) ) HIS MAJESTY THE KING – v. –, 2024 ONSC 27

CITATION : R. v. House, 2024 ONSC 27 COURT FILE NO.: CR-23-11 DATE: 2024-01-03 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HIS MAJESTY THE KING – and – Bradley House Defendant ) ) ) ) ) ) ) Gabriele Settimi, for the Crown Beth Bromberg and Kristian Ferreira, for the Defendant ) ) HEARD: October 23, 24, 25, 26, 27, 30, November 1, 3, 6, 7, and 10, 2023 THE HONOURABLE JUSTICE M.

BORDIN REASONS FOR JUDGMENT Overview [ 1 ] The tragic events of the evening of February 3, 2022 are the good Samaritan’s nightmare. [ 2 ] At approximately 8:00 p.m., Paul Pender and his family opened the door to their cottage to a stranger in need of help. A few short minutes later, Paul Pender was lying in the snow, 130 meters away, bleeding to death from multiple stab wounds. He died in the falling snow outside a neighbour’s cottage with his partner and neighbours at his side. [ 3 ] Bradley House is charged with second degree murder in the death of Paul Pender. Mr. House concedes the Crown has proven that Mr.

House stabbed Paul Pender and caused his death. Indeed, unsolicited, he expressed deep remorse at having done so. [ 4 ] However, Mr. House asserts that he is not criminally responsible (“NCR”) pursuant to s. 16 of the Criminal Code of Canada . In the alternative, he asserts that the Crown has not established beyond a reasonable doubt that he was able to formulate the specific intent to cause bodily harm that he knew was likely to result in Paul Pender’s death that is required for second degree murder. Mr. House does not pursue a defence of extreme intoxication. [ 5 ] The Crown called Ms.

Chow, a toxicologist, and Dr. Chaimowitz. Mr. House testified in his defence, called his spouse, Ms. Duby, his friend, Mr. Stevens-Ferreira, and Dr. Gojer. On consent, the reports of Dr. Chaimowitz and Dr. Gojer were filed as exhibits. [ 6 ] Dr. Chaimowitz’s and Dr. Gojer’s qualifications were not challenged. Both are eminently qualified, have lengthy CVs, relevant experience and training, and have testified as experts hundreds of times. Dr. Chaimowitz has, since 2005, been the Head of Service and Academic Lead in the Forensic Psychiatry Program at St. Joseph’s Healthcare Hamilton. Dr.

Gojer has for many years served at various hospitals as a forensic psychiatrist and carried on a private practice in psychiatry and forensic psychiatry. Both were accepted as experts in forensic psychiatry. [ 7 ] Both Dr. Chaimowitz and Dr. Gojer agreed that Mr. House was not capable of knowing what he did was morally wrong. Dr. Chaimowitz added that Mr. House was incapable of rational thought at the time of the offence but was of the view that Mr. House was capable of appreciating the nature and quality of his actions. Dr. Gojer opined that Mr.

House was not able to appreciate the nature and quality of his actions. [ 8 ] The experts disagree on whether Mr. House was suffering from a mental disorder as defined in the criminal law. Dr.

Chaimowitz is of the opinion that Mr. House did not suffer from a mental disorder and that the psychotic episode and the stabbing ofPaul Pender was brought about by drug use. The Crown adopts Dr. Chaimowitz’s position. [9] Dr. Gojer is of the opinion that Mr. House suffered from schizophrenia and a differential diagnosis of schizophreniaspectrum disorder or other psychotic disorder and that the use of drugs on the day in question possibly accentuated preexisting psychoticsymptoms. [10] The process I am to follow is set out in a number of cases: R. v.

David (2002), (ON CA), 61 O.R. (3d) 1(C.A.), at paras. 46-56; R. v. MacKinnon, 2021 ONSC 4763, at paras. 48-49; and R. v. McClenaghan, 2008 ABCA 7, 437 A.R. 247, atpara. 148. As there is no dispute that the Crown has proven that Mr. House unlawfully caused Paul Pender’s death, I am next to considerwhether Mr. House is not criminally responsible. If I find that Mr. House is criminally responsible, then I am to consider whether theCrown has established the intent necessary for second degree murder. [11] I begin with a review of the agreed facts and evidence.

Agreed facts, Evidence and factual findings Events on February 3, 2022 Prior to Mr. House’s Arrival at the Pender Cottage [12] The Crown and defence tendered a lengthy Agreed Statement of Facts (“Agreed Facts”) which also contained exhibits.Paragraphs 12 through 54 below are taken from the Agreed Facts. [13] Mr. House was addicted to cocaine and oxycodone, and he regularly used marijuana. On February 3, 2022, he used drugsbefore and at work as he normally did. It is not known exactly how much cocaine and Percocet Mr. House used on February 3, 2022. Healso drank two “Twisted Teas” containing alcohol. [14] Mr.

House had been working on home renovations at a residence at 26 Melville Lane in Selkirk for six months along with hishalf-brother, Darren Thomas, and “Tommy”. Mr. House did not go to work the week before February 3, 2022. [15] The owner did not mind that Mr. House did drugs if the work was done. He told police that when Mr. House was using drugshis personality never changed. [16] Darren Thomas described Mr. House to be acting normally at work on February 3, 2022, except for an incident that happenedjust before he ran out of the residence. Mr. House was complaining of back and neck pain. Mr.

Thomas was not able to crack Mr.House’s back, so Tommy started massaging Mr. House’s back. Mr. House then punched Tommy two or three times and ran out the backdoor. Mr. House jumped a fence and ran down the road. [17] After running from his workplace, Mr. House arrived at the Pender cottage. The distance between the two properties isapproximately one and a half kilometres along Lakeshore Road, although the route taken by Mr. House is unknown. Events at the Pender Cottage [18] There was a significant snowstorm that started prior to Mr.

House’s arrival at the Pender cottage which continued throughoutthe relevant time. It was very cold, visibility was low, and roads were extremely snow covered. [19] Paul Pender and his partner, Allison Findlay, were staying at their cottage with Allison’s father, Ron Findlay, on February 3,2022. They were sitting at the dinner table when Mr. House arrived at their door. Mr. House, who was unknown to them, was notwearing a coat. He was very distraught and bleeding from his mouth and head. [20] Mr. House entered the cottage.

He appeared disoriented, distressed, in shock, and in pain and kept saying there was a stickstuck in his head when in fact there was no stick. He said he had fallen down a hill. He kept telling Paul Pender that he had a stick in hishead and he wanted to get it out. Paul Pender told him, “There’s no stick in your head.” Mr. House kept screaming to get the stick out. [21] Mr. Findlay said that Mr. House told them he fell, and he poked a stick in his ear and it broke off, and that Mr.

House washanging onto his head and digging at it. [22] Allison Findlay said, “You could tell right away something was wrong,” and, “You could tell he was off”. Mr. House’s eyeswere darting around, and he was breathing hard. She described him as “fucked”. [23] At 8:05 p.m., Allison Findlay contacted 9-1-1 initially to get Mr. House some help because of the bleeding. She said he wasclearly in distress and in pain, but she did not know if he had been in a car accident, a fight, or what had happened. [24] Mr. Findlay saw Paul Pender get a pair of tweezers to try and assist Mr.

