R v Moss, 2023 ABKB 258

Court of King’s Bench of Alberta Citation: R v Moss, 2023 ABKB 258 Date: 20230428 Docket: 200506103Q1 Registry: Edmonton Between: His Majesty the King Crown - and - David Michael Moss Accused _______________________________________________________ Decision of the Honourable Justice S.N. Mandziuk _______________________________________________________

Table of Contents I. INTRODUCTION .. 3 II. EVIDENCE .. 3

A) Admitted Facts . 3

B) Witnesses . 5

C) Mr Moss’s Background & Health Issues . 5

D) Mr Moss’s Marriage . 6

E) Mr Moss’s Cannabis Use . 6

F) Mr Moss’s Spiritual Beliefs . 7

G) The “Awakenings” . 8

H) Events Leading up to the Alleged Offence . 9

I) The Alleged Offence . 10

J) Post-Arrest Events . 11 III. THE PARTIES’ POSITIONS . 13

A) Defence Position . 13

B) Crown Position . 13 IV. ANALYSIS . 13

A) Background and Statutory Regime: S 16 of the Criminal Code . 13

B) Stage One: Mental Disorder 14 1) The Law .. 14 2) Expert Evidence . 16 3) Analysis and Conclusion on Stage One . 28

C) Stage Two: Nature and Quality of the Act & Moral Wrongness . 30 1) The Law .. 30 2) The Evidence . 31 3) Analysis and Conclusion on Stage Two . 32 V. SECOND-DEGREE MURDER OR MANSLAUGHTER? . 32 1) The Law .. 32 2) Analysis and Conclusion on Second-Degree Murder or Manslaughter 33 VI. DISPOSITION .. 37 I. INTRODUCTION [ 1 ] The Accused, David Michael Moss (Mr Moss) is charged with second-degree murder under s 235(1) of the Criminal Code of Canada , RSC 1985, c C-46 ( Criminal Code ).

[ 2 ] On May 18, 2020, Mr Moss killed 7-year-old Bella Rose Desrosiers (Bella) by slashing and repeatedly stabbing her throat with a pair of 8-inch-long blade scissors. Bella’s mother, Melissa Desrosiers (Ms Desrosiers) was present during the entire event.

Bella’s 4-year-old sister, Lily Desrosiers (Lily), was in the home as well. [ 3 ] Mr Moss argues that pursuant to s 16 of the Criminal Code , he is not criminally responsible for Bella’s death because he was suffering from a mental disorder that rendered him, at the time of the alleged offence, incapable of appreciating the nature and quality of the act or of knowing that it was wrong. [ 4 ] In the alternative, if a finding that Mr Moss was not criminally responsible due to a mental disorder (NCR) is not available on the evidence, Mr Moss asks the Court to find him guilty of manslaughter instead of second-degree murder. [ 5 ] I read a

summary of this decision in open Court and then provided this written and filed decision to counsel shortly afterwards. This is in accordance with the directions in R v Lawrence , 2020 ABCA 268 at paras 21 – 22 . II. EVIDENCE

A) Admitted Facts [ 6 ] Pursuant to s 655 of the Criminal Code , the Crown and Defence counsel entered an Agreed Statement of Facts into evidence at trial. [ 7 ] The following procedural admissions were made: (

a) Jurisdiction; (

b) Authenticity, accuracy, and admissibility of photographs taken by members of the Edmonton Police Service (EPS) during their investigation; (

c) Preservation, continuity, integrity, and containment of the crime scene located at 2504 – 43 street Edmonton, Alberta (the Desrosiers residence); and (

d) All exhibits. [ 8 ] Additionally, the other admitted facts are summarized as follows: (

a) Bella was born on November 3, 2012. She was 7 years old when she was killed by Mr Moss. According to the autopsy report (admitted for the truth of its contents), the cause of Bella’s death was sharp force injuries to her neck. (

b) The continuity of Bella’s body from the time she was transported to the Medical Examiners’ Office to the time of autopsy is not in issue. (

c) Mr Moss and Ms Desrosiers knew of each other in high school. Approximately a year prior to the alleged offence date, Mr Moss and Ms Desrosiers began a friendship when Ms Desrosiers used Mr Moss’s services to obtain a tattoo. (

d) Approximately 10 months prior to the alleged offence, Ms Desrosiers’ husband Ben committed suicide at the Desrosiers residence. Mr Moss provided Ms Desrosiers with a memorial tattoo. (

e) During the evening of May 18, 2020, Ms Desrosiers went to Mr Moss’s residence and invited him to the Desrosiers residence after he made comments that led her to become concerned that he may be suicidal. (

f) After picking up Mr Moss, Ms Desrosiers picked up Bella and Lily from Ms Desrosiers’ aunt’s residence. Mr Moss, Ms Desrosiers, Bella, and Lily arrived at the Desrosiers residence at approximately 6:37 PM. This was the first time that Bella and Lily had met Mr Moss. (

g) After arriving at the residence, Ms Desrosiers moved a butcher block of knives from the kitchen to her master bedroom closet out of concern that Mr Moss might harm himself. (

h) Mr Moss took a shower and went into the basement guest bedroom. (

i) Ms Desrosiers called her aunt to ask her to watch Lily and Bella so that Ms Desrosiers could take Mr Moss to the hospital. (

j) While Ms Desrosiers was putting Bella and Lily to bed in their bedroom, Mr Moss appeared in the doorway wearing only underwear and holding a pair of 8-inch-long blade scissors that he had found in the kitchen. (

k) Mr Moss pushed Ms Desrosiers aside, and slashed Bella’s neck with the scissors. He pulled Bella from the top bunk. Ms Desrosiers tried to push Mr Moss away from Bella but was unsuccessful. Ms Desrosiers received minor defence wounds on her arms, hand, and finger. (

l) Despite Ms Desrosiers’ attempts to fight off Mr Moss, Mr Moss dragged Bella’s body down to the living room, where he continued to cut Bella’s neck to the point of revealing her spinal column and almost decapitating her. (

m) After the attack, Mr Moss sat on a couch in the living room. Ms Desrosiers grabbed the scissors from Mr Moss and threw them outside. Ms Desrosiers attempted to render first aid, but Bella’s injuries were fatal.

(

n) Mr Moss was arrested at the Desrosiers residence by EPS personnel and transported to EPS Headquarters. (

o) While EPS forensic members were dealing with Mr Moss, Mr Moss made the following statements voluntarily: (

i) At 11:29 PM in response to being asked if he had any injuries, he said, “my fingers are cut.” When asked how they got cut, he said “it was a murder”; (ii) At 11:35 PM he made the unsolicited comment “Do you know why I did it, cause I fucking liked it”; (iii) At 11:55 PM he made the unsolicited comment “I had sex with my dog”; and (iv) At 11:57 PM he made the unsolicited comment “I was sexually abused by my cousin”. (

p) On May 23, 2020, EPS personnel collected Mr Moss’s urine sample, which tested positive for the presence of cannabis marijuana (cannabis).

B) Witnesses [ 9 ] At the trial, the Court heard viva voce evidence from the following witnesses: (

i) Tracy Couture-Starosta (Ms Couture-Starosta), Mr Moss’s spouse; (ii) Apryl Michelle Pfunder (Ms Pfunder), Mr Moss’s biological older sister; (iii) Ms Desrosiers; (iv) Christopher Anthony Stewart (Mr Stewart), Ms Desrosiers’ brother-in-law; (

v) Felistas Takawira (Ms Takawira), registered psychiatric nurse with the Police and Crisis Team (PACT); (vi) EPS officer Bruce McGregor (Cst McGregor); (vii) EPS officer Natasha Brinkmann (Cst Brinkmann); (viii) Four expert witnesses: a. Dr Marc Nesca; b. Dr Thérèse Chevalier; c. Dr Andrew Haag; d. Dr Maryana Kravtsenyuk; and (ix) Mr Moss. [ 10 ] I will now review the evidence given by the various witnesses at trial. I will discuss the findings of the expert witnesses later in this decision.

C) Mr Moss’s Background & Health Issues [ 11 ] At the time of the alleged offence, Mr Moss was thirty-four years old. He was raised by his mother and father, and has an older sister, Ms Pfunder. Ms Pfunder confirmed that she and Mr Moss experienced some verbal and physical abuse while growing up. The family lived in the High Level area and moved to Holden when Mr Moss was about eight years old. Mr Moss had difficulties in school, particularly with language and speech. When Mr Moss was in junior high, he was placed in a special reading and comprehension class. Mr Moss did not finish high school.

He was expelled at age seventeen and never returned. He moved to Edmonton with his cousin to work as a sider. [ 12 ] On March 20, 2004, when Mr Moss was eighteen years old, he suffered a traumatic brain injury when he was hit on the head with a rock. He underwent brain surgery and was discharged on March 31, 2004. Mr Moss had dysphasia and memory problems when he was discharged. Between April 2004 and March 2005, Mr Moss was enrolled in several rehabilitative programs as an outpatient at the Glenrose Rehabilitation Hospital in Edmonton (Glenrose).

