[February 2, 2021] Vague Overheard Words - Admissibility of Accused Statement [Reasons of Majority by Goepel J.A. with Saunders J.A. concurring and DeWitt-Van Oosten J.A. dissenting]
AUTHOR’S NOTE: Context in overheard communications is important. So important that it can often change the meaning of the words uttered. Often, in retrospect overheard conversations get an unintentional spin in the mind of the person overhearing them that makes it fit with the allegations against the accused person. In retrospect, they appear to be confessions rather than something less certain. In this decision, Justice Goepel for the majority reiterates long-standing jurisprudence to the effect that this type of evidence is very dangerous. Its power to convince triers of fact is significant even though it often requires after the fact assumptions about the meaning of the words themselves. Precisely for these reasons this type of evidence has to be kept out of trials. Not only are these types of statements overly prejudicial, but they often are not even logically relevant because of their vagueness. The lack of logical relevance flows from the fact that circular reasoning is not available to dictate relevance in the first place. If one cannot from the words themselves (absent any knowledge of the accused's charge for the offence) conclude that a statement means something, then it remains logically irrelevant.
 On September 27, 2016, after seeing a picture from a news article with the appellant and Ms. Kogawa together, the appellant’s brother, Warren Schneider Jr. (“WS”) travelled to Vernon to meet with the appellant. The appellant shared with WS some details about his relationship with Ms. Kogawa and their three dates together.
 The next morning, the appellant told WS he planned on buying some heroin with which to kill himself. They went to a beer store, purchased alcohol, and the appellant bought $50 worth of heroin. Before the appellant injected the heroin, he told WS the location of Ms. Kogawa’s body. The appellant said Ms. Kogawa’s body was in a suitcase, and, after he killed himself, WS should tell the police the body’s location. The appellant did not tell WS that he had killed Ms. Kogawa or had otherwise caused her death.
 The appellant failed to die from the heroin injection. After the failed suicide attempt, the appellant asked to use WS’s phone to call his wife in Japan. WS gave the appellant his phone and stood roughly ten feet away.
 The telephone call lasted approximately 13 minutes. On voir dire, WS testified that he could only recall two specific fragments of the conversation: at the beginning, he heard the appellant ask, "Did you see the news of the missing Japanese woman, student?" and sometime in the middle of the conversation, he heard the appellant say, “I did it” and “I killed her.” WS testified that he could not remember the exact words used, nor could he remember any part of the conversation other than the two fragments. The appellant’s wife did not testify; she lives in Japan and is not a compellable witness.
 On cross-examination on the voir dire, WS confirmed he did not recall the full conversation. He testified that he had been intentionally trying not to eavesdrop or hear what the appellant was saying. He had not heard anything the speaker on the other end of the phone had said. WS confirmed that he had given different testimony at the preliminary inquiry, where he had testified that the appellant had said, “have you heard the news in relation to Natsumi’s death?” and “I did it” or “I killed her.” WS confirmed he did not know the exact words used, but his “feeling” was that the appellant was admitting responsibility for Ms. Kogawa’s death.
 After the voir dire, the trial judge admitted the evidence, finding there was sufficient context to allow a jury to conclude the meaning of the uttered words: RFJ. She concluded:
 In my opinion, it is apparent from Warren Schneider Jr.’s evidence on the voir dire that there is some evidence on which a jury could conclude the meaning of the uttered words. While he was unable to recall the exact words, Warren Schneider Jr. testified about the context of the conversation and that the gist of the conversation was that Mr. Schneider was taking responsibility for Ms. Kogawa’s death.
 In my view, the probative value of the evidence outweighs the prejudicial effect that it might be used improperly. The prejudicial effect can be ameliorated by a strong caution to the jury about what use can be made of the evidence.
 After the voir dire, on cross-examination, WS confirmed that he had not overheard anything the appellant’s wife had said and that he had been trying not to eavesdrop. WS was certain that the appellant had asked his wife at the start of the conversation if she had heard about Ms. Kogawa’s disappearance. WS confirmed he did not know the exact words spoken by the appellant or if the appellant had been asked a question about Ms. Kogawa or something else when he was overheard to say “I did it” or “I killed her.” He agreed that portion of the conversation could have been completely unrelated to Ms. Kogawa. He testified that he did not know if the words “I did it” or “I killed her” had been said at the start, in the middle, or at the end of a sentence.
 The Crown sought to tender the words overheard by WS as an admission of responsibility for Ms. Kogawa’s death. I agree with my colleague that the trial judge was not required to determine whether the overheard utterances were, in fact, an admission; rather, she had to determine whether the words were capable of being an admission of responsibility for Ms. Kogawa’s death.
 This is where I part company with my colleague. I take the view that the uttered words were not capable of being an admission of responsibility for Ms. Kogawa’s death—and are therefore not relevant and, accordingly, inadmissible. The evidence should not have been put before the jury.
 The threshold test for the admissibility of all evidence is logical relevance. For logical relevance, the standard is correctness: R. v. Schwartz, 1988 CanLII 11 (SCC),  2 S.C.R. 443 at 482.
The Ferris Decision
 Before returning to the admissibility of the statements at issue in this case, I wish to first review in further detail the Ferris decision, which, as my colleague notes, is the starting point for the admissibility analysis. Mr. Ferris was charged with the murder of David Parker, his former romantic partner. Mr. Ferris was arrested for murder and taken into police custody. Staff Sergeant Schmidt was in charge of gathering and collecting evidence. Sgt. Schmidt entered the interview room that Mr. Ferris was in and advised him he would be charged with Mr. Parker’s murder. Sgt. Schmidt advised Mr. Ferris of his right to silence and his right to counsel.
 Mr. Ferris then asked to make a long-distance phone call to his father. Sgt. Schmidt placed the telephone call and, upon reaching the accused’s father, handed the phone to Mr. Ferris. A common cloth divider separated Sgt. Schmidt’s desk from the desk used by Mr. Ferris. As Sgt. Schmidt walked towards his own desk, he heard Mr. Ferris say the words: “I’ve been arrested.” Sometime later, when Sgt. Schmidt was approximately 12 feet away from the accused, he heard him say the words: “I killed David.” Sgt. Schmidt testified he had not heard what else was being said and that it had been his intent not to hear. He did not know if the words “I killed David” had come at the beginning, middle, or end of a sentence.
