R. v. Cooper, 2018 MBPC 39

Citation # 2018 MBPC 39 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Colin Soul and Stephanie Harland, ) for the Crown- and - ) ) Junior Sesay ) James R. Wood, for the Accused ) ) ) Judgment delivered: ) October 22, 2018 CORRIN, P.J. INTRODUCTION [1] On May 23, 2017, the accused broke into the victim’s residence and subsequently stabbed her multiple times. He wascharged with break and enter as well as attempted murder in relation to this matter. He is also charged with robbery in relation to a motorvehicle he stole in order to escape from the scene of the incident.

The accused does not deny committing the break and enter or attemptmurder offences and says he is only guilty of theft in relation to the robbery charge. His overall defence in relation to all charges is thathe is exempt from criminal responsibility pursuant to section 16(1) of the Criminal Code which sets out the defence of not criminallyresponsible (NCR). THE LAW RE NCR [2]

Section 672.34 of the Criminal Code provides that a court is to consider a defence of “not criminally responsible on accountof mental disorder” (“NCR”) only after finding beyond a reasonable doubt that an accused has committed the acts, or made theomissions, that form the basis of the offences charged. [3]

Section 16 of the Criminal Code sets out the defence of NCR on account of mental disorder. It reads: 16(1) No person is criminally responsible for

an act committed or an omission made while suffering from a mental disorder thatrendered the person 1: incapable of appreciating the nature and quality of the act or 2: knowing that it was wrong. [4] Section 16(2) provides that every person is presumed not to suffer from a mental disorder, unless and until the contrary isproved on the balance of probabilities. [5] Section 16(3) provides that the burden of proof that an accused was suffering from a mental disorder so as to be exempt fromcriminal responsibility is on the party that raises the issue. [6] The legally relevant time that the test must be met is the time when the forming of the basis for the charge was committed (R.v.

Cooper, (SCC), [1980] 1 S.C.R. 1149 at p. 1162). [7] There is no obligation on the Crown to lead evidence as to the accused’s sanity. To do so would be to defeat the presumptionof sanity (R. v. Chaulk, (1990) (SCC), 3 S.C.R. 1303 at pp. 1337-1339). [8] Incapacity for criminal intent may manifest itself in different ways. It may give rise to denial of the actus reus, or of the mensrea.

Or, even though an accused may have the mens rea and commit the actus reus, the accused’s mental incapacity may provide ajustification based on the fact that his or her mental condition made the accused incapable of knowing the act was wrong (Chaulk, at p.1321). [9] A defence of NCR on account of mental disorder will only be successful if an accused is able to meet the requirements of thetwo-stage statutory test set out in

section 16 of the Criminal Code. First, the Court must find that an accused’s mental incapacity resultedfrom a mental disorder at the time of the alleged events. Secondly, the Court must find that the mental disorder was of sufficientseriousness that it rendered the accused incapable of either “appreciating the nature and quality of his or her act or omission” or“knowing that the act or omission was wrong” (R. v. Bouchard-Lebrun, (2011) 2011 SCC 58 , 3 S.C.R. 575, at para. 56). [10] Mental disorder, which is the first stage of the test, is defined in

section 2 of the Criminal Code as a disease of the mind. [11] “Disease of the mind” is described by Justice Dickson in Cooper, at page 1159, as follows:

In

summary, one might say that in a legal sense “disease of the mind” embraces any illness, disorder or abnormal condition whichimpairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitorymental states such as hysteria or concussion. [12] Whether or not an accused suffered from a mental disorder, or a disease of the mind, is a legal finding, as informed by amedical and/or scientific foundation.

Medical, and in particular psychiatric evidence, logically forms part of the evidence on which a trierof fact must reach a decision, but it is for a judge, applying the law and the facts, to decide if an accused suffered from a disease of themind. The term “disease of the mind” is to be interpreted broadly and liberally (Cooper, at pp. 1156-7). [13] It is the effect of a condition on the capacity of the accused that is most significant for a judge to consider, rather than themedical characterization of the condition or its origin in medical terms (R. v.

H.(S.), 2014 ONCA 303 at para. 78). [14] To determine whether a condition is a “disease of the mind”, a trial judge ought to take a holistic approach, and consider eitheror both the internal cause and continuing danger factors, and further policy factors (R. v. Stone, (SCC), [1999] 2 S.C.R.290; R. v. Parks, (SCC), [1992] 2 S.C.R. 871). [15] In R. v. Luedecke,

(2008) ONCA 716, Doherty J.A. distinguished the concept of “mental disorder” in the criminal law contextfrom the concept of mental disorder in the purely medical context. This distinction underscores why a court cannot simply accept amedical opinion as being dispositive as to whether an NCR defence will be successful.

A legal determination on the issue requires more.Doherty J.A. stated at paragraph 7 that: A determination that an accused suffers from a mental disorder is more a reflection of the need for a further inquiry into thedangerousness of that accused than it is an assessment of his or her medical condition. [16] An accused suffering from a mental disorder must have been unable to “appreciate the nature and quality of

an act” oralternatively have been unable to “know it was wrong” at such time. In R. v. Ratti, (1991) (SCC), 1 S.C.R. 68 (S.C.C.),Lamer C.J. explained (at p. 80): ... In accordance with our decision in Chaulk, the trier of fact must be directed to consider whether the appellant was rendered incapable,by reason of disease of the mind or “natural imbecility”, to know that his act was morally wrong in the circumstances. It is not sufficientto decide that the appellant’s act was a result of his delusion.

