R. v. Chheng, 2021 ONCJ 248

ONTARIO COURT OF JUSTICE CITATION: R. v. Chheng, 2021 ONCJ 248 DATE: 2021-04-27 COURT FILE No.: Central East Region BETWEEN: HER MAJESTY THE QUEEN — AND — MOTHY CHHENG Before Justice J. Bliss Heard on September 18, 2019, October 11, 2019, February 17, 18, 19, 2021 Reasons for Judgment released on April 27, 2021 C. Peters............................................................................................... counsel for the Crown B. Smith................................................................ counsel for the accused Mothy Chheng BLISS J.: Overview [ 1 ] Mothy Chheng suffers from schizophrenia.

To understand generally what that means, I begin with an excerpt from the assessment report prepared in this case: Schizophrenia is a major mental illness that tends to have its onset, in males, in the second or third decade of life. Once extant, schizophrenia is a lifelong illness. An individual suffering from schizophrenia suffers from symptoms of psychosis. Psychosis is generally defined as the presence of delusions, hallucinations, grossly disorganized thought and behaviour, or some combination of these.

After a time of suffering from schizophrenia, many individuals will also experience social and occupational decline, as well as a diminution of their motivation and self-care. The mainstay of treatment for schizophrenia is treatment with antipsychotic medication. This tends to ameliorate or ablate, the more florid symptoms of psychosis in more than 80% of individuals treatment. (Excerpt from Dr. Woodside’s report, p. 36) [ 2 ] On July 3, 2018, Mothy Chheng was 27 years old. He had no criminal record. He had worked for the past two years at Flex-N- Gate assembling brake parts.

Other than exchanging pleasantries with the few co-workers he would speak with, he kept to himself. To his family, there were signs that he was mentally ill, although they did not use those words; instead they described him as “not being normal”. In fact, what they saw were signs of schizophrenia and the symptoms of psychosis. The signs of schizophrenia had been there for some time, but to the outside world, Mothy Chheng was just someone who was very quiet, kept to himself, and didn’t bother anyone. Whatever glimpses there were of Mr.

Chheng’s inner turmoil, there was nothing in his daily life; certainly nothing in the mundane routine of his work, that hinted at the unprovoked, random act of violence that he inflicted on Khamphouviene Sourapha, an innocent co- worker, on July 4, 2018. Why her and not someone else? Apparently, because she was closer. [ 3 ] On July 4, 2018, Mothy Chheng was scheduled to work the afternoon shift that went from 3:30 p.m. until midnight. He woke up at noon. At 1:30 p.m., he went to Vaughan Mills Shopping Centre and bought two pairs of basketball shorts.

He returned home around 2:30 p.m. and drove the block to his work at Flex-N-Gate. The shift began at 3:30 p.m. At 6:00 p.m. there was a 12 minute break . At

8:30 p.m., a lunch break until 8:53 p.m. and then a final break at 10:30 p.m.. The work was routine and the shift uneventful. After thelunch break, Mr. Chheng picked up a brake part, walked to where Ms. Sourapha was stationed, and without warning, began hitting heron her face and head with the brake assembly. She fell to the floor. There was blood around her. He continued hitting her. He had noexpression on his face. Other workers were alerted to what was happening and came over. Without saying a word, Mr. Chheng walkedout the back door and drove away.

He drove to a parking lot, sat for some time, and then drove around the area before heading toMcDonald’s to buy food and then going home to eat. When he got home, he changed out of his work clothes. Around 2:45 a.m., hedecided he needed to buy cigarettes. Police were waiting for him to leave his home and apprehended him shortly after. The issue [4] The proceeding before me commenced as a preliminary inquiry. Shortly before the prosecution closed its case, the prosecutionand defence jointly sought an order pursuant to s.672.11(

b) of the Criminal Code, for an assessment to determine whether MothyChheng was, at the time of the commission of the offence, suffering from a mental disorder so as to be exempt from criminalresponsibility by virtue of subsection 16(1) of the Criminal Code. Dr. Scott Woodside conducted the assessment and a report wasprepared. When the matter returned, the matter was converted to a trial on consent. The defence conceded that the evidence establishedbeyond a reasonable doubt that Mothy Chheng attempted to murder Khamphouviene Sourapha and a finding of guilt was made. Thedefence submitted, however, that Mr.

Chheng should be found not criminally responsible for the offence submitting that it wascommitted while he was suffering from a mental disorder that rendered him incapable of knowing that it was wrong as defined by s.16(1)of the Criminal Code. [5] Dr. Woodside was the only witness called at the NCR hearing. He was qualified as an expert in the field of forensic psychiatryand permitted to offer opinion evidence on the issue. His assessment report, which he adopted, concluded with his opinion that “on thebalance of probabilities and from a psychiatric perspective,…the most likely scenario accounting for Mr.

Chheng’s actions at thematerial time is that he was suffering from active symptoms of psychosis which had a disorganizing effect on him, leading to difficultiesin his articulating any rational motive for his actions at the material time.” In his opinion, “Mr. Chheng was likely so preoccupied with,and disorganized by, the symptoms of his mental illness that he was not capable of engaging in any rational choice regarding his actions.Overall, from a psychiatric perspective and on the balance of probabilities, [he] believe[d] that Mr.

Chheng would have a defense of notcriminally responsible due to mental disorder available to him.” [6] There is a presumption of sanity. The burden was on Mr. Chheng to prove he was not criminally responsible on a balance ofprobabilities. At the NCR hearing, Dr. Woodside remained of the opinion that Mr. Chheng was not criminally responsible, althoughwhen asked where he would put Mr. Chheng on a balance of probabilities, put him as somewhere between 50 and 60%. In his opinion,while Mr.

Chheng appreciated the nature and quality of his acts, and appreciated the legal wrongfulness of his actions, he did not knowthe moral wrongfulness of his act. His schizophrenia so disordered his thoughts that even though he possessed and could express a roteknowledge of the moral wrongfulness of his conduct, he did not have the capacity to exercise rational choice about the rightness orwrongness of the act. [7] Dr. Woodside was the only witness called on the NCR hearing.

The defence submits that the evidence establishes, on a balanceof probabilities, that at the time of the offence, Mothy Chheng was in a state of psychosis that rendered him incapable of appreciating themoral wrongfulness of his actions and he should be found not criminally responsible for his criminal act. [8] The prosecution submits that the defence has not met its burden, and that Mr. Chheng knew what he was doing and knew it waslegally and morally wrong. The prosecution further submits that criminal responsibility requires an individual know the act was wrong.

The capacity to make a rational choice to act or not, is not, according to the prosecution, part of the test. This became a dispute as towhich decision governs: The decision of the Supreme Court of Canada in R. v. Oommen (SCC), [1994] S.C.J. No. 6 orthe Ontario Court of Appeal’s decision in R. v. Dobson 2018 ONCA 589 , [2018] O.J. No. 3450. [9] The prosecution concedes that the Supreme Court of Canada in R. v.

Oommen (supra) speaks of criminal responsibility as askingwhether the accused’s mental disorder deprived him of the capacity for rational perception and hence rational choice about the rightnessor wrongness of the act, but submits that Ontario Court of Appeal’s decision in R. v. Dobson (supra) which, the prosecutions submitsremoves “rational choice” as an element of criminal responsibility, governs. The prosecution submits that the Supreme Court ofCanada’s refusal to grant leave in Dobson (supra) was an implicit acceptance of the correctness of the Court of Appeal’s decision in thatcase. With respect, I disagree.

No authority was provided to support such an

interpretation of the meaning of a refusal to grant leave,and it is not one I am prepared to adopt. [10] I am of the view that the test to be applied in assessing criminal responsibility under s.16 of the Criminal Code, is that which theSupreme Court of Canada set out in Oommen (supra). It includes an assessment of whether the person suffering from a mental disorderhad the capacity for rational choice. For the reasons that follow, I have come to the conclusion that on a balance of probabilities, Mr.Chheng was suffering from a mental disorder at the time of the offence that rendered him incapable knowing that what he was doing waswrong, and is not criminally responsible. The Law [11]

Section 16 of the Criminal Code reads:

(1) No person is criminally responsible for

an act committed…made while suffering from a mental disorder that rendered the personincapable of appreciating the nature and quality of the act… or knowing that it was wrong.

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue ofsubsection (1), until the contrary is proved on the balance of probabilities.

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is onthe party that raises the issue.

[12] There is no issue that Mr. Chheng suffers from a mental disorder, namely, schizophrenia. The first branch of the test in s.16(1)asks if the person appreciates the nature and quality of the act. There is no dispute that despite that his mental disorder, Mothy Chhengwas, at the relevant time, capable of appreciating the nature and quality of his act. The second branch of the s. 16(1) test asks whether heknew what he was doing was wrong? Wrong has been judicially interpreted to mean both legally wrong and morally wrong. Theevidence established on a balance of probabilities that Mr.

Chheng knew his act was legally wrong. The issue here was whether he wasaware his act was morally wrong. [13] In the reasons that follow, I will set out why I am of the view that the test includes the exercise of rational choice in Oommen(supra), and why the capacity for rational choice has not been excised from the criminal responsibility equation or “overturned” orsuperseded by Dobson (supra). [14] To understand my decision on this issue, and my conclusion in this case, I need to go back to the Supreme Court of Canada’sdecision in R. v. Chaulk (SCC), [1990] S.C.J. No. 139.

In that decision, the Court provided a number of examples toillustrate how the insanity defence can arise. At para 23, Lamer C.J. for the majority, wrote: …the insanity defence can be raised in a number of different ways, depending on the mental condition of the accused. All of [the]examples have one thing in common however. Each is based on an underlying claim that the accused has no capacity for criminal intentbecause his or her mental condition has brought about a skewed frame of reference.

