R. v. Chai, 2019 ONCJ 208

ONTARIO COURT OF JUSTICE CITATION: R. v. Chai , 2019 ONCJ 208 DATE: 2019 04 08 COURT FILE No.: Central East - Newmarket - 17-01191 BETWEEN: HER MAJESTY THE QUEEN — and — LI CHAI Before Justice John McInnes Heard on November 14, 15, 16, 17, 21, 22, 27, 29, 30, December 1, 2017, June 18, 19, 20, 25, 26, September 6, 7, October 16, 17, November 15, 16, 2018 Reasons for Judgment released on April 8, 2019 L. McCallum...................................................................... counsel for the Crown J. Neuberger................................................. counsel for the defendant Li Chai Contents 1.

The Crown’s Case . 5 A Introduction . 5 B The Break-in/Robbery/Forcible Confinement at 14 Library Lane . 5 C The Kidnapping . 10 (

a) The First Stop at TD Bank . 10 (

b) The Second Stop at Pacific Mall 11 (

c) The Drive to Burlington . 11 (

d) The Stay in Burlington . 12 (

e) Post-Kidnapping Events at 14 Library Lane . 12 (

f) The Move to 118 Gemini Crescent 13 D The Police Investigation and Ransom Negotiations . 14 (

a) The

Part VI Authorization . 14 (

b) The Intercepted Ransom Negotiation Calls . 14

i. Call #1: 12:18 [1 min 15 sec] 14 ii. Call #2: 12:28 [4 min 43 sec] 15 iii. Call #3: 16:38 [7 mins 15 sec] 16 iv. Call #4: 16:47 [12 mins. 4 sec] 17 v. Call #5: 18:12 [4 mins 6 sec] 18 vi. Incomplete Call: 18:24 [1 min 19 sec] 18 vii. Call #6: 18:26 [6 mins 57 sec] 19 (

c) Mr. Chai is Located and Arrested . 19 2. The NCR Defence . 21 A Overview .. 21 B The Applicable Legal Principles . 26 (

a) Overview of the s.16 Defence . 26 (

b) Legal Principles Governing Knowledge of Wrongfulness . 27 C Delusional Disorder was Operative at the Relevant Time . 33 D Mr. Chai’s Account 40 (

a) Background . 40 (

b) Origin of Mr. Chai’s “Mission” 41 (

c) Mr. Chai Begins Looking for Corrupt Officials . 42 (

d) Mr. Chai Rents Cars . 43 (

e) Beating Mr. Wei 47 (

f) The Kidnapping . 48 (

g) The Stop at Pacific Mall 49 (

h) The First Night at the Burlington Motel 50 (

i) Events at 118 Gemini Crescent 51 E Assessment of Mr. Chai’s Account 52 (

a) Introduction . 52 (

b) Mr. Chai’s Description of his Assigned Mission . 55 (

c) Mr. Chai’s Claim that the Kidnapping was Unplanned . 59 (

d) Inconsistency with Acts in Preparation . 61 i. The Gun, Handcuffs and Mask . 61 ii. The Rope . 65 iii. The Gravol 66 iv. Ms Tong’s Evidence that Mr. Chai Told her he Might be Away . 68 F Inconsistency with Other Evidence . 69 (

a) Possibility Mr. Chai had One or More Accomplices . 69 (

b) Expressions of Remorse and Shame Post-Arrest 73 i. Statement to DC Koshandish . 73 ii. The Post-Arrest Utterances . 79

(

c) Other Conduct 82 G The Expert Evidence on Knowledge of Wrongfulness . 82 (

a) Introduction . 82 (

b) Legal Principles Governing my Assessment of the Expert Testimony . 82 (

c) Dr. Rootenberg . 84 i. Dr. Rootenberg’s Opinion and Reports . 84 ii. My Reasons for Rejecting Dr. Rootenberg’s Opinion Evidence . 88 (

d) Dr.Pallandi 110 (

e) Dr. De Freitas . 113 5.

Final Analysis and Conclusion . 115 A Framing the Issue . 115 B Conclusion . 119 McINNES J.: [ 1 ] Li Chai admits he committed the actus reus of the following criminal offences but submits he should be found not criminally responsible by reason of mental disorder: Count 1 – Forcible Confinement of Xianghong Wu, [s. 279(2)] Count 2 – Kidnapping with a firearm of Dongbo Wei, [s.279(1.1)(a.1)] Count 3 – Robbery with a firearm, of Xianghong Wu, [s. 344(1)(a.1)] Count 4 – Robbery with a firearm, of Dongbo Wei, [s. 344(1)(a.1)] Count 5 – Extortion with a firearm, [s. 346(1.1)(a.1)] Count 6 – Break and Enter into 14 Library Lane, [s. 348(1)(d)] [ 2 ] On February 14, 2019, I found Mr.

Chai guilty with reasons to follow. These are those reasons. [ 3 ] On afternoon of Tuesday January 17, 2017, Mr. Chai broke into the Markham home of Xianghong [“ Hetty”] Wu and Dongbo [“ Bennett”] Wei, confined and robbed them both at gunpoint and then kidnapped Bennett Wei in order to extort the payment of a large sum of money from the couple. The defendant also took numerous personal items, including passports, bank and credit cards, bed comforter, computers and identification from the home. He held Mr.

Wei hostage for two days, the first night in a Burlington motel room and the remaining time at or in transit to his own home at 118 Gemini Crescent in Richmond Hill. [ 4 ] On Thursday, January 19, the defendant made telephone contact with Hetty Wu. By that time police were involved; an undercover Mandarin speaking officer participated in a series of phone calls with the defendant and sometimes Mr. Wei on one end and Hetty Wu and the officer posing as a family friend on the other. While Ms Wu and the officer pretended to be arranging for the ransom, investigators eventually determined Mr.

Chai’s location and arrested him outside his front door on the evening of Thursday January 19. They found Mr. Wei handcuffed to a shelving unit in a room in the defendant’s basement. [ 5 ] There is no question that Mr. Chai committed these offences. The sole albeit complicated issue in this case is whether he did so while suffering from a mental disorder that deprived him of the capacity to know his actions were wrong and thus rendered him not criminally responsible. [ 6 ] This trial proceeded in two phases. The first ran from November 14 to December 1, 2017 and consisted of the Crown’s case and Mr.

Chai’s testimony; the second ran in June, September and October, 2018, and consisted of the psychiatric evidence and evidence pertaining to Mr. Chai’s financial situation. [ 7 ] I begin by recounting the events as described in the testimony of Hetty Wu, Bennett Wei, the police witnesses and the Agreed Statement of Facts. Mr. Chai also testified. I address his account of these events separately below. 1. The Crown’s Case A Introduction

[ 8 ] On Tuesday January 17, 2017, Mr. Chai broke into the home of He tty Wu and Bennett Wei at 14 Library Lane in Markham where the married couple, both 52, lived alone. He forcibly confined and robbed them both at gunpoint and then kidnapped Mr. Wei and held him captive for ransom until police arrested him two nights later outside his home at 118 Gemini Crescent in Richmond Hill and found Mr. Wei confined in a basement storage room. [ 9 ] Ms Wu and Mr. Wei emigrated to Canada from China in 2010 with their son Ye Fan Wei who at the time of these events was 25, married and living elsewhere in the GTA. Mr.

Wei owns a large petroleum pipe line products business in China and frequently travelled between Toronto and China for business. Neither Ms Wu nor Mr. Wei knew Mr. Chai prior to these events. B The Break-in/Robbery/Forcible Confinement at 14 Library Lane [ 10 ] Midafternoon on January 17, Bennett Wei drove from 14 Library Lane to a local indoor golf facility and then to the YMCA, leaving his wife Hetty Wu at home. An hour or so after he left, Ms Wu was relaxing on a couch in the family room when she heard someone enter the home through the front door.

Thinking at first it was her husband returning early, she looked up and found Mr. Chai coming into the family room wearing a mask and pointing a handgun at her. Speaking in Mandarin, he told her he was there to rob her and directed her to get on the floor face down with her hands on her back. She complied and Mr. Chai then handcuffed her arms behind her back, ordered her to stand up and then demanded to know where the passports were kept.

Ms Wu replied they were in the study and the defendant ordered her to show him. [ 11 ] As Ms Wu led the defendant to the study on the second floor, he positioned himself behind her with the evident purpose of preventing her from looking at him. When they got to the study she showed him the locked drawer where the passports were kept and the key to open it.