 The trial judge admitted the evidence. He said the statements were made voluntarily. He found they were relevant to the charge before the court and that it was for the trier of fact to determine the weight to be given to the statement.
 A majority of the Alberta Court of Appeal reversed the decision. Justice Conrad, writing for the majority, framed the issue as follows:
 … The issue here is not whether the officer is telling the truth that the accused uttered these words, but whether any meaning can be put on the words. Are they an admission? Certainly if they are, they are relevant and highly probative. While the jury ultimately makes that decision, the trial judge must determine whether there is evidence on which they could so decide.
 Justice Conrad went on to conclude there were no circumstances or context from which the true meaning of the words could be inferred. In this regard, she said:
 The facts of this case are unique in that there exist no circumstances or context from which the true meaning of the words can be inferred. It is uncontradicted that the words were part of an utterance only, and that other words passed both before and after those words. It is uncontradicted that the words could have come at the beginning of a sentence or at the end of a sentence. In fact, the words may have been a part of a question such as "You don't think I killed David?" or a statement such as "They think I killed David" or "They think I killed David but I didn't". His father could have asked him what the police think he did and he could have replied "I killed David". Those utterances do not prove any fact in issue and are not an admission of guilt. Indeed, on the basis of the uncontradicted evidence, the possibility of statements with the words "... I killed David ..." contained therein are numerous. There is no way of determining the meaning or thought to be attributed to the words. A trial judge could not ascertain, nor could the jury, the meaning of the words. The difficulty is compounded by the acknowledgement of Sergeant Schmidt that this accused was talking in a slow fashion, pausing, repeating himself or trailing off into nothing. The circumstances are all before the trial judge and he should determine whether or not the evidence is sufficient for a jury to conclude the meaning of the words. Without meaning being ascertainable the words are not relevant to any fact in issue and they have no probative value.
 In Justice Conrad’s view, it was impossible to ascertain the meaning of the words. In this regard, she said:
 In my view, the trial judge, in his ruling following the voir dire, never directed his mind to the issue of completeness and whether or not words incapable of definitive meaning could be relevant to anything. He said in his ruling that all the circumstances could be brought out and the jury could assess the weight to be given to it. What circumstances? He had all the circumstances and it was his duty to determine whether or not on the evidence before him a properly instructed jury could determine from the fragmented utterance the meaning of the whole. He did not appear to direct his mind to that issue. This is not a question of weight. The question is whether or not this accused made a statement which is relevant. If it was an admission, I agree with McClung, J.A. that it is highly probative. However, because the Crown case makes it clear words were spoken before and after, and the utterance was incomplete, it is impossible to ascertain the meaning of the words. Thus no weight can be given to it and the prejudice of its introduction is easy to contemplate. There is a real prejudice of forbidden reasoning here. There would be an enormous temptation for any trier of fact to look at the outside evidence that tends to implicate the accused in the murder, use those facts to conclude that the accused probably committed the murder, and that therefore he admitted that he did. That finding would then be used to raise the probability of guilt to a conclusion of guilt. The danger implicit in that type of circuitous reasoning is obvious.
[Underline emphasis added; italic emphasis in original.]
 Justice Conrad then went on to consider the balance between probative value and prejudicial effect. In this regard, she said:
 The last thing to consider is the balance between probative value and prejudicial effect. The statement "... I killed David ..." has no probative value given that we do not know the words which surrounded the utterance, the utterance was just as likely to be meaningless as inculpatory or even exculpatory. In Smith, of course, they were dealing with a complete statement. Also, as mentioned earlier, this evidence could never meet the test of probative value versus prejudicial effect. The extreme prejudice is so great its exclusion must be favoured.
 Ferris was appealed to the Supreme Court of Canada: 1994 CanLII 31 (SCC),  3 S.C.R. 756. The Court did not call upon the accused to respond to the Crown’s submissions. Justice Sopinka for the Court gave brief oral reasons dismissing the appeal. He held that even if the overheard utterance had any relevance, it should be excluded. In that regard, he said at 756:
In our opinion, with respect to the evidence that the respondent was overheard to say "I killed David", if it had any relevance, by reason of the circumstances fully outlined by Conrad J.A., its meaning was so speculative and its probative value so tenuous that the trial judge ought to have excluded it on the ground its prejudicial effect overbore its probative value.
Are the Words Capable of Being an Admission
 The starting point is whether the words “I did it” or “I killed her” are capable of interpretation as an admission of responsibility for Ms. Kogawa’s death. This engages the question of logical relevance—whether the evidence tends to make a fact more or less likely: Arp at para. 38. While I agree with my colleague that logical relevance is a low threshold, in my opinion, a jury could not give meaning to the overheard fragment. Without an ascertainable meaning, the words are not relevant to any fact in issue, and they have no probative value. As such, I find that the evidence is irrelevant and thus inadmissible.
 In my opinion, this case is more problematic than Ferris because, in this case, the witness does not recall the actual words the accused is alleged to have spoken. Regarding the overheard fragment “I did it” or “I killed her,” WS was unable to confirm exactly which of the two phrases the appellant had said on the phone call. “I did it” and “I killed her” carry vastly different ranges of meaning. Those words are qualitatively different. Even setting aside any words that may have come before or after, the two phrases raise very different implications.
 I would respectfully suggest that the words “I did it” said six minutes into a conversation with no surrounding context are not capable of being an admission....
 The words “I killed her” are, of course, more problematic and prejudicial. One can envision several circumstances in which such words might well be an admission of guilt. However, that does not inevitably follow, as the reasons in Ferris make so clear. In this case, the exact same phrase as in Ferris is an issue. Like in Ferris, one can conjure various scenarios in which the words would not be an admission. For example, the appellant could have been asked, “Why didn’t you go to the police?” Answer: “[They would think] I killed her.”