When a person claims insanity, he or she may wellbe denying the existence of mens rea in the particular case or putting forward an excuse which would preclude criminal liability in theparticular case; but he is also making a more basic claim which goes beyond mens rea or actus reus in the particular case -- he isclaiming that he does not fit within the normal assumptions of our criminal law model because he does not have the capacity for criminalintent. [15] Dealing directly with the issue of the meaning of “wrong” in s.16(2), the majority in Chaulk addressed the Court’s earlierdecision in Schwartz v.

The Queen, (SCC), [1977] 1 S.C.R. 673 as follows: The meaning of the term "wrong" for the purposes of s. 16(2) was determined by this Court in Schwartz v. The Queen, (SCC), [1977] 1 S.C.R. 673. Speaking for the majority, Martland J. held that the capacity to know that

an act is wrong in this contextmeans no more than the capacity to know that what one is doing is against the law of the land (Chaulk, supra, para 82). … In [the majority in Schwartz’s] view, the effect of s. 16(2) is to make the defence of insanity available to an accused who, because hesuffered from a disease of the mind, did not know that he was committing a crime…[They] could not accept that an insane person,committing

an act that he knows to be a crime, could be acquitted if he believed that the act was acceptable according to the standards ofreasonable men when a sane person believing such would not be acquitted. Furthermore, the majority rejected the test …that entailed asubjective approach by examining the individual capacity of an accused to reason as to the wrongfulness of

an act (at pp. 701-2): In my opinion the test provided in s. 16(2) is not as to whether the accused, by reason of mental disease, could or could not calmlyconsider whether or not the crime which he committed was morally wrong.

He is not to be considered as insane within s. 16(2) if heknew what he was doing and also knew that he was committing a criminal act. (Chaulk, supra, para 87) [16] Lamer C.J. observed, at para 88, that “Dickson J., as he then was, dissented in Schwartz and noted that the word "wrong" as usedin s. 16(2) is ambiguous and is capable of meaning either "legally" or "morally" wrong.” Lamer C.J. went on: More fundamentally, Dickson J. concluded that a reading of s. 16(2) as a whole leads to the conclusion that "wrong" must mean contraryto the ordinary moral standards of reasonable men and women.

The object of s. 16(2) is to protect individuals who do not have thecapacity to judge whether

an act is wrong; the inquiry as to the capacity of an accused to reason must not end simply because it isdetermined that the accused knew that the act was a crime. He argued that this would not serve to protect amoral persons since anyincapacity must result from a disease of the mind (at p. 689): Section 16(2) must be read in toto. One looks at capacity to reason and to reach rational decisions as to whether the act is morally wrong.If wrong simply means "illegal" this virtually forecloses any inquiry as to capacity.

The question for the jury is whether mental illness soobstructed the thought processes of the accused as to make him incapable of knowing that his acts were morally wrong…. If, as a resultof disease of the mind, the offender has lost completely the ability to make moral distinctions and acts under an insane delusion, it canwell be said that he should not be criminally accountable. The

interpretation of "wrong" as meaning "morally wrong" would not, in his opinion, have the effect of opening up the insanity defenceto a far greater number of accused persons. First, what is illegal and what breaches society's moral standards do not often differ.Secondly, "[m]oral wrong" is not to be judged by the personal standards of the offender but by his awareness that society regards the actas wrong" (p. 678). He concluded that an accused is not therefore free, as a result of such

interpretation, to substitute at will his ownsense of morality for that of society, but is to be acquitted by reason of insanity if, by reason of disease of the mind, he is incapable ofknowing that society generally considers a particular act to be immoral.” (Chaulk, supra, para 91) [17] The majority in Chaulk held that Schwartz was wrongly decided. “Schwartz had the effect of expanding the scope of criminalresponsibility unacceptably to include persons who, by reason of disease of the mind, were incapable of knowing that

an act was wrongaccording to the normal and reasonable standards of society even though they were aware that the act was formally a crime.” Themajority in Chaulk held that the dissenting opinion of Dickson J. in Schwartz was to be preferred and that it was the Court’sresponsibility to refine the scope of criminal liability to accord with the basic principles of our criminal law. (Chaulk, supra, para 94) [18] The rationale underlying the “defence of insanity” the Court observed, “rests on the belief that persons suffering from insanityshould not be subject to standard criminal culpability with its resulting punishment and stigmatization. This belief, in turn, flows from the

principle that individuals are held responsible for the commission of criminal offences because they possess the capacity to distinguish between what is right and what is wrong.” ( Chaulk , supra, para 95 ) [ 19 ] Lamer C.J. explained that: Section 16(2) of the Code embodies this conception of criminal responsibility by providing that no person shall be convicted of an offence who, at the time of committing the act in question, is in a state of "natural imbecility" or has disease of the mind to such a degree as to render him incapable of "knowing that

an act or omission is wrong." The principal issue in this regard is the capacity of the accused person to know that a particular act or omission is wrong. As such, to ask simply what is the meaning of the word "wrong" for the purposes of s. 16(2) is to frame the question too narrowly.

To paraphrase the words of the House of Lords in M'Naghten's Case, the courts must determine in any particular case whether an accused was rendered incapable, by the fact of his mental disorder, of knowing that the act committed was one that he ought not have done. ( Chaulk , supra, para 96 ) Viewed from this perspective, it 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 "natural imbecility" or 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… ( Chaulk , supra, para 97 ) The test articulated in s. 16(2) is directed, as emphasized above, at an analysis of the capacity of the accused to reason and to understand the meaning of the terms "right" and "wrong", concepts that demand a moral judgment on the part of every individual in order to be applied in practice.

It cannot be determined that an accused does not have the necessary capacity to engage in such moral reasoning simply because he or she does not have the simple ability to retain factual information, for example, the ability to know that a certain act is a crime in the formal sense. As Professor Colvin points out in Principles of Criminal Law, op. cit., at pp. 253 and 255: The capacity to know the law in a formal sense involves typically no more than the capacity to absorb and retain normative information... .

For the most part, formal knowledge of law does not call into play the capacity to analyze and assess an assortment of data which may present divergent and competing messages. ( Chaulk , supra, para 100 ) [ 20 ] This restrictive

interpretation of “capacity” did not survive Oommen . Just as Dickson J. laid the groundwork for knowing

an act is wrong to mean morally wrong and legally wrong in his dissent in Schwartz , that was adopted in Chaulk .

Similarly, McLachlin J.’s dissent in Chaulk laid the foundation for criminal responsibility requiring the capacity for rational perception and rational choice about the rightness or wrongness of the act that was followed in Oommen (supra) and remains the law today.. [ 21 ] In her dissent in Chaulk , McLachlin J. wrote: It is true, of course, that an accused who does not have the capacity to appreciate something cannot have appreciated it; the point, however, is that the insanity inquiry never looks beyond capacity to actual mens rea or actus reus.

For practical purposes, where insanity becomes an issue at trial, there will be objective evidence from which, absent the claim of insanity under s. 16 of the Code, the trier of fact will be justified in inferring the existence of the essential elements of the offence, i.e. the actus reus and mens rea. The claim of insanity, however, pre-empts the traditional inference-drawing process on the ground that a person without the capacity for choice as defined in s. 16 of the Criminal Code is not morally culpable.

Because of lack of capacity, therefore, the issue of actus reus and mens rea never arises ( Chaulk , supra, para 201 ) This capacity for choice is a fundamental prerequisite to attribution of criminal responsibility and punishment. To limit application of the insanity provisions to situations where mental disorder within s. 16 negatives mens rea would fail to accord with this precept; moreover, and importantly, it is not what s. 16 of the Code directs. ( Chaulk , supra, para 202 ) … I turn now to the purpose and theory underlying the insanity provisions.

In my view, they too support the view that "wrong" in s. 16(2) of the Code means simply that which one "ought not to do." The rationale behind the insanity provisions, as discussed earlier in these reasons, is that it is unfair and unjust to make a person who is not capable of conscious choice between right or wrong criminally responsible. Penal sanctions are appropriate only for those who have the ability to reason right from wrong, people capable of appreciating what they ought and ought not to do. A person may conclude that he or she ought not to do

an act for a variety of reasons. One may be that it is illegal. Another may be that it is immoral. The reasons for which one concludes that one ought not to do

an act are collateral to the fundamental rationale behind the insanity provisions -- that criminal conviction is appropriate only where the person is capable of understanding that he or she ought not to do the act in question. ( Chaulk , supra, para 234 ) [ 22 ] In the decision of R. v. Ratti [1990] S.C.J.

No. 5, at para 20 which followed, the Court observed that the question whether a person should be found not guilty by reason of insanity “is whether the [person] was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society. [ 23 ] Oommen gave the Supreme Court of Canada the opportunity to reconsider what is meant by the “capacity to know

an act is wrong”. In that case, the accused had committed murder. The trial judge found that he was acting under the influence of a paranoid delusion at the time of the killing and that his mental disorder compelled and caused the killing. The trial judge found that on a balance of probabilities Mr.

Oommen "was capable of knowing that what he was doing was wrong according to moral standards of society.... [H]e was capable of knowing that society in general would regard it as wrong." Despite his general capacity to distinguish right from wrong, the trial judge found as a fact that "subjectively the accused did not believe his act was wrong"…Whether because of this subjective belief in the rightness of his act or confusion engendered by the delusion, Mr. Oommen was unable to apply his general ability to distinguish right from wrong to the act of killing Ms.