The defendant then led her down to the basement, stopping on the way to pick up a blue gym bag he had stowed outside the front door, and using a rope he retrieved from his bag, he tied her to a chair in the basement washroom, facing the wall with her back to the washroom door. Mr. Chai then gagged her by stuffing a towel in her mouth and covered her head with a blanket. He told her she would not get hurt if she did what he told her and then he went back upstairs. [ 12 ] Ms Wu could hear Mr. Chai walking around upstairs and every few minutes he came back down to check on her.

One of those times he demanded to know why he could only find her passport and not her husband’s; she replied that the passports were all in the same drawer and he went back upstairs. Another time she heard a cell phone ringing upstairs and moments later the defendant came down and asked “who is Bennett?” She replied Bennett was her husband. The defendant asked her where her husband was and she replied that he had gone to the YMCA. Mr. Chai then asked “how come he is calling you? Are you guys going out for dinner together?” Ms Wu replied that they had been planning to go supermarket shopping.

From then on, it seemed to her that rather than just taking what he wanted and leaving, Mr. Chai was waiting for her husband to get home. [ 13 ] While this was going on, Bennett Wei had tried to reach his wife on her cell phone several times and when she didn’t answer he started calling on the house landline. Perplexed about not being able to reach her, he sent her a text message telling her he was finished at the YMCA and was on his way home. This time he got a reply, a return text that said “okay. All good.” [ 14 ] At about 6:00 p.m. Mr.

Wei entered the house through a door leading from the garage and immediately heard someone behind him shout “don’t move”. He turned around to see the masked Mr. Chai pointing a gun at him, telling him not to move and to get down on the floor face down. From the basement, Ms Wu heard her husband call out to her as he walked into the door and then shout “who are you? What are you doing here?” and then heard Mr. Chai tell her husband not to move. Mr. Wei complied and Mr. Chai handcuffed him, took his phone and speaking in “very accurate Mandarin” ordered him to the basement. Mr.

Wei saw his wife tied to the chair as the came down to the basement and called out to her; from the sound of her response he could tell she had been gagged. [ 15 ] The defendant then bound Mr. Wei to a chair near the bottom of the stairs, gagged him and draped a duvet blanket over his head and body. All Mr. Wei could do was “sit there and listen”, he testified, to the sounds of the defendant walking around upstairs and occasionally returning to the basement briefly. Ms Wu also heard the defendant walking around upstairs, apparently continuing to look for things.

At one point she heard her husband ask “is it money what you’re after? If money is what you’re after, I can go to the bank and get some for you” but Mr. Chai did not respond and instead continued to “look for things”. [ 16 ] Mr. Wei tried to shake off the duvet by rotating his head and finally succeeded just as the defendant came down the stairs into the basement with his face unmasked and now wearing gloves. When Mr. Chai noticed Mr. Wei had managed to get the duvet off he became furious and shouted “how dare you look at my face” and then used his gun to beat Mr.

Wei in the head three or four times with great force. Ms Wu testified that from the bathroom she could not hear the blows being struck but could hear her husband “ crying out badly”. [ 17 ] Mr. Chai left to put his mask back on and when he returned he was holding three tablets of medicine in his gloved hand which he told Mr. Wei to swallow. When Mr. Wei said he would not take them, Mr. Chai forced the tablets into his mouth and made him swallow them with water, telling him they were painkillers, and then checked his mouth afterwards to make sure they had been ingested. Mr.

Wei did not know what the medicine was (investigators later discovered a package of Gravol tablets with three tablets missing in the vehicle used in the kidnapping). [ 18 ] At that time, Mr. Wei commented that his scalp was bleeding profusely to which the defendant replied “it’s fine, it’s fine” before finding and placing a toque on Mr. Wei’s head to cover the wounds. [ 19 ] Mr. Chai then began interrogating Mr. Wei, asking him how much money there was in the house and whether he was a corrupt official. The latter question was asked using terminology that, according to Mr.

Wei, connoted a corrupt official of either the Chinese government or a state-run business. Mr. Wei replied he could not be such an official as he had not worked at a state-run business for twenty years. Mr. Chai asked how he was employed then, and Mr. Wei replied he ran a small business. The defendant began scrolling through messages and contacts on the WeChat app on Mr. Wei’s phone, pausing to ask specific questions about contacts associated with Mr. Wei’s business in China including a someone named Shiying Li who, Mr. Wei explained to the defendant, was his business accountant and located in China. Mr.

Chai suggested he contact the accountant to get money, to which Mr. Wei replied “that money

belongs to the company, how can I just take it out?” Ms Wu testified that during this exchange the fact that she and her husband had flights to China booked to depart later that week came up and that Mr. Chai commented in response “see, the timing of my boss was quite good”. At some point after asking Mr. Wei how much money he could raise to give them and not receiving an answer, the defendant went back upstairs. [ 20 ] A few minutes later, Mr. Chai returned and demanded to be given $2.5 million; Mr.

Wei protested he did not have access to that amount of money, the defendant ran back and forth upstairs bringing various HSBC, TD and Capital One bank cards to Mr. Wei and demanding to know the access codes. Mr. Wei told Mr. Chai you cannot get money out of the HSBC card because it was a debit card which the defendant disputed. The defendant made further trips to and from the basement before returning to announce that he had spoken to his “boss” and now had instructions to accept $1.5 million, a sum that by this point Mr. Wei understood as a ransom that would be required for his return. [ 21 ] When Mr.

Wei continued to protest that he did not have access to that much money, the defendant suggested mortgaging the house and told him to discuss with his wife how the money should be raised before they left. Mr. Wei told Ms Wu to consult as many friends and colleagues as possible about the money which he intended as a hint. Ms Wu said there was no way to raise so much money to which Mr. Wei replied “then try to think of ways”. Mr. Chai interrupted, telling them “time is limited. Finish your discussion. I’m taking away the husband.” [ 22 ] Mr.

Chai then told Ms Wu that he would contact her in two days to tell her where to bring the money which should be made ready in the meantime and asked if Mr. Wei needed to sign some cheques before they left. Ms Wu replied it was unnecessary as she also had signing authority and asked Mr. Chai where he was taking her husband to which he replied “a very far away place, somewhere in Québec”. Ms Wu replied that he did not have enough clothing. The defendant then asked where the clothes were kept and went back upstairs to get them. [ 23 ] When he returned, he cut Mr.

Wei free from the chair but left his legs bound and his arms handcuffed. After refusing Ms Wu’s request to be allowed to see her husband at least once before he was taken away, Mr. Chai directed Mr. Wei to jump or hop up the stairs, out the side door, through the backyard and a second door into the garage where a car was now waiting. According to Mr. Wei, he was made to lie in the backseat and his eyes were covered with the brim of his hat. He heard the garage door open and felt the motion of the car driving away. [ 24 ] Ms Wu testified that at some point before he left with her husband, Mr.

Chai returned to the basement and partially unbound her so she could free herself but not immediately. Ms Wu asked the defendant how she could raise that much money from the same bank and he told her to withdraw from different locations. Before leaving, Mr. Chai warned Ms Wu someone would be watching their house, she should not come upstairs until he had been gone for half an hour and that if she called police she would never see her husband again. C The Kidnapping (

a) The First Stop at TD Bank [ 25 ] After leaving 14 Library Lane with Bennett Wei, Mr. Chai drove to different locations in the Markham area, including the Pacific Mall and the TD Bank at 9600 McCowan Rd. Mr . Wei testified “ there was a brief time that perhaps I was too tired, or perhaps I lost too much blood. I don’t know I passed out, or I fell asleep. When I opened my eyes again, I know that he was still driving, but then I no longer know where I was”. When Mr. Wei awoke, they were still driving.

He recalled the defendant telling him “remember, Toronto is not where you live” and a while later saying “your son has reached home”. [ 26 ] In any event, the first stop was at what Mr. Wei believed to be the TD bank: by that point his hat had shifted a little such that he could see the sign for a familiar restaurant called either Liyuan or Siyuan that Mr. Wei knew to be l ocated next to the TD Bank. The defendant did not explain why he was stopping and simply told Mr. Wei “stay put. Do not play any tricks.” This portion of Mr.

Wei’s account comports with the following portion of the Agreed Statement of Facts: When Li Chai left the victim’s home, 14 Library Lane, with Bennett Wei he drove to different locations, including the Pacific Mall and the TD Bank at 9600 McCowan Rd in Markham. The defendant forced Bennett Wei to tell him the passcodes/ PIN numbers for his credit and debit cards. Items stolen by the defendant from Bennett Wei included his Costco Capital One credit card and a TD Canada Trust debit card. Video surveillance at the TD Bank captured Li Chai arriving at the TD Bank at 8:31 pm on January 17, 2017.