Even if the act was motivated by the delusion, the appellant will beconvicted if he was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morallycondemned by reasonable members of society. [Emphasis in original] [17] Appreciating the nature and quality of

an act requires more than simply a knowing or understanding of the physical nature ofthe act being committed. “Appreciation” necessitates a capacity to appreciate the nature, that is to say, to be able to foresee and measurethe consequences of the act (Cooper, at paras. 55-56). [18] A person will be found “incapable of knowing” his actions were wrong if the mental disorder caused him to do

an act, and helacked the capacity to know that such act was morally wrong, even if he was able to appreciate its nature and quality. An accused’smental disorder must therefore render him incapable of knowing that the acts in question were morally wrong as measured againstsocietal standards.

Put simply, an accused would have been incapable of making the choice necessary to act according to such standards.Therefore a person cannot be found NCR solely because he personally believed that he was morally justified in acting as he did if heretained the capacity to know that such actions were regarded as wrong on a societal standard (R. v. Campione, 2015 ONCA 67,paras 31 and 41; R. v. Ross, 2009 ONCA 149, para 27). (Emphasis mine).

The crux of the inquiry is whether an accused lacked thecapacity to rationally decide whether his conduct in the circumstances was right or wrong and hence to make a rational choice aboutwhether to do it (see R. v. Oommen, (1994) (SCC), 2 S.C.R. 507 (S.C.C.) at para 26). [19] At this point the Court wishes to acknowledge that much of the foregoing overview of NCR law was based on the work of mysister Judge Carlson as presented in R. v. Enns, 2018 MBPC 1. [20] Other caselaw also provide some guidance respecting the NCR defence.

These cases which I will refer to later, provideexamples of how other courts have assessed medical evidence, and reached a determination as to whether the balance of probabilities testfor an NCR defence was met.

Summary of NCR Law [21] Mr. Sesay, by law, is presumed not to have been suffering from a mental disorder so as to exempt him from criminalresponsibility for the offences. It is only if he is able to persuade the Court on the balance of probabilities that he was, that his NCRdefence will be successful. [22] The questions the Court has to answer in coming to an ultimate decision as to whether Mr. Sesay’s NCR defence will besuccessful, are the following: Firstly, was Mr. Sesay suffering from a mental disorder at the time of the incident?

Secondly, if so, did his offending behaviour occur as a result of such mental disorder? Thirdly, if so, did such mental disorder render Mr. Sesay rationally incapable of knowing that his acts were wrong, referring tosomething which the individual knows he ought to do; or did it render him incapable of appreciating the nature and quality of those acts?In other words was the accused capable of appreciating the physical nature, character and consequences of his acts? [23] For Mr.

Sesay’s defence to succeed, the Court must be persuaded on a balance of probabilities that the responses to all three ofthe forgoing questions are affirmative.

[ 24 ] To answer these questions the Court must review and assess relevant evidence. Such an assessment will include a review of the following areas: • Mr. Sesay’s general behaviour prior to the incident; • Mr. Sesay’s behaviour and utterances during the incident; • Mr. Sesay’s behaviour immediately after the incident; and • Psychiatrists Dr. Eric Johnston and Dr. Jeffrey Waldman’s expert evidence. BEHAVIOUR PRIOR TO INCIDENT [ 25 ] I begin my assessment by reviewing the evidence before the court respecting Mr. Sesay’s behaviour prior to the incident. The court heard from several witnesses in such respect.

The accused’s former girlfriend told court that several months after their personal relationship had ended, on Sunday, May 21 st , 2017, just a couple of days before the incident, she had received a phone call from the accused; that he had accused her of involvement in an internet chat group that he alleged was insulting him. At such time he had also accused her of cheating on him by way of infidelity during their relationship - that he had alleged that she had been engaging in elicit relations with his male friends.

This witness also told court that she had received another phone call on that same day - from the accused’s brother William and that he had asked her to talk to the accused because he, the accused, was losing his hold on reality, also in relation to the group chat allegations. [ 26 ] The accused’s mother, with whom he resided in May 2017, testified that she had called Winnipeg Regional Health (the Health Sciences Centre) in April 2017 to express her concerns about his mental health wellbeing. She wanted to find out what was wrong with him because he had told her that he wanted to hurt someone.

After he was taken away for psychiatric assessment she had hidden all household items that she regarded as potentially dangerous weapons. [ 27 ] She recollected that a couple of days before the incident she had called police to her home because the accused had been accusing Ms. Wenke, her son William’s girlfriend, the victim, of participating in a defamatory chat group. She described the accused’s behaviour as being ‘paranoid’ at such time. [ 28 ] This witness related that the next day, a Sunday, the accused had stated that he was planning to “take down” the group who were spreading lies about him.

And that she had told him to calm down and go see a doctor. She elaborated that the accused continued to be agitated after this exchange and had phoned friends about his chat group concerns and that later he had told her that they too had recommended that he stop obsessing about these concerns. She recollected that the accused had gone out that evening and that she had discerned what she believed was dried blood on his pants and hands when he returned and that he had placed a small knife and a screwdriver on a table at such time.

According to this witness she had called police for assistance at such time and they had come to the house around 5:00 to 6:00 a.m. on Monday morning to speak to Mr. Sesay but then told her there was nothing they could do to assist her. [ 29 ] Later that morning, after they had woken up, she testified that she had again heard the accused phoning a friend and complaining about the chat group. She recollected that she had also asked him if he had taken certain medication, physician prescribed medication that was meant to calm him down. She imparted little else on the subject.

The witness also related that she had left the house in order to get away from the accused after this conversation as she didn’t feel safe in his presence. When she returned at 10:30 p.m., several hours before the incident, she recollected that the accused was at home but later, her son William had told her that he’d left the house. [ 30 ] The accused’s brother William told court that the accused had, earlier in May, advised him that he was taking bi-polar medication.

He further recollected that he had first become concerned about his brother’s state of mind which he described as “peculiar”, when he had begun to relate concerns about his former girlfriend cheating on him. He also testified about the accused’s preoccupation with the reputedly malicious chat group, telling court that he had told him that he knew nothing about this subject; that a last conversation had taken place respecting this subject when he had arrived home on the morning of the incident, indeed only about an hour before it occurred.