 This problem was compounded when WS testified that it seemed to him that the appellant was “admitting” to the missing Japanese student’s death. WS’s opinion as to what the appellant meant by his words is, as the trial judge correctly told the jury, irrelevant. It was for the jury to decide the meaning of the accused’s words, and without evidence of the words spoken, it was impossible for the jury to determine the meaning of the appellant’s words.
 In this case, there is no way of knowing what potentially was said before or after the overheard utterances. WS was also unable to overhear the other half of the conversation. Lacking these key pieces of context, there is nothing that would allow a jury to determine the meaning of the utterances in a way that is not dangerously speculative.
 In Ferris, not knowing what preceded or followed the phrase “I killed David” made it impossible to determine if the phrase was inculpatory or exculpatory—for example: “the police think I killed David.” My colleague notes that, unlike in Ferris, the conversation in this case occurred before any police involvement, so there was no possibility that the appellant was repeating police charges or responding to a question about police allegations. The implication is the absence of police involvement eliminates the possibility that the appellant was responding to questions about what the police had thought he had done or any accusations.
 In my view, the mere fact that WS’s “impression” or “feeling” that the appellant’s words were an admission of responsibility for Ms. Kogawa’s death is insufficient to provide a meaningful context from which meaning can be drawn, and, as will be addressed later, risks the jury engaging in forbidden reasoning to conclude the appellant’s guilt.
 In many of the cases where the exclusion of evidence on Ferris grounds was unsuccessfully sought, the witness having been a participant in the conversation was a key factor in favour of admission.
 The above is not to imply that one-sided overheard conversations are presumptively inadmissible. However, the inability to hear both sides of the conversation increases the difficulty of ascribing meaning to any overheard utterances.
 There is a distinction between a third-party overhearing part of a conversation and the incomplete recollections of a party to the conversation. If the witness was a party to the conversation, their testimony as to the gist is equivalent to their testifying as to what was said—albeit in a less persuasive fashion than if they had recalled the exact words spoken to them. But, crucially, they were still the party to whom the accused was speaking. A third-party testifying as to the gist of a conversation in which they only overheard one speaker is engaged not in recollection but speculation. In this case, WS is necessarily speculating as to what meaning “I did it” or “I killed her” had.
 My colleague suggests that this case is qualitatively different from Ferris because in Ferris, the Crown did not adduce any “informing context” from which the trier of fact could determine the meaning of the words, “I killed David.” In her reasons, she indicates that in this case, there was far greater context to inform the meaning of the utterances, identifying several items to that effect.
 The items referenced by my colleague are all part of the macro-context. They form the setting for the appellant’s statement. An examination of the two judgments in the Alberta Court of Appeal indicates that the macro-context in Ferris was not dissimilar to the case at bar. Those circumstances include:
- Staff Sergeant Schmidt’s job was to gather and corroborate the evidence.
- Mr. Ferris and David Parker had, at some time before the killing, shared an apartment in a romantic relationship. At the time of the killing, they had separated, and Mr. Ferris had left the apartment and was living in a hotel room.
- Mr. Ferris reported the death of Mr. Parker by telephone to the city police on the morning of October 22, 1989. When the police arrived at Mr. Parker’s apartment, they found Mr. Ferris beside Mr. Parker’s dead body. Mr. Ferris was spotted with the deceased’s blood. Mr. Parker’s death had been caused by ten stab wounds. He had not been robbed. The suite had not been forcibly entered, but there was evidence of a violent struggle having taken place within it.
- Upon his arrest, Mr. Ferris admitted having been in Mr. Parker’s apartment the night of the murder.
- Mr. Ferris was taken into custody. He was in an interview room when Sgt. Schmidt entered the room and advised him he would be charged with murder and advised him of his rights to silence and counsel.
- Mr. Ferris asked to make a long-distance telephone call to his father. Mr. Schmidt placed the telephone call to Mr. Ferris’ father and, upon reaching the accused’s father, handed the phone to Mr. Ferris.
- Mr. Schmidt walked away. He heard the accused say the words, “I’ve been arrested.”
- Sometime later in the conversation, Sgt. Schmidt heard Mr. Ferris say the words, “I killed David.”
- Sgt. Schmidt did not hear the conversation before, after, or in-between the two overheard fragments.
 What was missing, however, in Ferris and in the case at bar, is any micro-context. In neither case is it known what was said before or after the overheard words. Absent such micro-context, it is not possible to determine the meaning of the spoken words. As the Ontario Court of Appeal said in Hunter, “without the surrounding words, it would be impossible for a properly instructed jury to conclude that the overheard utterance was an admission”: Hunter at para. 21.
 I am of the view that no properly instructed jury could conclude that the overheard fragment was an admission. Accordingly, it is not relevant and should not have been put before the jury. It was an error to admit the evidence.
[January 26, 2021] Circumstantial Evidence - DNA on Moveable Item [Valleee J.]
AUTHOR’S NOTE: Watch an episode of CSI and DNA inevitably solves the crime. However, in practice, it is usually far more complicated. Often, DNA testing on moveable items yields multiple sources of DNA - sometimes only one is identifiable, but others are present. The problem is that there is no correlation between who last touched an item and the "identifiability" of the DNA. Experts can speculate about modes of transference but ultimately, these opinions are often just guesses. This means the identified accused is just as likely to have been the last person in contact with the moveable item as person who left trace DNA on the item that cannot be identified. There is no scientific way typically to distinguish between the two donors of DNA. This case illustrates the lack of weight of such evidence in a circumstantial identification case.
Facts of the Home Invasion Shooting
 Hal Hake owns a jewellery business in Barrie. In April 2017, he resided at 25 Gunn Street, Barrie with his stepdaughter, Madelyn Garvey. The house is a side-split. On April 10, 2017, at approximately 10:30 a.m., two robbers entered his house to steal jewellery. One was wearing a mask and holding a gun. The other was not wearing a mask and had no weapon. They found Mr. Hake in his bedroom. The masked robber asked Mr. Hake, “Where’s the jewellery?” Mr. Hake shouted to Ms. Garvey, who was in her bedroom, “Call 911”. A struggle ensued between Mr. Hake and the masked robber. The unmasked robber entered Ms. Garvey’s room, told her to get down on the floor and took her phone. The struggle between Mr. Hake and the masked robber continued into the hallway, into Ms. Garvey’s room and back out into the hallway to the top of the stairs. Mr. Hake pushed the robbers down the flight of stairs to the foyer. The unmasked man went first followed by the masked man. The unmasked robber fled from the house. When the masked robber reached the foyer, he turned and shot Mr. Hake in the abdomen and then fled. At 10:34 a.m. Ms. Garvey called 911 using Mr. Hake’s cell phone. Police and emergency services arrived.