He was alone arriving and while at the bank. He entered the bank at 8:40 pm and went to the ATM. He left the bank, did a transaction at the exterior drive thru ATM and re-entered the bank. Li Chai used the ATM machine at the TD Bank at 8:50 pm and withdrew $500.00 from Bennett Wei’s account using the TD Canada Trust debit card and at 8:52 pm he withdrew another $500.00 using Bennett Wei’s Capital One card. He left the parking lot of the bank before 9 pm. Bennett Wei remained restrained in the backseat of the car. (

b) The Second Stop at Pacific Mall [ 27 ] The next stop after they left the TD Bank was the Pacific Mall in Markham. Mr. Wei was familiar with Pacific Mall and saw the sign for it two or three times as they were driving around, apparently in circles. Ultimately, he surmised they had stopped in the underground parking lot at Pacific Mall. Once they were stopped, the defendant got out of the vehicle, walked some distance away and then spoke to someone. Mr. Wei testified he could not make out the details of the conversation but it was clear they were speaking to each other in Mandarin.

[ 28 ] A short while later a man looked in at him through a small gap in the back window, about 20 cm from Mr. Wei’s feet. Mr. Wei presumed from the context it was the person Mr. Chai had been speaking to. He was certain the man was not Mr. Chai as he was taller and had noticeably longer hair. He could hear the trunk of the car he was in being opened and from what he could hear it sounded as though the defendant and the other man were moving things back and forth between two cars. Mr.

Wei thought the stop at Pacific Mall lasted about ten or fifteen minutes. [ 29 ] It is an agreed fact that the defendant drove to the underground parking lot of Pacific Mall at which time Bennett Wei was covered with a blanket but could partially see his surroundings. Security camera footage from the underground parking lot at Pacific Mall later obtained by police lacked sufficient clarity to identify the vehicle driven by the defendant entering the garage and portions of the underground lot were not captured by the security cameras. (

c) The Drive to Burlington [ 30 ] After leaving Pacific Mall, Mr. Wei testified, they drove for quite a long time on a highway. At one point during the drive, the defendant asked “did you offend anyone?” Mr. Wei replied “I have never offended anyone”. The defendant then said “it looks like Toronto is not the place where you ought to be”. Mr. Wei did not reply further. At another point the defendant said “your son has arrived home”, leaving Mr. Wei with the impression the defendant had someone watching his home. [ 31 ] Mr.

Wei testified he complained to the defendant that the handcuffs were too tight and were hurting his wrists and that he had a heart condition and feared being tied up in this manner could kill him. The defendant stopped to loosen the handcuffs twice during the drive after they left Pacific Mall before reaching their final destination that night. (

d) The Stay in Burlington [ 32 ] The defendant eventually stopped at Canada’s Best Value Inn at 2404 Queensway Dr. in Burlington where he registered and checked in under his own name. The guest registration card showed 2 guests assigned to Room 19. Mr. Wei testified that Mr. Chai took him from the car into the room and made him lie in the bathtub where he spent the night, handcuffed but with his feet untied. [ 33 ] The next morning, the defendant came in to the washroom and gave Mr. Wei some bread and water to eat.

They had a brief conversation during which the defendant asked him “why didn’t you go to Vancouver” Mr. Wei replied “I don’t have that much money the houses there are too expensive”. [ 34 ] Later that morning Mr. Wei complained he was too warm in the coat he was wearing and asked to take it off; the defendant replied “no, just persevere.” Whenever Mr. Chai had to interact with Mr. Wei to allow him to use the toilet or for some other reason, he would wear his mask and before each such contact Mr. Wei heard a gun being cocked. (

e) Post-Kidnapping Events at 14 Library Lane [ 35 ] The parties agreed on the following facts concerning events at 14 Library Lane after Mr. Chai left with Mr. Wei: After Hetty Wu untied herself, she called her son Ye Fan Wei and told him about the home invasion and kidnapping of his father. Ye Fan Wei was at a restaurant in Toronto at the time of his mother’s call. He went to the home of his father’s business partner, Shan (Bruce) Jiang and they called his mother back. Ye Fan Wei called 911 at 8:56 pm. The first officers to arrive at 14 Library Lane were PC Woodstock 2195 at 9:08 pm and Sgt.

Kalpouzos 816 at 9:10 pm. The officers saw bruises on both of Hetty Wu’s wrists from being tied up with rope. The upstairs office was ransacked. In the basement there was a chair with blood on the floor and rope around the chair. There was a meat cleaver on the ground. A wallet, steak knife and documents were strewn about on the pool table. The red cloth shoved into Hetty Wu’s mouth was on the floor.

In the basement bathroom, there was a second chair with rope around it on the ground and blood on the comforter… Police set up a command post in Newmarket and continued the investigation to find the victim Bennet Wei and identify the suspect. (

f) The Move to 118 Gemini Crescent [ 36 ] Mr. Wei testified he spent most of Wednesday January 18 in the bathtub at the motel and it was dark by the time they left. It is an agreed fact that at this point the defendant drove to his home at 118 Gemini Crescent with Mr. Wei in the backseat . Mr. Wei testified his eyes were covered tightly for the drive which he estimated took between two and three hours. When they arrived, before he was taken into the house, the defendant told him “don’t look. If you do then you will die”. [ 37 ] Once inside the home, the defendant took Mr.

Wei to a small cold storage room in the basement and handcuffed one of his arms to a metal storage shelf. The defendant supplied Mr. Wei with a sleeping bag, some clothes taken from 14 Library Lane, water, noodles, a small bag to urinate into and a crock pot to defecate into. At all times, Mr. Chai continued to take steps to ensure that Mr. Wei did not see his face and every time he entered the storage room where he had handcuffed Mr. Wei to the shelf, Mr. Wei could hear the sound of him “pulling on the gun barrel”. D The Police Investigation and Ransom Negotiations (

a) The

Part VI Authorization

[ 38 ] On Wednesday January 18, investigators obtained an emergency

Part VI authorization allowing them to intercept incoming calls to Hetty Wu’s cell phone as of 12:10 p.m. that day. Consistent with what he had told Ms Wu before leaving, the defendant did not contact her that day. [ 39 ] As of noon on Thursday January 19, Mr. Chai had not contacted Ms Wu and the police had no pertinent intercepts, no idea who the suspect was or where he was keeping Mr. Wei. [ 40 ] Mr. Chai first contacted Hetty Wu’s cell phone at 12:18 p.m. and another five pertinent calls were intercepted at 12:28, 16:38, 16:47, 18:12, and 18:26 as well as one relevant incompleted call at 18:24. Mr.

Wei was on the line with the defendant for much of the time. On the other end of the call were Hetty Wu and/or Mandarin-speaking PC Tom Wan holding himself out as “Mr. Yang” a family friend who also happened to be “a professional who help people to solve problems”. [ 41 ] Investigators conducted an emergency check on the location of the phone Mr.

Chai used for the first call and discovered it was associated with a Rogers Fido SIM card that had been activated at 10:30 that morning and registered to “Chen of 280 Upton Cr., Markham” which police believed to be a fictional name the defendant used to purchase the phone. Rogers security advised it could not determine the phone’s location because it had been turned off. (

b) The Intercepted Ransom Negotiation Calls i. Call #1: 12:18 [1 min 15 sec] [ 42 ] Mr. Wei testified that his face was covered just before the defendant called Ms Wu the first time, he heard the gun click and then the defendant escorted him out of the storage room, saying “we’re going to make a phone call.” The defendant instructed Mr. Wei to walk down several steps and he was then placed in a chair. Mr. Wei could tell the defendant was not using a cell phone, but rather “a dialer, like the IP phones” which Mr.

Chai dialled and connected with Ms Wu. [ 43 ] When Ms Wu answered the phone the defendant asked “how much money have you prepared?” Ms Wu replied that she wanted to speak to her husband to know he was okay. Mr. Wei eventually came on the line and confirmed he was safe. The defendant asked “did you hear?” Ms Wu replied she did and was preparing to give him the money and that she had enlisted the help of a friend to help her gather the money and handle the matter. Without any reply from the defendant the call terminated. [ 44 ] Mr.

Wei testified that after this call ended, the defendant “seemed pretty happy ‘cause they’re saying getting the money is not an issue. And then he said to me, “Your passport and Chinese residence card and identification documents are now all in my possession”. He told Mr. Wei the big boss wanted him to pick up the money from Ms Wu and “then I’ll get your son to drive his Mercedes Benz to come and pick you up.” Mr. Wei found it strange that Mr. Chai knew his son drove a Mercedes Benz. He replied to Mr.