THE INCIDENT [ 31 ] The Court will now recount the evidence respecting the accused’s involvement during the actual incident. Court was told by his brother William that the accused had inquired with respect to Ms. Wenke’s whereabouts about an hour before the incident and William had informed Mr. Sesay that she was at home. William testified that he was talking to Ms. Wenke on iPhone FaceTime at about 2:30 a.m. when she told him that she heard sounds suggesting someone was inside the residence. A short time later he heard screaming and then the accused’s face appeared on the iPhone screen.

William believed that his brother had taken or picked up the phone in the victim’s bedroom. He heard the accused say “tell the truth” to Ms. Wenke. William thought this was in reference to her disclosing her complicity in the delusional chat group to him. Then there was screaming and yelling. At this point William believed the two were no longer inside the room. It was at this point that the mother, who had come downstairs, having heard William shout “Junior... STOP” many times, realized what was happening and called 911 for assistance. William provided her with Ms. Wenke’s address and she related it to 911.

Later that morning, after police had attended her residence, the accused’s mother found a note in Mr. Sesay’s handwriting stating “wesmen morn (sic) loss of Lena Wenke.” [ 32 ] Police investigators determined that entry to the residence had been through a patio door. The glass panel having apparently been broken by a rock that was found just inside the door. They also found blood drip stains on the stairs leading to the victim’s second floor bedroom. These stains were swabbed and subsequently sent for analysis. Court was told that all such swabs were found to be the victim’s blood.

The Crown filed a DNA report confirming same as exhibit 4 in these proceedings. [ 33 ] A police witness told court that the victim’s bedroom door was found to be broken. Photos placed in evidence showed the interior bolt lock to be broken and the door splintered behind it, suggesting that someone had forced the door open when it had been

locked. There was no direct evidence received as to what occurred during this initial part of the incident as neither the victim or the accused testified at trial. [ 34 ] A witness who resided at a residence on the north-west corner of Ellice and Dominion, a very short distance from the victim’s residence, described hearing screaming at approximately 2:30 a.m. She told court that when she looked out she saw a female on the pavement at the north-east corner of the intersection. A male was kneeling above her. The male was observed to be making stabbing motions and had a knife in his hand.

The female was trying to protect herself with her hands and feet. This witness related that when the female stopped moving the male stood and stomped on her head 4 or 5 times before kneeling down again. [ 35 ] Another ‘neighbour’ also witnessed the incident on the street corner. He recollected hearing a female calling for help and shortly afterwards seeing a male hunched over a woman’s body. The male was making “stabbing” motions in relation to the victim’s body, which was lying on the pavement. He estimated that he saw six or seven such stabbing motions.

This witness testified that the assailant had then kicked the victim’s prone body a couple of times while stating “Are you fucking dead?” [ 36 ] A passing motorist, the robbery complainant, testified that he had been driving east on Ellice Avenue when he saw a black male crouched over a female who was lying on the pavement at the intersection. This witness told court that he had stopped his vehicle and got out to inquire if help was required because he believed the female had been a pedestrian involved in a traffic accident.

At this point, after he had asked the male if such was the case, the witness recounted seeing the male pick up a knife that was nearby and begin running towards him. Believing the male might have an intention to harm him, he ran away. The next thing he knew, his vehicle, which he had left running, was driving west on Ellice - the male in the driver’s seat. Court was told that the vehicle, a Chevrolet Malibu, had been in good condition at such time. He later observed the knife on the sidewalk, near where his vehicle had been when taken.

This witness related that his cell phone had been in the vehicle and that when it was returned to him by police investigators some time later, he had found a photograph that was taken, at 3:57 a.m., just over an hour after his vehicle had been stolen. The photo was a head shot of a smiling black male. This photo was identified in court as being the accused. BEHAVIOUR AFTER THE INCIDENT [ 37 ] The witness who identified the photo, the accused’s former girlfriend, told court that she had received a telephone call from the accused at about 2:40 a.m. that same morning.

And that at such time the accused had told her that he had just killed the victim Lena Wenke, who she had known to be William Sesay’s girlfriend. The number she had provided to police was 204-226-0847, the same phone number the phone’s owner had related to the court. [ 38 ] The next contact with the accused was at around 6:00 a.m. that same morning. At such time a Canadian Border Service Officer heard tires “screeching” and upon going outside to investigate saw a vehicle stopped a short distance to the north of her building. After approximately ten seconds, the vehicle did a U-turn and sped away.

The officer reported the sighting of this vehicle to RCMP as it matched an earlier description of a “car-jacking” vehicle her partner had received earlier that same morning. At 6:35 a.m. this witness observed a black male, the accused, walking towards the Port of Entry building. The accused told her that he’d just been in an accident and was hurt. When asked his name he provided the name Justus Alleyn and related that he lived in Brandon and had been going to visit a friend in Regina.

Court was told that the border station was an hour’s drive south of Brandon on highway 10, nowhere near the highway between Brandon and Regina (the Trans-Canada Highway). Mr. Sesay told the officer that he’d been driving a Mazda. The Border Service Officer called RCMP as she suspected this black male was the person who had been driving the car that had done the U- turn a half-hour earlier. [ 39 ] RCMP officer Chris O’Dell testified that he had been dispatched to the border station to take Mr. Sesay into detention respecting the stabbing incident.

He related that he was also given the fictitious Justus Alleyn name by the accused and confirmed that the accused wore only underpants, socks and a tank top when he first observed him at 7:18 a.m. He went on to testify that en route he had found the now badly damaged stolen Chevrolet Malibu approximately 100 metres off the highway near a pond and had taken photographs of it using a zoom feature on his camera. That he hadn’t approached it because he knew Winnipeg Police were coming to inspect the scene and recover the vehicle.

