psychotic breaks with reality. I agree with her conclusion and reasoning.

[82] Mr. Peterson exhibited grandiose beliefs, that he was a peace officer or police officer, a divinity, Jesus Christ, or Her Majesty.

[83] He exhibited bizarre beliefs, particularly that individuals can communicate by what he referred to as telecommunication involving the electricity of the body.

[84] He experienced auditory hallucinations. He believed he was contacted by and received orders from police officers.

[86]  I find as a matter of fact that Mr. Peterson suffers from a disease of the mind.

[87]  Further, I find as a matter of law that the condition Mr. Peterson suffered from was a disease of the mind.

[92] Mr. Peterson has a history of coming off his medications. Part of his mental illness is resistance to advice and instructions about medications. Even at AHE, Dr. Will reported, Mr. Peterson was reluctant to take his medications, or to take medications at their therapeutic dose. The grandiosity inherent in Mr. Peterson’s condition inclines him not to follow other’s directions.

[94] Moreover, a mental condition is not excluded as a disease of the mind just because the condition is manageable through medication. Bouchard-Lebrun speaks at para 75 of a condition that “does not require any particular treatment.” Schizophrenia of the intensity suffered by Mr. Peterson does require particular treatment – the right drug at the right dose, taken consistently. The possibility of management does not entail that a condition does not present a continuing danger.

[95]  I find that Mr. Peterson poses a continuing danger to others.

[96]  I discern no policy reason for not recognizing Mr. Peterson’s condition as a disease of the mind.

[97] I therefore find that Mr. Peterson suffers from a disease of the mind and a mental disorder for the purposes of s. 16(1) of the Criminal Code.

E. Did Mr. Peterson suffer from a disease of the mind at the time of the attack on Mr. Paradis?

[98] Mr. Peterson had come to town, walking about 8 kilometres on a December morning, to visit the Detachment. His reasons for coming to town were derived from his delusions.

[99] Mr. Peterson testified to receiving orders by “telecommunication” to effect Mr. Paradis’ arrest after Mr. Paradis had retreated to his motel room. Mr. Peterson testified to considering himself at all material times to be a peace officer or police officer.

[101] Mr. Paradis and the attending officers observed Mr. Peterson’s calm demeanour when the officers arrived. He believed that he had done nothing wrong. He sought to turn over evidence to the attending officers.

[103] I therefore find, on the balance of probabilities, that Mr. Peterson suffered from a “disease of the mind” constituting a mental disorder at the time of the attack on Mr. Paradis.

[104] The questions then are whether his mental disorder rendered him incapable of appreciating the nature and quality of his acts or of knowing his acts were wrong.

IV. Effects of the Mental Disorder

[105] Dr. Will considered the two types of incapacity together on the evidence. That strikes me as an appropriate approach. I’ll review each type of incapacity before addressing the evidence.

The test proposed in the McRuer Report, which I would adopt, (save for deletion of the word “fully” in the fourth line) is this:

The true test necessarily is, was the accused person at the very time of the offence—not before or after, but at the moment of the offence—by reason of disease of the mind, unable fully to appreciate not only the nature of the act but the natural consequences that would flow from it? In other words was the accused person, by reason of disease of the mind, deprived of the mental capacity to foresee and measure the consequences of the act? (at p. 13)

.... I accept the view that the first branch of the test, in employing the word “appreciates”, imports an additional requirement to mere knowledge of the physical quality of the act. The requirement, unique to Canada, is that of perception, an ability to perceive the consequences, impact, and results of a physical act. An accused may be aware of the physical character of his action (i.e., in choking) without necessarily having the capacity to appreciate that, in nature and quality, that act will result in the death of a human being ....

B. Incapacity to Know His Acts were Wrong

[107] Under s. 16(1), “[n]o person is criminally responsible for an act committed ... while suffering from a mental disorder that rendered the person incapable of ... knowing that it was wrong.” The second branch of s. 16(1) exempts an accused from criminal responsibility if at the time of the act the accused was suffering from a mental disorder that rendered him or her incapable of knowing that what was done was wrong.

[108] If “wrong” meant only “legally wrong,” Mr. Peterson would be criminally responsible if I found that it were likely that he knew or was capable of knowing that what he did violated the law, regardless of any delusions and confusion that otherwise beset him.

[109] However, the Supreme Court has determined that “wrong” means morally wrong, not legally wrong. A person cannot be convicted if that person is only capable of knowing that his or her act violated the law. An accused may know that an act is legally wrong, but because of his or her mental disorder, may be incapable of knowing that the act was morally wrong. In Chaulk, Chief Justice Lamer confirmed that Justice Dickson’s dissent in R v. Schwartz, [1977] 1 SCR 673 represented the law concerning the second branch of s. 16(1) (s. 16(2), in the earlier legislation). Chief Justice Lamer wrote as follows in Chaulk at 1351:

More fundamentally, Dickson J. concluded that a reading of s. 16(2) as a whole leads to the conclusion that “wrong” must mean contrary to the ordinary moral standards of reasonable men and women. The object of s. 16(2) is to protect individuals who do not have the capacity to judge whether an act is wrong; the inquiry as to the capacity of an accused to reason must not end simply because it is determined that the accused knew that the act was a crime.

[110]  The Chief Justice continued at 1354-5:

[I]t is plain to me that the term “wrong” as used in s. 16(2) must mean more than simply “legally wrong”. In considering the capacity of a person to know whether an act is one that he ought or ought not to do, the inquiry cannot terminate with the discovery that the accused knew that the act was contrary to the formal law. A person may well be aware that an act is contrary to law but, by reason of ... disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society. This would be the case, for example, if the person suffered from a disease of the mind to such a degree as to know that it is legally wrong to kill but, as described by Dickson J. in Schwartz, kills “in the belief that it is in response to a divine order and therefore not morally wrong” (p. 678).