Chai, “[h]ow about get my son to drive the Audi to come and pick me up?” and the defendant replied “[n]o, the vehicles cannot be switched.” ii. Call #2: 12:28 [4 min 43 sec] [ 45 ] The defendant called back at 12:28. This time, “Mr. Yang” answered and told the defendant “my last name is Yang, I am a professional help people to solve problems. How should I address you?” After some unintelligible utterances with voices overlapping, the defendant indicated he wanted to speak to Ms Wu. The call went on for some time with Mr. Yang attempting to engage Mr. Chai, Mr. Chai refusing, Mr.

Wei getting on the line and telling Mr. Yang to put his wife on, Ms Wu telling Mr. Wei to let Mr. Yang do the negotiating, Mr. Yang ultimately telling Mr. Chai they needed until 3:30 that afternoon to make arrangements and the defendant indicating he required $1.5 million in non-sequential $100 bills. [ 46 ] Before the call ended, Mr. Wei testified, Mr. Chai hit him, apparently intending Ms Wu to hear. Mr. Wei described what Mr. Chai said and did next: …So, he hit me, meaning with the intention that my wife would hear it. And then after the phone was put – was hung up, he said, “You guys are all playing tricks.

Stretch out your hands. I’m going to cut off your fingers. You see, for people in our profession, we have to keep something in order to go out.” Meaning, since I’ve abducted someone, then I have to cause you some injuries before I let you out.” Yeah, and to have limbs cut off, those are normal. And so, he said, “Stretch out your hands. I’m going to chop off your fingers”. And then I was holding my – my fingers really tight, and I started crying. I said, “Who did I offend and I have to suffer from this?”...And I think he – he said, “Just don’t offend anyone in the future.” As the defendant returned Mr.

Wei to the storage room he punched him in the shoulder and lower back and also kicked him in the buttocks. [ 47 ] After both the first and second calls, the defendant asked Mr. Wei who Mr. Yang was. Mr. Wei truthfully replied that he: …didn’t know who Mr. Yang (ph) was. And I thought about it for a bit and I said it could be – could be the owner for money exchange. And then after the second phone conversation – after the second phone call he asked me again, “Who is this person?” I said, it could be a branch manager because our money is all in the same bank.

So, perhaps the – this person’s helping to collect the money. In fact, in the third phone call, I thought he was the bank manager, and that’s how I addressed him. iii. Call #3: 16:38 [7 mins 15 sec] [ 48 ] The defendant called next at 16:38. Before “Mr. Yang” answered, the defendant can be heard saying “don’t play games” to Mr. Wei. When Mr. Yang answered, the defendant asked if the money was ready. Mr. Yang said he wanted to speak to Mr. Wei to know he

was still safe. After more back and forth about this Mr. Yang eventually told the defendant there was a delay in getting the money and suggested the possibility of a $10,000 down payment. The defendant repeatedly indicated he wanted to speak to Ms Wu and he would not deal with Mr. Yang. When Ms Wu ultimately came on the line, she mentioned that her purse containing her bank cards, which she needed to get the money, was missing. She told the defendant the bank managers were telling her it would take 3 to 5 days to prepare the money. Throughout this exchange, Mr.

Wei is heard at various points plaintively urging his wife and/or Mr. Yang to get the money . iv. Call #4: 16:47 [12 mins. 4 sec] [ 49 ] When Mr. Chai called back at 16:47 and “Mr. Yang” answered, the defendant said “listen carefully”, which was followed by the sound of Mr. Wei being beaten and crying out. The defendant asked “did you hear it”, following which Mr. Wei is heard pleadingly calling out his wife’s name. When Ms Wu then mentioned the possibility of a smaller amount as a deposit, the defendant replied “did you hear it?” Mr. Yang and Mr.

Wei then discussed the possibility of mortgaging their house and Mr. Wei asked to speak to his wife. When Ms Wu came back on the line he exclaimed “they are beating me. But, if you cannot get a loan from the bank. I, I, I don’t know the actual situation. You just say two points, one point. If it doesn’t work. Can you mortgage your house first okay? Ms Wu replied “like this, you already knew. The bank have told me that for the cash. You should know those banks in Canada... It is difficult to withdraw cash in such short time, especially for large amount of cash. Mr.

Wei is heard saying “they said to wait two more days, right?” Ms Wu replied “yeah, now how much do you want me to withdraw first?” [ 50 ] At this point the defendant can be heard saying “1.5 million, not a penny short.” Following further discussion about how long it would take, the difficulties with the bank and further warnings from the defendant, Mr. Wei said the kidnapper still wants $1.5 million and Ms Wu said it would take so long time. After back and forth about the delay and problems with the banks, the defendant said “so, wait for your delivery tomorrow.

Let’s talk after you received a finger from your husband tomorrow…. Let’s talk after he received a finger from your husband” and some while later threatened not to feed Mr. Wei for three days. Mr. Wei is heard bemoaning the fact that he will probably be killed, at which point the defendant directed him out of the room and beat him. Mr. Chai then asked his interlocutors “did you hear it?” v. Call #5: 18:12 [4 mins 6 sec] [ 51 ] When the defendant called again at 18:12 he told Mr. Yang he did not want to speak to him and to put Ms Wu on the line. Mr. Yang replied she was “going to get money from friends”; Mr.

Wei interjected “you tell my wife to pick up the phone”. Mr. Yang replies …now his wife is crying. She cannot listen, she is too nervous…But I, I just want to tell you. We will go get some money from friends later”. There is further back and forth along the same lines during which Mr. Wei refers to the fact “they” returned the bank card to 14 Library Lane. Mr. Yang indicates that Ms Wu is not there and he needs a few minutes to get her to return. The defendant states “I will call back in ten minutes, tell his wife to pick up the phone, you got it?” and the call is then terminated. vi.

Incomplete Call: 18:24 [1 min 19 sec] [ 52 ] Before the call is answered the defendant is heard telling Mr. Wei “ One million, tomorrow. You hear me? The other five hundred thousand, tell your (unintelligible) or whatever to find solution. Whatever identification cards all given to her. Monday. You hear me…Tomorrow our...big boss...(unintelligible)... (unintelligible)...Understood?...I do not want to hear you talk. (Unintelligible) them talk.” The call terminates after it connects to the voicemail of someone unconnected to this case, evidently a wrong number. vii. Call #6: 18:26 [6 mins 57 sec] [ 53 ] When Mr.

Yang answered the defendant’s next call at 18:26, Mr. Wei told him to get Ms Wu on the line to which Mr. Yang replied “she is not here right now, I cannot find her.” A discussion about efforts to get money from the bank followed with Mr. Wei interjecting at points to ask about what progress was being made. During the ensuing three-way discussion Mr. Wei mentioned a bankcard that was returned to Ms Wu that can access an account with $900,000 and the defendant provided details as to where it was left at 14 Library Lane. As the defendant directs him to get his wife on the phone, Mr. Wei tells Mr.

Yang “ just now I did negotiate a condition with them, which is...so the new condition is...he said to obtain the one million dollars by tomorrow…Because the one million dollars is from our bank account anyway. But we need your help, there are some (unintelligible) we do not know if it is possible to accomplish and so we really need your help... And then the other condition is, the balance of five hundred thousand dollars must obtain (unintelligible) whatever, but tomorrow once we got the one million dollars uh...” During the ensuing exchange, the defendant mentions Mr.

Yang’s earlier promise to have the money ready by 3:30 and repeatedly warns him “don’t you lie to me again”. Mr Chai is also heard telling Mr. Wei to warn them not to call the police, prompting Mr. Wei to then say “there are two points, point number one, they know that we did not call the police, so I, I, so please do not call the police at this moment. Okay?” Mr. Yang replied that they will not and after they agree to talk again at 20:30, the call ends.

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c) Mr. Chai is Located and Arrested [ 54 ] At 13:31 a York Regional Police mobile surveillance unit stationed outside 14 Library Lane watched the defendant arrive in his rented blue Nissan Sentra, exit his vehicle, throw a duffel bag over the fence into the backyard, run back to the Nissan and quickly drive away. At that point, they did not know the man they were watching was the kidnapper. They attempted to follow, but lost sight of his vehicle.

The duffel bag’s contents included a black wallet holding Hetty Wu’s identification. [ 55 ] After Call #3 [16:38], investigators working with Roger’s security learned the phone Mr. Chai used for this call was in the area of Sapphire Dr. and Sunvalley Dr. in Richmond Hill. After Call #4 [16:47] they narrowed the phone’s location to within a 49-metre radius of Joplin Gate and Gemini Cres. [ 56 ] At 17:35, a mobile surveillance team saw the same blue Nissan Sentra drive by 14 Library Lane. As they followed, the Nissan drove back to 118 Gemini Cres.