Beaton… The trial judge concluded that in view of the accused's general capacity to know right from wrong, he was not relieved from criminal responsibility under s. 16(1), notwithstanding his subjective belief

that what he did was right and his inability to apply his general knowledge of right and wrong.” (Oommen, supra, para 16) [24] The question in Oommen was: “What is meant by the phrase "knowing that [the act] was wrong" in s. 16(1)? Does it refer onlyto abstract knowledge that the act of killing would be viewed as wrong by society?

Or does it extend to the inability to rationally applyknowledge of right and wrong and hence to conclude that the act in question is one which one ought not to do? (Oommen, supra, para20). [25] The decision of the Court was written by McLachlin J. and embedded rational choice into the assessment: A review of the history of our insanity provision and the cases indicates that the inquiry focuses not on general capacity to know rightfrom wrong, but rather on the ability to know that a particular act was wrong in the circumstances.

The accused must possess theintellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in arational way to the alleged criminal act. (Oommen, supra, para 21) The test was set out as follows: 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 makea rational choice about whether to do it or not.

The inability to make a rational choice may result from a variety of mental disfunctions;as the following passages indicate these include at a minimum the states to which the psychiatrists testified in this case -- delusionswhich make the accused perceive

an act which is wrong as right or justifiable, and a disordered condition of the mind which deprives theaccused of the ability to rationally evaluate what he is doing. (Oommen, supra, para 26) [26] McLachlin J. cited, with approval, the observations from two decisions of the Australian High Court in R. v. Porter (1933), 55C.L.R. 182 (H.C. Aust.), and Stapleton v.

The Queen (1952), 86 C.L.R. 358, at p. 367 that required the capacity to reason for criminalresponsibility: The question is whether [the accused] was able to appreciate the wrongness of the particular act he was doing at the particular time.Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he couldnot think rationally of the reasons which to ordinary people make that act right or wrong?

If through the disordered condition of the mindhe could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what hewas doing was wrong....

What is meant by wrong is wrong having regard to the everyday standards of reasonable people. (Porter, supra,at pp. 189-90 referred to in Oommen, supra, para 27) “.. it is enough if [the disease, disorder, or defect of reason] so governed the faculties at the time of the commission of the act that theaccused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending thenature or significance of the act of killing. (Stapleton, supra, p. 367 referred to in Oommen, supra, para 28) [27] McLachlin J. also found support for capacity for rational choice from G.

Arthur Martin, Q.C. (later Martin J.A.), in "Insanity as aDefence" (1965-66), 8 Crim. L.Q. 240, at p. 246, which has particular relevance to the case before me: [27] In considering whether an accused was, by reason of insanity, incapable of knowing the nature and quality of the act committed by him,or that it was wrong, the legally relevant time is the time when the act was committed. The accused may by a process of reconstructionafter committing some harmful act realize that he has committed the act and know that it was wrong.

That is not inconsistent with aninability to appreciate the nature and quality of the act or to know that it was wrong at the moment of committing it. A person may have adequate intelligence to know that the commission of a certain act, e.g., murder, is wrong but at the time of thecommission of the act in question he may be so obsessed with delusions or subject to impulses which are the product of insanity that heis incapable of bringing his mind to bear on what he is doing and the considerations which to normal people would make the act right orwrong.

In such a situation the accused should be exempt from criminal liability. The ultimate issue is whether the accused possessed thecapacity present in the ordinary person to know that the act in question was wrong having regard to the everyday standards of theordinary person.

Should the accused be exempted from criminal responsibility because a mental disorder at the time of the act deprivedhim of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act. (Oommen, supra, para 29) [28] Oommen made it clear that the question s.16(1) asks is whether the accused should be exempted from criminal responsibilitybecause a mental disorder at the time of the act deprived him of the capacity for rational perception and hence rational choice about therightness or wrongness of the act. (Oommen, supra, para 30) [29] Post-Oommen, the Supreme Court of Canada has had the opportunity, if they wished, to reconsider, redefine, or even remove“rational choice” or the “capacity for rational perception”, and did not do so.

If anything, the Court has taken the opportunity to entrenchthe capacity for reason or rational choice into the criminal responsibility assessment. [30] In R. v. Bouchard-Lebrun 2011 SCC 58 , 2011 S.C.J. No.58 at para 1, the question of whether toxic psychosis from self-induced intoxication constitutes a "mental disorder" within the meaning of s. 16 gave the Court an opportunity to review the scope of theinsanity defence.

It spoke of criminal responsibility being the result of voluntary acts of a willing mind at liberty to make a choice ordecision, behaviour from a true choice or free will, from a discerning moral agent capable of making choices between right and wrong. [31] Under the heading of “Defence Provided for in s.16 Cr. C.: An Exception to the General Principle of Criminal Responsibility”,the Court wrote: 45 According to a traditional fundamental principle of the common law, criminal responsibility can result only from the commission of a

voluntary act. This important principle is based on a recognition that it would be unfair in a democratic society to impose theconsequences and stigma of criminal responsibility on an accused who did not voluntarily commit

an act that constitutes a criminaloffence. 46 For

an act to be considered voluntary in the criminal law, it must be the product of the accused person's free will. As Taschereau J.stated in R. v. King, (SCC), [1962] S.C.R. 746, "there can be no actus reus unless it is the result of a willing mind atliberty to make a definite choice or decision, or in other words, there must be a willpower to do

an act whether the accused knew or notthat it was prohibited by law" (p. 749). This means that no one can be found criminally responsible for an involuntary act (see DicksonJ.'s dissenting reasons in Rabey v. The Queen, (SCC), [1980] 2 S.C.R. 513, which were endorsed on this point in R. v.Parks, (SCC), [1992] 2 S.C.R. 871). 47 An individual's will is expressed through conscious control exerted by the individual over his or her body (Perka v. The Queen, (SCC), [1984] 2 S.C.R. 232, at p. 249).

The control may be physical, in which case voluntariness relates to the musclemovements of a person exerting physical control over his or her body. The exercise of a person's will may also involve moral controlover actions the person wants to take, in which case a voluntary act is a carefully thought out act that is performed freely by an individualwith at least a minimum level of intelligence…Will is also a product of reason. 48 The moral dimension of the voluntary act, which this Court recognized in Perka, thus reflects the idea that the criminal law viewsindividuals as autonomous and rational beings.

Indeed, this idea can be seen as the cornerstone of the principles governing the attributionof criminal responsibility …When considered from this perspective, human behaviour will trigger criminal responsibility only if it resultsfrom a "true choice" or from the person's "free will"… 49 This essential basis for attributing criminal responsibility thus gives rise to a presumption that each individual can distinguish rightfrom wrong. The criminal law relies on a presumption that every person is an autonomous and rational being whose acts and omissionscan attract liability.

This presumption is not absolute, however: it can be rebutted by proving that the accused did not at the material timehave the level of autonomy or rationality required to attract criminal liability. Thus, criminal responsibility will not be imposed if theaccused gives an excuse for his or her act that is accepted in our society, in which there is "a fundamental conviction that criminalresponsibility is appropriate only where the actor is a discerning moral agent, capable of making choices between right and wrong" (R. v.Chaulk, (SCC), [1990] 3 S.C.R. 1303, at p. 1397). [32] In R. v. Campione, 2015 O.J.

No. 454 at para 39, the Ontario Court of Appeal wrote of the issue then being “whether in spite ofher delusions and any honest belief in the justifiability of her actions, the appellant had the capacity to know that those actions werecontrary 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 ofhonesty or unreasonableness with which she may have held her beliefs.” The Court went further: “The accused person's mental disordermust also render him or her incapable of knowing that the acts in question are morally wrong as measured against societal standards, andtherefore incapable of making the choice necessary to act in accordance with those standards.” (Campione, supra, para 41) The Dobson issue: [33] At the outset of this decision, I provided my conclusion as to why the Court of Appeal’s decision in Dobson does not supplantOommen.

The following explains why in more detail. The prosecution submits that the Ontario Court of Appeal’s decision in Dobson(supra) removed rational choice from the criminal responsibility equation that the Supreme Court of Canada had set out in Oommen, andthat by refusing leave to appeal in Dobson, the Supreme Court was implicitly conceding the correctness of the Court of Appeal’sdecision. [34] Dobson was heard on June 4, 2018 and released on June 28, 2018. In Dobson, one of the issues on appeal was whether the trialjudge misinterpreted the phrase “knowing that it was wrong” in s.16(1).

All experts agreed that the appellant knew that his actions werelegally wrong, but they disagreed on whether the appellant knew his actions were morally wrong. (Dobson, supra, para 6). [35] Watt J. was the trial judge and provided his

interpretation of the word "wrong", at para. 120: Under the second branch of section 16(1), the term "wrong" refers to morally wrong, that is to say, contrary to the ordinary moralstandards of reasonable men and women. What is "morally wrong" is not to be judged by the personal standards of the person chargedbut, rather, by his or her awareness that society regards the conduct as wrong.

In other words, the exemption extends only to thoseaccused of crime who, because of a mental disorder, are incapable of knowing that society generally considers their conduct to beimmoral. [Citations omitted.] (para 7) [36] On appeal, the appellant submitted that “wrongness” requires a consideration of volitional incapacity. In other words, did theappellant at the time he killed his friends have the capacity for rational judgment or choice? (Dobson, supra, para 10) The respondentand appellant both agreed that Oommen was the leading authority on the meaning of "wrong" in s. 16(1).

They disagreed about what thecase says. [37] In the case before me, the prosecution points to the following passages from Dobson, supra as support for the proposition that aslong as a person is capable of knowing that the act is wrong according to the ordinary moral standards of reasonable members of society,that he knows his act would be morally condemned, then he is criminally responsible. It was put this way in Dobson: The Crown submits that Oommen does not suggest assessing the capacity of an accused to know that his actions were "wrong"exclusively by reference to his or her delusional perceptions.