House to remove the non-existent stick from his ear.Allison Findlay heard a scuffle coming from the other room. By the time she looked back, Mr. House had grabbed a large kitchen knifefrom the counter. He took the kitchen knife to his own head, and he was trying to carve a stick out of his head or digging at his ear with itto remove the non-existent stick that he believed was lodged in his head. Mr. House Attacks Paul Pender [25] Mr. House, unprovoked, swung the knife toward Paul Pender as he tried to help him. Paul Pender ran out of the cottage while

Mr. House chased after him with the kitchen knife in his hand. Allison Findlay unsuccessfully attempted to strike Mr. House with a broom, but Mr. House pursued Paul Pender. She ran after Mr. House. [ 26 ] Mr. McDougall and Ms. Remillard exited their respective homes in response to Allison Findlay screaming. Ms. Remillard called 9-1-1. [ 27 ] Mr. House chased Paul Pender to 3 Smelser’s Cove Lane. Ms. Lipscey was inside when she heard a bang at her door. She saw someone standing but slumped over and another person behind him walking with a chef’s knife in his right hand. She called 9-1-1. [ 28 ] Ms.

Lipscey described Mr. House as having a “distorted” face; “it looked like he had a mask or something on.” She observed what looked like a slow-motion fight with both men rolling and they ended up on the driveway. [ 29 ] When Allison Findlay arrived at 3 Smelser’s Cove Lane, she found Paul Pender lying on top of Mr. House. Paul Pender was motionless, and Mr. House was continuing to stab him with the knife. Allison Findlay and another person rolled him off Mr. House and held Mr. House down. [ 30 ] Allison Findlay was able to wrestle the eight-inch knife away from Mr.

House even though he wrapped his legs around her neck. The knife was bent as she wrestled it away from him. She threw the knife into a nearby snowbank. It was later recovered by the police. [ 31 ] Mr. McDougall arrived just after Allison Findlay. He got on top of Mr. House and held him face down on his stomach in the snow with Mr. House’s hands under him. Mr. House was kicking his legs. Ms. Lipscey ran inside to get rope to tie up Mr. House’s legs. She helped Mr. McDougall keep Mr. House secured until the police arrived. [ 32 ] While Mr. House was being held down, he was “mumbling” and had “slurred speech”. Ms.

Lipscey could not understand what he was saying. Mr. McDougall recalls Mr. House occasionally saying: “I want to go home; I want to go home” and “I’m hot”. Ms. Remillard made similar observations of Mr. House. Mr. McDougall observed that Mr. House was not making much sense, it was like he did not know where he was or what he was doing, and he was fairly quiet. [ 33 ] Paul Pender was still alive. Allison Findlay attempted to help him by trying to find the injury, keeping pressure on the wounds, keeping him warm, and performing CPR. Ms.

Remillard assisted Allison with CPR as directed over the phone by ambulance dispatch. While dispatch was trying to guide the CPR, Mr. House is heard in the background saying “I want to help. I want to help.” The Police Arrive [ 34 ] The Ontario Provincial Police (“OPP”) were dispatched to the scene at 8:10 p.m. along with emergency personnel. The OPP arrived on the scene at about 8:36 p.m. [ 35 ] When paramedics arrived on the scene, the police were still performing CPR.

They continued their efforts to save Paul Pender until they were given termination of resuscitation orders. [ 36 ] Paul Pender died of multiple sharp force injuries described as follows by the post-mortem examination: a. Stab wound to the right upper arm, penetrating the right axilla and injuring the right axillary artery. This injury would have been rapidly fatal without timely appropriate medical intervention. b. Incised wound to the left scalp and face. If not treated properly in a timely manner, it could potentially have led to death. c.

Stab wound to the left upper back, perforating the diaphragm and lower lobe of the left lung. If not treated properly in a timely manner, it could potentially have led to death. d. A superficial stab wound to the right anterior neck. [ 37 ] At 8:41 p.m., the OPP took control of Mr. House from Mr. McDougall who was holding him face down in the snow with his hands underneath him and his legs tied. Mr. House was described initially as unresponsive when he was asked who he was and where the knife was. He felt “stone cold” and very stiff when first approached by the police. [ 38 ] Two officers brought Mr.

House to the police cruiser. He continuously dropped to his knees. The two officers had Mr. House by his arms and had to drag him down the laneway. [ 39 ] At 8:47 p.m., Mr. House was assessed medically and was “unintelligible, moaning, slurring, shaking, groaning, and gurgling.” Several times he said, “I love you guys.” [ 40 ] Mr. House was provisionally arrested at 8:54 p.m. pending the medical status of Paul Pender. He was told he would be charged with assault with a weapon or murder. He was provided with the police caution, and when asked if he understood Mr. House replied “yes”.

He was then advised that everything was being recorded and asked to indicate the difference between “yes” and “no”. Mr. House was still gurgling, moaning, groaning, and unintelligible. [ 41 ] At 8:55 p.m., the police provided Mr. House his rights to counsel. He replied “yes” when he was asked if he understood. When he was asked if he would like to speak to a lawyer he replied “probably” or “pardon” and then eventually “yes”. When asked if he was hurt, Mr. House indicated his “heart”. [ 42 ] At 9:15 p.m., police removed Mr.

House from his position of lying in the back of the police cruiser and brought him to a nearby ambulance for assessment. While he was being removed from the police cruiser, Mr. House was groaning, and he said, “I’m

sorry if I came off rude.” [ 43 ] Mr. House walked part way to the ambulance, and then police carried him the rest of the way. On the way to the ambulance, Mr. House said he “had a bad trip”. [ 44 ] He was placed on a seat in the ambulance. Police moved his handcuffs from behind his back to his front. At 9:20 p.m., Mr. House was still gurgling, moaning, generally speaking unintelligibly, and was quite agitated, slumped, and moving around. Mr. House did not maintain a sitting position and slumped partially onto the floor. He was continually moving, which made assessment difficult.

Police and ambulance attendants lifted Mr. House from the floor back to the seat two or three times. [ 45 ] At 9:22 p.m., Mr. House was treated by Emergency Medical Services (“EMS”) and was unintelligible and semi-conscious. He identified himself as “Bradley.” [ 46 ] During treatment, at 9:59 p.m., PC Bruinekool heard Mr. House respond to an EMS question relating to drug intake by indicating that he had taken “coke”. [ 47 ] Police and ambulance attendants put Mr. House on a stretcher in the ambulance. As soon as he was moved to the stretcher, he reached his handcuffed hands up to his head and held it.

His speech was mostly unintelligible, but he can be heard groaning and saying, “My head is killing me, feels, ohhhh.” [ 48 ] While on the stretcher in the ambulance, Mr. House was moaning, groaning, grimacing, and still moving his arms continually. He repeatedly moved his handcuffed hands to his head and right ear area. At other times, he grimaced and moved his hands in the direction of his head and right ear, though his hands did not reach all the way. At one point, he groaned “my head’. [ 49 ] At 10:06 p.m., the ambulance began transporting Mr.

