Ontario Criminal

Mental Illness


Accused proved defence of not criminally responsible on balance of probabilities

Accused appealed conviction on two counts of second degree murder. Accused stabbed to death two strangers in parking lot of shopping plaza. Accused was 28 years old, lived with his mother, and had been unemployed for three years. Accused testified that on day in question, he left his house with two knives with intention of committing suicide. Accused engaged in problematic behaviours at mental health institution, including muteness, atrocious personal hygiene, and deliberate collecting and spreading of urine and feces, and, although initially found to be unfit to stand trial, he was eventually found to be fit. Accused was assessed second time just prior to trial to determine whether he qualified for defence of not criminally responsible and, while he displayed negative symptoms, he did not describe any positive symptoms, such as hallucinations. Psychiatrist determined that accused was most likely suffering from schizophrenia, but that there was nothing in his history that would have led to conclusion that accused had s. 16(1) Criminal Code defence available to him. Psychiatrist testified that he could not opine on balance of probabilities that accused’s major mental illness had been so severe and his thought processes so disorganized as to displace presumption of sanity. Defence counsel visited accused at penitentiary to prepare for appeal and formed lay opinion that he was suffering from mental disorder. Forensic psychiatrist subsequently concluded that accused was seriously mentally ill, suffering from schizophrenia, catatonic type. Accused was transferred to mental health centre for 60-day post-conviction assessment. Psychiatrist concluded that accused currently suffered from schizophrenia and that he was severely mentally ill prior to index offences and at time of index offences. Psychiatrists concluded that accused did meet test for s. 16 of Code at time of offences, and that presumption of criminal responsibility at time of offences could have reasonably been displaced. Accused argued that he was not criminally responsible at time of killings, and sought to introduce fresh evidence on appeal. Appeal allowed, convictions set aside, verdict of not criminally responsible substituted. Fresh evidence met Palmer criteria. Evidence was not available prior to trial, bore on accused’s not criminally responsible defence, was credible, cogent, and reliable, and it could reasonably have affected outcome of trial. Although circumstances of offence were horrific, evidentiary record was complete. Evidence of all three psychiatrists was strong, uncontradicted, and consistent. Accused had proved defence of not criminally responsible on balance of probabilities.

R. v. Palmer (May. 12, 2015, Ont. C.A., K. Feldman J.A., Janet Simmons J.A., and S.E. Pepall J.A., File No. CA C53234) 122 W.C.B. (2d) 46.

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