He further recounted that later that morning, when he and the accused were at the Killarney hospital, the accused had asked him if he thought he would go to jail for life in relation to the subject matter of his arrest. PSYCHIATRIC EXPERT EVIDENCE [ 40 ] Two psychiatrists testified at the trial, both for the defence, Dr. Eric Johnston who performed a fitness assessment on order of the court and Dr. Jeffrey Waldman, who performed an independent NCR assessment in the fall of 2017, also on order of the court. A great deal of information about Mr.

Sesay’s mental health background was contained in their reports and their viva voce evidence received at trial. [ 41 ] The court heard that Mr. Sesay had experienced mental health issues both prior to and after the May 23 rd incident. It appears from the evidence that the accused’s related behavioural issues had not been a concern prior to early to mid 2016. On May 25, 2016 he presented to the Health Sciences Centre Emergency Department complaining of “personality problems” which were affecting his ability to maintain personal relationships. There is no record of this leading to any mental health treatment.

However, subsequently his personal physician prescribed an anti-depressant drug which Mr. Sesay discontinued after approximately two months. [ 42 ] On February 23 rd , 2017 Mr. Sesay presented to the Crisis Response Centre (CRC) in Winnipeg reporting that he was being mocked due to a tremor which was causing his hands to shake, a condition which his ex-girlfriend testified had begun in late 2016 and which she described as leading to a preoccupying belief that people he knew were laughing or making fun of him because of this. Other witnesses also confirmed this growing preoccupation and Mr.

Sesay’s personal upset associated with the subject matter. The CRC referred Mr. Sesay to outpatient services, but he never attended the intake meeting. However, on April 15 th , 2017 Mr. Sesay nevertheless contacted the CRC once again and expressed fear that he was developing schizophrenia. CRC records observe that Mr. Sesay had told a worker “I don’t feel like myself; I’m scared. I’m not in reality. I’m confused. My mind is blank.

I don’t know what to do.” He further informed that a friend had called him “crazy” and that he had recently tried to hit someone with a bottle and also tried to stab someone else because they were spreading embarrassing gossip about him. He also reported having difficulty thinking and not being able to

“understand simple things.” He asked to speak to a psychiatrist but was told that it was unlikely that CRC could facilitate his request, that it would be best if he followed up with a counsellor he was then seeing at the Aurora Family Therapy Centre. Mr. Sesay had gone there in early April and was seen by a counsellor on six occasions between April 23 rd and May 15 th . Court learned that the counsellor may have been concerned that Mr. Sesay may have been experiencing psychosis as one of his or her clinical notes mentioned that he or she was considering a referral to a psychiatrist. [ 43 ] Mr.

Sesay’s next contact with mental health services was on April 24 th , 2017 when his mother phoned the Health Sciences Centre’s Centralized Intake line to express concerns about his mental health status. Records referred to in evidence confirm that Mr. Sesay spoke to a Centralized Intake worker on this date and advised such person that he was having thoughts about harming two former University of Winnipeg basketball teammates and requested hospitalization. Later that day Mr.

Sesay was taken to the Health Sciences Centre E.R. and was seen by a psychiatric nurse, who referred him for psychiatric assessment the following morning. [ 44 ] Records revealed that the next day, on April 25 th , that Mr. Sesay was assessed by a psychiatrist and a psychiatry resident. File notes indicate that he expressed concern that he might be capable of harming someone and again mentioned the September 2016 so- called bottling incident, something that his ex-girlfriend also described to the court. He reported feeling “very angry.” He admitted homicidal ideation. The two professionals thought that Mr.

Sesay was possibly suffering from what was termed a Major Depressive Disorder. Sesay was referred to an urgent care outpatient service called the Rapid Assessment Clinic (RAC), also located at the Health Sciences Centre. He was subsequently seen at the RAC on May 3 rd , 2017. At this assessment, a general physician reported that he no longer was experiencing homicidal ideation but was alleging extensive bullying from a number of people (presumably in reference to delusions he was experiencing about the chat group he believed were plotting his demise).

The assessing physician did not perceive his allegations as delusional. The physician made a clinical diagnosis of Major Depressive Disorder and put Mr. Sesay on an anti-depressant medication. Mr. Sesay made one further follow-up visit to RAC on May 9 th and again expressed concerns about “bullies”. [ 45 ] After the incident Mr. Sesay, then in custody, was seen by another psychiatrist, Dr. Daniel Globerman, on May 26 th , June 9 th and June 14 th , 2017. Mr. Sesay’s behaviour and interactions caused Dr.

Globerman to form the opinion that he was suffering from symptoms associated with psychosis, something that Sesay himself denied. Dr. Globerman noted that Mr. Sesay was presenting as paranoid. [ 46 ] On June 14 th a fitness assessment order was made by a Provincial Court judge. He was assessed by forensic psychiatrist Dr. Eric Johnson on June 16 th . Dr. Johnson noted that Mr.

Sesay appeared to have considerable difficulty processing information and presented generally as “bewildered.” Reference was made to Sesay being unable to participate in meaningful “reciprocal conversation.” Sesay denied experiencing delusions and was noted to be very suspicious about a number of things, including his own lawyers status to practice law. He denied the possibility of mental illness as well as the utility of beneficial medical treatment. Dr. Johnson found Mr. Sesay unfit to stand trial and the mental health court subsequently issued a treatment order. [ 47 ] Mr.

Sesay was accordingly transferred to PX-3 at the Health Sciences Centre on June 20 th , 2017. Upon arrival he was assessed and subsequently treated by Dr. Jeffrey Waldman, then Director of Psychiatric Forensic Services. He was assessed as suffering from psychosis and started on anti-psychotic medication. On August 1 st , 2017 Dr. Waldman declared Mr. Sesay fit to stand trial. It was noted that Sesay continued to endorse the belief that people were posting persecutory things about him on a group chat social media forum during his treatment and that he believed that their purpose was to drive him to suicide.