House to the hospital in Hagersville for further medical assessment. At 10:10 p.m., after being read the caution and being asked if he understood, Mr. House initially provided an unintelligible response and then, after it was read again, he stated “yes”. PC Bruinekool read the caution again to be sure Mr. House understood. Mr. House did not speak clearly, so PC Bruinekool asked him to confirm with a thumbs up, which he did. PC Bruinekool noted that at this time he did not believe that Mr.

House was in a proper state of mind to understand the caution and rights to counsel. [ 50 ] At 10:15 p.m., when asked about his drug intake, Mr. House indicated that he took Percocet, and when asked how much, he indicated “15” and something unintelligible. Mr. House was still unintelligible, gurgling, struggling to breathe, groaning, and generally unresponsive to questions. [ 51 ] The Haldimand County Paramedic Service Ambulance Call Report for Mr. House indicated in part: a. Patient stated previous use of cocaine and had snorted substance that day around 7 p.m. b.

Patient stated that he had past of using cocaine for four years. c. Patient was alert to person and place but not time. d. Patient appeared cold/wet to touch from snow, extremities were purple. No obvious hemorrhaging. e. Patient noted to be extremely altered and EMS assessing him had difficulty understanding patient while attempting to confirm story multiple times throughout assessment. Mr. House Taken to Hospital [ 52 ] Mr. House arrived by ambulance at the hospital in Hagersville at 10:28 p.m. A search found him in possession of a substance containing oxycodone and acetaminophen. [ 53 ] At 10:58 p.m., Dr.

Cloete, who was examining Mr. House, advised PC Armstrong that Mr. House had “bitten off a chunk of his tongue”. PC Armstrong observed that Mr. House was “more coherent now” and had earlier told staff that he had “coke and percs” in his system. [ 54 ] At 11:04 p.m., Mr. House indicated he wanted to tell police what happened. His Charter rights and cautions were then reread to him and explained at great length and in simple terms. [ 55 ] At 11:13 p.m., Dr. Cloete was very concerned about the acidity of Mr. House’s blood and told police that he wanted to bring his body temperature up. Mr.

House was treated for hypothermia. At 3:22 a.m., Dr. Cloete was satisfied with Mr. House’s recovery and discharged him with a prescription of antibiotics for his cuts and abrasions. Toxicology Evidence [ 56 ] A toxicology screen was completed at the hospital, and it confirmed that there was cocaine, marijuana, and opioids in Mr. House’s blood. No other substance was flagged by the screen. A vial of Mr. House’s blood was sealed, stored, and later sent to the Centre of Forensic Sciences.

No evidence was led as to the precise time the sample was taken. [ 57 ] Betty Chow was qualified as an expert in the absorption, distribution and elimination of alcohol, drugs and poisons, the effects of alcohol, drugs and poisons on the human body, and the analysis of alcohol, drugs and poisons in biological samples. Her qualifications were not challenged. Ms. Chow testified as to the substances found in Mr. House’s blood. The toxicology tests Ms. Chow reported on tested for hundreds of substances.

[ 58 ] Used recreationally or therapeutically, oxycodone can have depressant effects resulting in reduced consciousness and motor coordination. The extent of the effects depends on the route of administration and the tolerance of the individual to the drug. Oxycodone was detected in Mr. House’s blood within a therapeutic range. It typically takes a day or more to eliminate the drug from the blood, longer if more is taken and if the individual has a dependency and takes the drug regularly. The amount consumed by Mr.

House on February 3, 2022 cannot be determined from the concentration of oxycodone in his blood. [ 59 ] Cocaine can be detected in blood. Cocaine is expected to be undetectable in the blood six to nine hours after use if the individual did not have any existing cocaine in the blood. If the individual was a chronic user, they could have detectible amounts of cocaine 24 hours after the last known use. Cocaine was not detected in Mr. House’s blood. Cocaine is unstable and breaks down. A breakdown product of cocaine is benzoylecgonine, which was found in Mr. House’s blood. Ms.

Chow was unable to say when, how much, or how cocaine was consumed by Mr. House. However, based on the high benzoylecgonine concentration, Ms. Chow could say that Mr. House had either consumed a large quantity at once or repeatedly used smaller quantities over time. Because benzoylecgonine takes some time to be eliminated, it could have been over a period of days. [ 60 ] THC and Carboxy THC, a substance produced from the breakdown of THC, were detected in Mr. House’s blood. THC is long-lasting and can be stored in fatty tissues of the body, particularly in chronic users.

For a chronic user of marijuana, THC can be detected in the blood for four or five days since last use. Ms. Chow could not say when Mr. House used marijuana or how much he used. The Body Cam Video [ 61 ] The Crown tendered over two hours of body cam video as part of the Agreed Facts, some of which I have summarized. The parties agreed that utterances made by Mr. House included in the Agreed Facts are admissible for the purpose of illustrating Mr. House’s mental condition at the time and not for the purpose of proving the truth of the utterances. [ 62 ] I set out only some of what Mr.

House said and did on the body cam video that can be made out. I do not set out the many times that Mr. House was unresponsive or incoherent in answering questions from the police. a. At 20:40:05, it appears that Mr. House says “please help me” when the police first arrive and he is being held face down in the snow with his legs tied. b. At 20:43:23, it is possible Mr. House responds to the question asked some 15 seconds earlier (what is your name?), by saying “Bradley House”. Seconds later, it appears he responds to the question “do you have any weapons on you?” by saying “no”. c. At 20:43:58, it sounds like Mr.

House says, “I love you all” and “I love you guys” and at 20:44:22, “I love everybody in this world.” d. At 20:44:28, Mr. House says, “I had a bad trip”, the officer says, “Pardon me?” and Mr. House says, “I had a bad trip” and seconds later repeats, “I love you guys.” e. Up until 20:45:00, Mr. House is lying face down in the snow. f. At 20:50:23, while he is seated in the cruiser, Mr. House says, “Simon says.” g. At 20:55:37, after being read the right to counsel, Mr. House appears to say “yes I did” when asked if he understood, but then immediately asks for a drink of water. h. At 21:11:27, Mr.

House responds to a question about his name by saying “Bradley”. i. At 21:17:33, it sounds like Mr. House says, “you guys are the best” and then perhaps “…for helping (or having) me.” j. In the ambulance at 21:22:30, it takes Mr. House 15 seconds to answer the question “what is your name” and say the words “my name is Bradley.” Several times in the ambulance he asks for a drink. k. At 21:58:30 through 22:01:35, Mr. House struggles to tell the paramedic what drugs he took. It sounds as though he tells the paramedic that he took “one and a half” of cocaine. Much of what he says is difficult to understand. l.