Where at 17:55 the surveillance officers watched the defendant park it in the garage and then close the garage door. Not surprisingly, the investigators deduced the kidnapper and Mr. Wei were likely inside 118 Gemini Cres. Officers from the Emergency Response Unit, the Homicide and Missing Persons Unit and the Criminal Investigation Bureau were sent to the area along with a contingent of uniformed general patrol officers.

Investigators and tactical officers discussed how to safely enter the residence and debated whether they needed a Feeney warrant. [ 57 ] Before the police took any action, just after 20:00 the defendant, who was evidently unaware that a force of police officers including snipers had surrounded the home, walked out the front door to check his mail and was then quickly arrested by ERU officers. [ 58 ] After the defendant’s arrest, ERU members entered 118 Gemini Cres. and found Bennett Wei handcuffed to the shelving unit in a cold room in the basement. [ 59 ] Moments after the defendant was arrested, tactical officers activated an audio recording device to record any utterances he made.

The device continued to record as the defendant was taken to hospital for treatment of an eye injury he sustained during his arrest and then transported to the police station and lodged in a cell. Later, after speaking to duty counsel, a video-tape recorded interview of the defendant was conducted by DC Shawn Koshandish. I will have more to say about both the post-arrest utterances and the police interview below. 2. The NCR Defence A Overview [ 60 ] Mr.

Chai submits he should be found NCR because his mental disorder drove him to commit the six charged offences and deprived him of the capacity to know his actions were wrong. [ 61 ] Defence-retained psychiatrist Dr. Jonathan Rootenberg interviewed Mr. Chai on March 15 and April 13, 2017. Mr. Chai told the psychiatrist he had worked in China as a financial professional and had served as an unpaid consultant to the Chinese Anticorruption Bureau. Just before Mr.

Chai moved to Canada with his family in 2015, an official there asked him “to try find the corrupt officials hiding in Canada, and said when I found them, to contact the Chinese Consulate”. [ 62 ] Mr. Chai told Dr. Rootenberg he developed a profile for corrupt Chinese officials living in Canada, i.e. older Chinese men who like to golf and/or fish, drive Audis and frequent casinos, often in the company of young female sexual companions. Starting in Spring/Summer 2016, Mr.

Chai started playing golf, visiting Casino Rama and going to other places where men fitting this profile might congregate. [ 63 ] In December, 2016, and again in mid-January, 2017, Mr. Chai rented a car to patrol neighbourhoods with high concentrations of Chinese residents. While patrolling on January 17, 2017, he passed 14 Library Lane and noticed an Asian man put golf clubs into the trunk of an Audi parked in the driveway and then drive off. He decided to investigate. After confirming 14 Library Lane was a Chinese household by looking through the front window and seeing magazines and calligraphy, Mr.

Chai tried the front door handle and found to his surprise that it was unlocked. He decided to go in to look for documents that might show the man he had seen was a corrupt official. [ 64 ] As he explained to Dr. Rootenberg, Mr. Chai “did not know who would be inside; when he entered the home, he saw a woman sitting on a couch in the living room. He was surprised to find someone there and pulled out his gun and told her to lie on the ground, which she did. He had brought handcuffs with him as he was on a ‘mission’, and he handcuffed her.

He then asked for her passport ‘so I could identify them … if I took the passports away, they couldn’t run away’…” [ 65 ] Importantly, in all his assessment interviews and when testifying before me, Mr. Chai maintained he entered 14 Library Lane with one thought in mind, to look for documentary evidence and take whatever he found with him. It was only upon being “shocked” to find Hetty Wu in the house that his thoughts turned to robbery and forcible confinement and, once he had found evidence Mr. Wei was a corrupt official, kidnapping. [ 66 ] Dr.

Rootenberg felt “ paranoid delusional beliefs that he was on a ‘mission’ to find corrupt Chinese officials in Canada” impelled Mr. Chai to commit the offences and deprived him of the capacity to know that “ entering a stranger’s home to find evidence of such ‘corruption’; using a weapon; forcibly confining the victims; and then removing the victim from his home” was wrong. During the material time, Dr. Rootenberg concluded, Mr.

Chai’s “mental state was sufficiently thought disordered that he was unable to rationally consider whether his actions were right or wrong in a way most people would ordinarily be able to do” and consequently he met the criteria for an NCR finding.

[ 67 ] To reach this conclusion, Dr. Rootenberg necessarily accepted the sincerity of Mr. Chai’s self-reported motivation for his actions. Dr. Rootenberg knew about, but did not review, Mr. Chai’s videotaped statement to police, recorded post-arrest utterances or the intercepted ransom-negotiation calls. The only information he had directly from Mr. Chai concerning his mindset at the time of the offences was what Mr. Chai had told him. In this report, Dr. Rootenberg observed “as in all forensic psychiatric examinations, it is necessary to consider the possibility that Mr.

Chai is simply misrepresenting the truth in claiming that his psychotic symptoms primarily influenced his behaviour…” Nevertheless, for reasons never adequately explained, he was content to express his unqualified opinion without knowing what Mr. Chai had said during and immediately after the offences. [ 68 ] Crown-retained psychiatrist Dr. Karen DeFreitas assessed Mr. Chai upon his admission to the Forensic Assessment Unit of the Ontario Shores Center for Mental Health Sciences on July 25, 2017.

She agreed he met the diagnostic criteria for delusional disorder (persecutory type) but disagreed his delusions drove his conduct or deprived him of the capacity to know his actions were wrong. In her view, Mr. Chai’s persecutory delusions were more in the nature of “a capacity to come to believe that people are trying to harm him when that is not true.

The belief he described that leads to the index offence, however, is not a persecutory belief, it's a very different belief that he is, in essence, empowered to work as a law enforcement on behalf of China, and that his actions are related to that belief.” She did not believe Mr. Chai’s claim that he committed the offences in furtherance of any such “mission” and considered it more likely his motivations stemmed from something like “a legitimate desire to serve his country coupled with a flawed understanding of the legal system” or, possibly, financial gain. [ 69 ] The defence retained Dr.

Derek Pallandi to conduct a third NCR assessment. Based on his four hour interview of Mr. Chai on January 22, 2018, review of the other two NCR assessment reports “as well as an extensive array of collateral materials” and what was essentially a reprise of Dr. Rootenberg’s analysis, Dr. Pallandi concluded that “from a clinical perspective” he would “support an NCR finding being applicable to Mr. Chai’s case”. [ 70 ]

Section 16 of the Criminal Code provides “[n]o person is criminally responsible for

an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong”. Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility unless and until the contrary is proven on a balance of probabilities. Mr. Chai bears the burden of proof as he is the party seeking the NCR verdict: Criminal Code , ss.16(2) & (3). [ 71 ] Mr. Chai thus bears the burden of proving on a balance of probabilities that he was (

i) suffering from a mental disorder…(ii)… which rendered him incapable of knowing his actions were wrong. [ 72 ] Crown counsel did not formally concede the first element has been proven but nor did she strenuously argue I should find otherwise. All three psychiatrists as well as clinical/forensic psychologist Dr. John Arrowood concurred that Mr. Chai met the diagnostic criteria for delusional disorder (persecutory type). This consensus diagnosis is supported by other evidence and I have no difficulty finding on a balance of probabilities that Mr.

Chai suffered from delusional disorder at the relevant time. [ 73 ] The real controversy in this case is whether Mr. Chai’s delusional disorder deprived him of the capacity to know his actions were wrong, i.e. whether “ through the distorted lens of his mental illness” Mr. Chai saw “his conduct as justified, not only according to his own view, but also according to the norms of society” and thus lacked the capacity to know that his actions were morally wrong: R v Dobson , 2018 ONCA 589 , para.19.

Of some importance on the facts of this case, the “societal norms” in question are, of course, Canadian societal norms [ 74 ] Mr. Neuberger submits the evidence establishes at least on a balance of probabilities that Mr. Chai was driven to commit the offences by his delusionally-based but honestly held belief that he had been tasked by Chinese anticorruption authorities to locate and capture corrupt officials and deliver them to the Chinese Embassy. As part and parcel of his delusion, Mr.

Chai believed that his duty as a Chinese citizen and de facto anticorruption law enforcement officer to complete his “mission” was a moral imperative transcending Canadian legal and moral standards. Accordingly, Mr. Chai committed the offences “while suffering from a mental disorder that rendered [him] incapable of…knowing that [his actions were] wrong”. [ 75 ] Determining whether this has been proven requires an assessment of the sincerity of Mr. Chai’s self-report concerning his motivation for committing the offences.