 The police found a spent bullet casing and the butt end of a marijuana roach in the foyer. The roach was sent for forensic testing. Mr. Johnson’s DNA was on it as well as incomplete DNA from another person.
 The issue in this trial is identity. The evidence is circumstantial.
 The court must approach eyewitness identification with caution. It may seem more reliable than it is because it is often given by a credible witness. The observations of honest people can be faulty for a variety of reasons including situational factors, individual beliefs and abilities to perceive.
 The Crown submitted that this court must consider the entirety of the identification process. In R. v. Tat, the court considered identification evidence and the use of a witness’ prior descriptions and identifications. It stated,
The probative force of identification evidence is best measured by a consideration of the entire identification process…If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given are admissible to allow the trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider the entirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior descriptions given will be central to that assessment.
 As noted earlier, Mr. Johnson is 5’5” tall. On April 27, 2017, he weighed approximately 192 pounds. He testified that he was fat then and had braided hair, similar to its appearance at trial.
 Mr. Hake presented as a credible witness. He provided some eyewitness testimony. He stated that he is 5’11” tall. The unmasked man was shorter and stockier, approximately 5’6” to 5’9” tall. Mr. Hake did not observe anything specific about the unmasked man’s face because he was focused on fighting with the masked man. He stated that the unmasked man was wearing a hood.
 Ms. Garvey also presented as a credible witness. She saw the unmasked man from a close distance and was paying more attention to his face because he was in her room close to her. She saw the unmasked man for only a very short time. She stated that he was wearing a hoodie with the hood up. His skin was a dark colour, either brown or black. He had a scruff of facial hair and some acne-type scars on his face that were darker spots. Under cross-examination, when she was asked whether she saw any identifying marks such as scars or tattoo, she stated, “Just acne scars, just a few.”
 Ms. Garvey stated that she remembered the man’s nose. She said he had a “bit of a bigger nose”. She could not identify the unmasked man in either photo line up. She recognized some features on the photo of a man who was not Mr. Johnson and some on a photo of a man who was Mr. Johnson; however, she could not identify him as the unmasked man. When she was shown the photo of Mr. Johnson, she testified that she thought she recognized him but she could not say for sure. She said the nose stood out for her as well as the acne scars and the shape of his face.
 Ms. Garvey made an in-dock identification. Under cross-examination, she candidly agreed that perhaps the reason why her description of the unmasked man changed was because she had seen Mr. Johnson in court and knew that he had been charged with the offences.
 Although a “bigger nose” is a subjective observation and not particularly identifying, the balance is an appropriate general description of Mr. Johnson if he was wearing a hood; however, a number of people would fit this description. The photo of him in the array does not show anything particularly distinctive about him. Mr. Johnson is only one inch shorter than the low end of Mr. Hake’s range. Nevertheless, the fact that Ms. Garvey could not identify Mr. Johnson in the photo that she saw approximately six weeks after the shooting causes me to give less weight to her in-dock identification.
Cell Tower Evidence
 Based on the evidence of Mr. Pottage regarding the Sky 5.5 cell phone extraction reports, I find that Mr. Johnson was using this phone from April 9 to April 14, 2017 inclusive. The number that he used was 289 990 0313. He changed that number to 226 974 0845 on April 14, 2017, four days after the shooting.
 Based on the evidence of Mr. Kent regarding the tower records, I find that the phone was used in Barrie on April 9, 2017 from 16:16 to 18:37 after which it went to the Toronto area. The phone returned to the Barrie area on April 10, 2017, the day of the shooting, and was in Barrie from 8:17 a.m. to 10:30 a.m. Specifically, at 10:30, it pinged off a tower that was in the general vicinity of the robbery when it received a text message. As noted above, Ms. Garvey made the 911 call 13 minutes later at 10:43 a.m.
 As stated earlier, Mr. Johnson’s DNA was on the marijuana roach in Mr. Hake’s hallway. The roach also contained another person’s DNA which was insufficient to analyse. This court can draw an inference from the DNA evidence that Mr. Johnson was one of the two robbers if it is the only reasonable inference that the evidence permits. The court must consider other plausible theories and reasonable possibilities inconsistent with guilt. When considering a plausible theory in contrast to speculation, the question is whether the evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than the accused is guilty.10
 Clearly, the roach was smoked prior to the robbery. One of the two robbers dropped it in Mr. Hake’s hallway. The defence submits that it was near the shell casing so the shooter likely dropped it. I do not accept this proposition. While exiting the hall, both robbers travelled over the same area. Either one could have dropped it. The Crown states that Mr. Johnson’s DNA was at the scene because he was a perpetrator. This is the only reasonable inference. The DNA evidence alone is sufficient. I do not accept this either. There is a plausible theory. Mr. Johnson and someone else touched the roach prior to the robbery. The other person kept the end of the roach. That person was one of the robbers who dropped it on the floor during the robbery. I find that this theory is reasonably capable of supporting an inference that someone other than Mr. Johnson dropped the roach. It is inconsistent with guilt. The fact that it was in the hallway does not mean that Mr. Johnson was the one who dropped it. The DNA evidence has no inculpatory value. [Emphasis by P. Milczarek]
The Cumulative Circumstantial Evidence
 Mr. Johnson was using the Sky 5.5 phone and number 289 990 0313 in April 2017. He was fond of googling crimes. He googled some of which he was convicted and others of which he was not. The cell tower records show that Mr. Johnson’s phone was in the general area of the shooting 13 minutes prior to Ms. Garvey’s 911 call. The eye-witness evidence of Mr. Hake and Ms. Garvey is the best that could be expected given the traumatic, short period of time that they saw the unmasked man; however, it is a general description. Ms. Garvey’s in-dock identification almost three years after the shooting has less weight because she could not identify Mr. Johnson in the photo, six weeks after the shooting. An inference that Mr. Johnson dropped the roach in the hallway cannot be drawn because another plausible theory exists.