His last follow-up medical appointment for his brain injury was in 2006. [ 13 ] Ms Pfunder testified that after Mr Moss’s brain injury he became more withdrawn, struggled with bouts of depression, and was occasionally suicidal. [ 14 ] Mr Moss suffered three seizures after the brain surgery. He was prescribed anti-seizure medication. Mr Moss had an aversion to taking medication and sometimes he would not fill his prescriptions. He chose to stop taking the anti-seizure medication.

His last seizure was in 2009, which occurred after Mr Moss had consumed cocaine. [ 15 ] Mr Moss struggled with anxiety, depression, and sleep at various times throughout his adult life. In January 2015, Mr Moss was suffering from depression and anxiety. He was not on any medication at the time. After being treated in hospital, he enrolled in an outpatient psychiatric program at the Grey Nuns Hospital from April 7 to June 19, 2015.

[ 16 ] On February 19, 2019, Mr Moss saw a neurologist after experiencing muscle twitching and shaking. Mr Moss also began experiencing sleeping issues around this time. He quit his job and remained unemployed until he and Ms Couture-Starosta opened their tattoo shop in 2019. [ 17 ] On March 19, 2019, Mr Moss had a breakdown. While crying, he told Ms Couture-Starosta that he had not been sleeping, had ringing in his ears, and had been thinking about killing her and the children. Ms Couture-Starosta took Mr Moss to the hospital. Mr Moss was prescribed sleep medication, which he took for a couple of months.

D) Mr Moss’s Marriage [ 18 ] Mr Moss met Ms Couture-Starosta in 2005, about a year after his brain injury. They got married and have four children together. The eldest was born in 2005 and the youngest in December 2018. [ 19 ] When Mr Moss and Ms Couture-Starosta opened a tattoo shop in 2019, they were having marital difficulties. The COVID pandemic led to the closure of the tattoo shop as of March 14, 2020. Marital difficulties between Mr Moss and Ms Couture-Starosta continued and Mr Moss talked about separating. By May 2020, the couple were sleeping in separate bedrooms.

Mr Moss was alone in his bedroom a lot, and Ms Couture-Starosta had come to feel that Mr Moss was self-centered and only cared about himself. On May 3, 2020, Mr Moss told Ms Couture-Starosta that he wanted to move out of the marital home. For the next few weeks, Mr Moss told Ms Couture-Starosta that he was looking for his own place.

E) Mr Moss’s Cannabis Use [ 20 ] Mr Moss began using cannabis when he was about 10 or 11 years old. The intensity of his cannabis consumption waxed and waned over the years. By age 15 he was smoking about five puffs from a cannabis joint, one to three times per day, every day. This level of consumption continued when he moved to Edmonton at age 18. [ 21 ] By age 20, Mr Moss was smoking about one cannabis joint a day. After his first child was born, his cannabis use decreased, but then his cannabis use went up and down after this time.

At some point Mr Moss obtained a medical marijuana license to treat his anxiety. In the two years prior to the offense, Mr Moss started using vape pens to consume cannabis. Mr Moss testified that a puff from a cannabis-loaded vape pen was stronger than a puff from a cannabis joint. He consumed about three vape puffs of cannabis a day from the vape pen. [ 22 ] During the early days of the COVID pandemic, Mr Moss was drinking more than usual and smoking more cannabis.

Mr Moss’s cannabis consumption went from two or three puffs from a vape pen per day to up to 10 puffs (a couple of puffs three or four times a day). [ 23 ] Cannabis use was addressed by the experts who met with and treated Mr Moss after the offense. During his interviews with Dr Kravtsenyuk and Dr Haag, Mr Moss said that when the COVID pandemic started, he was consuming ten puffs of cannabis per day.

In the five days prior to the alleged offence, Mr Moss said that he stopped using cannabis because he was having an “awakening.” Mr Moss told Dr Kravtsenyuk and Dr Haag that cannabis had been making him paranoid though he did not remember those conversations at trial. At trial, Mr Moss said that cannabis would sometimes make him feel paranoid and he would start pacing, but also that cannabis made him feel happy and at ease. [ 24 ] Mr Moss’s use of cannabis was corroborated by other witnesses at trial.

Ms Couture-Starosta testified that Mr Moss was always a cannabis user and at times a heavy user, but consumption levels varied over time. Ms Couture-Starosta testified that in 2017, Mr Moss stopped consuming cannabis completely, but resumed using it in 2019 after it became legal. She confirmed Mr Moss’s use of vape pens. She also said that sometimes when Mr Moss was on cannabis, particularly edibles, he would trip out, become paranoid, pace, and seem afraid. The COVID pandemic changed things. Mr. Moss’s cannabis consumption increased.

Prior to the COVID pandemic, Mr Moss would smoke cannabis at bedtime, but once the COVID pandemic started, he would also smoke cannabis during the day. [ 25 ] Mr Moss’s cannabis use was also corroborated by Ms Pfunder. She confirmed that Mr Moss had a medical marijuana license. She had seen Mr Moss smoke cannabis and believed he used it regularly, perhaps every day.

She did not see Mr Moss impaired from cannabis consumption, but she did have a conversation with Mr Moss about two weeks before the alleged offence where Mr Moss told Ms Pfunder that cannabis was making him “trip out.” Ms Pfunder was not able to say how much cannabis Mr Moss smoked after 2018. Up until 2018 she saw Mr Moss and his family reasonably often, but from 2018 to 2020, she had less in person contact with them due to her own health issues. During this time, she and Mr Moss talked on the phone and kept in contact through Ms Couture-Starosta.

F) Mr Moss’s Spiritual Beliefs [ 26 ] Mr Moss grew up in a somewhat spiritual home and had a longstanding interest and belief in a variety of spiritual practises. Over the years he has believed in guiding angels, the meaning of dreams, numerology, and psychics. His mother believed in some of the same things as well as crystals and their power. Ms Pfunder confirmed that she and Mr Moss grew up in a religious home and attended bible camps and clubs when they were young.

As they got older, crystals, new age healing practises, and meditation were a part of their home life. [ 27 ] Mr Moss was keenly interested and engaged in various conspiracy theories, including 5G contamination, illuminati, vaccine and other government conspiracies, aliens and alien abduction, toxic jet streams and power lines poisoning the population, and the presence of ghosts. He studied these topics with great intensity, particularly with the onset of the COVID pandemic in March 2020.

Ms Pfunder testified that Mr Moss’s engagement with conspiracy theories and arcane beliefs began one to three years after his brain injury. [ 28 ] Ms Couture-Starosta also testified about Mr Moss’s beliefs, which she did not share. She testified that Ms Pfunder and Mr

Moss’s mother shared some of the same beliefs as Mr Moss. Mr Moss believed in numerology, hexes, signs, and crystals at different times. Mr Moss’s beliefs became more entrenched after the tattoo shop closed in March 2020. He would watch internet videos and television shows, which further entrenched his beliefs. Ms Couture-Starosta was never particularly concerned about Mr Moss’s belief in conspiracy theories.

G) The “Awakenings” [ 29 ] Mr Moss believed that he was going through an awakening during the five or so days prior to the alleged offence. Mr Moss had experienced “awakenings” before May of 2020. From the evidence, these “awakenings” had the following characteristics: (

a) In a social media post on May 14, 2020, Mr Moss described an awakening: (

i) God is a feeling and/or emotional state. God’s love and the feeling of awakening are the same thing. He could not explain it to someone, but it is unconditional love, enlightenment, clarity, and respect and love for everything and everyone, even those who have wronged him; (ii) Sometimes it includes a feeling of physical vibrations that runs though his body and/or a tingling, accompanied by an insight of knowing something is the truth.

It is comparable to a lie detector buzzing off to say, “yes, what you are feeling is right”; (iii) He cries because he is grateful for the confirmation and connectedness he is receiving, releasing anything holding him back, and being free of fear; (iv) He sees signs and messages everywhere, and he must be open and aware to receive them. He has vivid dreams that inform his waking life. He feels like he is tapping into a higher consciousness; (

v) Those who are asleep try to discourage him and will have feelings of jealousy and resentment because they lack connection. There are other distractions that work to keep him out of his awake state. Fear, which is also the devil, is an emotional state that can influence and entice you; (vi) He associates all negative emotion that is not love with “being asleep.” Being asleep drains his gifts, talents, and psychic abilities, exacerbates his mental health issues and anxiety, and puts him in a state of fear.

"Being awake” is the opposite; (vii) To understand true love and/or awakening is seeing through a veil of fear and know your true potential. There is no growth without suffering. Traumas are a tool to wake a person up and to help them see the other side of fear. He is destined to hurt others so they can love themselves. (

b) Mr Moss knew things that no one else knew. He believed that he crossed from the physical world to the spiritual world. The physical world was not real. It was like an illusion. (

c) Mr Moss had to hurt people to help with their ascension, or to help them attain a higher level of spirituality. For example, when Mr Moss was his higher self, he was able to tell Ms Couture-Starosta that he cheated on her, but he could not tell her when he was his lower self. He needed to hurt Ms Couture-Starosta to help with her ascension and his own. (

d) Mr Moss felt like his actions were preordained and nothing was a coincidence. He also thought that everything he thought about would happen. [ 30 ] Ms Couture-Starosta testified that Mr Moss had talked about awakenings prior to May 2020. Mr Moss would write a lot, post things on social media, and send people things. Mr Moss said awakenings were in the spiritual realm so he would not need food, sleep, cannabis, sex, or anything else. When Mr Moss was in the awakening in May 2020, he was very kind. When Mr Moss was not in the awakening, he was angry, mean, and short with people. [ 31 ] Mr Moss testified that a few months after the alleged offence he stopped believing in awakenings.