At 22:02:45, he answers the paramedic’s question about when he took coke by saying “when I wake up”. m. At 22:27:56, the paramedic asks Mr. House whether he has any allergies to medications and 15 seconds later Mr. House struggles to say “Tylenol”. n. In the hospital at 22:37:10, Mr. House is able to advise nurses of his month and year of birth and at 22:38:18 he tells them that he is on “Percs and cocaine”. By this time, he has almost stopped moaning. o. In a hospital bed under a blanket by 22:51:19, Mr. House begins to settle and is quiet. p. From about 23:04:20, Mr.

House is more coherent and intelligible and is engaging the officers in limited conversation, although whether he comprehends all of what the officers tell him is not clear. q. At 23:08:38, Mr. House says he has a lawyer that he deals with and wants to talk to him. He asks, “Is it 11 o’clock right now?” r. At 23:11:28, Mr. House tells the officers he is not a bad person, and he will answer their questions as well as he can. s. At 23:16:20, Mr. House struggles with providing information as to the location of his family.

t. At 23:27:48, Mr. House says something to the nurse as she is looking behind his right ear and the nurse asks, “What is it?” Mr. House says, “It’s a chip,” and the nurse asks, “From what?”. Mr. House responds, “I have no fucking idea,” and the nurse looks in his ear. u. At 23:31:50, the doctor speaks to Mr. House about the effects of exposure to the cold. The doctor then looks at Mr. House’s ear and asks, “What hit you in the ear here?” Mr.

House’s answer is somewhat difficult to make out in its entirety but in part he says, “I felt something … I was trying to get it out.” The doctor says, “So you pushed twigs into your ear,” and Mr. House says, “Yeah, right here … I have no idea what the fuck is going on.” v. At 23:33:04, Mr. House asks if he can get a hold of his lawyer, he provides the name of his lawyer in Binbrook. w. By 03:30:00 on February 4, Mr. House is able to answer questions about his address and next of kin and his cell phone, but has difficulty remembering his phone number, and asks if he can call his lawyer. x. At 03:39:39, Mr.

House spontaneously asks the police officers, “What exactly happened?” [ 63 ] From the time the police arrive on the scene at approximately 8:40 p.m. until he is in the hospital at approximately 10:38 p.m., when Mr. House speaks, much of what he says comes out as a moan or a groan or is mostly incomprehensible. For much of this time, he has minimal control over his body movements. At times, he seems to be able to respond to the simple questions the police are asking and the things they are doing. At times, his responses of “yes” or “no” are delayed after the questions are posed.

Some of his responses appear nonsensical and disconnected from the circumstances he is in. At other times, he seems unable to respond to simple questions or it takes him a long time to respond to the questions. [ 64 ] It is not at all clear that Mr. House understood the charges against him and the right to counsel when put to him in the ambulance at approximately 22:10 – 22:15 or prior to that time. In the hospital, he appears to understand his right to counsel. During the entire body cam video footage, Mr. House appears to have no comprehension of having stabbed Paul Pender.

Although he is told that he is charged with murder and he appears to understand the words, it is difficult to say whether Mr. House truly understood what had happened. Mr. House’s Video Statement to the Police [ 65 ] The defence tendered Mr. House’s February 4, 2022 videotaped statement. The statement was made proximate in time to the events. Mr. House’s statements in the video are admissible as evidence of his physical, mental or emotional state : R. v. Bagherzadeh , 2023 ONCA 706 , at para. 26 .

However, they are not admissible for the truth of their contents or as independent verification of his in- court testimony: Bagherzadeh , paras. 25-27 . [ 66 ] An accused’s “preposterous statements” of a delusion can be considered original evidence relevant to the issue of mental disorder but are not proof of any fact asserted in them. Statements from an accused about a previous delusion or that he suffered from a delusion are hearsay assertions not admissible to prove the fact asserted: R. v. Worrie , 2022 ONCA 471 , 415 C.C.C. (3d) 45, at para. 152 ; R. v.

Dobson , 2015 ONSC 2865 , 2015 CarswellOnt 12656. [ 67 ] Because Mr. House testified, spontaneous exculpatory statements made by him upon or shortly after arrest may be admitted for the purpose of showing his reaction when first confronted with the accusation. The statements are not evidence of the truth of what was said but are evidence of Mr. House’s reaction, which is relevant to his credibility and as circumstantial evidence that may have a bearing on guilt or innocence: R. v. Edgar, 2010 ONCA 529 , 101 O.R. (3d) 161, at para. 72 . [ 68 ] The video recorded interview of Mr.

House began at 6:35 a.m. on February 4, 2022 and ended at 7:36 a.m. [ 69 ] In my view, with one possible exception, there are no statements of a “preposterous nature” in the video statement. At approximately the 19:30 mark of the video statement, Mr.

House is asked why he is in the police interview room and he responds: I I I remember just sanding sanding and this is like this is about two hours after I did my drugs there and then a ringing started happening in my ear and from there I I feel like I went fucking crazy cause my head was fucking ringing my my brain was throbbing and I was drooling like nonstop I couldn’t get this pain or my ringing out of my ear so I started fucking thrashing and come to find out that there’s a fucking camera or something in my goddam ear and I I tried to get it out with a twig snapped the twig in my ear and kept trying to get out the twigs and then from there I don’t remember from there. [ 70 ] The statement “I … come to find out that there’s a fucking camera or something in my goddam ear” is a “preposterous statement” and is admissible as original evidence relevant to whether Mr.

House suffers from a mental disorder. [ 71 ] The video statement also captures Mr. House’s response to the information that he is charged with second degree murder. Very early in the interview he is asked if he knows why he is there. He says no. He is then asked if the other officers told him why he was there and responds that “they said something about first degree murder.” The interviewing officer corrects him and says that he is going to be charged with second degree murder. Mr. House simply responds “okay,” and they continue their discussion. In cross- examination, Mr.

House acknowledged that at this point he knew he was being charged with second degree murder. [ 72 ] At approximately the 26:20 mark of the video, Mr. House is told that someone died and that is why he is charged with second degree murder. It is the first time he is told that someone has died. This time Mr. House appears visibly upset and says “no” when asked if he realized he was charged with second degree murder. Shortly thereafter, he is asked about the scratches and cuts on his arms and he says that he thought he took a vehicle or something. [ 73 ] At the 33:45 mark of the video, Mr.

House is left alone in the room. At approximately 35:45, he is heard saying to himself: “How the fuck could I have done that … car accident … hit a tree ... is someone ….”

[ 74 ] At approximately the 38:40 mark of the video, after the officer returns, Mr. House tells the interviewing officer he is really confused and is thinking about how this could have happened and why it happened. At approximately the 49-minute mark of the video, Mr. House is again told that “a guy died” and he responds, “Oh man and that’s on me.” The officer then says, “The guy tried to help you,” and Mr. House responds, “Oh fuck.” [ 75 ] Finally, a little over an hour into the video, Mr. House is asked about the cuts on his arms.