The Crown submits that it is not enough that the accused, in his delusionalstate, believed his acts were "right" according to his or her own moral code. On the Crown's approach, an accused can be found NCRonly if that accused lacked the capacity to know that society would regard what he did, in the circumstances, as morally wrong…(Dobson, supra, para 19) The Crown further submits that its

interpretation of the meaning ascribed to "wrong" in Oommen is consistent with earlier SupremeCourt of Canada jurisprudence. In R. v. Chaulk, (SCC), [1990] 3 S.C.R. 1303, the seminal case on the meaning of

"wrong" in s. 16, Lamer C.J.C., for the majority, said, at p. 1357: The accused will not benefit from substituting his own moral code for that of society.

Instead, he will be protected by s. 16(2) if he isincapable of understanding that the act is wrong according to the ordinary moral standards of reasonable members of society. (Dobson, supra, para 20) [38] The Court in Dobson adopted the meaning of “wrong” proffered by Lamer C.J. in Ratti (supra, para 80) which attaches criminalresponsibility “even if the act was motivated by the delusion,…if he was capable of knowing, in spite of such delusion, that the act in theparticular circumstances would have been morally condemned by reasonable members of society.” [39] Doherty J.A. wrote: 22 It may be that different extracts from Oommen are open to different

interpretations, however, the Crown's

interpretation of Oommenis consistent with the

interpretation adopted in an unbroken line of authority in this court: e.g. see R. v. Ross, 2009 ONCA 149, at paras.24-27; R. v. Woodward, 2009 ONCA 911, at para. 5; R. v. Guidolin, 2011 ONCA 264, at paras. 17-18; R. v. Szostak, 2012 ONCA 503,111 O.R. (3d) 241, at paras. 56-58; R. v.

Campione, 2015 ONCA 67, 321 C.C.C. (3d) 63, at para. 30. 23 A recent description of the "wrongfulness" inquiry under s. 16(1) from this court is found in Campione, at paras. 39-41: The ultimate issue for the jurors to determine was whether -- in spite of her delusions and any honest belief in the justifiability of heractions -- the appellant had the capacity to know that those actions were contrary to society's moral standards. The centrepiece of theinquiry is her capacity to know and to make that choice; it is not the level of honesty or unreasonableness with which she may have heldher 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 goesfurther.

The accused person's mental disorder must also render him or her incapable of knowing that the acts in question are morallywrong as measured against societal standards, and therefore incapable of making the choice necessary to act in accordance with thosestandards. [Emphasis added.] [40] The Court of Appeal interpreted Oommen, to mean that “an accused who has the capacity to know that society regards his actionsas 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 notNCR, even if he believed that he had no choice but to act, or that his acts were justified. However, an accused who, through the distortedlens 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 mentaldisorder, lacks the capacity to assess the wrongness of his conduct against societal norms lacks the capacity to know his act is wrong andis entitled to an NCR defence. (Dobson, supra, para 24) [41] In the case before me, it is submitted that the Court of Appeal’s decision in R. v. LaPierre [2018] O.J. No. 5093 (C.A.), providesfurther support for the prosecution’s position. In that case, the court was dealing with fresh evidence that the appellant was notcriminally responsible when he committed murder.

The fresh evidence was an expert psychiatric opinion that at the time of the offence,the appellant was suffering from a mental disorder and did not know that what he was doing was wrong in terms of moral wrongfulness(LaPierre, supra, para 27) [42] The Court took issue with this opinion and found that the expert’s ultimate conclusion about the appellant's knowledge of moralwrongfulness was inconsistent with the legal definition of those words.

I note that while Dobson was released on June 28, 2018 andLaPierre heard on September 5, 2018, the Court did not refer to Dobson in its judgment but referred to Oommen as setting out the legaldefinition of moral wrongfulness at para 33: 33 The legal definition of moral wrongfulness is set out in R. v. Oommen, (SCC), [1994] 2 S.C.R. 507, and wassummarized by this court in R. v. Woodward, 2009 ONCA 911, at para. 5: "[T]he court must determine whether the appellant wasincapable of understanding that his acts were wrong according to the ordinary moral standards of reasonable members of thecommunity". [43] The

interpretation in Oommen remains, in my view, the law. The prosecution highlighted the facts in LaPierre that the Court ofAppeal found undermined the foundation for a not criminally responsible defence as analogous to Mr. Chheng’s case before me. In thatcase, the accused acknowledged that he was aware that killing was legally and morally wrong. In particular, the Court wrote: …the appellant's actions surrounding his killing of Mr. Brown belie a legitimate NCR defence. Before the killing, the appellant was seenin a busy

section of Kitchener. He moved from there to a quiet residential neighbourhood. He admitted that he walked around for quite awhile looking for someone to kill. There appeared to be no one else around (at least outdoors) when the appellant attacked Mr. Brown.Immediately after the attack, a woman in a nearby house saw the attacker walk away quickly. When the appellant got home, he changedhis toque because he "didn't want to go to jail", changed his jacket, and cleaned the blade of his knife and put it in a drawer.

In the viewof his father who spent time with him that evening, the appellant seemed fine. (LaPierre, supra, para 36) Third, the appellant's own utterances near the time of the killing also belie a legitimate NCR defence. When the appellant confessed tothe killing during a police interview three days later, he said:

And then what did you do Trevor? I did the wrong thing. What was the wrong thing? (crying) I did the wrong thing and killed him. (LaPierre, supra, para 37) [44] The prosecution argues that LaPierre and other cases from the Court of Appeal illustrate how Mothy Chheng’s capacity torecount and acknowledge the legal and moral wrongfulness of his act, that his conduct was wrong and would be morally condemned byreasonable members of society, and his words and actions proximate to the offence, suggest not that he lacked the capacity to know atthe time of the offence that his conduct was wrong, but the opposite.

The prosecution’s argument was that he may have been sufferingfrom a mental disorder at the time, but he was aware of society’s moral standards and acted nonetheless. That, says the prosecution, iscriminal responsibility. [45] The contrary

interpretations of Dobson and Oommen that were raised before me, was an issue before Molloy J. in R. v. Minassian2021 ONSC 1258. I agree with her

interpretation and conclusion that an accused cannot be said to “know” something is “wrong” withinthe meaning of s. 16 if, because of a mental disorder, he lacks the capacity for rational perception and hence rational choice about therightness or wrongness of the act. (Minassian, supra, para 58) [46] Molloy J. agreed with the defence that the Court of Appeal decision in Dobson was incorrect in law, inconsistent with the bindingdecision of the Supreme Court of Canada in Oommen, and inconsistent with other decisions of the Court of Appeal, and declined tofollow it (Minassian, supra, para 61), as do I.

She held, and I agree, that she was bound to follow the principles articulated in Oommenand did so. (Minassian, supra, para 86) [47] If, as I have set out, the refusal to grant leave to appeal to the Court of Appeal’s decision, does not elevate it to an implicitpronouncement of the Supreme Court of Canada, then the principle of stare decisis, which binds lower courts to the authoritativeprecedent of higher courts is determinative: Common law courts are bound by authoritative precedent. This principle — stare decisis — is fundamental for guaranteeing certainty inthe law.

Subject to extraordinary exceptions, a lower court must apply the decisions of higher courts to the facts before it. This is calledvertical stare decisis. Without this foundation, the law would be ever in flux — subject to shifting judicial whims or the introduction ofnew esoteric evidence by litigants dissatisfied by the status quo. (R. v. Comeau 2018 1 scr 342 SCC at para 26) To reiterate: departing from vertical stare decisis on the basis of new evidence is not a question of disagreement or

interpretation. For abinding precedent from a higher court to be cast aside on the basis of new evidence, the new evidence must “fundamentally shif[t]” howjurists understand the legal question at issue. It is not enough to find that an alternate perspective on existing evidence might change howjurists would answer the same legal question. (Comeau, supra, para 34) [48] In Carter v. Canada (Attorney-General) 2015 SCC 5 , 2015 1 SCR 331 at para 44, the Court wrote: The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system.

It provides certainty whilepermitting the orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law tostasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) wherethere is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate” (Canada (Attorney General)v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 42). In my view, neither of these two exceptions arise in this case. [49] In

summary, I disagree with the prosecution that the Court of Appeal’s decision in Dobson removes capacity for rational choicefrom criminal responsibility. That would require me to follow the Court of Appeal’s

interpretation of what is meant by knowing

an act iswrong that is contrary to that expressed by the Supreme Court of Canada. To do so, I would have to accept that the Supreme Court ofCanada’s refusal to grant leave from the Court of Appeal’s decision in Dobson was an implicit acknowledgement by the higher court thatthe Court of Appeal’s

interpretation of Dobson was the proper one. There is no basis, nor any authority provided, to give such a meaningbehind such refusal to grant leave to appeal; accordingly, I find that I am bound by the Supreme Court of Canada’s per curiam judgmentin Oommen and will apply the principles set out in that case to the facts and evidence before me. The Chronology of Events [50] Flex-N-Gate assembles brake parts for automobiles. The assembly line is made up of different stations.

During a shift,employees may be assigned to work at the same station the entire shift, may switch positions at a station, or even move to differentstations. Different stations, and even different positions at a station have different roles and require different skills. On July 4, 2018, thevictim, who was known to her co-workers as “Kham”, worked the first part of her shift at the back station with another worker, LilyCheung. Ms. Cheung testified that she had worked with Kham a few times but not often. She described that sometimes Kham would notbe able to keep up with the pace that she, Lily, worked at.