Specifically, Dr. Waldman testified that Mr. Sesay had told a member of his assessment team that the chat group called themselves the “EVOLS” and stated that they wanted to bring him to such a low point that he would take his life, that he had been hearing voices saying things from the group chat during much of the year preceding the criminal incident and that such voices had continued until approximately two weeks after he was admitted to PX-3. Waldman also noted that Mr.

Sesay had expressed significant concern about a slight hand trembling or tremor throughout his PX-3 admission and had refused to share meals with other ward patients for fear that they would notice it. In a comprehensive report encompassing 23 pages Dr.

Waldman stressed that the auditory hallucinations, and the delusional belief that there was a group plotting to make him commit suicide as well as other evidence of personal dysfunction and decline during the year preceding the incident i.e. going from a socially oriented individual who played university level basketball, was employed and financially self-sufficient and pursuing a university education to being thrown off the team for behavioural reasons, terminated as an employee and withdrawing from university classes suggested a specific diagnosis of schizophrenia, a psychotic illness, at the time of the incident.

Dr. Waldman expressed the opinion that these behavioural changes were typical negative symptoms which are associated with and characteristic of schizophrenia; symptoms reflective of social dysfunction and a reduced drive to pursue normal goal-directed behaviour. He emphasized that the accused’s ex-girlfriend, as well as Mr. Sesay’s brother William and his mother had all reported when interviewed, that Mr. Sesay had become significantly socially withdrawn and lacking in motivation in the year leading up to the incident. [ 48 ] Both Dr. Johnson and Dr.

Waldman agreed that psychotic symptoms can cause sufferers to have an impaired or altered sense of reality caused by such things as auditory hallucinations and disorganized thought processes, something that had been very evident in their interactions with Mr. Sesay. Dr. Johnson testified that although psychotic persons’ symptoms may abate or cycle up and down over the duration of their illness, that relapses are the norm and to be expected. Dr. Waldman emphasized that high impulsivity was a common trait among schizophrenia disordered persons and told court that this appeared to be a major factor in Mr.

Sesay’s excessively violent behaviour in relation to Ms. Wenke, given that Sesay had told him that he had only gone to see Wenke to talk to her and ask her why she was lying to everyone about her involvement in the perceived plot, and he had not planned to try to kill her notwithstanding the fact that he admitted having brought the knife he employed during the incident to the victim’s residence. [ 49 ] Dr. Waldman concluded that Mr.

Sesay’s delusion had, given the overall context of what it caused him to subjectively believe, deprived him of the ability to know that his actions were wrong in relation to the housebreak and attempt murder charges. He explained that such was not the case with respect to the robbery charge, that he did not perceive Mr. Sesay’s mental disorder to have deprived him of the ability to know that his actions were both illegal and morally wrong in such respect. POSITION OF THE PARTIES ON THE NCR ISSUE RE ATTEMPT MURDER AND BREAK ENTER CHARGES

The Crown [ 50 ] The Crown acknowledges that the narrow issue in this case is whether Mr. Sesay knew that killing Ms.

Wenke was morally wrong. [ 51 ] The Crown takes the position that the accused has not demonstrated that he meets the test for NCR because, in its view, the accused was capable of appreciating the immorality of his actions notwithstanding his schizophrenic disorder. [ 52 ] While conceding that the motivation for the attempt to murder was based on delusions the accused was suffering due to his mental disorder, the Crown argues that the evidence before the court demonstrates that the accused was nevertheless still aware that killing the victim was not only illegal but also immoral.

The Crown relies on the dicta of the Ontario Court of Appeal in R. v. H.(S.) , a 2014 case I have previously mentioned herein which emphasizes that the legal test in this respect is not so much about the medical characterization of an accused’s mental disorder but rather its effect on the actual capacity of the accused (see para. 78). [ 53 ] The Crown also filed a written argument and a casebook, wherein it referred the Court to several cases where the central issue was whether an accused with a proven mental disorder had also been incapable of knowing that his actions were morally wrong. These cases were R. v.

Dobson , 2015 ONSC 2865 , R. v. Ratti , previously cited, R. v. Hamilton , 1992 CarswellMan 15 , R. v. Ross , previously cited, and R. v. Campione , previously cited. [ 54 ] In Dobson , a decision of the Ontario Superior Court, Watt J. found that an accused had known that the murder of two people he had met on a satanic website was wrong in the sense that he was capable of appreciating that the homicides were wrong according to the ordinary moral standards of reasonable persons in general society as opposed to the standards which prevailed within the suicide cult that the accused and the victims had embraced.

Watt J. also reasoned, presumably in reference to Crown’s expert evidence on the subject, that a person who knows that killing is legally wrong is “likely capable” of knowing that such conduct would also be contrary to the ordinary moral standards of reasonable men and women.

Watt was of the view that the subjective belief of an accused that his or her conduct is justified is not the appropriate test, “even if driven by a mental disorder… if the person has the capacity to know that the conduct, in the circumstances, is wrong according to the ordinary moral standards of reasonable men and women in society.” Watt cited R. v. Ross , which I have previously referred to, at paragraph 27 and R. v. Woodward ,

(2009) ONCA 911 at paragraph 6 as authorities in support of such conclusion (see para 162). Watt’s decision, unlike the case at bar, was informed by the competing evidence of Crown and defence expert witnesses. It is noteworthy that two of the defence experts, according to Watt, had formulated their opinions respecting the ability to appreciate the morality issue in an inappropriate legal context.