This in turn requires close scrutiny of the consistency of his account, both internally and measured against his words and actions before, during and after he committed the offences. Even if I accept Mr. Chai’s self-report concerning his motivation for committing the offences, I must also determine whether the evidence establishes a likelihood that Mr.

Chai’s delusional beliefs deprived him of the capacity to know his actions were morally wrong according to the norms of Canadian society. [ 76 ] Finally, against this backdrop, I must consider what weight to give each of the three expert opinions in the same manner as any other evidence. As I will explain, each of the three expert opinions in this case were in their own way discernibly flawed; to varying degrees, all three opinions were based on mistaken or incomplete consideration of the evidence and/or flawed understandings of the applicable legal standard.

Although the opinions were of value in helping me understand the nature of delusional disorder, none was of great assistance on the key question of knowledge of wrongfulness. B The Applicable Legal Principles

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a) Overview of the s.16 Defence [77] Section 16(1) of the Criminal Code provides: No person is criminally responsible for

an act committed or an omission made while suffering from a mental disorder that rendered theperson incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. The s.16 exemption from criminal responsibility thus consists of two components: “the first is a condition, a mental disorder. The secondis an incapacity associated with that condition. On its own, a mental disorder does not exempt anyone from criminal responsibility.

Amental disorder only exempts from criminal responsibility if it renders a person incapable of appreciating the nature and quality of an actor omission, or incapable of knowing that the act or omission was wrong” [emphasis in original]: R v Dobson, 2015 ONSC 2865 at para.66, aff’d, 2018 ONCA 589. [78] Subsections 16(2) & (3) define the applicable burden and standard of proof:

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

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on theparty that raises the issue. [79] The defence has raised the NCR issue in this case and consequently bears the burden of rebutting the presumption of criminalresponsibility by proving the two applicable substantive elements of the NCR defence on a balance of probabilities: i. Mr. Chai committed the offences while suffering from a mental disorder... ii. …that rendered him incapable…of knowing [his actions were] wrong.[i] [80] I will now address the legal principles applicable to the second element, capacity in relation to knowledge of wrongfulness. (

b) Legal Principles Governing Knowledge of Wrongfulness [81] Much ink has been spilled in attempts to interpret the phrase “rendered the person incapable of…knowing that [the act] waswrong”. In the seminal decision on point, R v Chaulk, (SCC), [1990] 3 SCR 1303, Lamer CJC explained that in ordinarycircumstances the criminal law does not concern itself with whether an accused knew that his intentionally committed criminal act waswrong; sane persons are presumed to have the capacity to distinguish between right and wrong.

NCR claims under the second branch ofs.16(1) challenge that presumption and as such amount to a “special exculpatory defence which is based on lack of capacity fornormative understanding.” To succeed, an accused must established that by reason of mental disorder, the accused was incapable ofknowing that

an act was wrong according to the normal and reasonable standards of society. The focus of the inquiry is the thinkingprocess of the accused, as opposed to his actual knowledge of wrongness; the question, in other words, is not whether an accused knewthe act was wrong but whether he was capable of knowing it was wrong, as Lamer CJC explained [at para 101]: “Moral wrong” is not to be judged by the personal standards of the offender but by his awareness that society regards the act as wrong. The accused will not benefit from substituting his own moral code for that of society.

Instead, he will be protected by s.16(2) [nows.16(1)] if he is incapable of understanding that the act is wrong according to the ordinary moral standards of reasonable members ofsociety [emphasis added]. [82] In R v Ratti, (SCC), [1991] 1 SCR 68, Lamer CJC restated this principle in these terms [at para 20]: In accordance with our decision in Chaulk, the trier of fact must be directed to consider whether the appellant was rendered incapable, byreason of disease of the mind or “natural imbecility” to know that his act was morally wrong in the circumstances.

It is not sufficient todecide that the appellant’s act was a result of his delusion. Even if the act was motivated by the delusion, the appellant will be convictedif he was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemnedby reasonable members of society [emphasis added]. [83] Later in R v Oommen, (SCC), [1994] 2 SCR 507, the Court reaffirmed Chaulk and clarified that “capacity to

know wrongness” does not refer to a general capacity to know right from wrong but, rather, requires capacity to know that the particularact in question is wrong, having regard to the everyday standards of reasonable people. Writing for the full bench, McLachlin J. (as shethen was) identified the key issue as “whether the accused possessed the capacity present in the ordinary person to know that the act inquestion was wrong having regard to the everyday standards of the ordinary person”.

As she went on to explain, s.16 is of no avail to: …the psychopath or the person who follows a personal and deviant code of right and wrong. The accused in the case at bar acceptedsociety's views on right and wrong. The suggestion is that, accepting those views, he was unable because of his delusion to perceive thathis act of killing was wrong in the particular circumstances of the case. On the contrary, as the psychiatrists testified, he viewed it asright. This is different from the psychopath or person following a deviant moral code.

Such a person is capable of knowing that his or heracts are wrong in the eyes of society, and despite such knowledge, chooses to commit them. [84] These leading decisions make it clear that if an accused has retained the capacity to know that his actions would be regarded aswrong according to societal standards his subjective belief that his conduct was justifiable, even if driven by mental disorder, will notsuffice to spare him from criminal responsibility.

As McLachlin J. explained, s.16 “employs a ‘cognitive test’ and does not provideexemption from criminal responsibility for people who claim that mental disorder rendered them incapable of controlling their volition.”In other words, it is not enough to establish that a mental disorder “drove” the conduct in question or made it difficult for the accusedperson to control himself.

Rather, it must be established that mental disorder robbed the accused person of the capacity to normativelyevaluate his conduct against the standards of “reasonable members of society” or “the everyday standards of the ordinary person”. [85] Mr. Neuberger submits that “the issue for this court to determine is whether on a balance of probabilities the defence hasconvinced the court that Mr.

Chai’s actions were truly driven by his purported belief that he was effectively an agent of the Chinesegovernment tasked with investigating and capturing corrupt Chinese officials.” In support of that characterization of the issue, Mr.Neuberger cites the following passages from Oommen, supra, [paras 26 & 30]: The crux of the inquiry [under s.16(1)] is whether the accused lacks the capacity to rationally decide whether the act is right or wrongand hence to make a rational choice about whether to do it or not.

The inability to make a rational choice may result from a variety ofmental disfunctions; [T]hese include … delusions which make the accused perceive

an act which is wrong as right or justifiable, and adisordered condition of the mind which deprives the accused of the ability to rationally evaluate what he is doing.[emphasis added]. … [T]he real question is whether the accused should be exempted from criminal responsibility because a mental disorder at the time of theact deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act [emphasisadded]. [86] One could certainly argue that focusing on the capacity “to rationally decide whether the act is right or wrong” or “for rationalperception and hence rational choice about the rightness or wrongness of the act” contemplates a broader conception of this branch of theNCR test than what a focus on capacity “to know that the act in question was wrong having regard to the everyday standards of theordinary person”.

If the words “rational perception” and “rational choice” in the above quoted passages from Oommen are understood intheir ordinary sense, it is possible to imagine situations in which a delusional individual would be capable of understanding that societywould view his actions as morally wrong and yet incapable of “rational perception and hence rational choice about the rightness orwrongness of the act”. If the law understood the legally relevant incapacity in that broader sense, I would agree the issue would bewhether Mr.

Chai’s actions were “truly driven” by his delusional beliefs. [87] This very argument was recently advanced in R v Dobson, 2018 ONCA 589. The appellant in Dobson had killed two friends andunsuccessfully tried to kill himself after the three agreed to commit suicide together based on their acceptance of the accused’s delusionalperception that their souls would travel to a different, divine world. There was a strong causal relationship between the mental disorderand the killings such that it could be fairly said the killings were “truly driven” by the delusional beliefs.

The trial judge found, however,that while through the lens of his delusional beliefs the accused saw his actions as right, the mental disorder had not rendered himincapable of understanding that society would regard his actions as morally wrong. Based on the same two paragraphs from Oommenthat I have cited above, the argument on appeal was as follows: The appellant submits that the trial judge erred in construing the "wrongness" component of s. 16(1) as limited to a cognitive awarenessof how society would regard the morality of the appellant's actions.

The appellant submits that "wrongness" also requires a considerationof volitional incapacity. In other words, did the appellant at the time he killed his friends have the capacity for rational judgment orchoice? The Crown argues that the trial judge correctly captured the meaning of "wrong" in s. 16(1): see R. v. Dobson, 2015 ONSC2865, 327 C.C.C. (3d) 473, at paras. 120, 160, 161, 170. Counsel's arguments ranged over an extensive body of case law. Both, however, settled on R. v. Oommen, (SCC),[1994] 2 S.C.R. 507 as the leading authority on the meaning of "wrong" in s. 16(1).