They would assemble the rivet assembly onto the pedal and then cover thebrake pad. The next person would then take the housing, hook up the pedals and housing together, and connect them to assemble thebrake. The lines keep going non-stop. [51] Ms. Cheung described how, when she was working that day with Kham, one person would take a part from the pallet, put it on asecond machine to cover the paddles, and then the second worker would take the part from the machine while also auditing it to makesure there were no mistakes. The machines on the line are very loud and workers have to wear earplugs.

Very little talk goes on,because, as Ms. Cheung explained, there is no time to talk because the line goes so fast. Everything is dependent on the timing at the

station. Some of the stations have two people working in tandem. Each station requires different abilities and an ability to handle different speeds and tasks. [ 52 ] Lily Cheung had known the defendant, Mothy Chheng or “Timothy”, for two years since he began working at Flex-N-Gate. She described him as a “medium worker” who makes some mistakes. She did not talk with him unless he had to ask her something. She did not have any problems with him, and he did not see hm have any problems with anyone else or make complaints. She said he was very quiet and did not like to talk. [ 53 ] That day, Kham worked beside Ms.

Cheung. Timothy worked at the middle station about four or five feet from Kham. Ms. Cheung recounted that it was very hot and she heard people complaining that Timothy was going to the washroom many times. She testified that she saw Steve, the zone leader, talk to Timothy. She assumed it was about the frequency of his washroom breaks. When she was at her station she would not look around. She explained that there is no time to look around as workers have to face and focus on the machines they are assigned to. [ 54 ] At 9:00 p.m., after the lunch break, Ms. Cheung and Kham went back to their station.

She had to grab a part from her side, assemble it, connect the housing and the pedals, and then put the finished part on the conveyer. Ms. Cheung testified that she left her station to retrieve a part when the conveyer stopped. That caused her to look back in the direction of where the Timothy was. He was holding a brake part that had the housing and paddle together and then heard a noise. Ms. Cheung said that Timothy said something like “hey”. She was sure he said something because it caused Kham to turn and look at him. His voice was not angry or happy, but calm. Kham was about four feet from Ms.

Cheung to her side. She testified that all of a sudden, Timothy hit Kham hard on her head. His face looked “normal”; neither angry or happy but just calm. He appeared no different than he normally did. Ms. Cheung looked away after the first time Timothy struck Kham. She thought she heard the sound of him hitting her multiple times, maybe four or five times. She said she panicked and did not pay attention to anything else. She then heard her zone supervisor, Steve, yell out “what happened, what happened”. [ 55 ] When Kham fell to the floor Ms. Cheung thought that the defendant stopped hitting Kham.

She said that apart from him saying “hey”, Timothy said nothing. Ms. Cheung said she yelled “what happened?”. Timothy then turned around and ran in a different direction and out of sight. She did not see him leave. [ 56 ] Jordan Mondes had known Timothy since he began working at Flex-N-Gate. He described him as really quiet and not really speaking to many people. Mr. Mondes described how would say “hi” to him and he would respond.

He sometimes saw the defendant talking with other people, and said he would sometimes see him smiling when talking to other people, but described him otherwise as someone who will not talk to you unless you talk to him first. He had never heard Timothy complain about anyone or anything. [ 57 ] That day, Mr. Mondes saw the defendant at the start of his shift and greeted him. Usually Timothy greeted him back, but that day he did not reply at all. His facial expression that day was the same as every other day. [ 58 ] He recalled that Kham was working with Lily.

On July 4 th , the assembly line and the stations had Kham working with Lily at one station, Timothy was at the next station and another worker, Angela, was at a third station. Mr. Mondes was working on the assembly line when it went down. He went to speak to the zone leader, Steve, to tell him the line was down and needed to be fixed by maintenance. As Mr. Mondes was on his way back to the line, he got to about 25 to 30 feet away from Timothy when he saw him hitting something. As he got closer, he saw that Timothy was holding a brake

part in his hand and hitting Kham. Timothy was making a motion like he was using a hammer. He did that three or four times. Kham was on the ground not saying or doing anything and Timothy was squatting over her. Mr. Mondes saw blood and turned away. He heard the zone leader, Steve, screaming “Timothy, Timothy”, and “stop, stop” and then Timothy stopped hitting Kham. He described how the defendant stopped, walked a bit, then dropped or threw the part on the ground, and walked towards the receiving area and out as if nothing happened. Mr. Mondes testified that Timothy didn’t saying anything.

He showed no emotion and no facial expression. He didn’t look angry or upset, just had a blank stare. He looked the same as he always did. [ 59 ] At first, Mr. Mondes thought that the part Timothy used to hit Kham was a different part from the part he was making. After the incident, he was speaking with his co-workers and they told him it was a validation part. Validation parts are bad parts that are painted red and are put through the machines at the beginning of each shift to ensure the line stops if a bad

part is detected. It is normally then hung up and not used at any other time. Mr. Mondes testified that the part that the defendant had in his hand had red paint on it. [ 60 ] Angela Vanheeswyk also worked at Flex-N-Gate and knew both the defendant and victim. She assumed he was Cambodian. She described the defendant as very quiet. She never saw him hanging out with other Cambodians. When he wasn’t working, she described that he would sit by himself to smoke or eat. She said that he didn’t speak with anyone.

She never saw or heard him causing any problems with anyone or anyone having any problem with him. [ 61 ] On the day in question, she was working at her station when she heard someone say something like “what is he doing?”, or “what is going on?” She looked over and saw Timothy about 30 or 40 feet away with a

part in his hand. She could not see Kham as she was behind a shelf. It looked like Timothy had a fully assembled brake pedal in his hand. He was bent down and making motion like he was chopping or using a hammer. When he stopped, he just stood with a blank stare with no sign of anger or upset or any emotion. She testified that he then went back to his station and stood there for a minute. She turned around, and when she turned back, he was gone. [ 62 ] Yehia (Steve) Jaohar was the zone leader. He described the defendant as an average worker. He did not have any problems with him.

If the defendant was told to work a particular way he would do it. Other than work conversations, the extent of his conversation with Timothy was to ask how he was, or how his weekend was. [ 63 ] At the time of the incident, Mr. Joahar testified that he was walking by the assembly line and saw Kham on the floor. She had blood on her face and the defendant was standing behind her. He asked Timothy “why [he did] that?” He didn’t received any response, and Timothy’s face had no expression. He testified that the defendant slowly walked by, back and forth, and then walked away. Mr.

Chheng looked the same as he did when he was working or eating lunch. Steve called for a supervisor. By the time the supervisor,

Brendan McCarthy arrived, the defendant had left and two people were attending to Ms. Sourapha. The supervisor testified that a fully assembled brake pedal, which should have been at the other end of the assembly line, was around where Kham was lying, covered in blood. [ 64 ] It turned out that after Mr. Chheng left, he drove around for a bit, parked, drove some more, then went to McDonalds to get something to eat before going home. Around 2:45 a.m. on July 5, 2018, Mr. Chheng left his house to buy cigarettes. Police had been waiting outside his residence.

Shortly after driving from his home, police followed and stopped his vehicle. He was arrested without issue. He was compliant, and appeared to understand the reason for his arrest and his rights to counsel. The police interview [ 65 ] At 9:21 a.m., some 12 hours or so after having struck Khamphouviene Sourapha repeatedly about the head almost killing her, Mothy Chheng was interviewed by D/C Coulter. He acknowledged that he was at the police station and that he had been arrested for attempt murder.

Although there was some initial confusion about whether he exercised his right to counsel and spoken with a lawyer, he agreed that he had and he understood. He providing his name, date of birth, address, height and personal descriptors without difficulty. There was no issue that Mothy Chheng was the person who struck Ms. Sourapha. Police questioning focused on why he did what he did. To the defence, Mr.

Chheng’s answers display nothing more than him being able to provide rote, expected responses devoid of understanding that his conduct was legally and morally wrong and devoid of evidence that he had, at the relevant time, the capacity to exercise rational choice about the rightness or wrongness of his act. To the prosecution, Mr. Chheng’s answers demonstrated that he knew exactly what he was doing when he did it and that it was morally and legally wrong. [ 66 ] Given the significance of Mr.

Chheng’s responses to the issue of criminal responsibility, I will reproduce significant portions of the exchanges between D/C Coulter and Mr. Chheng. I do so with the caveat that the words on the page do not tell the whole story. Mr. Chheng’s demeanour during the interview was also important to appreciate. At times, his flat affect was in stark contrast to the words he used, and he was emotionally disconnected to the act he had just committed. At other times, the emotions were incongruous with his expressions.

Whether they demonstrated a disconnect and the remnants of a lack of capacity to make a rational choice when he repeatedly struck Ms. Sourapha, or revealed his intent and understanding then and now of what he had done, was the subject of much dispute. It might be said that we are no further ahead now than police were then to understand what drove him to commit such a senseless, violent, unprovoked act on an innocent and random victim.

That it makes no sense does not mean, however, that it was not without an appreciation, however, basic, that his act was morally and legally wrong. [ 67 ] The officer started the interview by having Mothy Chheng provide some background information, but the questioning soon focussed on trying to understand why he did what he did: Q: OKAY UM WE HAVE MULTIPLE WITNESSES WHO SAW YOU DO IT. WE HAVE YOU ON CAMERA BEING THERE AT WORK UM SO THERE'S NO DOUBT YOU DID IT. I THINK MY BIGGEST QUESTION IS YOU DON'T SEEM LIKE A BAD GUY, YOU SEEM LIKE A NICE GUY I JUST DON'T UNDERSTAND WHY YOU DID IT?