 Each piece of circumstantial evidence does not have to meet the test of beyond a reasonable doubt as long as the whole of the evidence leads to that conclusion. I find that the evidence supports a conclusion that Mr. Johnson probably was the unmasked man; however, probably is not good enough. I cannot find that Mr. Johnson was the unmasked man beyond a reasonable doubt.
 I find Mr. Johnson to be not guilty.
R v Gancthev, 2021 ONSC 545
[January 25, 2021] NCR - Murder - Where Some Evidence Suggests Malingering and there is Admissible After the Fact Conduct [Dennison J.]
AUTHOR’S NOTE: Malingering and after the fact conduct inconsistent with stereotypes of insanity are the tools used by the prosecution to undermine the defence of Not Criminally Responsible. Here, perhaps through good fortune, these factors were present, but not exploited by the Crown to obtain a guilty verdict - instead the Crown conceded the NCR after hearing the evidence. In similar circumstances in other cases prosecutors have made different choices. This case demonstrates how opinions of malingering and after the fact conduct inconsistent with stereotypes of insanity can still be consistent with NCR.
 Tragically, Mr. Gancthev killed his father in the basement of the family home. The cause of death was blunt force trauma. Mr. Gancthev then put his father into the family car and drove down to Lakeshore Boulevard and set the car on fire in a vacant lot.
 Dr. Komer testified that Mr. Gancthev was NCR. After considering his evidence, the Crown concedes that Mr. Gancthev is NCR. After considering all of the evidence, I too am satisfied that Mr. Gancthev is NCR for the death of his father. I will now review the evidence and my reasons for this finding.
 On Saturday June 23, 2018, Mr. Gancthev and his father were watching World Cup soccer. The family planned to go out and get some food in the afternoon. At approximately 2:00 p.m. Mr. Gancthev abruptly left the house on foot. His father followed him outside. Mr. Gancthev told his father that he was going for a walk and would be back shortly.
 Shortly before midnight, Ms. Marbal received a call from Mr. Gancthev. He was in Ottawa at a gas station and asked his parents to come and get him. His mother told him he should come back the same way he got there. Mr. Gancthev stated that he “believed” he took a cab. He stated that he did not remember why he went to Ottawa. He sounded “lost and sad” and begged his parents to come and get him. While not happy with the situation, Mr. Gancthev’s parents agreed to pick him up. They left for Ottawa shortly after midnight.
 When Mr. Gancthev’s parents arrived, Mr. Gancthev thanked them for coming to get him. There was little discussion on the drive home. Once they arrived at home Yura Gancthev told his son in a very stern tone that “things are going to change. From now on you are going to have to start taking your medicine because we can’t continue like this.” Mr. Gancthev asked why, and his mother told him that was how it had to be.
 [The following day, when Mr. Gancthev's mother] arrived at home neither Mr. Gancthev nor her husband were present. She went to the basement and noticed that her husband’s cell phone was there and there was some debris and a bottle of cleaner left out. She returned upstairs to take care of the dog. Ms. Marbal received a phone call a short time later from a criminal defence Counsel telling her Mr. Gancthev had been arrested.
 Mr. Obradovic and Mr. Perkovic were at Lily’s Place on Saturday June 24, 2018, at approximately 5:00 or 5:30 p.m. The bar is located on the north side of Lakeshore Boulevard, east of Cawthra Road. Across the street is a wooded area that is owned by the government.
 Mr. Obradovic and Mr. Perkovic noticed white smoke coming from the wooded area. They observed a male between 28 and 34 years of age emerge from the bushes. He looked confused. The male was wearing white shorts, a red tennis shirt and sandals/flipflops. Mr. Perkovic followed the male and tried to get him to stop. He took photos of the male which he provided to the police.
 Police officers were dispatched to the fire. They observed a male who matched the description provided and arrested him for arson. It was Mr. Gancthev. Police drove him to the station. Police located a lighter in his pocket.
 While PC Kozak was seizing Mr. Gancthev’s clothing he noted that Mr. Gancthev had difficulty following his instructions regarding placing the clothing into the bags. He indicated that Mr. Gancthev had a “very blank stare”. Mr. Gancthev wasn’t blinking and looked at the officer as if he did not comprehend what was going on. The officer had to repeat instructions to Mr. Gancthev several times.
 Ms. Vachon is an expert in the area of fluid identification and DNA analysis and interpretation. Her evidence and report given at the preliminary inquiry were made exhibits at the trial. She conducted a DNA sample from the body discovered in the vehicle and Mr. Yura Gancthev’s toothbrush and confirmed that the body was Yura Gancthev.
 Mr. Beneditti, an investigator for the Office of the Fire Marshal, investigated the cause of the fire for the vehicle. He determined that the fire travelled from the interior to the exterior of the vehicle. The origin of the fire was the rear passenger compartment, and the ignition source was “the intentional application of an open flame to combustibles (gas vapour)”. The fire was incendiary/arson/intentional.
 Dr. Hong-You of the Chemistry section of the Centre for Forensic Science examined a number of pieces of clothing and other items gathered during the investigation. Gasoline was noted on the black shoes recovered from Mr. Gancthev. Gas was also found on the fire damaged pants recovered from Mr. Yura Gancthev’s body and from the upholstery and underpadding recovered from the burned-out vehicle.
 Dr. Williams stated that blunt force such as one or more strikes or blows to the neck with a blunt object or body part caused the neck injuries. Alternatively, compression of the neck such as manual strangulation may have caused the neck injury. Ligature strangulation was considered less likely to have caused the neck injuries because the force in ligature strangulation is usually more diffused around the circumference of the neck.
 Dr. Williams also stated that the mechanism of death may have included asphyxia resulting from impaired respiration through the collapsed larynx following blunt injury to the larynx. While sustained compression of neck blood vessels or the airway may also cause death, the lack of petechial hemorrhages weighed against sustained/fatal neck compression.