They disagree as to what the case says. … The appellant submits Oommen stands for the proposition that the capacity to know one's act is wrong requires the capacity to make arational choice about committing the act. If a delusional state precludes the making of a rational choice, the appellant maintains thatOommen holds that the accused does not have the capacity to know his act is "wrong". Not surprisingly, the responding argument was that “an accused can be found NCR only if that accused lacked the capacity to know that

society would regard what he did, in the circumstances, as morally wrong”: Dobson, supra, paras 10, 11, 17 and 19. [ 88 ] In response to these arguments, Doherty JA held [at paras 22 to 24]: It may be that different extracts from Oommen are open to different

interpretations, however, the Crown's

interpretation of Oommen is consistent with the

interpretation adopted in an unbroken line of authority in this court: e.g. see R. v. Ross , 2009 ONCA 149 , at paras. 24- 27 ; R. v. Woodward , 2009 ONCA 911 , at para. 5 ; R. v. Guidolin , 2011 ONCA 264 , at paras. 17-18 ; R. v. Szostak , 2012 ONCA 503 , 111 O.R. (3d) 241 , at paras. 56-58 ; R. v. Campione , 2015 ONCA 67 , 321 C.C.C. (3d) 63 , at para. 30 .

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

Concentrating on the latter unduly complicates the inquiry for the very reason the appellant raises in support of her argument; it leads to the application of reasonableness considerations to the appellant's delusions and subjective belief. ... In short, a subjective, but honest belief in the justifiability of the acts -- however unreasonable that belief may be -- is not sufficient, alone, to ground an NCR defence, because an individual accused's personal sense of justifiability is not sufficient. The inquiry goes further.

The accused person's mental disorder must also render him or her incapable of knowing that the acts in question are morally wrong as measured against societal standards, and therefore incapable of making the choice necessary to act in accordance with those standards. [Emphasis added.] In my view, Oommen , as interpreted in the judgments of this court, holds that an accused who has the capacity to know that society regards his actions as morally wrong and proceeds to commit those acts cannot be said to lack the capacity to know right from wrong.

As a result, he is not NCR, even if he believed that he had no choice but to act, or that his acts were justified. However, an accused who, through the distorted lens of his mental illness, sees his conduct as justified, not only according to his own view, but also according to the norms of society, lacks the capacity to know that his act is wrong. That accused has an NCR defence.

Similarly, an accused who, on account of mental disorder, lacks the capacity to assess the wrongness of his conduct against societal norms lacks the capacity to know his act is wrong and is entitled to an NCR defence. [ 89 ] The law is thus clear: the issue is whether Mr.

Chai has proven that “ through the distorted lens of his mental illness [saw] his conduct as justified, not only according to his own view, but also according to the norms of society” or, alternatively, whether he “ on account of mental disorder, lack[ed] the capacity to assess the wrongness of his conduct against societal norms” and thus “lack[ed] the capacity to know his act [was] wrong.” [ 90 ] While it is thus clear that s.16 contemplates an assessment of capacity to know the actions are morally wrong by Canadian societal standards, it is also true that, nevertheless, “[m] oral wrongfulness as contemplated in s. 16 is a slippery concept to apply”: R v Campione , 2015 ONCA 67 para. 31 .

What makes it slippery in this case is that Mr. Chai likely was animated by delusional beliefs that to at least some extent drove his conduct and produced a subjective sense of justification in his mind, at least before he was caught.

It is thus especially important to maintain focus on the applicable legal standard, and, in particular, the policy of the law that “a subjective belief by the accused that his conduct was justifiable will not spare him from criminal responsibility even if his personal views or beliefs were driven by mental disorder, as long as he retained the capacity to know that it was regarded as wrong on a societal standard”: R v Ross , 2009 ONCA 149 , para. 9 ; R v Woodward , 2009 ONCA 911 , para. 5 .

C Delusional Disorder was Operative at the Relevant Time [ 91 ] All four expert witnesses, the three psychiatrists and clinical/forensic psychologist Dr. Arrowood, agreed Mr. Chai met the diagnostic criteria for delusional disorder (persecutory type) and that this disorder was operative at the time he committed the offences, albeit that Dr. DeFreitas meant “operative” in in a more limited sense than the other psychiatrists. [ 92 ] The experts reached this consensus diagnosis based on Mr.

Chai’s assessment interviews, medical records from CECC, Ontario Shores and from China, information provided by his wife, Fenfang Tong, psychological assessments conducted by forensic psychologists Dr. Arrowood and Dr. Leong and information about the offences provided by the litigants. [ 93 ] The consensus diagnosis was amply supported by other evidence I heard. Ms Tong testified that since about 2010, Mr. Chai would tell her that people were talking about him and stalking him.

More recently, since 2015, she testified, this had worsened and since that time, after they move to Canada, the defendant...: … kept telling me that people were following him, and even when he was driving he kept looking at the rearview mirror. He has also installed a dash camera to monitor everything around. And he told me that he felt that the neighbour was also observing him. So, therefore, even at home we had video surveillance equipment installed, as well as a alarm system. At the same time, all the curtains at home have been replaced with thicker fabric that does not let in any light? Q.

When did that happen? A. I – I believe it is 2016, the beginning of 2016. He also told me some funny thinking. Because ever since we landed here, after we

have arrived, we did not purchase any property. He always – he always said that prices of properties here are so expensive, it’s because of all the corrupt officials in China, who have speculated and pushed our prices up. Let us wait until the new government in China will hit the corruption very hard, so that all these corrupt officials will not be able to speculate on properties, and then the prices will come down. Yeah, therefore, he also had quite animated and sometimes heated discussions with his friend Mr. Ding, who is engaged in real estate property business, about the situation of property prices.

Yeah, and also because he can become excited and agitated easily. So, after some time, friends have already observed this, and they will not try to bring up this subject again. Q. Well, what friends – how do you know friends have observed this? A. Yeah, when we have family gatherings. For instance, when we are having a meal together, then we would begin to talk about property prices. I was, myself, present in these gatherings, and I have seen that everybody was of the opinion that prices of property will not go down, but he was the only voice saying to the contrary. Q.

Did you think that was an example of your husband being mentally ill, that kind of discussion? A. Yeah, this is just one example. There was just one example, his bad temper is also exhibited – exhibited in other aspects, like playing golf.... … Q. Yes, what did – you said he got worse. What happened in 2015 and 2016? A. Firstly, at home he was getting less and less willing to talk to us, to the boys and – and to me. He would just sit in front of his computer.

And for instance, when he sees a good-looking lady who would be wearing some expensive things like, let’s say, a luxurious brand of handbag, he would say to me, “Look at that woman. He [ sic ] must be a kept mistress.” And he also thought that the neighbour is keeping an eye on him all the time. And he gets agitated easily. For instance, when he went to the bank to have something done, if the waiting time is longer than he expected, then he would come into some arguments with the bank employees. Q. Anything else? A.

Yeah, I just wanted to mention that most of the time we would spend – he would spend in front of the computer. That’s where he spent most of his time. Particularly in the period before he was arrested, that was the winter that he in Canada, when it was pretty dry and pretty boring, and particularly at that time. … Q. Is that, in your mind – again, this isn’t a question about whether you’re a doctor or an opinion, but in your own mind, did you think that was a sign of him being mentally ill? A.

Yeah, from my point of view – let me see how I can say this correctly – or properly, I would try to persuade him that – don’t think like that. This is not the right way of thinking. Q. Don’t think like what, about what? A. Like, when other people were talking, and he would interpret that as people talking about him, and I would try to pacify him, and say no they are not talking about you. You don’t have to think like that.

And, for instance, when some of our friends they would come here with a cake that they have baked or dumplings they have made at home, and then he would say yeah, they’re bringing this because they have their purpose. And I told him, you need not think like that. [ 94 ] At this stage I pause to amplify my reasons for finding Mr.

Chai suffered from a mental disorder at the relevant time, not because the diagnosis is itself contentious, but rather because the nature of persecutory delusional disorder and differences in the underlying basis for the experts’ diagnostic conclusions are both pertinent to deciding the issue that is contentious in this case, whether Mr. Chai was rendered incapable of knowing his actions were wrong. [ 95 ] Dr.

Rootenberg gave this description of delusional disorder (persecutory type): The essential feature of a delusional disorder is the presence of one or more non-bizarre delusions that persist for one month or longer. Perceptual disturbances (e.g. hallucinations) if present, are not prominent. Apart from the direct impact of the delusions, psychosocial functioning is not markedly impaired, and typically behaviour is neither obviously odd nor bizarre .