DO YOU UNDERSTAND WHAT I'M SAYING? A: YES Q: LIKE WHY'D YOU DO THAT? A: UH I'M NOT SURE I JUST HAD ANGER PROBLEMS Q: YEAH, LIKE WHAT DO YOU MEAN ANGER PROBLEMS? A: IT JUST CAME OUT OF - JUST WAS TOO MUCH FOR ME Q: JUST HAVING A BAD DAY? A: YEAH, I HAD A BAD DAY Q: YEAH WE ALL HAVE BAD DAYS I GET THAT. WAS IT HOT IN THERE TODAY? A: NO Q: YOU DIDN'T FIND IT TOO HOT OKAY. SO LIKE SO WHAT SPARKED YOU TODAY? WHAT HAPPENED? A: NOT SURE Q: NOT SURE? LIKE WAS SOMETHING SAID TO YOU? A: NO Q: WHY'D YOU PICK ON HER? A: UH I DON'T KNOW Q: NO?

SO YOU JUST LIKE WHAT DID YOU DO - LIKE I KNOW WHAT YOU DID JUST EXPLAIN TO ME WHAT DID YOU DO? A: I WAS JUST WORKING AND I PULLED THE PART OUT - OUT OF THE LINE AND STARTED HITTING HER Q: LIKE HOW MANY TIMES DID YOU HIT HER?

A: A COUPLE TIMES Q: WELL WE KNOW YOU DID MORE THAN THAT. OKAY SO YOU SAID YOU HAVE ANGER ISSUES? IS THAT TRUE? A: YEAH Q: HOW LONG HAVE YOU HAD THAT? A: NOT TOO LONG AGO Q: THERE'S A CERTAIN TIME IN YOUR LIFE WHEN THIS HAPPENED DID SOMETHING CHANGED? A: UH NOT REALLY Q: NO? A: NO Q: BECAUSE LIKE I SAID YOU SEEM LIKE A REALLY NICE GUY I JUST CAN'T FIGURE OUT WHAT WOULD CAUSE YOU – A NICE GUY LIKE YOU TO HURT SOMEBODY SO BADLY? A: YEAH Q: YOU THOUGHT IT WOULD BE A GOOD IDEA? A: NO IT WASN'T Q: SORRY? A: IT WASN'T Q: IT WASN'T A GOOD IDEA?

A: NO Q: NO YOU'RE RIGHT IT WASN'T YOUR BEST DECISION UM BUT YOU UNDERSTAND WHAT YOU DID RIGHT? A: YES Q: NOW WHAT DID YOU DO? A: I HAD A PART AND I JUST STARTED HITTING HER Q: WHERE'D YOU HIT HER? A: ON THE FACE AND THE HEAD Q: YOU NOT LIKE HER FACE? A: UH IT - NO, NO Q: NO WHAT? A: NO Q: NO? I JUST ASKED YOU A QUESTION DID YOU NOT LIKE HER FACE YOU SAID NO YOU DIDN'T LIKE HER FACE OR THAT'S NOT THE REASON? A: THAT'S NOT THE REASON Q: OKAY RIGHT. YEAH IF YOU DON'T UNDERSTAND A QUESTION I'M ASKING YOU PLEASE FEEL FREE TO ASK ME TO ASK IT IN A DIFFERENT WAY OR CLARIFY IT A: OKAY Q: IS THAT COOL?

A: YES Q: OKAY ALRIGHT SO, SO WE KNOW YOU DID IT - YOU'RE SAYING YOU DID IT A: YES Q: WE DON'T KNOW WHY YOU DID IT LIKE, LIKE LET'S TALK ABOUT THAT. SO YOU WENT TO WORK TODAY. WHAT TIME

DID YOU START WORK TODAY? A: UH 3:30 Q: 3:30 OKAY. SO YOU GO TO WORK WERE YOU IN A GOOD MOOD? A: UM NOT REALLY Q: JUST YOU WERE IN A BAD MOOD OR? A: YEAH Q: OR SOMETHING HAPPEN TODAY? A: IT WAS JUST THE DAY Q: JUST A BAD DAY TODAY? A: YEAH Q: SO LET'S TALK ABOUT YOUR DAY. SO WHAT TIME DID YOU WAKE UP TODAY? A: UM LIKE NOON TIME Q: NOON? A: YEP Q: SO WHAT DID YOU DO YOU GOT UP WHAT DID YOU DO? A: DID SOME CHORES Q: LIKE WHAT? WHAT'D YOU DO? A: UM SOME GROCERIES Q: WHERE'D YOU GO FOR GROCERIES? A: ACTUALLY NO I WENT TO LIKE I WENT SHOPPING Q: SHOPPING? A: YEAH Q: TO BUY CLOTHES?

A: YEAH BUY CLOTHES Q: WHAT'D YOU GET? A: UM TWO SHORTS Q: WHAT KIND OF SHORTS ARE YOU INTO? A: SHORTS JUST NORMAL BASKETBALL SHORTS Q: OH YOU LIKE BASKETBALL SHORTS YEAH YOU INTO BASKETBALL? A: YEAH Q: SO WHAT TIME DID YOU GO SHOPPING? A: UM ABOUT 2 Q: 2? A: OR 1:30 Q: WHERE'D YOU GO? A: UH VAUGHN MILLS Q: OH YOU WENT DOWN THERE? SO YOU WENT DOWN THERE WHAT TIME DID YOU COME BACK? A: 2:30ISH

Q: 2:30? WHAT TIME DO YOU START WORK? A: 3:30 Q: SO YOU HAD TIME TO GET HOME? A: YEP Q: SOUNDS LIKE YOU HAD A GOOD DAY SO FAR LIKE YOU SAID YOU WEREN'T HAVING A GOOD DAY LIKE WHAT POINT, WHAT PART OF THE DAY STARTED SUCKING? A: UM I DON'T KNOW Q: DO YOU FEEL LIKE THIS ALL THE TIME OR JUST SOMETIMES? A: NO IT'S JUST THAT TIME Q: LIKE TODAY? A: SOMETIMES TOO Q: EVERYONE'S GOING TO WANT TO KNOW. YOU'RE GOING TO BE ASKED IT AGAIN SO WE MIGHT AS WELL CLEAR IT UP NOW. SO DO YOU NOT LIKE THIS LADY? A: UH NOT REALLY Q: YOU DIDN'T LIKE HER? A: NO Q: WHY? A: I DON'T KNOW I JUST DON'T WANT TO WORK WITH HER Q: OKAY WHY?

LIKE DID SHE DO SOMETHING YOU DIDN'T LIKE OR? A: JUST TOO MUCH WORK FOR ME, I'D RATHER JUST WORK AND THEN WORK ON THE LINE INSTEAD OF HELPING HER AND STUFF Q: OKAY SO SHE NEEDED HELP? A: NO SHE DIDN'T NEED HELP BUT IT WAS JUST SHE WAS BEING TALKATIVE AND STUFF Q: SO I DON'T KNOW - LIKE I KNOW WHERE YOU WORK BUT I DON'T REALLY KNOW YOU'RE JOB SO WHY DON'T YOU EXPLAIN TO ME WHAT YOU DO? A: FOR MY JOB? Q: SURE A: JUST ASSEMBLY LINE, GENERAL LABOUR MAKING AUTOMOTIVE PARTS Q: OKAY SO WHAT EXACTLY WERE YOU DOING AT WORK BEFORE THIS HAPPENED? A: TODAY BEFORE WORK?

Q: NO, NO AT WORK WHAT WERE YOU DOING AT WORK TODAY LIKE DON'T YOU HAVE DIFFERENT STATIONS? A: UM YEAH Q: WHAT WERE YOU DOING? A: UM I WAS WORKING ONE STATION AND THEN I GUESS I DIDN'T LIKE THAT STATION SO I KIND OF JUST WORKED WELL WE HAD TO Q: SO YOU JUST DIDN'T LIKE THAT STATION TODAY YOU WERE AT LIKE BEFORE BREAK OR AFTER BREAK? A: IT WAS AFTER BREAK Q: OKAY SO AFTER BREAK YOU'RE AT THIS STATION YOU FINISHED THE DAY AT? A: UM YEAH Q: OKAY SO YOU'RE AT THAT STATION SO TELL ME WHAT HAPPENED, YOU'RE WORKING AWAY AND THEN WHAT

HAPPENED? A: WORKED AND THEN KIND OF GOT LIKE JUST I DON'T KNOW AS THEIR - IT JUST CAME OUT OF NO WHERE KIND OF LIKE HAD TO WALK AROUND AND THEN I DON'T KNOW Q: OKAY SO YOU HAD TO WALK AROUND THEN WHAT HAPPENED? A: AND THEN JUST DOING MY WORK KIND OF GOT PISSED OFF AT THE DAY Q: YEAH OKAY, I GET THAT. SO YOU GET PISSED OFF AND THEN WHAT HAPPENED THEN? A: I TOOK THE PART AND THEN I JUST HIT HER Q: HOW DOES THAT MAKE YOU FEEL? A: I FEEL BAD BUT - YEAH Q: YOU SAID THE BUT WHAT DOES THE BUT MEAN? A: WHAT CAN YOU DO WHEN YOU'RE MAD RIGHT? WHEN THE DAY GOES BAD Q: I GOT A FEW THINGS THAT YOU CANNOT DO RIGHT.

HOW ARE YOU FEELING RIGHT NOW? A: I FEEL OKAY Q: THAT'S GOOD WE TREATING YOU OKAY? A: YEAH, JUST CALM Q: SO WHEN THIS HAPPENED HOW DID YOU FEEL AT THAT TIME YOU SAID YOU WERE MAD BUT WHAT WAS THE FEELING YOU WERE FEELING? A: JUST UM I DON'T KNOW JUST STARTED GETTING TIRED AND I DIDN'T WANT TO WORK NO MORE SO THAT'S JUST WHAT HAPPENED JUST WENT TOWARDS HER AND - Q: OH THAT'S WHEN IT HAPPENED YOU SAID?