H) Events Leading up to the Alleged Offence [ 32 ] Mr Moss testified that he had some memories of the days surrounding the alleged offence, but it was kind of hazy. He had difficulty talking about the events and did not remember everything. He barely remembered his interview with police. He had a few memories of the conversations he had with Dr Haag and Dr Kravtsenyuk but could not remember details. [ 33 ] In April and May 2020, Mr Moss began telling others that he was having a “Kundalini” spiritual awakening. He sent several texts to Ms Couture-Starosta, Ms Pfunder, and others.

Mr Moss told Ms Pfunder that he was planning to leave his marriage, did not feel loved, was lonely, and was looking for his own place. Mr Moss also told Ms Pfunder about his awakening. Mr Moss testified that was focused on clock numbers and looking for signs of an awakening. He told Ms Couture-Starosta that he no longer needed cannabis, sex, food, or sleep. He described feeling like there was a physical world and a spiritual world, the former of which was not real and an illusion. Mr Moss also described rapid personality changes.

He believed he was injecting people with fear when he tattooed them and that one of his tattoo customers was a witch. Mr Moss increased his cannabis consumption slightly, taking a couple of puffs three to four times a day. [ 34 ] Around May 15, 2020, Mr Moss again had feelings of an awakening, so he stopped using cannabis. On May 16, 2020, Mr Moss told Ms Couture-Starosta that he was back in reality and that his awakening had ended. Mr Moss seemed angry. [ 35 ] On May 17, 2020, Mr Moss told Ms Couture-Starosta that he had been sexually abused and had numerous affairs during their relationship.

After Mr Moss revealed his extra-marital affairs to Ms Couture-Starosta, Ms Couture-Starosta was distraught and left the

house. Mr Moss testified that he believed that truth-telling was part of the awakening. He experienced a physical tingling sensation when something was true or when an answer was yes. Later that day, Mr Moss told Ms Couture-Starosta that he had more people that he needed to hurt to help with his ascension, and that he had sexually abused his cousin. Mr Moss went to the tattoo shop and laid on a mattress. He heard a lady singing and was in contact with his dead grandfather.

He experienced feelings like his soul was coming out of his chest and he was hearing “gnomes and stuff like that.” He described being in the spiritual realm not the physical realm, hallucinating about elves and fairies laughing at him and a little girl waving, seeing demons, and hearing a voice say, “it is time to suffer.” He left the shop and tried to find the mother of his cousin whom he had sexually abused but was unsuccessful. [ 36 ] Just after midnight on May 18, 2020, Mr Moss sent a text message to Ms Couture-Starosta asking where the sleeping pills were and for her help.

He testified that he wanted to go to the hospital because of what had happened at the tattoo shop. Ms Couture- Starosta gave Mr Moss the PACT numbers and told him to call. Mr Moss told her the numbers were busy, but when Ms Couture- Starosta called, she got through. She also told him where the sleeping pills were. [ 37 ] Later in the morning of May 18, 2020, Mr Moss texted and called Ms Desrosiers and told her about his awakening.

Ms Desrosiers is a registered nurse. [ 38 ] Mr Moss also called Ms Couture-Starosta and calmly said he was going to do one of two things: either kill himself or go to jail for a very long time for murdering her. Ms Couture-Starosta called PACT. The PACT members (Csts McGregor and Brinkman and registered psychiatric nurse Ms Takawira) arrived at Mr Moss’s home at approximately 2:00 PM. The officers kept their distance while Ms Takawira conducted her assessment. Mr Moss appeared to be candid with Ms Takawira. Ms Takawira felt that Mr Moss was presenting as logical and calm.

She did not document anything related to paranoid thoughts or responding to unseen stimuli. She noted that Mr Moss discussed being in the spiritual realm but that he did not feel that anymore, he was no longer thinking of harming his wife, and although he had suicidal thoughts, he had no plans to act on them. She also noted that Mr Moss told her he had not used cannabis for five days, but was inconsistent about his sleeping, saying he had not slept in two days and also that he had just woken up.

Ms Takawira did not believe there were grounds to apprehend Mr Moss pursuant to the Mental Health Act , RSA 2000, c M-13 ( MHA ). Neither of the officers felt they had grounds for apprehending Mr Moss, neither saw any strange behaviour from Mr Moss, and neither expressed any safety concerns. Ms Takawira set up the appointment for Mr Moss to see a psychiatrist at 4:00 PM that day. [ 39 ] Mr Stewart and Ms Desrosiers also came to the home. Mr Stewart testified that he was present during the PACT assessment.

Mr Moss did not remember if that was the case, but he did remember that Mr Stewart offered him cannabis, which he refused, and that he asked Mr Stewart to leave because Mr Stewart was interfering with the awakening. Mr Stewart testified that he heard Mr Moss answer the PACT members questions coherently and admit to the PACT members that he had a thought of killing his wife. Mr Moss told Ms Desrosiers that people were there but not there, that he knew why Ben had committed suicide, and that Ben’s suicide was related to an awakening and ascension.

Mr Moss also told Ms Desrosiers that murder is a good thing because it helps people ascend. Ms Desrosiers believed Mr Moss was out of touch with reality. Mr Moss told Ms Pfunder, Ms Couture-Starosta, Mr Stewart, and Ms Desrosiers that he had not eaten in five days. Mr Moss told Mr Stewart that he would not attend the psychiatrist appointment and told Ms Takawira that he did not attend because he had changed his mind.

I) The Alleged Offence [ 40 ] Mr Moss did not attend the 4:00 PM psychiatric appointment. Ms Couture-Starosta and Ms Desrosiers were aware of this and discussed taking Mr Moss to the hospital. Ms Desrosiers went to Mr Moss’s home and stayed for about an hour. Mr Moss told her that he had not slept or eaten in some time. Mr Moss talked about the awakening, expressed some interest in going to the hospital, but changed his mind. Mr Moss agreed that he should not be left alone.

Mr Moss testified that when Ms Desrosiers hugged him before taking him to the Desrosiers residence, he began “picking up the energies of Ben.” [ 41 ] Ms Desrosiers took Mr Moss with her to pick up Bella and Lily, then to the Desrosiers residence. When they arrived at the Desrosiers residence, Mr Moss saw the garage, which was where Ben had committed suicide. He had a shower, then laid on a bed in the basement bedroom. While he was lying down, Mr Moss testified that he got “...like, this feeling of, like -- I thought there was, like, a snake in my -- my back.

Like, an energy snake, and it was, like -- I kept feeling this -- keep going, running down my spine” coming from Ben or the devil and that “Ben wanted me to do it . . . [k]ill Bella . . . [s]o he could ascend” with Bella. Mr Moss also thought that Melissa wanted to have sex with him, but then he heard Ben’s voice saying, “yeah, nice try.” [ 42 ] Mr Moss testified that this prompted him to go upstairs. When asked what was going on in his mind, he said, “I didn't really have any feeling or anything like that.” Mr Moss testified that he searched for and found the scissors in a drawer.

He did not know why he was looking for scissors and said he did not “really remember” what he did after he got them. [ 43 ] Ms Desrosiers was preparing Bella and Lily for bed. Mr Moss entered the room unseen. Ms Desrosiers heard Mr Moss say, "I am doing this for Ben" right before he began the attack on Bella.

When Mr Moss was asked what he remembered about the killing, he stated, “I went up to the stairs, and I cut Bella's throat.” He testified that he was thinking about Ben and Bella, but at the same time he “didn't think it was real” and that “it was, like, a game or something or like a screened memory or something like that.” Mr Moss testified that he remembered fighting with Ms Desrosiers, that she was “just, like, biting me and stuff.” Mr Moss testified that he did not remember taking Bella from the bedroom.

After Bella was killed, Mr Moss sat on the living room couch staring. [ 44 ] Mr Moss remembered being taken away by police and being in jail. Mr Moss described his mind being “blank” while he was in the police vehicle, and that he did not know where he was once he was in police custody. When asked what he thought about what happened to Bella, he said, “I didn't even really know -- like, it didn't even really make sense.” Mr Moss testified that he was not “sure” about the ascension, and that he was not taking any medications at the time he was arrested for Bella's murder.

J) Post-Arrest Events [ 45 ] After Mr Moss was photographed by EPS forensic members, Mr Moss was interviewed by Det Zalaski. During the interview,

Mr Moss made the following statements: • He had an awakening and realized that everything in this reality was actually not real. Everything is an illusion or a screen memory. Bella’s death is an illusion. He knows it’s not real. People create their own reality. We are living in a fear-based reality. Reality is fear-based. Everybody on the planet is living in fear. • Childhood traumas and his break-up with his wife are what sparked the awakening. It started about five days prior. Now, he is getting sucked back into reality/the illusion. • The awakening is like psychosis. People get scared and back out.