As a consequence he attributed little weight to their expert evidence. [ 55 ] The Ratti case’s principle contribution to our case can be found in the Supreme Court’s observation at para 21: Even if the act was motivated by the delusion, the appellant will be convicted if he was capable of knowing , in spite of (his) delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society.” (emphasis mine) As such it certainly presents as a generally supportive foundation for most of the related dicta pronounced in Ross , Woodward and Dobson . [ 56 ] With great respect to the Crown, the Hamilton decision, a very brief 12 paragraph decision, contributes very little to the resolution of the NCR issue central to our case because it didn’t involve a live moral justification issue. [ 57 ] R. v.

Campione , a 2015 decision of the Ontario Court of Appeal, is essentially a re-statement of Ratti and Ross , again relating that a Court cannot make an NCR finding in cases where an accused appreciated the nature and quality of his actions unless an accused’s disorder “also render(

s) him or her incapable of knowing that the acts in question are morally wrong as measured against societal standards, and therefore incapable of making the choice necessary to act in accordance with those standards” (see para 41). [ 58 ] The Crown also argued that the Court should not accept Dr. Waldman’s NCR opinion because, in its opinion, same was arrived at without the benefit of all the informational evidence that was presented to his team colleagues as well as at trial. It further opined that Dr.

Waldman had not considered signs of malingering manifested by the accused and finally, that he had wrongly based his opinion on the central issue solely on the accused’s suffering from schizophrenia. The Defence [ 59 ] Defence does not dispute that the accused appreciated the nature and quality of his acts; that he knew that breaking and entering into Ms. Wenke’s residence and the attempt he made to kill her was legally wrong. However, defence argues that, because of the delusions he was suffering at the time, Mr. Sesay believed that stabbing Ms. Wenke was morally justified. In this respect he relies on Dr.

Waldman’s opinion that Mr. Sesay had, because of his delusions, disorganized thought processes and impulsivity related to his mental disorder, been incapable of appreciating that his criminal actions were morally wrong. Defence further submitted that Dr. Waldman’s opinion that Mr. Sesay’s belief that his actions were morally justified in order to preserve his own life should be accorded significant weight with respect to the NCR issue. [ 60 ] Defence submits that notwithstanding Dr.

Waldman’s reliance on some hearsay, particularly that provided to him by the accused and his assessment team, there is admissible evidence to establish the foundation for Dr. Waldman’s report, specifically Mr. Sesay’s psychiatric history, as well as the evidence of his behaviour before, during and after the incident. [ 61 ] Both Crown and defence relied on the accused’s conduct in relation to his presenting demeanour when interviewed by police; the Crown taking the position that Mr. Sesay presented as having had a “clearly functioning and calculating mindset” during the interview and defence arguing that Mr.

Sesay’s seemingly bizarre behaviour i.e. lying on the floor with his eyes closed, presented a reflection of his profound mental disorder and inability to understand or process information at the time of the interview, being the same day as the incident. Suffice to say that having viewed the DVD I am inclined to agree with defence’s position in this regard. I discerned

no indication that the accused presented to police with a “clearly functioning and calculating mindset.” It was the Court’s opinion thatmuch of his behaviour during the interview was indeed grossly aberrant. [62] In final argument defence counsel referred to a recent case of the Manitoba Queen’s Bench, R. v. Mebrahtu

(2017) MBQB 169,a decision of Greenberg, J. in support of his submissions. In this case the accused was found NCR by reason of a mental disorder withrespect to a second degree murder charge. The accused had conceded knowing that he knew that stabbing the victim was legally wrongbut claimed that his mental disorder had prevented him from understanding that his criminal actions were morally wrong becausedelusions he was experiencing at the time had led him to believe that what he did was morally justified.

As in our case, the Crown hadnot called any psychiatric expert to rebut the psychiatric expert evidence called by defence. It also argued, as in our case, that the defenceexpert’s opinion should be disregarded or given little weight because the evidence, in its opinion, failed to support the factualassumptions on which it was based. Defence cited a number of parallels between the case at bar and Mebrahtu and emphasized that thecourt had nevertheless not conflated the accused’s knowledge of criminal wrong doing with a likelihood that the accused also knew thathis actions were morally wrong.

WEIGHT TO BE GIVEN TO DR. WALDMAN’S REPORT AND OPINIONS [63] As previously mentioned, since some of the information reviewed and referred to by Dr. Waldman in drawing his conclusionsand providing his opinion is hearsay evidence that was not proved by other sources or was reputedly unsupported by the overallevidence, the Crown argued that Dr. Waldman’s report and NCR opinion should be given minimal weight. [64] The law as to the admissibility and weight to be given to expert opinions was laid down by the Supreme Court of Canada in R.v. Abbey, (SCC), [1982] 2 S.C.R. 24, and then in R. v.

Lavallee, (SCC), [1990] 1 S.C.R. 852, as follows,at p. 893: 1. An expert opinion is admissible if relevant, even if it is based on second-hand evidence.2. This second-hand evidence (hearsay) is admissible to show the information on which the expert opinion is based, not as evidencegoing to the existence of the facts on which the opinion is based.3. Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion.4.

Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist. [65] It is not the case that each fact relied on by an expert must be proven in evidence before any weight can be given to the opinionabout an accused’s mental state. But the Court does have to be aware of what facts are conclusively proven in evidence and what factsare hearsay and not proven. As long as there is some admissible evidence to establish the foundation for the expert’s opinion, the trier offact may consider the opinion.

But generally the more the expert relies on facts not proved in evidence the less weight should beattributed to the opinion (R. v. Lavallee, (1990) (SCC), 1 S. C. R. 852 at page 896). [66] In deciding what weight to give Dr. Waldman’s report and evidence, particularly his conclusions and opinion, the Court has toexamine: • What information did Dr. Waldman receive that is hearsay? • To what extent did he rely on that information in forming his opinion and drawing his conclusion? That is, how important was thatinformation in his determination as to Mr.