A: YEAH Q: SO YOU DIDN'T WANT TO WORK ANYMORE AND YOU WENT TOWARDS HER I JUST WANT TO MAKE SURE YOU'RE TALKING A LITTLE LOW WE'RE BEING RECORDED SO I WANT TO MAKE SURE I CAN - I'M GETTING WHAT YOU'RE SAYING RIGHT I DON'T WANT TO MISUNDERSTAND WHAT YOU'RE SAYING ALRIGHT MAKE SENSE? A: YEP Q: OKAY, OKAY. HAVE YOU FELT LIKE THIS BEFORE? A: UH NO Q: OKAY SO YOU JUST HAD A REALLY BAD DAY? A: YEAH Q: IF YOU COULD APOLOGIZE, WOULD YOU APOLOGIZE? A: YEP Q: OKAY WELL THERE'S A CAMERA RIGHT THERE YOU WANT TO APOLOGIZE TO THE CAMERA SHE'LL PROBABLY GET TO SEE IT ONE DAY. YOU WANT TO SAY ANYTHING TO HER?

A: SORRY Q: YOU'RE SMILING. DON'T LOOK AT ME LOOK AT THE CAMERA AND SAY SORRY A: SORRY Q: SORRY FOR WHAT? A: FOR WHAT HAPPENED Q: WHAT DID YOU DO? A: THAT I HIT HER Q: WELL WHY DON'T YOU SAY SORRY TO HER A: SORRY THAT I HIT YOU

Q: YOU'RE SMILING AGAIN A: AT WORK. SORRY THAT I HIT YOU AT WORK Q: YOU'RE SMILING A: SORRY THAT I HIT YOU AT WORK … Q: OKAY SO WELL SO AFTER THIS HAPPENED WHAT DID YOU DO? A: UM KIND OF JUST WANDERED AROUND IN WORK AND I JUST LEFT Q: JUST LEFT THE BUILDING? A: YEAH Q: WHERE DID YOU GO OUT OF LIKE WHAT DOOR? A: UH WENT TO THE BACK Q: BACK DOOR? A: YEAH Q: WHY'D YOU GO OUT THE BACK DOOR? IS THAT THE WAY YOU USUALLY HEAD OUT? A: NO I JUST WENT FOR A COOL OFF AND THEN I'M LIKE I'M GOING TO GO HOME I'M GOING TO FORGET IT Q: SO, SO YOU WALK OUT THE BACK DOOR WHAT DID YOU DO THEN?

A: UM JUST FOUND A PLACE TO REST FOR A BIT Q: WHERE DID YOU GO? A: I WENT TO THE SOCCER PLACE CLOSE, CLOSE BY THE CHURCH JUST CHILLED THERE FOR A BIT … Q: OKAY GOOD. SO HOW LONG WERE YOU THERE FOR? A: UM JUST FOR A COUPLE - FOR LIKE A WHILE KIND OF RESTED THERE FOR A BIT Q: OKAY SO A WHILE IS THAT HALF AN HOUR? A: LIKE AN HOUR OR SO Q: AN HOUR? … Q: SO WHAT'D YOU DO THEN? A: UH WANDERED AROUND JUST, JUST KIND OF BEING ACTIVE LIKE GET BUSY. I WAS JUST BORED Q: YEAH OKAY A: AND THEN I WENT HOME AFTER THAT Q: SO YOU WERE WANDERING AROUND OUTSIDE THE CAR OR WERE YOU DRIVING AROUND?

A: DRIVE AROUND Q: OKAY SO WHERE'D YOU GO - SO YOU LEAVE THE SOCCER FIELD WHERE DID YOU GO? A: UM I JUST WENT LIKE DIFFERENT AREA JUST WANDERED AROUND THERE … Q: SO YOU DROVE AROUND FOR A LITTLE BIT. HOW LONG DO YOU THINK YOU WERE DOING THAT FOR? A: FOR LIKE A COUPLE HOURS Q: OKAY SO YOU'RE DRIVING AROUND FOR A LITTLE BIT AND THEN WHAT DID YOU DO THEN? A: I WENT HOME AFTER

… Q: SO YOU WENT HOME. WHEN YOU GO HOME WHAT DO YOU DO? A: UM JUST HANG AROUND AT HOME Q: DID YOU WATCH TV? OR WHAT'D YOU DO? A: UH JUST CHILLED, JUST HAD MY UH DINNER Q: WHAT'D YOU HAVE? A: MCDONALDS Q: SO YOU WENT TO MCDONALDS TOO? A: YEAH … A: NO I JUST ATE AND THEN WENT - I JUST STAYED THERE AND THEN I DECIDED TO GO OUT FOR LIKE A SMOKE AND THEN I NOTICED THAT I HAD NO SMOKE SO I WENT TO DRIVE FOR - Q: OH OKAY SO YOU WENT TO GO OUTSIDE YOUR HOUSE TO HAVE A SMOKE AND THEN YOU REALIZED YOU HAD NO SMOKES? A: YEAH AND THEN I JUST WENT OUT Q: SO YOU WENT OUT THE HOUSE AND THEN WHAT DO YOU DO?

A: I WENT TO GO GET SOME SMOKES AFTER BUT – … Q: UM DID YOU CHANGE? A: UH YEAH Q: SO WHAT DID YOU CHANGE FROM? A: FROM MY WORK CLOTHES … OKAY SO I'M JUST GOING TO SUMMARIZE THIS SO YOU'VE NEVER FELT LIKE THIS BEFORE? A: YEAH Q: YOU HAVE OR YOU HAVEN'T? A: UH NO JUST A BAD DAY Q: AND UM LIKE DID YOU KNOW THIS LADY? A: UM WE TALK SOMETIMES Q: SO LIKE DID YOU GET MAD AT HER BEFORE? A: UH NO Q: OKAY SO WAS SHE OKAY? A: SHE WAS OKAY ON THE DAY AND I DON'T KNOW AS THE DAY WENT BY I JUST KIND OF GOT MAD AND LIKE TIRED TO WORK Q: OKAY A: JUST FROM WORK (INAUDIBLE) Q: SO WAS IT HER FAULT?

A: NO IT'S NOT HER FAULT IT WAS JUST ME Q: ALRIGHT. I STILL DON'T GET IT. I DON'T KNOW WHY YOU PICKED ON HER AND THAT'S WHY I'M KIND OF IN HERE. I JUST WANT TO KNOW WHY YOU PICKED ON HER LIKE SHE SEEMS LIKE A NICE LADY RIGHT? A: YEAH

Q: AND SHE'S PRETTY BADLY HURT AND YOU KNOW WHEN WE HURT PEOPLE WE DON'T JUST HURT THEM WE HURT THEIR FAMILIES A: YEAH Q: RIGHT. DO YOU KNOW WHERE SHE WAS FROM? A: PARDON Q: DO YOU KNOW WHERE SHE WAS FROM? A: NO Q: HOW WOULD YOU DESCRIBE HER? … A: AS A PERSON? Q: UM YEAH LIKE IF YOU WERE GOING TO TRY TO - IF YOU'RE GOING TO TRY AND HELP ME FIND HER IN A CROWD HOW WOULD YOU DESCRIBE HER? A: A WONDERFUL LADY I GUESS Q: YEAH BUT HOW DOES SHE LOOK? SO YOU'RE TRYING TO GET ME TO FIND HER IN A CROWD OF PEOPLE HOW WOULD YOU DESCRIBE HER TO ME SO I COULD FIND HER?

A: HMM JUST NORMAL PERSON THAT YOU SEE AROUND Q: YEAH BUT THAT WOULDN'T HELP ME. LET'S SAY THERE WAS ONE HUNDRED PEOPLE HOW WOULD I FIND HER IN THAT CROWD? CAN YOU DO THAT? ARE YOU ABLE TO DESCRIBE WHAT SHE LOOKS LIKE? A: MM Q: TAKE A MINUTE YOU DON'T HAVE TO DO IT RIGHT AWAY JUST THINK ABOUT IT YOU KNOW CLOSE YOUR EYES AND TRY TO REMEMBER WHAT SHE LOOKS LIKE AND THEN TELL ME WHAT SHE LOOKS LIKE A: HER I GUESS Q: YES SHE WOULD LOOK LIKE HER BECAUSE SHE IS HER. DO YOU UNDERSTAND WHAT I'M ASKING YOU? A: YEAH Q: I'M JUST ASKING YOU CAN YOU DESCRIBE WHAT SHE LOOKS LIKE? A: UM NO Q: HOW TALL IS SHE?

A: PROBABLY LIKE 5'9 Q: 5'9 SO A FAIRLY TALL WOMAN A: MHM Q: WHAT COLOUR WAS HER HAIR? A: BLACK Q: OKAY WAS SHE A BIG LADY OR THIN LADY OR? A: SHE'S A BIG LADY Q: OH SO WAS SHE FAT? A: MMM YOU COULD SAY Q: HOW OLD WOULD YOU SAY SHE WAS?