He responds that the only thing he could think of is “a car accident you said I hurt I kill I killed a guy all I could think about was I hit him with a car or something and I crashed into a tree or something like that.” [ 76 ] Mr. House’s reaction, taken together with the Agreed Facts and body cam video evidence demonstrates that Mr. House was confused as to the nature of the events that gave rise to the charge against him and supports a conclusion that he did not recall his attack on Paul Pender. It is consistent with Dr. Chaimowitz’s conclusion that Mr. House had no memory of what happened. Mr.

House’s Background [ 77 ] Mr. House is a 33-year-old Indigenous man. He was born in July 1990. He lived his life in Hamilton except for a few years from approximately 2012 until approximately 2016 when he lived on the Six Nations Reserve. [ 78 ] Mr. House is one of many children. He was raised by his mother. His home was described as chaotic, a scene of adult extended family members drinking, partying, and fighting. His mother drank all the time, was often absent, and there was a lack of parenting and supervision. The fridge was often empty. They moved a lot when he was a child. Mr.

House testified that he was physically and sexually abused as a young boy. He saw his father twice, once when he was 20 and then when he was 24 when his father was in the morgue. [ 79 ] As a child and during his high school years, Mr. House spent a great deal of time with his best friend, Lino Stevens-Ferreira, in the evenings and on weekends. Much of that time was spent at the house of Mr. Stevens-Ferreira’s mother, who would often provide meals to Mr. House. The boys would also frequent the Comic Connection in Hamilton beginning when Mr. House was about 11.

They would walk approximately 60 to 90 minutes from their homes to the Comic Connection. [ 80 ] Mr. House’s family suffered many tragedies. His grandparents were residential school survivors. One of Mr. House’s cousins with whom he was close died in a car accident when Mr. House was 18. His younger brother Richie died when Mr. House was 20 or 21. His younger brother Willard died in 2020 when Mr. House was 30. Mr. House was close with both of his brothers. He was blamed for Willard’s death, and he blamed himself for both his brothers’ deaths.

When he was 31, another of his younger brothers was stabbed and is wheelchair bound as a result. Around the same time, another one of Mr. House’s cousins died by fire and another cousin by overdose. [ 81 ] Mr. House graduated from high school, although the evidence suggests he had learning issues and it may not have been easy for him to do so. [ 82 ] By the time he was about 21 years old, Mr. House had met Stephanie Duby. He maintained an 11-year relationship with her. They have five children together. Their first child was born in August 2012, and they began to live together in August 2013.

They had four more children in 2014, 2016, 2017 and 2019. They both became addicted to cocaine and Percocet and at times dealt drugs to bring in money for drugs and to provide for the children. [ 83 ] Mr. House volunteered at the Women’s Health Centre for a couple of summers, he paid the rent, and had no criminal record. He worked at various jobs, sometimes having steady employment for periods of time and sometimes working part-time. Ms. Duby described him as a hard worker. Mr.

House owed money to his dealer and in the year or so before February 3, 2022, he did construction and moving work and sold drugs for his dealer to work off the debt and in exchange for drugs and cash. The Credibility and Reliability of Mr. House and the Lay Witnesses [ 84 ] Mr. House was calm and composed throughout his testimony. He answered questions in a forthright manner. Overall, Mr. House was open, frank, and honest. He provided information that did not put him in a good light. [ 85 ] At trial, Mr. House, of his own accord indicated he wished to say something while in the witness box.

It was suggested he should answer the questions from his counsel. In response to questions from his counsel, he reiterated that he had no idea what happened on February 3, 2022 and does not recall what happened. He said he was extremely sorry to the family that he hurt, and to his own family. [ 86 ] Mr. House readily acknowledged that he was often guessing as to when or what year things occurred. He was suggestible. He was often asked leading questions which made it difficult at times to assess whether he was simply providing an affirmative response to suggestions made to him.

In examination in-chief, he sometimes hesitated in answering questions. He would need to be prompted with possible answers in the form of the follow-up questions posed by his counsel. In cross-examination, he was able to understand Crown counsel’s fast-paced and sometimes multipart questions and answer without hesitation. [ 87 ] There was some indication in Dr. Chaimowitz’s report that one test administered to determine whether Mr. House was malingering showed that some of Mr. House’s reported symptoms may have been exaggerated. However, Dr. Chaimowitz testified that there was no indication that Mr.

House was malingering symptoms or that he was lying about what he was telling Dr. Chaimowitz’s team. [ 88 ] In some ways, Mr. House’s evidence was understated. He was a credible witness; however, his evidence was at times unreliable and inconsistent, particularly with respect to when events occurred and his drug use over the years. He acknowledged being a poor historian.

[ 89 ] Mr. Stevens-Ferreira was sometimes evasive and combative in cross-examination despite his calm and polite demeanor. On occasion, he would provide explanations which were not responsive to the questions. At times, Mr. Stevens-Ferreira was speculating about what Mr. House was experiencing and was retroactively reconstructing events and adding detail. [ 90 ] However, Mr. Stevens-Ferreira’s evidence did not always align with Mr. House’s evidence. It could have been more consistent with Mr. House’s evidence if he was fabricating evidence to support Mr. House’s defence. For example, Mr.

Stevens-Ferreira could have testified that he saw Mr. House dealing with spirits in high school, before drug use, or that Mr. House told him about a camera in his ear, but he did not. His evidence of the symptoms he observed Mr. House experiencing were credible and reliable although at times he seemed to enhance and expand the symptom details and frequency. [ 91 ] At times, Ms. Duby was also speculating about what Mr. House was thinking or why he was doing things. There are issues with her credibility and reliability which I address below. At times, it appeared she was elaborating to support Mr.

House’s defence as much as possible. Her evidence was not particularly reliable or credible when it came to Mr. House’s drug use and symptoms. At other times, her evidence was consistent, for example regarding when she started using drugs. She readily admitted things which put her in a bad light, such as using drugs when she had five children at home as well as their drug debt owed to a dealer. [ 92 ] I raised with the parties whether I could rely on any inconsistent statements made by the defence witnesses and recorded in the expert reports which were not put to the witnesses to assess their credibility.

The parties did not respond to this issue. In my view, it would not be appropriate to use any inconsistent statements in that manner as the witnesses were not confronted with possible inconsistencies and did not have an opportunity to respond to them, contextualize them, or explain their prior statements. As a result, to the extent that there are statements in the expert reports which may be inconsistent with the evidence of the witnesses, which were not put to the witnesses, they go to the weight of the experts’ evidence, but not to the credibility of the witnesses. Evidence of Mr.

House and the Lay Witnesses Regarding Mr. House’s Symptoms Evidence Concerning Drug and Alcohol Use [ 93 ] Mr. Stevens-Ferreira testified that he and Mr. House spent a lot of time together outside of school. He said that Mr. House did not drink, smoke marijuana, or use drugs when they were in high school. [ 94 ] Mr. House said he began drinking when he was 19 and was drinking heavily every weekend by the time he was 20. Mr. Stevens-Ferreira gave similar evidence. Mr. House also said he may have had alcohol with his cousin a couple of times before his cousin died when Mr. House was 18. Ms.