[111]  “Morally wrong” means morally wrong from the perspective of society or the perspective of reasonable people. The test is not whether the accused was capable of knowing only that an end or objective served by his or her act was morally desirable. An accused may consider an act to be a moral act and may feel morally compelled to do the act, but because of his or her mental disorder the person may be incapable of knowing that the act is not a moral act by reasonable social standards. That is, the accused may believe that he or she is doing the morally right thing by doing an act, but because of mental disorder the accused is not capable of knowing what reasonable people consider to be right and wrong.

[112] Finally, an accused may understand that, generally, committing an act is wrong, but because of mental disorder may not be capable of knowing that killing a particular person in particular circumstances is wrong, according to reasonable moral standards. To lack capacity to know an act is wrong is to lack capacity to know that the particular act is wrong. Thus Justice McLachlin wrote in R v Oommen, [1994] 2 SCR 507 at 516 that

A review of the history of our insanity provision and the cases indicates that the inquiry focuses not on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act.

[113] …The task is to assess the accused’s ability to distinguish right from wrong, given the interference with thought caused by mental disorder. Justice Dickson wrote as follows at 679:

[T]he wording of s. 16(2) makes it clear that the section is primarily concerned with mental disease and incapacity resulting therefrom. It is the thinking process of the accused, as opposed to his actual knowledge of wrongness, that should be the focus of inquiry in the defence of insanity. The question is not whether the accused knew that the act was wrong but whether he was capable of knowing it was wrong. Was he capable of comprehending that which militated to make the act wrong? Mr. Justice Stephen in History of the Criminal Law of England, vol. 2 (1883) at p. 163 poses this question: “Was he deprived by disease affecting the mind of the power of passing a rational judgment on the moral character of the act which he meant to do?” In applying s. 16(2), one must delve into the thought process of the accused, coherence, logic, rationality, rather than merely his knowledge of the wrongness of the particular act. Has disease of the mind so affected the capacity of the accused to make a moral choice that he is unable to discern between what is right and what is wrong? (emphasis added)

[114] Justice Dickson’s approach is consistent with Justice McLachlin’s comments in Oomen at 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. The inability to make a rational choice may result from a variety of mental dysfunctions; ... these 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.

C. Evidence

1. Appreciate the Nature and Quality of His Acts

[115] From one perspective, Mr. Peterson knew what he was doing. He was effecting an arrest. To that end, he broke down Mr. Paradis’ door, beat him, and bound him. He did exactly what he set out to do.

[116] Dr. Will, though, looked to the severity of Mr. Paradis’ injuries. Mr. Peterson did not believe he did anything wrong. He welcomed the responding officers. He tried to give them evidence he collected, while Mr. Paradis lay bound and bloody on the floor….

[117] …It is true that if Mr. Peterson had tried to clean up the crime scene, that would be evidence supporting the inference that Mr. Peterson understood fully what he had done. However, I do not find that he tried to clean up the crime scene.

2. Knowledge that his Acts were Wrong

[119] A stronger determination of incapacity concerns Mr. Peterson’s knowledge of the wrongfulness of his acts.

[120] His attack was initiated by a hallucinated order from a police officer. Mr. Peterson showed no ability or inclination to doubt what he was told to do. He was a police officer, he received an order from a superior officer, he had no choice but to carry out what he was told to do. He was duty-bound to arrest Mr. Paradis. He could not ignore what he had observed.

[121] Mr. Peterson conceptualized his attack as being legally justified as a citizen’s arrest. Set aside his errors about when a citizen’s arrest is legal. As indicated respecting the “appreciate” branch, because Mr. Peterson believed he was right to do what he did, he recognized no limit on the injury he could cause while remaining in the right. Dr. Will put this point by observing that no reasonable person could have believed that causing the degree of injury inflicted by Mr. Peterson could possibly be regarded as falling within a legitimate use of force. Mr. Peterson could not see the limit of moral and legal action. He could not know that what he was doing was wrong.

[122] …His delusions prevented him from learning law, even reading and understanding what the Criminal Code actually said, because he believed he already knew the law. His delusions made him incapable of determining the conditions in which a citizen’s arrest might truly be right.

[123] And, as Oomen teaches, the capacity to know that at a general level there are uses of force that are not wrongful, that are permitted by the law, is not equivalent to the capacity to know that a particular use of force is permitted by the law and not morally wrongful. Knowledge that citizen’s arrest exists does not entail knowledge that a particular arrest was lawful and not morally wrongful. Because of his delusions, Mr. Peterson was unable to distinguish morally correct from morally incorrect uses of force. He only knew he received an order and he had to obey.

[124] I therefore find on a balance of probabilities that by reason of his mental disorder, Mr. Peterson was incapable of knowing that his acts in attacking Mr. Paradis were wrong.

V. Verdict

[125] I found that Mr. Peterson committed the acts that formed the basis of the offences charged against him - aggravated assault, unlawful confinement, and breaking and entering a place that was a dwelling-house with intent to commit an indictable offence therein - but I find that he is not criminally responsible on account of mental disorder.

[129] I confirm under s. 672.46(1) that Mr. Peterson shall remain detained until the Review Board makes a disposition.

[130] I order that Mr. Peterson shall serve his detention at Alberta Hospital Edmonton.