A: UM NOT SURE FORTIES Q: SO OLDER THAN YOU? A: YEAH … Q: OKAY SO I GUESS ONE OF THE THINGS I'M ASKING YOU IS DID YOU HAVE IT IN FOR HER? DID YOU NOT LIKE WHO SHE WAS OR WHO HER RACE WAS? A: YEAH I WAS JUST DIDN'T LIKE WHO SHE WAS Q: IS THAT ALL THE TIME OR TODAY? A: SOMETIMES WHEN WE TALK IT'S JUST I DON'T WANT TO TALK TO HER RIGHT AND JUST FOCUS ON WORK BECAUSE WE'RE WORKING ON PRODUCTION Q: NO I GET THAT TOO YOU JUST WANT TO GET ON WITH WORK A: YEAH Q: DO YOU LIKE YOUR JOB? A: YEAH IT'S GOOD … Q: OKAY SO, SO ONE MORE TIME WHY DID YOU DO IT? WHY DID YOU HIT HER?

A: JUST A BAD DAY Q: WAS IT BECAUSE SHE WAS FROM WHERE SHE WAS? A: NO WAS IT BECAUSE SHE'S A WOMAN? A: NO Q: IS IT BECAUSE SHE'S OLDER THAN YOU? A: NO Q: IS IT BECAUSE SHE'S FAT? A: NO … Q: OKAY SO HAVE YOU EVER THOUGHT OF DOING THIS BEFORE? A: MM NO Q: SO WHAT BROUGHT IT ON TODAY? A: UM JUST THE DAY Q: WE ALL HAVE BAD DAYS I GET THAT WE ALL HAVE BAD DAYS BUT WHAT ABOUT TODAY WHAT SPARKED THAT THING IN YOU TODAY THAT MADE YOU DO THIS? A: NOTHING Q: NOTHING? … Q: OKAY SO HAVE YOU THOUGHT ABOUT DOING THIS BEFORE? A: NO Q: OKAY. DO YOU THINK YOU WOULD DO IT AGAIN? A: UM NO

Q: NO? WHY NOT? A: UM I'M NOT - NO, NOT SURE Q: YOU'RE NOT NO, YOU'RE NOT SURE? OKAY LET'S TRY THAT AGAIN NOT REALLY A CLEAR ANSWER. WOULD YOU DO IT AGAIN? A: NO … Q: OKAY, ALRIGHT, OKAY. SO JUST TO CLARIFY THE LAST QUESTIONS I ASKED YOU YOU HAVEN'T THOUGHT OF DOING THIS BEFORE IS THAT TRUE? A: NO? Q: NEVER? A: NO … AND YOU SEE THE LADY AND YOU WALKED UP TO HER. TELL ME AGAIN WHAT YOU DID? A: I HIT HER Q: OKAY WHY DID YOU HIT HER? A: JUST FELT LIKE IT Q: WHAT DID YOU THINK WOULD HAPPEN? A: NOTHING JUST ME Q: SORRY? A: I JUST FELT - WANTED TO HIT HER Q: OKAY SO WHAT DID YOU THINK WOULD HAPPEN WHEN YOU DID THAT?

WHAT DID YOU THINK WOULD HAPPEN WHEN YOU HIT HER? LIKE YOU UNDERSTAND WHAT I'M ASKING YOU? LIKE YOU HIT HER LIKE WERE YOU TRYING TO STOP SOMETHING? A: NO Q: OKAY LIKE DID YOU REALIZE IF YOU HIT HER SOMETHING MIGHT HAPPEN? A; YEAH Q: WHAT DID YOU THINK MIGHT HAPPEN? A: SHE'S DEAD Q: OKAY SO IS THAT WHAT YOU WANTED? A: UH SOMEWHAT Q: PARDON? A: SOMEWHAT Q: DID YOU SAY SOMEWHAT? A: YEAH Q: OKAY AND SO WHEN YOU HIT HER LIKE EXPLAIN ME WHAT YOU MEAN BY SOMEWHAT? A: JUST I WANTED TO JUST HIT HER Q: NO YOU SAID THAT ALREADY AND THEN YOU SAID YOU KNEW WHAT WOULD HAPPEN RIGHT?

A: YEAH Q: NOW TRY TO EXPLAIN TO ME A BIT BETTER SO YOU WENT UP TO HER AND YOU HIT HER OKAY YOU KNOW WHAT WOULD HAPPEN IF YOU HIT HER. WHAT - DO YOU UNDERSTAND WHAT I'M ASKING YOU?

A: YEAH Q: OKAY SO CAN YOU ANSWER THE QUESTION? A: JUST WANTED TO DO IT Q: DO WHAT? A: JUST HIT HER Q: FOR WHAT REASON? A: JUST WANTED TO I DON'T KNOW HIT HER I GUESS Q: I KNOW YOU KEEP SAYING THAT. WE KNOW THAT AND WE UNDERSTAND THAT BUT WHY DID YOU HIT HER? WHAT WAS YOUR - WHAT DID YOU WANT TO SEE HAPPEN? A: UH JUST HER INJURED OR DEAD Q: THAT'S WHAT YOU WANTED? A: YEAH … Q: OKAY I THINK WE'RE ABOUT DONE. YOU OKAY? A: YEAH Q: SO HOW ARE YOU FEELING RIGHT NOW? A: OKAY. Q: ALRIGHTY SO YOU FEEL OKAY. UM LIKE HOW DO YOU FEEL ABOUT HURTING THE LADY? A: FEEL BAD Q: YEAH WHY DO YOU FEEL BAD?

A: JUST CAUSE SHE'S JUST A GOOD WORKER I GUESS [ 68 ] It is clear that Mr. Chheng is able to recount what he did that day. Before going to work he was able to do tasks that involved choice. Approximately eight hours before the incident, he got up, chose to go shopping, drove to a mall, and into a store. He selected and bought clothes. He was able to exercise choice then. There was no suggestion he shoplifted.

He had the capacity to choose between paying for the goods he wanted and just leaving, and it could be argued that he was able to recognize that the morally right or expected thing to do was pay for his purchases. He was able to drive home and then prepare and get to work in time for his shift. After striking Ms. Sourapha, he left the scene. The words he uses to explain why he leaves, because he would be arrested or go to jail, suggested, on the surface, that he knew the consequences of his conduct. His statements could also be seen as supporting, on the surface, that that he knew at the time he was striking Ms.

Sourapha that he knew it was legally and morally wrong. The defence, however, argues that his words and actions are only evidence of rote knowledge not evidence of a capacity to exercise rational choice over his actions at the relevant time The Assessment of Criminal Responsibility [ 69 ] The assessment ordered to determine whether Mothy Chheng was, at the time of the commission of the offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1) of the Criminal Code was conducted by Dr. Woodside.

He was provided with the police synopsis, police interviews, including those with the defendant, occurrence reports relating to Mr. Chheng, July 6, 2018 email from Brendan McCarthy, documents from Flex-N-Gate regarding Mr. Chheng, reports from Dr. Derek Pallandi, who had been retained by the defence to provide an opinion on Mr. Chheng’s fitness to stand trial and later a preliminary opinion on his criminal responsibility, Humber River Regional Hospital Records of Mr. Chheng’s prior hospitalizations, records from Mr. Chheng’s family physician Dr. Mandel and finally records from Mr.

Chheng’s time at the Waypoint Mental Health Centre following his arrest and subsequent fitness assessment and treatment order. As part of his assessment, Dr. Woodside arranged for Mr. Chheng to undergo psychological testing by Dr. Heasman, and had Danielle Valeriote conduct interviews with family members and friends to provide collateral information about Mr. Chheng. Dr. Woodside also met with Mr. Chheng for 9.25 hours over four days between January 29, 2020 and February 7, 2020. [ 70 ] As part of the NCR hearing, the Crown tendered Mr.

Chheng’s statement and played the video recording of his interview with D/C Coulter. Dr. Woodside was the only witness called on the NCR hearing. The collateral information he referred to, and considered, in coming to his opinion was admissible for that purpose without the necessity of calling the authors. Any reference I make to the collateral information should be taken with that caveat in mind. [ 71 ] Dr. Woodside diagnosed Mr. Chheng with schizophrenia.

It was his opinion, on a balance of probabilities, that at the time of the offence, that the debilitating affects of his mental illness rendered him incapable of knowing that what he was doing was morally wrong as he lacked the capacity, because of psychosis, to make a rational choice whether to act or not. Mr. Chheng’s words and actions after the incident demonstrated rote knowledge, but not capacity to exercise rational choice at the time. That is the only lens that I have been

provided, and while I am not required to accept it, I do. Dr. Woodside scrutinized and explained Mr. Chheng’s words and actions that seem on the surface to be incongruous with someone who lacked that capacity and not criminally responsibility, and I find on a balance of probabilities that he did not have the capacity to know right from wrong and exercise a choice to act because of the psychotic affects of his schizophrenia at the time.

The Emergence of Mental Illness in Mothy Chheng [ 72 ] At the time of the assessment, Mothy Chheng was 29 years old and, by then, had been at Ontario Shores Forensic Rehabilitation Unit for four to five months on a “keep fit” order. He was being treated with olanzapine and Cogentin with no reported side effects. Prior to his arrest, he was living with his cousin’s family in Bradford. [ 73 ] Dr. Woodside detailed Mr. Chheng’s history from the collateral material and his interviews with Mr. Chheng. It is important to set out that history because it illustrates the emergence and progression of Mr.

Chheng’s mental illness. [ 74 ] Mothy Chheng was born on January 3, 1991 in Toronto and raised there. His parents divorced when he was 6 years old. He had very little contact with his father who passed away in 2016 or 2017. He has one older brother who he has had limited contact with. His mother stopped working when he was about six years old due to her feeling “sore”. The family was supported through welfare and then she received disability. [ 75 ] Mr. Chheng was described by family as a quiet child. He described himself as shy but had a “normal” number of friends growing up.

He was active in sports, played basketball and volleyball on school teams and hockey for fun. When asked during the assessment if he had any interests or hobbies, he said he had none. In the three years prior to the

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