Duby did not know how much Mr. House was drinking when they first met. Mr. House said his heavy drinking went on for about two years until he had his first child. [ 95 ] Mr. House said he tried marijuana a few times when he was 17 and he began smoking marijuana regularly when he was 21. He never stopped using marijuana. Mr. Stevens-Ferreira gave similar but not identical evidence. Ms. Duby confirmed that when she first met Mr. House, he was smoking marijuana and he continued to do so during the entire time they were together.

She does not really know how much he smoked because he was not always with her. [ 96 ] Mr. Stevens-Ferreira’s information about Mr. House’s drug use after Mr. House was 18 or 19 was not reliable partly because there were periods of time where they did not see each other very much. Mr. Stevens-Ferreira cannot say with any degree of certainty the quantity of drugs Mr. House consumed since the end of high school. He was aware that Mr. House was using cocaine and Percocet. Mr. House first told him this after November 2015. [ 97 ] Mr.

House said he first used Percocet after he had been hit by a car in 2008 when he was 18. He said he used approximately five Percocet pills over a period of a few weeks. He started using Percocet to get high in 2015, when he was 25. Before that, he used it occasionally. Ms. Duby said that she and Mr. House began using Percocet together in late 2014 when Mr. House was 24. She believed it was Mr. House’s first time using Percocet. [ 98 ] Mr. House said he began using cocaine right after his brother Richie died. In cross-examination, he said he started using cocaine when he was 19.

He used it occasionally at that time and at the time his first child was born when he was 21. He said he was consuming about 1.7 grams of cocaine one or two times a week between 21 and 23 years of age. At another point in his evidence, Mr. House said he started using cocaine when he was 23 or 24. Cocaine became a real problem, an addiction, when he was 25 or 26 or perhaps 27 as all three answers were given. Before that, he was binging with friends about four times a year on the equivalent of seven grams of cocaine. After 27, he began using every other day. [ 99 ] Mr.

House gave conflicting evidence about whether his use of opiates became problematic before his use of cocaine. He admitted to lying to Ms. Duby about the quantity of drugs he was taking. [ 100 ] Ms. Duby said that she and Mr. House began using cocaine together a few times in 2015 when Mr. House was 25. She does not know if Mr. House used cocaine without her. They used cocaine and Percocet almost daily from about 2017 onward. [ 101 ] Mr. House conceded using oxycodone, hydrocodone, Dilaudid, methamphetamine, psilocybin, and purple (a mix of codeine, cough syrup and soda) on at least a few occasions.

He regularly took ecstasy and MDMA for a summer when he was about 22. He recalls overdosing on oxycodone in 2020. Mr. Stevens-Ferreira was not aware of this overdose. He was aware of some but not all the different drugs that Mr. House tried. [ 102 ] In December 2018 or January 2019, Mr. Stevens-Ferreira intervened and helped Mr. House to stop using cocaine and Percocet by slowly reducing intake and substituting the drugs with cannabis. It took a couple of months for Mr. House to stop using cocaine and Percocet. He did not use those drugs for approximately 10 months. Ms.

Duby testified she also abstained from using cocaine and Percocet during the same time. Both Mr. House and Ms. Duby relapsed in late 2019. Mr. House began using cocaine and Percocet heavily when his brother Willard died in June 2020.

[ 103 ] Mr. House said he used drugs every day beginning about a year before February 3, 2022. He would use as much as he could afford. [ 104 ] Mr. House was working off a drug debt with his dealer. He said the routine was that he was given 1.5 grams of cocaine a day. His dealer would provide him with half a gram of cocaine and a couple of Percocets usually around noon. Mr. House would consume the cocaine and one Percocet. He would keep the other Percocet. Sometimes he would have already taken Percocet before that from his own supply. Mr. House did not say he shared the cocaine and Percocet with Ms. Duby. Ms.

Duby said they shared the cocaine. She said sometimes they would not get Percocet. Mr. House did not say that. [ 105 ] Mr. House would next consume drugs when he arrived at the job site where he would be given about half a gram of cocaine. He would consume half of it and then the rest at the first break. He would be given another half a gram when it was time to leave. [ 106 ] Mr. Stevens-Ferreira testified that Mr. House’s supply of drugs was restricted by his dealer in the months before February 3, 2022, but he did not know the details. Ms. Duby understood that Mr.

House had an agreement with his dealer to be paid in drugs and in cash. Ms. Duby also testified that Mr. House’s dealer was limiting the drugs available to Mr. House but she did not know the quantity supplied by the dealer each day and could not say whether Mr. House was using the same or a different quantity of drugs because he was working a lot and she does not know what he was receiving at work. [ 107 ] Mr. House did not testify that his drug use arose because he was trying to cope with delusions, visions, headaches, ringing in his ear, or other symptoms. Hearing Voices [ 108 ] Mr.

House said nothing in his examination in-chief about hearing voices before February 3, 2022. He testified that the only voice he would hear was the voice of his deceased brother Willard after Willard died. He testified that Willard would speak to him by giving him “Simon says” commands. Mr. House testified that prior to February 3, 2022, he did not hear voices telling him to harm anyone. He acknowledged he did not hear voices on February 3, 2022 telling him to do what he did. [ 109 ] Mr.

House confirmed that even if the voices told him to harm someone, he could realize what he should and should not do and when facing delusions or visions and voices he could still tell what is right and what is wrong. He was able to resist a command while in jail to go and fight someone in the shower. [ 110 ] In his report, Dr. Gojer sets out what Mr. House told him about hearing voices including: a. Hearing voices the morning of February 3, 2022; b. Hearing voices when he was not using drugs in 2019; c. Prior to his arrest, he had tried to slit his throat because of the voices; d.

He used headphones to block out the voices; and e. He heard voices of older males talking to him in a language that sounded like English being said backwards. [ 111 ] Mr. House gave no such evidence at trial. As noted, this information is not used to assess Mr. House’s credibility, but it affects the weight to be given to the expert evidence. Seeing Spirits [ 112 ] Mr. House said he first began seeing what he called spirits when he was eight or nine years old. He saw shadows in his window, at his door, at the foot of his bed.

His mother told him they were ancestors, or that he was seeing them because he was bad or not doing the right things in life. The spirits frightened him. He believed they were real. Mr. House said that on one occasion, his mother arranged for an Indigenous “speaker” to come to the house to cleanse the house. Mr. House was present. He was about 13 years old. He said there was never a time that he did not see spirits. The spirits would come and go. He also began to command the spirits to leave. This occurred before he engaged in any drug use. It continued when he began using drugs.

He felt like it got worse over time and increased in the three months before February 3, 2022. [ 113 ] Mr. Stevens-Ferreira first became aware of Mr. House seeing spirits shortly after Mr. House’s first child was born when Mr. House was about 21. He saw Mr. House kick a spirit out of the house on the reservation. Mr. Stevens-Ferreira witnessed Mr. House doing this over the years after that time. [ 114 ] Ms. Duby observed Mr. House yell at spirits and tell them to get out of the house for many years, since at least 2013. It happened throughout their time together, including in 2019.