Sesay’s mental state and his capacity or incapacity to know his actions were wrong? THE ROBBERY CHARGE [67] Defence takes the position that the accused should only be convicted of theft, not robbery, in relation to the taking of the motorvehicle. It argues that the evidence did not support a robbery conviction because the accused uttered no threats and according to defence,did not menace the victim with the knife he picked up when he first approached the incident scene. The Crown disagrees with defence’sassessment of the evidence.

In such respect it reminded the court that the victim had testified that the accused had picked up the knifeand lunged forward like a sprinter leaving the starting blocks, causing him to turn and run away in fear for his life. [68] As noted by the Crown, the offence of robbery is predicated on

an act of theft which either involves outright violence or isaccompanied by a threat of violence in order to overcome resistance to the stealing. The violence or threat thereof must be before orcontemporaneous with the theft. The Court is of the view that the victim was justifiably fearful and had reasonable and probable groundsto fear for his safety in the context of what he described to the court. As such, the Court convicts Mr. Sesay of robbery notwithstandingthat there is no evidence that Mr. Sesay actually spoke any threatening words during the incident.

The Court is satisfied that the evidencesupports a characterization of the accused’s conduct as an attempt to cause apprehension of violence in order to prevent Mr. Stephen’sresistance to the theft of his vehicle.

APPLICATION OF THE NCR PRINCIPLES IN REFERENCE TO THE ATTEMPT MURDER AND BREAK AND ENTERCHARGE [69] The Crown contends that notwithstanding that the accused’s violent criminal conduct was resultant from his delusions that theaccused is still criminally responsible because in its submission he was nevertheless capable, in spite of his delusional mental disorder(schizophrenia), of appreciating that his conduct in the particular circumstances of the incident would have been morally condemned byreasonable members of society. The Crown reminded the Court that it is not bound by the opinion provided by Dr.

Waldman in suchrespect and argued that the evidence before the court supported rejection of his opinion that the accused, because of his mental illness,did not have the capacity to appreciate that his criminal actions were morally wrong, from the standpoint of reasonable members ofsociety. [70] As previously mentioned, the Crown contends that there is a strong basis for concluding that the accused malingered i.e.

deliberately misled Dr. Waldman and his assessment team respecting his state of mind at the time of the offence and overstated his symptoms during psychological testing. It also suggested that Dr. Waldman’s reliance on the accused’s version of events resulted in an erroneous conclusion and that the Court should view the opinion he rendered as only being as valuable as the veracity of the information on which same was based. The Crown also contended that Dr. Waldman’s opinion was “solely” based on Mr.

Sesay suffering from schizophrenia and inferentially, did not seem informed by the caselaw pertaining to NCR assessment. Specifically, the Crown argued that Dr.

Waldman had “made a leap from the accused being schizophrenic to believing the accused was morally justified without forming a basis for that belief.” [ 71 ] The Crown went on to suggest that the accused’s actions, as proven by the trial evidence, particularly his attempt to escape capture, supported a conclusion that he must have known that murdering or attempting to murder the victim was morally wrong. [ 72 ] I will begin my analysis by referring to the Crown’s concern that Dr. Waldman’s opinion of Mr. Sesay being NCR was not based on fulsome and accurate information. [ 73 ] Dr.

Waldman, when cross-examined by the Crown, told court that the contradictory evidence which suggested Mr. Sesay’s description of the incident was inaccurate would not have altered his opinion respecting his NCR finding. He explained that Mr. Sesay, when in the midst of illness induced symptomology, would have been highly agitated by feelings of distress and fear related to his delusional thought which in turn, because of illness related high impulsivity, would have made him highly susceptible to irrational anger to such an extent that he would have been deprived of the ability to know that his actions were wrong.

Dr. Waldman was clearly of the view that Mr. Sesay’s offending behaviour was caused by the influence of the effects of his mental disorder and therefore, on account of the mental illness, he had been deprived of the ability to know that his actions were morally wrong. There was no suggestion that Dr. Waldman was unaware of the legal test associated with an NCR determination. The Court observes that the Crown made little effort to cross-examine in reference to this subject matter. [ 74 ] Nor is there any evidence that Dr. Waldman’s opinion was solely based on his general diagnosis of schizophrenia.

Indeed, his twenty-four page NCR assessment report not only provides comprehensive reasons for the general diagnosis of the accused’s underlying mental disorder, based on his previous medical history and interviews with family care providers and his ex-girlfriend, it also takes into account evidence of Mr. Sesay’s behaviour that is consistent with trial evidence. In such respect and perhaps most noteworthy on this subject, that Mr.

Sesay went to the victim’s house in order to get her to admit the existence of the delusional plot to drive him to suicide, so others, particularly his family, would believe that he was not making up paranoid allegations in such respect, that he was really being subjected to bullying calculated to so destabilize him as to cause him to author his own demise i.e. commit suicide. [ 75 ] Dr. Waldman felt that Mr.

Sesay’s reported initial demand that the victim tell his brother William “the truth” related to the group chat (which was supported by William Sesay’s testimony) was reflective of what he termed desperate and agitated thinking which also deprived him of the ability to appreciate the nature and quality of his actions when he broke into the victim’s residence and perpetrated the assault. Dr. Waldman, for this reason, emphasized that he had concluded “on a balance of probabilities” that it was “more likely than not that... (Sesay’

s) ability to appreciate the moral wrongfulness of his actions was impaired by his mental disorder.” As I understood him, Dr. Waldman was basically telling the court that Mr. Sesay’s actions were caused by swift and overpowering emotions; emotions that were so overmastering that they completely swept his mind from its normal cognitive moorings; moorings which were already considerably compromised by his pre-existing schizophrenic mental disorder. [ 76 ] Dr. Waldman also observed that Mr.