That’s what causes schizophrenia and mental illness. Psychosis is on the physical level. On the spiritual level it is a spiritual awakening. • We live in a physical world and there is another world – a spiritual realm. The physical world and the spiritual realm intertwine. In the spiritual realm, there is peace, no time, and you don’t have to eat or drink. People in the physical world are sleeping. People in the spiritual realm are awake. Everybody’s soul journey is to release fear and become awake.

That is the whole point. • The reason why people who experience awakening kill is because they have to play out their fears that they create in real time. If you don’t play out your fears, you are stuck in the mundane. People have trauma and the only way to release their trauma and to ascend is to play out their fear. He had to play out his fears to ascend. One of his fears was getting murdered. He will either kill himself or get murdered. If he kills himself, it means that he will have failed. • When a person ascends, their soul breaks free out of their body.

All the things that a person has done in their lifetime and the traumas they have experienced have to be released. That is the only way a person can ascend. The ego is everything you ever held on to. He had to release his ego. His ego got stripped, but his soul has not been released. His soul was tired, and he could not hold on. He was not able to make it because he was still holding on to fear. • He is in hell right now. He will release the people from the devil’s contract. It is a huge sacrifice. He must sacrifice himself like Jesus did. Whatever he feels from the devil he must play out.

He was told to do all these things. He must suffer. He will suffer for telling all this information. Telling will have consequences. • Everything is already preordained. It is hard for people on the lower dimension to understand; he had knowledge and intuitions. He was meant to come to jail. Ms Desrosiers was meant to come and see him. It was all destined to happen. • He was getting intuitions about Ben suffering in hell. Ben was going through an awakening at the time before he killed himself. Ben could not come to terms with what he had to do. Ben wanted him to act out what Ben was too afraid to do.

Ben killed himself because he could not handle it and was too afraid. Ben and Bella are together in the spiritual realm. By killing Bella, he released Ben. He did not want to do it. It was a selfless act for Ben. • He murdered Bella with a pair of scissors. He slit her throat. The intuition was to slice her throat. He did it so that Ms Desrosiers could awaken from that trauma so she could have a chance to ascend. Killing Bella was also for Bella’s growth and ascension. He felt adrenaline when he committed to doing the act. • If he did not kill Bella, he would not ascend. He had to try and create his fear.

He was chosen because he’s a strong soul that can create. [ 46 ] On May 20, 2020, while at the Edmonton Remand Centre (ERC), Mr Moss attacked a nurse and attempted suicide by wrapping a sheet around his neck.

Mr Moss was certified under the MHA and transferred to the Alberta Hospital Edmonton forensic psychiatric unit (Alberta Hospital). [ 47 ] In the days immediately after the alleged offence, Mr Moss engaged in several instances of self-harm while at ERC and Alberta Hospital, including launching himself into the window of his room, tying a sheet around his neck, stuffing food down his throat in an attempt to choke himself, and banging his head, which resulted in concussion and a small brain bleed. Mr Moss also attempted to remove his teeth.

At trial, Mr Moss explained that he did this because his teeth were keeping him from ascending. Mr Moss also told his family that he was being experimented upon, was the subject of mind control, was in a game, was receiving telepathic messages from guards was hearing voices telling him to self-harm, that he was going to be shot, and that he would be raped by forty demons. Mr Moss also heard his wife tell him to jump out the window. [ 48 ] Mr Moss’s psychosis symptoms continued until June 24, 2020, approximately one month after the alleged offence.

Ms Pfunder testified that it took two to three months after the alleged offence for her to have "a normal conversation" with Mr Moss. Approximately two months after the alleged offence, Mr Moss stopped believing in the various conspiracies except vaccine conspiracies. Mr Moss claims to continue to hear voices. III. THE PARTIES’ POSITIONS [ 49 ] Both parties agree that Mr Moss was suffering a psychosis at the time of the alleged offence. However, they disagree as to the cause of that psychosis.

A) Defence Position [ 50 ] Defence counsel argues that Mr Moss is not criminally responsible for Bella’s death. Pursuant to s 16 of the Criminal Code , Defence counsel submits that Mr Moss has proved on a balance of probabilities that at the time that he killed Bella,

(1) Mr Moss suffered from a mental disorder caused by a disease of the mind arising from the 2004 brain injury, and (2) due to the mental disorder, Mr Moss was incapable of appreciating the nature and quality of his actions or of knowing his actions were morally wrong.

[51] Defence counsel submits that at the time of the attack on Bella and due to his mental disorder, Mr Moss believed the physicalworld was an illusion which did not have real people in it, and therefore Bella’s killing was not real and part of the illusion. Mr Moss didnot want to kill Bella. Rather, he did so as a selfless act, which means that due to his mental disorder, Mr Moss believed that what he wasdoing was morally right.

Further, Mr Moss was not able to appreciate and perceive that he was doing something to a real person and notan illusion. [52] In the alternative, the Defence argues that the Crown has not proved beyond a reasonable doubt that Mr Moss is guilty ofsecond-degree murder. Defence counsel submits that Mr Moss lacked the requisite intent and should therefore be convicted ofmanslaughter instead of second-degree murder.

B) Crown Position [53] The Crown argues that Mr Moss has not discharged his burden to prove, on a balance of probabilities, that his psychosis wascaused by a disease of the mind. The Crown submits that it was not the 2004 brain injury that led to Mr Moss’s mental disorder. Rather,Mr Moss had drug-induced psychosis from a lifetime of cannabis consumption.

Even if this Court finds Mr Moss was suffering from adisease of the mind that was not caused by a drug-induced psychosis, the Crown submits that Mr Moss was nonetheless capable ofappreciating the nature and quality of his acts and knowing that his actions were morally wrong. [54] The Crown argues that the evidence proves beyond a reasonable doubt that Mr Moss had the requisite mens rea to be foundguilty of second-degree murder. IV. ANALYSIS

A) Background and Statutory Regime: S 16 of the Criminal Code [55] Sections 16 and 672.34 of the Criminal Code provide the statutory framework for the defence of NCR: 16

(1) No person is criminally responsible for

an act committed or an omission made while suffering from a mental disorder thatrendered the person incapable of appreciating the nature and quality of the act or omission or of 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 of subsection(1).

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on theparty that raises the issue. 672.34 Where the jury, or the judge or provincial court judge where there is no jury, finds that an accused committed the act or made theomission that formed the basis of the offence charged, but was at the time suffering from mental disorder so as to be exempt fromcriminal responsibility by virtue of subsection 16(1), the jury or the judge shall render a verdict that the accused committed the act ormade the omission but is not criminally responsible on account of mental disorder. [56]

Section 16 of the Criminal Code limits punishment to those individuals who knowingly act in a blameworthy manner: R vLindsay, 2016 ABQB 251 at para 8. A verdict of NCR upholds two policy elements: (

a) morally innocent offenders should receivetreatment instead of punishment, and (

b) the public must be protected from criminal behavior: R v Bouchard-Lebrun, 2011 SCC 58[Bouchard-Lebrun] at para 52. [57] The NCR analysis has two elements. The first involves a determination of whether an accused was suffering from a mentaldisorder at the time that the offence was committed. If so, then the second element involves a determination of whether that mentaldisorder caused the accused to be incapable of appreciating the nature and quality of the act or knowing that it was morally wrong. Bothelements must be satisfied: Cooper v R, (SCC), [1980] 1 SCR 1149 [Cooper] at p 1159.

An accused is presumed to notsuffer from a mental disorder so as to be exempt from criminal responsibility until the contrary is proved on the balance of probabilities:Criminal Code s 16(2). A balance of probabilities means that the evidence must be sufficiently clear, convincing, and cogent to establishthat it is more likely than not that the alleged elements exist: FH v McDougall, 2008 SCC 53 at paras 46 and 49. [58] In this case, it is Mr Moss who has raised the defence of NCR.

Therefore, Mr Moss has the burden of proving that it is morelikely than not that he was suffering from a mental disorder that prevented him from appreciating the nature and consequences of hisactions or knowing that they were wrong: Criminal Code s 16(3). At the first stage, Mr Moss must “characterize” his mental state at thetime of the act. At the second stage Mr Moss must prove the effects of the mental disorder as it relates to his appreciation and knowledgeof the act and its wrongness: Bouchard-Lebrun at para 56.

B) Stage One: Mental Disorder [59] Since there is no issue that Mr Moss was suffering from psychosis at the time that he killed Bella, the question is whether thatpsychosis was caused by a mental disorder as contemplated by the Criminal Code. 1) The Law [60] A mental disorder is defined in s 2 of the Criminal Code as “disease of the mind.” The term “disease of the mind” is notcapable of precise definition. It is a legal term, not a medical term. It contains a substantial medical component and a legal or policycomponent: R v Rabey, (ON CA), [1977] 17 OR (2d) 1 (CA) [Rabey]; aff’d (SCC), [1980] 2 SCR 513

at p 12. A “disease of the mind” embraces any illness, disorder, or abnormal condition that impairs the human mind and its functioning.It does not include self-induced states caused by alcohol or drugs, or transitory mental states such as hysteria or concussion: Cooper at p1159. The concept is broad and embraces mental disorders of organic and functional origin, whether curable, temporary or not, recurringor non-recurring: Rabey at p 14. [61] The opinions of medical witnesses as to whether an abnormal mental state does or does not constitute a disease of the mind arenot determinative.