At first it was not very often, but then it increased to a few times a month. [ 115 ] Mr. House said he continued to see and kick spirits out when he was off cocaine and Percocet in 2019. Mr. Stevens-Ferreira testified that Mr. House continued to see spirits during that time and continued to hear things in the upstairs of the house. [ 116 ] Mr. House said that the anti-psychotic medications have reduced his visions of spirits, but they continue. Being Followed and Hearing Things [ 117 ] Mr. House testified that on occasion when walking with Mr.

Stevens-Ferreira to Comic Connection as boys he believed he was being followed. The first time was before high school, but it happened when he was in high school as well. Mr. Stevens-Ferreira recalled

such instances beginning around the time Mr. House would have been about 13 years old. Mr. House felt like it got worse over time. It continued when he was using drugs. [ 118 ] Mr. Stevens-Ferreira recalled times when they were young that Mr. House would say there is something outside the window and nothing was there. Mr. House would also check out the window repeatedly. Mr. Stevens-Ferreira recalled one particular incident quite vividly. This persisted throughout their friendship. [ 119 ] Mr. House said he began to associate the colour blue with being followed.

He gave evidence that he also had concerns about the colour red. In cross-examination, he acknowledged that his cell phone was red and that on the night in question, he was in the hospital surrounded by things which were blue. [ 120 ] Ms. Duby said Mr. House thought people were following him for years. She knew he was afraid of the colour blue but never paid any mind to it. She did not know about any concerns he had with the colour red. [ 121 ] Mr. House said that he would hear things in the house. Mr. Stevens-Ferreira recalls times when Mr.

House would tell him he had heard things upstairs, like a door closing and there was no one there. Mr. House spoke to him about his belief that people were sneaking into his house. [ 122 ] Ms. Duby testified that when they were first together, she noted that Mr. House would hear people around the house when no one was there and was constantly checking out the windows to see if someone was there. He would hear people talking or walking around. This occurred in all the houses they lived in and throughout their time together, including 2019. [ 123 ] Mr.

House believed that there were people in his attic; he thought they came from his neighbour’s side of the house. Mr. Stevens-Ferreira said Mr. House would tell him he thought there was someone in his attic. He said this was in 2019. [ 124 ] Ms. Duby said that Mr. House thought people were coming into their home through the attic crawl spaces. She said this was after 2019. At another point in her evidence in-chief, she said it occurred through 2019. Cameras and Ringing in the Ear [ 125 ] Mr. House testified that when he was a teenager, he began having concerns about cell phones or cameras.

He did not like or trust them. He felt scared of them when he was around them. [ 126 ] Ms. Duby testified that Mr. House thought people were trying to listen to him and that people were putting cameras in his house before 2019. She said it began in 2016. Over time it became worse. This belief persisted in 2019 as well. Ms. Duby said that in 2019, when Mr.

House was abstaining from cocaine and Percocet, he accused her several times of helping people listen or telling people where they could put cameras in the house and on one occasion pushed her into the wall because he thought she was talking to someone upstairs, but no one was upstairs with her. [ 127 ] During the three months before February 3, 2022, Mr. House said that he felt like there was a camera in his ear listening to him. He said he also felt this way in 2019 when he was not consuming cocaine and Percocet. This was corroborated by Ms. Duby.

He said he tried to remove it with a Q-tip, but nothing else. [ 128 ] Mr. House said he had pain in his head behind his right ear, migraines, and ringing in his ear all the time. He thought Ms. Duby had put a camera in his ear. He did not usually get the headaches and ringing in his ear at the same time. He had issues with his wisdom teeth but did not see a dentist. He told Ms. Duby a couple of times that his wisdom teeth were causing headaches. [ 129 ] Ms. Duby said that Mr. House was complaining about his right ear beginning at least in 2016.

He would tell her that there was a device or a camera recording and listening to him. He would insert things into his ear to take it out. He also reported to her issues with pain or discomfort behind his right ear for several years. Ms. Duby said Mr. House had headaches for years. They occurred almost every day. Sometimes they were bad enough for him to stay in bed. [ 130 ] Ms. Duby was aware that Mr. House experienced ringing in his ear because he talked about it for years. At times it made him panicky. Ms. Duby said she told Mr. House to see a doctor about these issues several times. [ 131 ] Mr.

Stevens-Ferreira acknowledged that in the year or so before February 3, 2022 he was not seeing Mr. House as frequently. Mr. Stevens-Ferreira was not often at Mr. House’s residence in the three months before Paul Pender was killed. [ 132 ] Mr. Stevens-Ferreira testified that in the three months leading up to February 3, 2022, something was wrong with Mr. House. He would pick at the back right side of his head behind his ear and would squeeze and tell Mr. Stevens-Ferreira there was something there. Mr. Stevens-Ferreira checked multiple times and there was nothing there. Mr.

Stevens-Ferreira said he first noticed this behaviour after Willard died and about eight months before Mr. House’s arrest and it continued until February 3, 2022. He said it occurred regularly. Mr. Stevens-Ferreira testified that Mr. House never told him what was in his ear, only that he thought there was something stuck in it. Mr. House never spoke to him about ringing in his ear or about concerns about cameras. [ 133 ] Mr. Stevens-Ferreira said that in the months before February 3, 2022, when Mr. House visited, he would on occasion stare off into space or at the wall for 45 minutes and mumble to himself.

Later, Mr. Stevens-Ferreira said it would go on for a couple of hours. Mr. House seemed confused and lost. This occurred a “handful of times” which Mr. Stevens-Ferreira said was between 5 and 15 times. At other times, he seemed himself. Later in his evidence, Mr. Stevens-Ferreira’s answers suggested this type of episode may have only occurred once. He said, “I’ve never seen Bradley like that other than at my house the months before I – I’ve seen him do a lot of drugs. I, to this day I still have no explanation for how he was that day at my house.” Mr.

Stevens-Ferreira also said that in the months leading up to February 3, 2022 Mr. House could not play and finish a card game that they had played since they were teenagers. [ 134 ] Mr. House said he thought there were cameras in his outlets and smoke detectors. In the months leading up to February 3, 2022,

Mr. House said his feeling about cameras in his house and head got worse, as did the headaches and ringing in his ear. [ 135 ] Ms. Duby said that at some unspecified point in time Mr. House removed all the smoke detectors because he thought there were cameras in them. She said he also removed wall sockets because he thought there were devices in them. She said this occurred at the end of 2018. Treatment for Drugs or Delusions [ 136 ] Mr. House never sought treatment for the ringing in his ear, the headaches, or for his addictions. Mr. Stevens-Ferreira never suggested that Mr.

House seek help for his mental health. Suicide Attempts [ 137 ] Mr. House was not asked about and gave no evidence of suicide attempts. [ 138 ] Ms. Duby testified about three suicide attempts by Mr. House in the two months before February 3, 2022. The first and “worst one” occurred just before Christmas in December 2021. Ms. Duby said she found Mr. House upstairs with a knife to his throat saying he could end it all. She said a similar thing occurred in the entrance to their home at the beginning of January 2022. She later said it happened between January 20 and 25.