Parenthetically delusions are deemed bizarre if they are clearly implausible, and not derived from ordinary life experiences (for example being an alien, being able to fly, or having supernatural powers; in contrast, non-bizarre delusions involve situations that could conceivably occur in real life (for example, being followed, or loved at a distance). Psychosocial functioning in persons who suffer from delusional disorder, is variable. Some individuals may appear to be relatively unimpaired in their interpersonal and occupational roles.

In others, the impairment may be substantial; when poor psychosocial functioning is present, it arises directly from the delusional beliefs themselves. Indeed, a common characteristic of persons suffering from delusional disorder is the apparent normality of their behaviour and appearance when their delusional ideas are not being discussed or acted upon . In general, social and marital function are more likely to be impaired than intellectual and occupational functioning There are several subtypes of delusional disorder; it’s not uncommon to find more than one present, in a given individual.

The persecutory subtype (the one that Mr. Chai most likely has), applies when the central theme of the delusion involves the persons’

belief that he or she is being conspired against, cheated, spied on, followed, poisoned or drugged, maliciously maligned, harassed, or obstructed in the pursuit or long-term goals . Small slights may be exaggerated and may become the focus of a delusional system. It’s often the case that these individuals believe the injustice must be remedied by legal action, and the affected person may engage in repeated attempts to obtain satisfaction by appeal to the courts and other government agencies. Typically, delusional disorder has its onset in mid to late life, as in Mr. Chai’s case.

The underpinnings, or etiology of this disorder, is unknown. Most frequently, one sees a waxing and waning, but chronic, course; typically some benign or innocuous event is misinterpreted by the sufferer, giving rise to an escalating spiral of delusional ideation, which may result in hospitalization or arrest, or may wane spontaneously. Episodes of waxing of the disorder are typically precipitated by ideas of reference, meaning the notion that essentially benign or random events are of special significance to the sufferer. Once individuals suffer from this disorder, particularly in active phases, their

interpretation of various events usually takes place through a delusional filter, reinforcing their beliefs. Persons suffering from this disorder typically benefit from separation from the object of their delusional beliefs, and from sustained treatment with antipsychotic medication. Unfortunately, persons suffering from this disorder typically have little insight into the fact that they suffer from a disorder, and typically eschew medication treatment; individuals with delusional disorder are notoriously difficult to treat, over the longer-term. [ 96 ] Dr.

De Freitas described the disorder this way: So delusional disorder is a psychiatric condition marked by delusions which are fixed false beliefs . There can be a number of different types of delusions. For some people it's persecutory delusions which is the belief that people are out to get you in some way. There's other types as delusions as well. In his case I believe he has persecutory delusions.

In order to meet criteria for delusional disorder you cannot meet criteria for other conditions that can cause delusions such as schizophrenia or a mood disorder, for example, so you have to rule those out before you can be diagnosed with delusional disorder. And delusional disorder does not generally affect your level of functioning apart from the delusions . So, for example, if I have the delusional belief that Justin Trudeau is in love with me, I can still function perfectly normally aside from that belief, and if you don't ever bring it up you might not even notice that there was something wrong with me.

The only time delusional disorders have a significant impact on your functioning is if it's directly related to the delusion. So, for example, if I think the mafia is out to kill me, I may not leave my house, I may lose my job, etc., because of that, but it's directly related to the effect of the delusion. [ 97 ] Dr. Rootenberg’s stated rationale for the diagnosis was: I n my clinical psychiatric opinion he suffers from a major mental illness, and the onset of Mr. Chai’s major mental illness pre-dates the current allegations.

His symptoms and clinical presentation is most consistent with Delusional Disorder, Persecutory Type… [ 98 ] The “symptoms and clinical presentation” Dr. Rootenberg was referring to appear to be Mr. Chai’s self-reported symptoms at the time of the offences, “namely delusional and paranoid beliefs; at the time of the index offence, Mr. Chai believed that he was working for the Chinese government and was on a secret mission to find corrupt Chinese officials in Canada, and then report them to the Chinese authorities”. [ 99 ] In contrast, Dr.

DeFreitas arrived at her diagnosis on the basis of a more extensive and historically-rooted analysis which, importantly, did not depend upon acceptance of Mr. Chai’s self-report regarding his “mission”: Diag n osis W ith re sp ec t to M r . C h a i ’ s p s y c hi a t r ic c ondition, we know the f ollowi n g : 1) F ive to six y e a r s a g o, he b e g a n to b ec ome suspi c ious th a t p e ople wo r king a t his c omp a n y in C hina w e r e st e a ling his i nv e stm e nt pl a ns. He a l s o b e c a me c on c e r n e d th a t th e y w er e t a lki n g a bout him b e hind h is b a c k.

He c ompl a in e d to h is Hum a n R e sou rce s d e p ar tm e nt, a nd w as subs e qu e nt l y a s k e d to s e e a p s y c hi a t r ist. He i ndi ca t e d th a t the p s y c hi a t r i s t di a g nos e d him a s b e ing “ o v e r st re s s e d” a n d p re s cr ib e d m e d i ca tion to ca lm h i m, whi c h he took b r i ef l y but th e n dis c ontinu e d. M r .

C h a i ’ s s e l f-re po r t on this m a tt e r w a s c o rr ob o ra t e d b y his wi fe , w ho indi ca t e d th a t he did not h a ve g ood re l a tionships with his c oll ea g u e s a nd boss e s, a nd th a t he b e li e v e d th a t some o f his c oll e a g u e s w e r e t a lki n g a bout h i m b e hind his b a c k, or w e r e looki n g a t him. 2) I n f o r m a tion f r om the S h e n z h e n K a n g ni n g Hospit a l d a t e d A u g ust 2, 2015 indi ca t e d th a t M r .

C h a i h a d b ee n e x p er i e n c ing “ e motion a l inst a bili t y , h ear i n g or s ee i n g so m e thing without r ea l obj ec ts, th e se s y mptoms h a ve l a st e d f or f ive y e ar s ” . Mr. C h a i w a s g i v e n a di a g nosis of “ m e nt a l diso r d er s c a us e d b y b ra in d a m a g e , d y s f un c tion a nd p h y si c a l dis ea s e ” a nd w a s p re s cr ib e d a n a nti c onvu l s a nt m e di ca tion, a nd a n a t y pi c a l a ntip s y c hoti c . W h e n a sk e d a bout this, M r .

C h a i d e ni e d a n y histo r y of a udito r y h a llu c in a tions, indi ca ting th a t the c omm e nt a bout h ear i n g thi n g s r e f e rre d to him b e li e vi n g th a t p e op l e w e r e t a lki n g a b out him b e hind his b ac k. W h e n a sk e d a bout visu a l h a llu c in a tions, he indi ca t e d th a t a t one poi n t he s a w c olou r e d li g hts b r i ef l y upon f i r st a w a k e ni n g , but indi ca t e d t h a t this w a s no lon g e r p r e s e nt. 3) W h e n f i r st a dmitt e d to O nt ar io S ho re s, M r .

C h a i e ndo r s e d v a g ue p a r a noi a , indi ca ting th a t h e w a s suspi c ious of p e ople in C a n a da b eca u s e th e y kn e w he h a d mon e y . He h a d inst a ll e d a ca m e r a a t his home a nd pu rc h a s e d a n a ir g un f o r p r ot ec tion. He a lso susp ec t e d p e ople of t a lking a bout him b e hi n d his b ac k, a nd pot e nti a ll y f ollowi n g him while he w a s d r ivi n g , but indi ca t e d th a t he w a s not cer t a in th a t this h a d h a p p e n e d. 4) Ov e r the c ou r se of the a dmission, M r .

C h a i b e g a n to displ a y p e r s ec ut o r y id ea t i on r e g a r ding the nu r sing s t af f a nd c o - p a ti e nts. Tow ar ds

the e nd of the a dmission, he re po r t e d t h a t he f i r m l y b e li e v e d th a t some nu r s e s w er e b e i n g p a id b y c o rr upt C hin e se o ff i c i a ls to t ar g e t him so th a t he would lose his t e mp e r a nd possib l y be l a b e l e d a s m e nt a l l y ill. H e b a s e d this b e li e f on n e g a tive int er a c tions th a t he h a d h a d with v ar ious nu r s e s. Of int e r e st, th e se n e g a tive int erac tions a pp e a r to h a ve b e e n r e a l; it is on l y his int er p r e t a tion of e v e nts th a t w a s d e lusion a l. 5) P s y c hol o g i ca l t e sti n g re v ea l e d th a t he su f fe r e d fr o m mild c o g nitive imp a i r m e nt. B e c a use

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