It is for the Court to determine what mental conditions are included within the term “disease of the mind” and whetherthere is sufficient evidence that the accused suffered from an abnormal mental condition encompassed by that term: Rabey at p 13. [62] The following principles must be considered when determining whether a mental disorder exists: (

a) Whether a condition is a disease of the mind is a decision for the Court and is a question of mixed law and fact: Bouchard-Lebrun at para 61; R v Stone, (SCC), [1999] 2 SCR 290 [Stone] at para 197. (

b) Medical expertise is essential in reaching the legal conclusion about whether a mental condition is a mental disorder:Bouchard-Lebrun at para 61. Medical evidence is not binding on the Court since medical experts generally take no account of the policycomponent of the analysis required by s 16 of the Criminal Code: Bouchard-Lebrun at para 62. An expert’s opinion on the legal issueof whether the mental condition of the accused constitutes a mental disorder within the meaning of the Criminal Code has little or noevidentiary value: R v Luedecke, 2008 ONCA 716 at para 113; Bouchard-Lebrun at para 62. (

c) If the Court determines that the accused’s mental condition constitutes a mental disorder as defined in the Criminal Code,the Court must then determine if the accused was suffering from that mental disorder at the time of the offence: Bouchard-Lebrun atpara 61. (

d) Where there is an argument that the mental disorder is substance-induced, cases turn on their own facts: Bouchard-Lebrunat para 67. The Court should start from the general principle that temporary substance-induced psychosis is excluded from the definitionof mental disorder. This principle is not absolute, and can be rebutted by showing that, at the material time, the accused was sufferingfrom a disease of the mind that was unrelated to the intoxication-related symptoms: Bouchard-Lebrun at para 69.

To determine whetheran accused has discharged the burden of proof in this respect, the Court should take a holistic approach considering whether conduct wasinternally caused, whether the accused poses a continuing risk of danger to others, and whether policy factors count against classifyingthe accused’s condition as a “disease of the mind”: Bouchard-Lebrun at para 69; Stone at para 203 – 218; R v Longridge, 2018 ABQB145 at para 13. (

e) A malfunctioning of the mind that results exclusively from self-induced intoxication cannot be considered a “disease of themind” in the legal sense since it is not a product of the individual’s inherent psychological makeup: Bouchard-Lebrun at para 85. [63] The internal cause theory involves objectively comparing the accused with a normal person using psychiatric evidence: Stoneat paras 204 – 206. When considering the consumption of drugs or alcohol, what must be determined is the state a normal person mighthave entered after consuming the same substance in the same quantities as the accused.

If a normal person might also have reacted tosimilar drug use by developing toxic psychosis, it will be easier for the Court to find that the mental disorder of the accused was externalin origin and not a disease of the mind: Bouchard-Lebrun at para 72. [64] The continuing danger factor is directly related to the need to ensure public safety. Where a condition is likely to present arecurring danger, there is a greater chance that it will be regarded as a disease of the mind: Stone at para 212.

The Court must consider,among other factors, the psychiatric history of the accused and the likelihood that the condition could arise again independently of theexercise of the will of the accused: Bouchard-Lebrun at para 73.

A danger to public safety that might be voluntarily created by theaccused in the future by the consumption of drugs would not be the result of a mental disorder for the purposes of s 16 of the CriminalCode: Bouchard-Lebrun at para 74. [65] Policy factors must consider the specific circumstances of each case to determine if the mental condition of the accusedshould be included or excluded from the definition of “disease of the mind”: Bouchard-Lebrun at para 77.

Policy factors are not aclosed category and can include concerns about feignability and the repute of the administration of justice: Stone at para 220. [66] If, on the facts of the case, a pre-existing condition does not require any particular treatment and is not a threat to the public, itis likely that the accused did not suffer a “disease of the mind” at the time of the offence: Bouchard-Lebrun at para 75. [67] Both parties agree that if the cause of Mr Moss’s psychosis is cannabis-induced, Mr Moss will not meet the requirement thathe was suffering from a mental disorder when he killed Bella.

Psychosis arising from self-induced intoxication or withdrawal is exemptfrom a defence of NCR. Since Mr Moss has the burden of proof, Mr Moss must prove that he was suffering from a disease of the mindthat was unrelated to cannabis intoxication or withdrawal. 2) Expert Evidence [68] Four properly qualified experts testified and provided expert reports in relation to Mr Moss: (

a) Dr Marc Nesca, clinical and forensic psychologist: Dr Nesca was retained by Mr Moss to provide an opinion on the cause ofMr. Moss’s psychosis. Dr Nesca was called by the Defence; (

b) Dr Andrew Haag, forensic psychologist: Dr Haag prepared an independent court-ordered assessment of Mr Moss. Dr Haagwas called by the Crown; (

c) Dr Maryana Kravtsenyuk, forensic psychiatrist: Dr Kravtsenyuk treated Mr Moss while he was at Alberta Hospital. DrKravtsenyuk was called by the Crown;

(

d) Dr Thérèse Chevalier, neuropsychologist: Dr Chevalier conducted a neuropsychological assessment of Mr Moss at therequest of Drs Haag and Kravtsenyuk. Dr Chevalier was called by the Crown. [69] I am mindful that the factual basis upon which each expert based their opinions must be proved and what Mr Moss told eachof these doctors is hearsay. If the factual basis is not proved, no weight can be given to the expert’s opinion: R v Abbey, (SCC), [1982] 2 SCR 24 at pp 45 – 46. [70] In R v Neve, 1999 ABCA 206 at para 189, the Court sets out seven considerations when expert psychological or psychiatricevidence is called at trial: (

a) The qualifications and practice of the psychiatrist; (

b) The opportunity the psychiatrist had to assess the person, including length of personal contact, place of contact, role withongoing treatment, and involvement with the institution in which the person is a patient or prisoner; (

c) The unique features of the doctor-patient relationship, such as hostility or fear by the patient (or the psychiatrist) arisingfrom the personalities, the circumstances of the contact, and the role of the psychiatrist; (

d) Specifically, and precisely, what documents the psychiatrist had available and reviewed, for example, from earlier courtproceedings, institutional records, other medical consultations, or treatment; (

e) The nature and scope of consultations (this could include personal contact with third parties, information from other healthcare professionals, prison authorities, police, lawyers, family); (

f) Specifically, and precisely, what the psychiatrist relies on in coming to an opinion; and (

g) The strengths and weaknesses of the information and material that is relied on.

a) Dr Marc Nesca [71] Dr Nesca earned his PhD in clinical psychology from the University of Manitoba in 1997. Alongside his clinical practice, DrNesca worked in the field of forensic psychology until 2008. Since then, he has been teaching at Athabasca University where he iscurrently the head of the criminal justice program and the academic integrity officer. Dr Nesca has published in areas of crime andmental disorders, general psychology, dangerous offender applications, and the psychology of homicide. It is not clear whether thesepublications have been peer reviewed.

Dr Nesca has presented in the areas of risk assessments, NCR, and bail evaluations in stalking,domestic, and sexual violence. [72] Mr Moss was referred to Dr Nesca for a forensic assessment in relation to a potential NCR defence. Mr Moss consented to DrNesca’s assessment, which included limits to confidentiality. Mr Moss knew that he had the right to decline to participate in Dr Nesca’sassessment. Mr Moss chose to cooperate with Dr Nesca. [73] Dr Nesca interviewed Mr Moss on November 19 and 22, 2021 for a total of 6.5 hours. During that time, Dr Nesca conductedsome psychological testing.

Dr Nesca also interviewed Ms Couture-Starosta in April 2021 and Ms Pfunder in April and November 2021. [74] Dr Nesca reviewed the entire police file, which included police reports, video of Mr Moss’s interview with police, Mr Moss’spersonal writings, video of Mr Moss’s time in cells, and witness statements and video interviews taken by police. Dr Nesca alsoreviewed interview notes and raw data from testing conducted on Mr Moss when he was at Alberta Hospital. Dr Nesca did not reviewMr Moss’s pre-offence medical records.

Instead, he relied on the reports of Dr Haag, Dr Kravtsenyuk, and Dr Chevalier. [75] Dr Nesca relied on historical information contained in the reports of Drs Haag and Kravtsenyuk, and police statements fromwitnesses who did not testify in this proceeding. Dr Nesca also conducted a Personality Assessment Inventory (PAI) with Mr Moss. ThePAI is an omnibus test that provides objective information about mental health, aggressiveness, and general personality functioning, andincludes validity indices to assess patient cooperation. It is widely used in forensic and clinical settings.