 PC Hofstetter testified that he attended at the family home and found blood stains on the frame of the futon that was located in the basement as well as staining on other areas, including the south side of the futon and the wall near the television. It was his opinion that the blood source came from somewhere around the north edge of the futon. It was his opinion that an object wet with Yura Gancthev’s blood was swung in a vertical downward direction north of the southwest corner. PC Hofstetter could not quantify the number of blows that caused the staining, but it was at least once. He also testified that a person or object wet with Yura Gancthev’s blood made contact with the basement light switch.
Mental Illness History
 When Mr. Gancthev was 22 years old, he was admitted to Trillium Health Partners (“Trillium”) for about a month. Mr. Gancthev’s mother reported that at this time her son often talked about aliens and that she was an alien. She also reported that her son thought his father was a spy or the devil and that he was reading Mr. Gancthev’s mind.
 From January 20 to 25, 2016, Mr. Gancthev was admitted to Trillium. Police took Mr. Gancthev to the hospital after he was found at a pizza restaurant without any pants, underclothes or shoes. He was exhibiting “extremely bizarre behaviour and was seen searching for something in his rectum”. Mr. Gancthev stated that the something invisible was pulling his pants down and trying to insert something into his rectum. At this time, Mr. Gancthev tested positive for cannabis. Mr. Gancthev’s mother said he was acting strange four days prior to this. His symptoms quickly resolved, which suggested that they were likely substanceinduced. Mr. Gancthev was diagnosed with Cannabis-Induced Psychotic Disorder.
 In June 2017, Mr. Gancthev called his mother after allegedly walking 19 hours from Mississauga to near Barrie. He stated he was going to Algonquin Park. He eventually called his parents and they picked him up. He was hospitalized from June 17 to July 11, 2017. Mr. Gancthev wrote nonsensical things on his bedroom wall and drank his own urine and killed a pet bird. He also had a bag full of knives. At the hospital, Mr. Gancthev was observed to be intense, irritable, angry and aggressive. He denied paranoia or auditory hallucinations. During his stay in hospital there were recurrent episodes of psychosis and mania. Dr. A. Shafro noted that Mr. Gancthev deteriorated in the context of medication nonadherence. Mr. Gancthev was incapable of consent to psychiatric treatment and his parents provided substitute consent. Mr. Gancthev denied that his behaviour was concerning.
 On March 19, 2018, Mr. Gancthev’s father met with Ms. Gemmil of the Adult Mental Health of Trillium. He told Ms. Gemmil that after Mr. Gancthev was discharged, he cut back on his marijuana use and took his medication for some time but eventually stopped talking all of his medications, except for Serquel at bedtime. Mr. Gancthev’s father said Mr. Gancthev cried all the time and was only working one shift per week. He was not exercising and would stare off into space. Mr. Gancthev’s father was extremely concerned about Mr. Gancthev’s decompensation.
 Mr. Gancthev’s father attended Trillium on May 16, 2018, requesting a report of what medications Mr. Gancthev was taking. A nurse contacted Mr. Gancthev and he told her that he would not be attending to take his injection because he did not think he needed it and did not like the side effects. Mr. Gancthev agreed to meet with the nurse, Ms. Shaule. She discussed the importance of him taking his medicine. Mr. Gancthev agreed to take his oral medications and reattend in a few weeks to assess the effectiveness of the medications.
 On June 15, 2018, Mr. Gancthev told Ms. Shaule that he was feeling fine. He stated that he stopped taking all of his medications except for Abilify 2. Ms. Shaule told him to self-monitor and restart the medication if he observed any symptoms resurfacing. His parents were not pleased with Mr. Gancthev’s choice. The next appointment was scheduled for July 13, 2018, which did not occur because Mr. Gancthev was charged with killing his father.
Mental Health During Detention
 By July 7, 2018, staff noted Mr. Gancthev as not cooperative, he was dishevelled, unkempt and had poor eye contact. On July 9, 2018, Dr. Voruganti reassessed Mr. Gancthev. Mr. Gancthev’s affect was flat. There was no evidence of thought disorder, delusions or hallucinations and no evidence of depression or elation.
 On July 24, 2018, Mr. Gancthev hit a correctional officer. Dr. Glancy assessed him on July 26, 2018 and completed a Form 1. Mr. Gancthev denied hallucinations and mental health concerns. Mr. Gancthev told Dr. Komer that he was paranoid in jail and was worried that the correctional officer would eat him.
 In August and September 2018, Mr. Gancthev was assessed by various doctors. Mr. Gancthev denied hallucinating, but three different doctors noted that a psychosis was questioned. At other times, he would not participate in interviews with doctors and at times acted aggressive. He punched a door, wall and mirror and punched a doctor. He often had a blunted affect. Mr. Gancthev denied any psychotic symptoms.
The Expert Evidence
 Dr. Komer met with Mr. Gancthev 15 to 20 times to prepare the assessment. He agreed that it was unusual to have a Court ordered assessment that was only to be provided to the Defence. He testified that this did not alter the manner in which he carried out his assessment.
 It is Dr. Komer’s opinion that after considering all the information he gathered, that Mr. Gancthev suffers from a mental illness and was NCR at the time that he killed his father. Mr. Gancthev did not appreciate his actions. In Mr. Gancthev’s mind he was killing an alien, not a human being. Mr. Gancthev also did not understand the wrongfulness of his actions. He believed that a person in his position, i.e., a person being controlled by an alien, was acting properly by killing the alien.
 In coming to the opinion that Mr. Gancthev is NCR, Dr. Komer addressed the concern of malingering mental illness that was raised by Dr. Wright in his assessment. Dr. Komer did not believe Mr. Gancthev was malingering, because of his mental illness has been documented by numerous psychiatrists over the years. These reports also indicated that Mr. Gancthev is difficult to assess and typically minimizes, denies and/or does not report his symptoms. Mr. Gancthev tries not to portray himself as mentally ill but asserts that he does not have a mental illness and that he does not require medication....