Sesay’s precursor behaviour, such as questioning the victim at his home several days prior to the incident about the group chat and calling his ex-girlfriend and accusing her of such involvement the day before, all supported his conclusion as same reflected mounting symptomology leading up to the violent impulsive climax on the morning of the incident. [ 77 ] Dr. Waldman also rejected the Crown’s opinion that Mr.

Sesay’s fleeing of the scene was inconsistent with his conclusion that Sesay thought the killing of the victim was not morally wrong; that his attempt to escape legal consequences strongly suggested that he did not perceive himself as being more justified than any other typical criminal offender. The Court observes, and not sardonically, that Dr. Waldman’s independent opinion in this regard, because it is informed by his professional training and long experience in his chosen field, appears to the Court to be preferable to that of Crown counsel. [ 78 ] As mentioned before, the Crown also argued that Dr.

Waldman had failed to consider evidence of malingering that the Crown contends arose from psychological testing that had been completed by Dr. Sabrina Demitroff, a member of Dr. Waldman’s assessment team, a person who had also affixed her signature to exhibit 11, the NCR assessment report before the court. According to Crown counsel Dr. Waldman “ignored... signs of malingering” and “only looked at these tests in the vacuum of his own conclusions.” With respect, this observation is contradicted by Dr. Waldman’s testimony as well as the context of his report.

The report, at page 12, clearly states that one of the tests the Crown alleges Dr. Waldman ignored, called the SIRS-2 test, was administered because Dr. Demitroff, a certified psychologist, was concerned about ambiguous prior test results respecting exaggeration of symptoms. The SIRS-2 results indicated that Mr. Sesay’s overall pattern of responding placed him in the Genuine Responding category, “which is generally characteristic of individuals who are not attempting to exaggerate symptoms of mental disorder. [ 79 ] It was also patently clear from his testimony that Dr.

Waldman had regularly met with all members of the assessment team to discuss their work and findings and that it was his professional view, the only one before the court, that their psychological tests confirmed the psychiatric testing component. [ 80 ] In a similar vein, the Crown also contended that Dr. Waldman had based his personal assessment on incomplete information. The basis for this allegation was his self-admitted failure to “make any notes or complete any testing procedures with the accused”, and also his admission that he had not read the personal notes taken by members of his testing team.

Of course, extensive testing was done as part of his team’s collaborative approach and as just mentioned, definitely discussed by all members of the group when they met. As for the seeming allegation of professional neglect inherent in the Crown’s “note reading” critique, which it later disavowed at the conclusion of its oral argument, the Court can see no reason why it should prefer the opinion offered by Crown counsel over the explanation provided by Dr. Waldman, who has, as he disclosed during testimony, performed nearly 200 NCR assessments in the course of his professional career.

[81] The Crown’s final assault on Dr. Waldman’s purported lack of professional diligence in relation to the weight that should begiven to his evidence related to his personal reliance on the conclusions his team colleagues reported at meetings. According to Crowncounsel this was an unsound practice because he was basing his opinion “largely on the conclusions of other professionals, who hadrelied heavily on self-reporting” by the accused.

The Crown’s opinion on appropriate NCR assessment methodology was of interest tothe Court but would have been much more so if it had been supported by the evidence of an accredited forensic psychiatrist. As aconsequence I have decided not to rely on the Crown’s opinion in this respect. [82] In R. v. Tran, (Ontario Superior Court of Justice), the court upheld a decision of the trial judge that theaccused was not criminally responsible for several assaults.

The psychiatrist had opined, at trial, that the accused was NCR, despitenoting that the accused was not the most reliable historian and that the accused gave contradictory responses to questions. On appeal, theCrown argued the judge put too much weight on the opinion of the expert. The court upheld the finding, noting that the trial judge wasgiven an opinion by an experienced forensic psychiatrist who took into consideration all available information. As no other psychiatricexpert had testified at the trial this conclusion was uncontested.

In this case it was the expert’s view that the passage of time subsequentto the events as well as the mental illness had resulted in the accused’s lack of clarity respecting the incident. Dr. Waldman’s evidencewas quite similar in such respect. [83] It is my overall impression that the opinion evidence of Dr. Waldman is supported by the evidence. There is ample evidence ofMr. Sesay’s paranoid delusions leading up to the offence. Mr.

Sesay’s behaviour leading up to the offence and the fact that he repeatedlytold his friends about his fears and sought help from various resources support the conclusion that he effectively, albeit unlawfully, actedin what he misperceived as necessary self-defence. It is significant that his family, who perceived him as being abnormal, had attemptedto obtain help in reference to his unbalanced mental condition. Finally, and in the Court’s view, significantly, the fact that Mr.

Sesayphoned his ex-girlfriend to report he had killed the victim very soon after the incident and before he was arrested, supports the conclusionthat he believed he was morally justified in doing what he did i.e. he clearly must have known that he was making an admission of a veryserious offence to someone who would likely report same to the police for fear that he would kill her too. She was after all, aware that hebelieved that she was also a conspiring member of the delusional chat group. Common sense dictates that if Mr.

Sesay could kill hisbrother’s girlfriend, that she, a former girlfriend, was also far from being safe. [84] For all the foregoing reasons, even though I am not bound by Dr. Waldman’s opinion, I am satisfied, based on all the evidence,that it is more likely than not, because of his delusional beliefs that his life was being threatened by a conspiratory chat group which thevictim belonged to, that Mr. Sesay believed his actions were morally justifiable. I am therefore satisfied on a balance of probabilities thatMr. Sesay believed that he was morally justified in doing what he did.

I therefore conclude that he was not criminally responsible forattempting to murder Ms. Wenke and breaking and entering into her residence with intent. I do not find, for the reasons provided by Dr.Waldman, that Mr. Sesay’s mental disorder rendered him incapable of appreciating the nature and quality or moral wrongfulness of hisactions in relation to the robbery. Accordingly he is convicted of this offence. “Original signed by:” CORRIN, PJ