Dr Nesca noted no concerns thatMr Moss attempted to over- or under-report symptoms. Dr Nesca found the PAI results to reveal moderately intense co-morbidsymptoms of anxiety and depression, including trauma symptoms and persistent thoughts of self-harm. The PAI also revealed a history ofdifficulty with conventional authority, defiance of common social mores, and some anti-social behaviour. Mr Moss did not display corefeatures of anti-social personality disorder or engrained criminal propensities.

Finally, the PAI revealed characterological vulnerabilitiesto negative affective states (particularly depression), impulse control deficits, and psychotic experiences, including altered contact withreality and bizarre thoughts with hallucinations and delusional beliefs. [76] Dr Nesca opined that Mr Moss developed schizophrenia-like psychosis (SLP) as a result of his traumatic brain injury in 2004.SLP is classified in the DSM-V as a psychotic disorder due to another medical condition, with Mr Moss’s 2004 head injury being the“other medical condition.” [77] In Dr Nesca’s opinion, the growth of symptoms that followed Mr Moss’s 2004 head injury followed an expected trajectorythat conforms to a certain type of mental illness that can follow a traumatic brain injury.

Dr Nesca concluded that Mr Moss suffered fromsymptoms of psychosis for several years prior to the alleged offence. Those symptoms continued to the date of the alleged offence andafterwards for some months. One to three years post-injury, the intensification of pre-existing, pre-injury difficulties such as depressionand anxiety started. The symptoms evolved to include paranoia and auditory and olfactory hallucinations. Mr Moss’s delusions includedawakenings, conspiracies regarding 5G and vaccines, and extra-terrestrials.

Dr Nesca concluded that due to SLP, Mr Moss believed hewas living in two worlds: a holographic world that was not real, and a spiritual world that inhabitants of the holographic world tried toreach. Mr Moss believed that he spent most of his time in a holographic world, and therefore experienced conventional reality as ahologram in which nothing was real, including people. This belief caused him to view the Victim and the violence that killed her asoccurring outside of conventional reality.

[ 78 ] Dr Nesca rejected the conclusion that Mr Moss’s psychosis could be attributed to cannabis consumption because of Mr Moss’s consistent minimal use of cannabis, lack of evidence of recent use immediately before the alleged offence, and the fact that Mr Moss was unaware that his hallucinations were due to cannabis use. Further, the persistence of psychosis even in the presence of medication was longer than one would expect from substance-induced psychosis.

Dr Nesca also dismissed cannabis withdrawal as the cause because of the lack of evidence of heavy use and abrupt cessation. [ 79 ] Dr Nesca also rejected the conclusion that Mr Moss was malingering. Dr Nesca reviewed the results from three tests administered to Mr Moss that assess malingering: the MMPI-2-RF administered by Dr Chevalier, and the M-FAST and SIRS-2 administered by Dr Haag.

Dr Nesca concluded that there was interpretive error in the MMPI-2-RF results, the SIRS-2 results were indeterminate, and the M-FAST should not be administered to head injury patients as it is known to create false positive results. [ 80 ] Dr Nesca’s opinion is based on the premise that Mr Moss used minimal amounts of cannabis. I do not agree with Dr Nesca that Mr Moss was using minimal amounts of cannabis. The evidence of Mr Moss’s cannabis consumption is mostly anecdotal and self- reported.

No toxicology evidence was led in relation to how much of the active ingredients of cannabis Mr Moss was consuming or what effect that might have on a normal person. However, the evidence shows that Mr Moss was using cannabis multiple times a day since his mid-teens. He switched from smoking to vaping cannabis, which Mr Moss testified resulted in a stronger dose of cannabis for each puff.

While Ms Pfunder testified that she never saw Mr Moss intoxicated by cannabis, Mr Moss testified that he felt the effects from the cannabis, in that it made him happy, he felt at ease, and sometimes it would make him paranoid. [ 81 ] Dr Nesca based his opinion on the premise that psychosis was present in Mr Moss before the alleged offence. However, there is no reliable evidence that Mr Moss had any psychosis prior to the date of the alleged offence.

Mr Moss talked about awakenings and his conspiracies before the date of the alleged offence, and displayed paranoid behaviour, but none of the witnesses testified that he had signs of delusional thinking prior to May 2020. Several witnesses testified to hearing Mr Moss express his beliefs in conspiracies and the like prior to May 2020, but Mr Moss was consuming cannabis daily when he expressed those beliefs. Mr Moss saw doctors for depression, anxiety, and other issues, and received some prescriptions, including anti-depressant/anti-anxiety and sleep aid medication.

Prior to May 2020, there is no record of any diagnosis of any psychosis or delusional thinking. The text messages prior to May 18, 2020 discuss awakenings, and are certainly strange, but I cannot conclude that they are evidence of psychosis. [ 82 ] Dr Nesca relied on information from Ms Pfunder about Mr Moss experiencing auditory hallucinations and paranoia that dated back to 2012 or 2013. Dr Nesca obtained this information from Ms Pfunder’s video recorded statement to police.

At trial, Ms Pfunder testified that after Mr Moss’s brain injury, Mr Moss experienced speech and memory problems, became more withdrawn, depressed, and anxious, and developed beliefs in conspiracies. Other than mentioning that in 2019, Mr Moss told her that he was hearing voices, she did not testify that Mr Moss had hallucinations or paranoia. I note that between 2018 and 2020, Ms Pfunder only saw Mr Moss twice and spoke to him only occasionally.

I also note that by 2019, Mr Moss had returned to consuming cannabis daily. [ 83 ] Dr Nesca also relied on information from Angela Moss, Carmelle Stewart, and Daisy Lamoureux. None of those individuals were called as witnesses in this trial. Ms Couture-Starosta testified about increasing paranoia from Mr Moss, but not about hallucinations. However, it is not clear whether Dr Nesca relied on Ms Couture-Starosta’s accounts when forming his opinion. Dr Nesca did rely on Ms Couture-Starosta’s report that in 2012, Mr Moss told her that he was hearing voices coming through the radio.

Ms Couture-Starosta did not testify to that at trial. [ 84 ] Dr Nesca assumed that Mr Moss decreased his use of cannabis after a lifelong pattern of almost daily use. Dr Nesca concluded that Mr Moss started using large quantities as a teen and then used less and less over time until he was using only “miniscule amounts” by the time period contemporaneous with the alleged offense. The evidence does not support those assumptions. The evidence does not support a consistent pattern of decreased usage up to the date of the alleged offence.

Mr Moss testified that his cannabis use increased and decreased at various times throughout his adult life. Ms Couture-Starosta testified that since she has known him, Mr Moss consumed cannabis regularly, aside from a period of abstinence in 2017 – 2019, and that Mr Moss’s cannabis consumption increased after COVID restrictions were imposed.

Mr Moss testified that after COVID restrictions were imposed, his cannabis consumption increased at minimum to three times what he had been consuming previously. [ 85 ] The literature that Dr Nesca relied upon to support his diagnosis of SLP indicates that SLP after a traumatic brain injury is relatively uncommon, was based on small sample sizes, and concluded that the onset occurred an average of 3.6 years post-injury.

If I were to accept that Mr Moss started exhibiting symptoms of psychosis in 2012, that is eight years after his brain injury, which is well outside the onset range of 2 – 5 years propounded in the literature. [ 86 ] Finally, Dr Nesca’s interactions with Mr Moss occurred 17 months after the alleged offence date and were brief in nature.

b) Dr Andrew Haag [ 87 ] Dr Haag earned his PhD in counselling psychology from the University of Calgary in 2005. Since 2000, Dr Haag has been working in the areas of forensic and clinical assessment, and psychotherapy. Since 2014, Dr Haag has been a psychologist in the forensic assessment unit of Alberta Hospital. Since 2018, he has been the director of forensic research for Alberta Health Services. Dr Haag has testified in numerous dangerous offender, long term offender, criminal responsibility, and fitness hearings.

He has published numerous peer-reviewed articles related to NCR and is currently doing ongoing research with Alberta’s NCR population. [ 88 ] Dr Haag was specifically retained to perform an independent court-ordered assessment to evaluate criminal responsibility for Mr Moss in relation to the charge before the Court. Mr Moss provided consent to and cooperated with Dr Haag’s assessments. Mr Moss understood that there was limited confidentiality involved and that Dr Haag would prepare reports for the Court as part of the assessment.

When Dr Haag first began meeting with Mr Moss, Mr Moss was agitated and could not tolerate a lengthy interview. As time went on, Mr Moss’s ability to tolerate longer interviews increased gradually. At times, Mr Moss expressed to Dr Haag that he thought Dr Haag was working against him. [ 89 ] Between June 24 and August 31, 2020, Dr Haag interviewed Mr Moss on seven occasions alone and twice more with Dr

Kravtsenyuk. At first, the interviews lasted no more than 30 minutes. As time went on, they gradually increased to an hour. [ 90 ] Dr Haag reviewed Mr Moss’s entire medical history from Alberta, prescription records, Alberta Hospital records, social work reports, psychological reports, court records, PACT report, bank statements, web search history, call logs, Facebook and text messages, and the entire police file, including the video of Mr Moss’s interview with police, police notes and reports, witness video interviews with police, and bail package.