 In coming to his opinion that Mr. Gancthev is not malingering, Dr. Komer also considered that Mr. Gancthev has a lengthy history of acting in response to his psychotic beliefs. Examples included running out of his house without clothes on and looking for something in his rectum that others put in there, killing a bird, taking a cab to Ottawa to join the army, drinking his own urine and writing letters to his “wife”. Mr. Gancthev’s psychotic episodes were corroborated by others including his parents.
 While psychiatrists on other occasions noted that Mr. Gancthev did not present with psychosis, they nonetheless diagnosed him with a psychotic illness.
 It was Dr. Komer’s opinion that at the time of his report, Mr. Gancthev’s mental illness was quite active. Dr. Komer is of the opinion that Mr. Gancthev suffers from Schizoaffective Disorder. A person will experience hallucinations but there may be depression or mania when the person experiences the hallucination....
 Dr. Komer was of the opinion that at the time of the offence, Mr. Gancthev suffered from a mental disorder which rendered him incapable of appreciating the nature and quality of his actions or of knowing their wrongfulness. As Dr. Komer stated in his report,
He lacked rational perception and hence rational choice of the wrongfulness of his actions. Mr. Gancthev was under the delusional belief that his life was in danger from his father who he believed was an alien. In response to delusions and hallucinations, he committed the act believing he was saving himself and against a being that he believed was not human and was a danger to him. In my opinion, Mr. Gancthev’s lack of remorse for his actions, is a reflection of his ongoing delusional beliefs pertaining to his father and the danger to his life from his father he perceived as a result.
 Mr. Gancthev stated that when he woke up that morning, he made an ice coffee. He had difficulty getting out of bed and was “immobile. He believed his father caused this and that his father wanted him to die. Mr. Gancthev said he thought of killing his father that morning. He stated, “I thought if I didn’t do it, I was going to die myself.” He heard the soccer commentator tell him this was his last chance to do it and hit him while he is asleep. Mr. Gancthev explained that his father was burning light into his eyes and when he had previously gone out, his father used his powers to mind-stunt him. He thought his father was trying to kill him. At the time of the incident, Mr. Gancthev thought his father was an alien. He stated, “I knew he was an alien.” He said he knew this because his father talked about an alien mothership and when they were at Montana’s his father said the ribs were from humans. Mr. Gancthev saw circles in the sky and thought there were aliens around his house. He said his father was stunting his thinking and was able to do so because he was an alien. Mr. Gancthev said his father spiked his meals. Mr. Gancthev said he killed his father for his wellbeing. When asked if he believed he was killing an alien or a human being, Mr. Gancthev said “he was an alien”. He stated that there was another version of his father when he was younger, but this other version lived in space. Dr. Komer asked Mr. Gancthev if he would kill his father again if he had the chance and he replied, “For my wellbeing, yes I would.”
 Dr. Komer agreed that Mr. Gancthev had a history of being unreliable and untruthful. Dr. Komer stated that there was a pattern where Mr. Gancthev was unreliable in reporting his symptoms. For example, at Maplehurst he reported no symptoms, yet he was diagnosed with a mental illness. He repeatedly tries to portray himself as not having a mental illness, which is in fact a common symptom of his mental illness. It is Dr. Komer’s opinion that it took some time to get the information from Mr. Gancthev. What Mr. Gancthev initially told Dr. Komer was not true.
 Dr. Komer also recognized that Mr. Gancthev had also told other psychiatrists that his mother and father were aliens. This is a belief he has had for several years.
 In cross-examination, Dr. Komer was asked how steps taken to avoid detection were considered in his assessment. Dr. Komer explained that there were some aspects to that. He agreed that he had not considered the bottle of cleaner that Ms. Marbal found when she came home that was out of place because he did not have that information at the time of his assessment.
 Dr. Komer did consider the fact that the car was set on fire and that this took place in a secluded area. Dr. Komer googled the area. He agreed that it was possible that Mr. Gancthev set the car on fire there so that he would not be readily detected by the public or police. But he noted that in reality the car and body would be found so it would not be a good way of hiding his actions. He also stated that it was possible that Mr. Gancthev did not want the fire to be put out easily which is why he chose a secluded area.
 ... After being asked several more questions about setting the car on fire, Mr. Gancthev stated “it’s just how I felt”. He then said, “those aliens suffer a lot from burns.” When Dr. Komer asked how that was related to Mr. Gancthev setting the car on fire he stated, “I just didn’t want him to come back”. When Dr. Komer asked him further about setting the car on fire, Mr. Gancthev stated “I don’t know, that’s how it happened.” Mr. Gancthev then said that fire does not help aliens. He also said that he set the fire to make sure he was dead.
 Dr. Komer agreed that Mr. Gancthev often does not tell the truth. Mr. Gancthev does not readily report things. He is someone who does not initially tell people what he is thinking or doing even though the lies do nothing to assist him or can be readily contradicted. However, when an overall assessment of Mr. Gancthev said over time was considered, it remained Dr. Komer’s opinion that Mr. Gancthev is NCR at the time of the incident. The additional factors that were presented to Dr. Komer in cross-examination did not alter his opinion.
 Section 16 of the Criminal Code provides as follows:
(1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
 Our law presumes that individuals are autonomous rational persons and that if an accused commits a criminal offence, they are criminally responsible for their actions. However, our law also recognizes that it would be unfair to impose criminal consequences on accused persons who commit an offence while mentally unsound where the accused does not appreciate the nature and quality of the actions or know that it is wrong.
 To be exempt from criminal responsibility due to a mental illness, the party who raises the issue must establish on the balance of probabilities that the accused suffered from a mental disorder at the time of the offence. In addition, the mental disorder must have rendered the accused incapable of either appreciating the nature and quality of an act or omission or incapable of knowing that the act or omission was wrong. In this case, Mr. Gancthev raised this issue so the onus rests on him.
 After having the opportunity to cross-examine Dr. Komer, the Crown is now satisfied that Mr. Gancthev is NCR for the offence. This is a reasonable concession based on the evidence.