Dr Haag’s review was extensive and detailed. [ 91 ] Dr Haag relied on information contained in the police file, Mr Moss’s health care records, his extensive interviews with Mr Moss, and his interviews with Ms Couture-Starosta and Ms Pfunder. Dr Haag did not view Mr Moss’s conspiracy theories to be related to the issue of Mr Moss’s criminal responsibility, but he did agree that some of Mr Moss’s beliefs as they apply to those conspiracy theories could border on psychotic. [ 92 ] Dr Haag did not factor malingering into his conclusions about criminal responsibility.

Dr Haag administered the M-FAST and SIRS-2 tests on Mr Moss, which assess the possibility of malingering or feigned psychiatric symptoms. The M-FAST results recommended additional testing, so Dr Haag administered the SIRS-2 test. The SIRS-2 results were indeterminate.

Dr Haag also considered the results of the MMPI-RF that was administered by Dr Chevalier to assess malingering but determined that the results were invalid. [ 93 ] Dr Haag relied on the fact that Mr Moss began consuming cannabis before the age of 15 and also suffered child abuse, which together can statistically increase the likelihood of a psychotic experience as a result of cannabis consumption.

Dr Haag put more weight on the absence of any medical documentation of psychosis prior to 2020 than he did on anecdotal information of Mr Moss reporting to Ms Pfunder and Ms Couture-Starosta that he was hearing voices. [ 94 ] Dr Haag opined that Mr Moss had the following diagnoses at the time of the alleged offence: • Persisting psychotic state secondary to cannabis intoxication or substance-induced psychosis from cannabis ingestion; • Cannabis withdrawal, which was evidenced by Mr Moss’s anger or aggression, anxiety, and sleep disturbances and the PACT report stating that Mr Moss appeared to be coming off something; • Significant stress and anxiety, which was not a DSM diagnosis but rather a reference to Mr Moss’s social functioning; • Traits of borderline personality disorder and anti-social personality disorder, but no diagnosis of either; • History of seizures, depression, and head injury; • Malingered psychotic symptoms, but no diagnosis of malingering; • Legitimate psychotic symptoms; • Attention-deficit/hyperactivity disorder, which was a historical diagnosis and confirmed by Dr Chevalier; • Mild neurocognitive disorder due to traumatic brain injury, which was diagnosed with the assistance of Dr Chevalier. [ 95 ] With respect to the primary diagnosis of substance-induced psychosis from cannabis ingestion, Dr Haag did not see Mr Moss in an intoxicated state, but found that Mr Moss’s symptoms at the time of the alleged offence fit within the diagnostic criteria found in the DSM-V.

Dr Haag relied on the following to inform his diagnosis: • One week prior to the alleged offence, Mr Moss told Ms Pfunder that cannabis was making him “trip out”; • Mr Moss told Mr Stewart that he had consumed cannabis five days prior to the alleged offence; • The PACT members did not find Mr Moss to be suicidal or to have plans to harm anyone. Although Mr Moss did not appear to be intoxicated, he did appear to be hungover or coming off something. Mr Moss told the PACT members that he had last consumed cannabis five days prior; • Mr Moss had been using cannabis daily since he was a teenager.

After the COVID shutdown (approximately two months prior to the alleged offence), Mr Moss’s cannabis consumption increased by at least three times; • There was no medical evidence of any psychosis prior to the alleged offence; • Once hospitalized, Mr Moss became progressively less psychotic with progressively decreasing amounts of anti-psychotic medication. [ 96 ] Dr Haag recognized that the literature on cannabis-induced psychosis indicates that the science is still new and that it is difficult to know whether a person would have developed psychosis without ingesting cannabis.

Dr Haag also recognized that Mr Moss’s pattern of consumption of cannabis in the days leading up to the incident did not fit precisely within the diagnostic criteria for substance-induced psychosis. Dr Haag further conceded that if Mr Moss was still showing psychotic symptoms after a prolonged period of abstinence, that would suggest an internal cause for the psychosis as opposed to substance ingestion.

It was never put to Dr Haag that Mr Moss being in a psychotic state for two months of abstinence was inconsistent with substance-induced psychosis. [ 97 ] With respect to the diagnosis of cannabis withdrawal, Dr Haag base his opinion on Mr Moss’s self-reporting that in the days and weeks leading up to the alleged offence, Mr Moss had increased his cannabis consumption by approximately three times, and had reported being paranoid, which was confirmed by others. Mr Moss then suddenly ceased consuming any cannabis a few days prior to the alleged offence.

Mr Moss reported sleep disturbance, irritability, and dreams, and the PACT members reported that Mr Moss appeared to

be hungover or coming off something. [ 98 ] Dr Haag rejected Dr Nesca’s diagnosis of SLP resulting from Mr Moss’s 2004 brain injury. Dr Haag found that the effects of Mr Moss’s brain injury did not follow an expected trajectory leading to psychosis. Dr Haag noted that Mr Moss saw several physicians, including neurologists and psychiatric professionals after 2004 and until fairly close to the date of the alleged offence. None of those medical professionals noted any psychosis or psychotic symptoms. If Mr Moss’s psychosis was due to the 2004 brain injury, Dr Haag would expect to see some signs of it prior to 2020.

Dr Haag considered the reports of earlier instances of Mr Moss hearing voices in 2015 and 2019 from Ms Pfunder and Ms Couture-Starosta. Dr Haag noted that Mr Moss was consuming cannabis around the time that those reports were made, so he could not rule out that those incidents may have also been substance-induced. Dr Haag opined that Dr Nesca disproportionately weighted the reports from Ms Pfunder and Ms Couture-Starosta of earlier instances of Mr Moss hearing voices.

c) Dr Maryana Kravtsenyuk [ 99 ] Dr Kravtsenyuk earned her MD in 2006 from Bohomolets National Medical University in Kyiv, her MSc in Neuroscience from the University of Calgary in 2009 and completed post-graduate and subspeciality training in psychiatry and forensic psychiatry in 2015 and 2016. She is currently an assistant clinical professor in psychiatry at the University of Alberta and Northern Ontario School of Medicine. Alongside her general psychiatry practice, she is a forensic psychiatrist at Alberta Hospital, and a psychiatrist for several remand and correctional centres and institutions.

She has lectured in the areas of fitness, NCR, and violence risk assessments and the psychotic brain, and has published peer reviewed articles on mentally disordered stalkers and outcomes for NCR absolute discharges. [ 100 ] While Mr Moss was a patient at Alberta Hospital, Dr Kravtsenyuk interviewed him more than twenty times. The interviews began shortly after the alleged offence and continued for several months. Each interview lasted between 30 and 90 minutes. Dr Kravtsenyuk consulted with Mr Moss’s multidisciplinary team at least five days per week while Mr Moss was at Alberta Hospital.

Dr Kravtsenyuk also interviewed Ms Pfunder and Ms Couture-Starosta. [ 101 ] Dr Kravtsenyuk was specifically retained to perform an independent court-ordered assessment to evaluate criminal responsibility for Mr Moss in relation to the charge before the Court. Mr Moss provided consent and cooperated with Dr Kravtsenyuk’s assessment. Mr Moss understood that there was limited confidentiality involved and that Dr Kravtsenyuk would prepare reports for the Court as part of the assessment. [ 102 ] Dr Kravtsenyuk was also Mr Moss’s treating psychiatrist when he was at Alberta Hospital.

Dr Kravtsenyuk found Mr Moss’s level of engagement fluctuated and was inconsistent with respect to different elements of his history. Mr Moss became more cooperative and forthcoming as time went on. Dr Kravtsenyuk opined that at times Mr Moss over-reported his symptoms, which would correlate with periods of heightened stress. At those times, the reported symptoms did not translate into his behaviour. Mr Moss felt that Dr Kravtsenyuk did not take some of his symptoms seriously, particularly when Mr Moss described the awakening to her. [ 103 ] Dr Kravtsenyuk reviewed and relied on Mr.

Moss’s entire medical history from Alberta, prescription records, Alberta Hospital records, written and verbal reports from Mr Moss’s assessment and treatment team (which included 24-7 observations), neurological consultations, Dr Haag’s psychological assessment, Dr Chevalier’s neuropsychological assessment, social work reports, the complete police file, and audio and transcripts from an interview with Mr Moss on July 13, 2020, witness statements, and other legal documentation. Dr Kravtsenyuk specifically reviewed the post-injury brain scans, medical records, and treatment notes from 2004.

Dr Kravtsenyuk’s review was extensive and detailed. [ 104 ] Dr Kravtsenyuk considered relevant details from Mr Moss’s background, including his history of child sexual and physical trauma, his witnessing of domestic violence, his academic and behavioural difficulties, and his substance use, particularly his prolonged, chronic, and daily cannabis use. [ 105 ] Dr Kravtsenyuk considered Mr Moss’s lifelong pattern of daily cannabis use to be significant. That pattern was supported by collateral sources, including urine drug screens completed when Mr Moss was admitted to Alberta Hospital on May 23, 2020.

Dr Kravtsenyuk considered the fact that Mr Moss began using cannabis at around age 11 to be significant: the general research shows that people who start using cannabis younger than 14 years are predisposed to psychotic symptoms from cannabis use.

Dr Kravtsenyuk noted anecdotal hearsay evidence from Mr Moss about his cousin who was a cannabis user developing schizophrenia and that being a concern for Mr Moss. [ 106 ] Dr Kravtsenyuk considered the facts surrounding Mr Moss’s brain injury, including his presentation in Emergency, the pre- and post-surgical scans, the surgery itself, and Mr Moss’s rehabilitation at the Glenrose, including the absence of neurological symptoms upon discharge from the Glenrose.

She considered Mr Moss’s history of seizures, his 2014 diagnosis of Cluster-C personality and depression, and the pharmaceutical and therapeutic treatment he received. She also considered Mr Moss’s 2019 neurological consultation, medical testing, and pharmaceutical treatment. Dr Kravtsenyuk reviewed the results of Mr Moss’s June 2020 neurological assessment, the results of which showed no neurological concerns.

Dr Kravtsenyuk relied heavily on the fact that Mr Moss’s medical records showed no history of psychotic symptoms prior to the alleged offence date. [ 107 ] Dr Kravtsenyuk considered Mr Moss’s presentation when he was admitted to ERC and to Alberta Hospital, including his suicide attempts, banging his head against the wall, and removing his teeth. Dr Kravtsenyuk also considered Mr Moss’s spiritual and conspiratorial beliefs. She correlated the increased intensity of these beliefs with Mr Moss’s increased cannabis and alcohol consumption after COVID restrictions were imposed. Dr.

Kravtsenyuk determined that Mr Moss’s text communications were evidence of his preoccupation and the saturation of his beliefs. Dr Kravtsenyuk acknowledged that in the days leading up to the alleged offence, Mr Moss’s mental state was not stable. [ 108 ] Although Dr Kravtsenyuk acknowledged that Mr Moss’s mental state fluctuated in the days and hours leading up to the alleged offence, she noted that signs of analysis and intact cognition were present. For example, Mr Moss recognized that he needed help, reached out to several people, asked to go to the hospital, and agreed to see the PACT.

Mr Moss was able to drive himself to the tattoo shop, which showed that he could concentrate and pay attention. Mr Moss reached out to his sister to make sure that his children would

be looked after and kept safe. [ 109 ] In addressing Mr Moss’s daily cannabis use, Dr Kravtsenyuk opined that Mr Moss’s experiences in the days leading up to the alleged offence are partially attributable to cannabis withdrawal and partially attributable to the residual effects of cannabis that was still in Mr Moss’s system. Dr Kravtsenyuk assumed that Mr Moss ceased cannabis consumption three to five days prior to the alleged offence.

Withdrawal symptoms would have intensified by the third day after cessation and could last up to two weeks. [ 110 ] Dr Kravtsenyuk found a clear link between Mr Moss’s cannabis ingestion and his psychotic symptoms, and therefore diagnosed Mr Moss with cannabis use disorder, cannabis intoxication which progressed into cannabis-induced psychosis, and cannabis withdrawal. Dr Kravtsenyuk opined that Mr Moss’s symptoms of change in emotionality, sleep patterns, vivid dreams, and increased irritability and anxiety were symptoms of cannabis withdrawal.

Mr Moss’s cannabis intoxication and withdrawal coexisted, and eventually morphed into cannabis-induced psychosis. Dr Kravtsenyuk opined that Mr Moss’s pattern of daily cannabis consumption, and the change in consumption in the weeks and days prior to the alleged offence date supported her opinion as to the cause of Mr Moss’s psychosis. Mr Moss’s life stressors also played a role in that Mr Moss is vulnerable to stress: he becomes more emotional and has difficulty coping.

Mr Moss was particularly anxious and worrying about his family, which was a persistent issue for him. [ 111 ] Dr Kravtsenyuk considered Mr Moss’s pharmaceutical treatment and response as corroborative of her diagnosis of substance- induced psychosis. Immediately after Mr Moss was admitted to Alberta Hospital, he was placed on anti-psychotic medication. His dose was increased over the first month from 25 mg to 200 mg per day. At that point, Mr Moss was stable, but he began to experience side- effects from the medication, so his dose was slowly decreased.

None of Mr Moss’s psychotic symptoms re-emerged when his dose was decreased. Had Mr Moss been suffering from an underlying unidentified primary psychotic illness, as the medication was decreased, psychotic symptoms would have re-emerged. Mr Moss’s psychotic symptoms ceased around the end of June 2020. By the time Mr Moss was discharged from Alberta Hospital in December 2020, his dosage of anti-psychotic medication had been reduced to 50 mg per day and he was experiencing no psychotic symptoms. [ 112 ] Dr Kravtsenyuk considered other potential causes of Mr Moss’s psychosis.

Dr Kravtsenyuk did not find any other gross medical condition that would have provoked Mr Moss’s psychosis. She rejected the 2004 brain injury as the cause of Mr Moss’s psychosis on the alleged offence date. Although Mr Moss still has symptoms of neurocognitive deficits from that brain injury, Dr Kravtsenyuk noted that Mr Moss’s neurological examinations and functioning show that the deficits remain consistent since Mr Moss’s post-surgical recovery in 2004.

Additionally, Dr Kravtsenyuk opined that psychosis from a brain injury is rare and would typically emerge within the first four years after the injury, although she acknowledged that it could develop outside of four years. Based on her review of medical documents, including a neuropsychologist report from Dr Chevalier, Mr Moss had experienced a substantial recovery from the brain injury. Dr Kravtsenyuk did acknowledge that Mr Moss and his family members self-reported that Mr Moss suffered some psychotic symptoms prior to May 2020. However, there was no objective medical evidence of psychosis prior to May 2020.

Additionally, if Mr Moss’s brain injury was the cause of his psychosis, Dr Kravtsenyuk opined that he would have had a re-emergence of psychotic symptoms as the anti- psychotic medication was decreased. [ 113 ] Dr Kravtsenyuk acknowledged that Mr Moss’s diagnosis of Cluster-C personality traits would make him vulnerable to transient psychotic symptoms when he is under a lot of stress. It would not be inconsistent with Dr Kravtsenyuk’s diagnosis if Mr Moss was self- reporting that he was still hearing voices in November 2021 and at the time of trial.

Dr Kravtsenyuk acknowledged that some of Mr Moss’s beliefs and conspiracy theories could be symptoms of psychosis. Additionally, Mr Moss’s adverse childhood experiences and personality characteristics combined with his daily cannabis use could increase his vulnerability to psychosis. [ 114 ] Defence counsel argued that Dr Kravtsenyuk was not independent, impartial, or unbiased. Defence counsel points to the fact that Dr Kravtsenyuk did not accept accounts of possible psychotic symptoms from Mr Moss that were not corroborated by objective medical records.

Particularly, Defence counsel submits that Dr Kravtsenyuk dismissed the reports of Mr Moss hearing voices from the radio and of Mr Moss becoming paranoid and fixated on conspiracy theories prior to 2020. Further, Mr Moss felt that Dr Kravtsenyuk was not convinced of his state of mind during the awakening as he described it to her.

Defence counsel also points to Dr Kravtsenyuk identifying as a transient psychotic symptom the occasion when Mr Moss interpreted flashing lights as a sign that something bad was happening to his family or himself, which was documented in Mr Moss’s Alberta Hospital records. [ 115 ] I am unable to find that Dr Kravtsenyuk demonstrated partiality or bias. I do not find that Dr Kravtsenyuk dismissed evidence that did not fit her theory of the case.

Dr Kravtsenyuk agreed that Mr Moss’s particular circumstances would make him vulnerable to transient psychotic symptoms when he is under high stress and agreed that some of Mr Moss’s reports to his family about conspiracies and beliefs could be symptoms of psychosis. However, Dr Kravtsenyuk found that at times, Mr Moss’s reported symptoms were inconsistent with what was being observed and the results of Mr Moss’s therapeutic activities. Therefore, she took a cautious approach to Mr Moss’s self-reporting. [ 116 ] Whether Mr Moss was psychotic at the relevant time is not the issue to be determined in this matter.

Rather, the question I must answer is what caused Mr Moss’s psychosis. Mr Moss was using cannabis daily and multiple times a day when he experienced paranoia and conspiratorial beliefs, and there appears to be a correlation between Mr Moss’s increased cannabis consumption and increased paranoia and conspiratorial beliefs. I cannot ignore the possibility that the psychotic symptoms reported by Mr Moss to his family members were caused by cannabis consumption.

d) Dr Thérèse Chevalier [ 117 ] Dr Chevalier earned her PhD in clinical psychology in 2015 from Dalhousie University and completed a predoctoral internship in clinical neuropsychology in 2015. She has been a clinical lecturer at the University of Alberta since 2017. Alongside her private neuropsychological practice, she has been a neuropsychologist for Alberta Health Services since 2015. She conducts neuropsychological assessments for the adult psychiatry and forensic program of Alberta Hospital.

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