 I too am satisfied that Mr. Gancthev has demonstrated that he is NCR. While Dr. Komer was the only expert before me, I am cognizant of the fact that the absence of opposing evidence does not mean as a matter of law that I must find Mr. Gancthev not criminally responsible. As with any witness, I am entitled to accept, some, none, or all of Dr. Komer’s evidence. In addition, in assessing his opinion, I am entitled to examine the factual foundations of the opinion and to give the opinion less weight where it is not based on facts proved at trial or where I disagree with the factual assumption on which the opinion is based. Ultimately, whether Mr. Gancthev is not criminally responsible is a legal question that I must decide: R. v. Molodowic, 2000 CSC 16 (CanLII), 2000 SCC 16, at para. 7.
Mr. Gancthev suffered from a mental Illness at the time of the death of his father
 The Crown agrees that Mr. Gancthev suffered from a mental illness that was active at the time of this offence. I agree as well. Mr. Gancthev had a history of mental illness well before this event. When Mr. Gancthev goes off his medicine, he appears to decompensate and his symptoms become more prevalent, including his psychosis as demonstrated by his behaviour in the past. At the time Mr. Gancthev caused the death of his father, Mr. Gancthev had been off his medicine for some time. He was supposed to get an in injection in May but refused to do so. This fact combined with Mr. Gancthev’s description of what occurred and Dr. Komer’s opinion supports the finding that Mr. Gancthev suffered from a mental illness that was active at the time of the offence.
Mr. Gancthev did not appreciate that his actions were wrong
 The meaning of “wrong” was discussed by the Court of Appeal most recently in R. v. Dobson, 2018 ONCA 589 at paras. 23 to 24 as follows:
A recent description of the “wrongfulness” inquiry under s. 16(1) from this court is found in Campione, at paras. 39-41:
The ultimate issue for the jurors to determine was whether – in spite of her delusions and any honest belief in the justifiability of her actions – the appellant had the capacity to know that those actions were contrary to society’s moral standards. The centrepiece of the inquiry is her capacity to know and to make that choice; it is not the level of honesty or unreasonableness with which she may have held her beliefs. Concentrating on the latter unduly complicates the inquiry for the very reason the appellant raises in support of her argument; it leads to the application of reasonableness considerations to the appellant’s delusions and subjective belief.
In short, a subjective, but honest belief in the justifiability of the acts – however unreasonable that belief may be – is not sufficient, alone, to ground an NCR defence, because an individual accused’s personal sense of justifiability is not sufficient. The inquiry goes further. The accused person’s mental disorder must also render him or her incapable of knowing that the acts in question are morally wrong as measured against societal standards, and therefore incapable of making the choice necessary to act in accordance with those standards. [Emphasis added.]
In my view, Oommen, as interpreted in the judgments of this court, holds that an accused who has the capacity to know that society regards his actions as morally wrong and proceeds to commit those acts cannot be said to lack the capacity to know right from wrong. As a result, he is not NCR, even if he believed that he had no choice but to act, or that his acts were justified. However, an accused who, through the distorted lens of his mental illness, sees his conduct as justified, not only according to his own view, but also according to the norms of society, lacks the capacity to know that his act is wrong. That accused has an NCR defence. Similarly, an accused who, on account of mental disorder, lacks the capacity to assess the wrongness of his conduct against societal norms lacks the capacity to know his act is wrong and is entitled to an NCR defence.
 I also accept Dr. Komer’s evidence that Mr. Gancthev did not appreciate that his actions were wrong.
 I found Dr. Komer’s evidence thoughtful and balanced. In coming to his opinion, Dr. Komer reviewed extensive files, interviewed Mr. Gancthev and obtained information from other persons on the medical team. Dr. Komer recognized and accepted that Mr. Gancthev was a difficult patient to diagnose given his tendency to not tell the truth when first confronted with questions. He accepted that there were other possible explanations for Mr. Gancthev’s actions such as why he burned the car after he killed his father or why he told police he was coming from a convenience store. However, when Dr. Komer considered these possibilities with all the information he had, these alternative possibilities did not alter his opinion. Another example of the careful consideration Dr. Komer gave to this matter is his opinion as to why he did not share Dr. Wright’s concern that Mr. Gancthev was malingering as discussed earlier in these reasons.
 In accepting Dr. Komer’s evidence, I have also considered that his evidence was not seriously challenged on cross-examination. His opinion was not diluted or qualified by cross-examination. Dr. Komer maintained his opinion throughout his evidence. I cannot find any good reason why his opinion, that Mr. Gancthev is NCR, should be rejected: See R. v. Town Cinema Theatres, 1985 CanLII 75 (SCC),  1 S.C.R. 494.
 In concluding that Mr. Gancthev saw his conduct as justified not just according to his own view, but according to the norms of society, Dr. Komer considered the numerous observations of Mr. Gancthev’s delusional beliefs related to his father. Mr. Gancthev believed that his father was trying to hurt and kill him and that his father was in fact an alien, not his real father.
 I agree with Counsel for Mr. Gancthev, this case is similar to R. v. Oommen, 1994 CanLII 101 (SCC),  2 S.C.R. 507. In that case, the appellant believed that his life was in imminent danger and he shot and killed a young woman who was sleeping in his apartment. The appellant suffered from a mental illness and at the time he believed that the victim was part of the conspiracy that was out to kill him. In finding the appellant NCR, the Supreme Court of Canada held that,
The evidence was capable of supporting an affirmative answer to the question of whether the accused was deprived of the capacity to know his act was wrong. First, there was evidence that the accused honestly felt that he was under imminent danger of being killed by Ms. Beaton if he did not kill her first, and that for this reason, believed that the act of killing her was justified. This delusion would have deprived the accused of the ability to know that his act was wrong; in his eyes, it was right. Second (and this may be to say the same thing), there was evidence capable of supporting the conclusion that the accused's mental state was so disordered that he was unable to rationally consider whether his act was right or wrong in the way a normal person would.
 The present case is similar. Mr. Gancthev thought he was in imminent danger of being killed by his father, who he believed was actually an alien and believed that his act of killing the alien was justified.
 Mr. Gancthev is not criminally responsible for the manslaughter of his father.