He had a kitchen knife and was holding it over his wrist saying he could end it all. Ms. Duby said it happened a third time upstairs between January 20 and 25, 2022. [ 139 ] Ms. Duby conceded that she had never told the police or the doctors that Mr. House threatened suicide with a kitchen knife three times. She said it was because she has had mental problems and does not have a lot of trust for the police. Intimate Partner Violence [ 140 ] Mr. House testified that nothing like what happened on February 3, 2022 had ever happened to him before. He recalled having conversations with Ms.

Duby about saying mean things to her but not remembering them. He thinks that was because of the drugs. [ 141 ] He said he recalled a couple of occasions where he was violent with Ms. Duby when he had taken drugs and he would have episodes where he would tune out and then when he would come out of it and Ms. Duby would be sad and upset. However, no further particulars of these events were sought or provided by Mr. House. [ 142 ] Ms. Duby told much more detailed versions of what she said occurred. [ 143 ] Ms. Duby said that in the months before February 3, 2022, on one occasion while she was sleeping, Mr.

House came to the bedroom saying that she was helping “them” and letting “them” put cameras in the house and he hit her leg with a two-by-four. She said his eyes were blank, emotionless, like he was not there. Mr. House left for a walk and when he came back, he seemed more like himself and had no recollection of what had occurred. Mr. House cried and apologized. [ 144 ] Ms. Duby said there was another time something similar happened. Mr. House ran into their residence and pinned her to the ground, choked her, and accused her of helping “them” put cameras in the house.

She said his face was blank and he had no soul in his eyes, and he was gone. She said he left and when he came back Mr. House wanted to know what was wrong. Ms. Duby believes Mr. House did not know what he had done. When she told him he had choked her, he cried and apologized. [ 145 ] Ms. Duby testified that these two events occurred the week before February 3, 2022 when Mr. House stayed home. [ 146 ] In Ms. Duby’s view, these incidents were not related to drug use, but she also acknowledged that she does not know if Mr. House had used drugs before the choking incident.

She also said that there were no drugs in the house. This is contrary to Mr. House’s evidence of his drug use which includes the use of drugs upon waking and the use of drugs he had in his possession from the day before. [ 147 ] Ms. Duby agreed she only mentioned the two-by-four incident and the choking incident to Dr. Gojer, although the police interviewed her twice in February 2022 – at her house on February 6, 2022 and in the police cruiser on February 17, 2022. [ 148 ] The police asked Ms. Duby on February 6 if she knew if Mr. House had any medical issues and issues with drugs and alcohol.

She was confronted with her statement to police in response that Mr. House smoked weed. She did not adopt the answer but explained that she was just trying to process that Mr. House was not there and she was on her own with five children. She denied that she lied just because she did not mention that Mr. House consumed more than just marijuana. [ 149 ] Ms. Duby agreed that in terms of Mr. House’s medical issues, she told the police at her first interview only about Mr.

House’s knees and that he had headaches which come and go which she associated with his wisdom teeth which started bothering him about a year earlier. She said she did not say anything else to the police about Mr. House’s issues because she did not trust the police. She did not say anything about visions or delusions.

It was put to her that she did not say anything about intimate partner violence to the police at the first interview to which she said, “How do you want to paint a picture of your best friend when you know that is not the person he is?” When it was put to her that she did not say anything about cameras or Mr. House’s episodes, she said it was because she did not know who the police were and because she had a lot of distrust for the police. Ms. Duby also said she did not mention Mr. House was having any type of episodes because she was not asked. [ 150 ] By the time of the second police interview, Ms.

Duby had spoken with Mr. House’s mother, with Mr. Stevens-Ferreira, and with Mr. House’s lawyer. Ms. Duby told the police about Mr. House’s paranoia, memory lapses, voices in the attic, complaints about cameras and blackouts. When it was pointed out to Ms. Duby that she told the police that Mr. House had never been physically violent, even in the episodes, she testified that he was not physically violent until closer to the end.

When it was pointed out to her that she did not tell the police that on February 17, she said, “I stated enough sir, but I don’t think I stated that,” and further that, “I stated a lot more today than I

have in the last couple months.” [ 151 ] When pressed that she lied to the police, Ms. Duby said did not lie because the police did not ask. [ 152 ] Ms. Duby told the police that the difficulties Mr. House was having in the week before February 3, 2022, and the reason he stayed home, was a result of his inability to handle news about her cancer testing. This conflicted with her evidence about that week. Ms. Duby said she only told the police what she thought was relevant because she had a lot of distrust for the police. [ 153 ] I have difficulty accepting Ms. Duby’s evidence relating to Mr.

House’s symptoms in the month or so before February 3, 2022. [ 154 ] Dr. Chaimowitz’s report indicates that Ms. Duby reported incidents of Mr. House having "episodes" of anger and rage where he would become physical towards her or property in the home and have no recollection of the episodes. Mr. House acknowledged to Dr. Chaimowitz and his team that he has had bouts of anger in the past with no recollection of these events. It does not appear from Dr. Chaimowitz’s report or evidence that he followed up on the particulars of these reports. This does not impact either Ms. Duby or Mr.

House’s credibility but raises a question of whether Dr. Chaimowitz followed up on information relevant to his opinion, particularly since his opinion was based in part on the fact that Mr. House had not come to the attention of the authorities and, in Dr. Chaimowitz’s words, he did not think Mr. House is by nature a violent man. The Week Before February 3, 2023 [ 155 ] Mr. House did not go to work the week before February 3, 2022. He said he was concerned that Ms. Duby was cheating on him, and he needed to get a hold of himself.

He turned off his electrical outlets that week by sticking a knife in them because he thought they contained cameras. Ms. Duby said he stuck a knife in a light switch that week. [ 156 ] Ms. Duby testified Mr. House stayed home the week before February 3, 2022 because Mr. House was experiencing some mental things and thought he was hearing things that were worse than usual. She said he stayed in a room with the television turned up to drown out the ringing in his ears or hearing people. [ 157 ] Ms. Duby said that at one point during the week before February 3, 2022, Mr.

House went upstairs and sealed up the attic access hatch. He also pulled the light switch apart and stuck a knife in it because he thought there was something in it. February 3, 2022 [ 158 ] Mr. House has no specific memory of the quantity of drugs he consumed on February 3, 2022. The evidence he gave in-chief of his drug use that day was based on his “routine” over the prior months. [ 159 ] Mr. House does not recall what time he woke up on February 3, 2022. He smoked marijuana when he woke up. He also snorted a Percocet. Ms. Duby said she gave him two Percocet pills on February 3, 2022 and then left. Mr.

House was picked up for work around 12:30 p.m. He got his drugs, went inside to consume the half gram of cocaine but said he did not take the Percocet he was given. He took that Percocet about half an hour after he arrived at the job site as well as a quarter gram of cocaine and some marijuana. At the first break a couple of hours later, he took another quarter gram of cocaine and a Percocet. But he is not entirely sure as he was basing this upon his usual routine. [ 160 ] Mr. House said he was feeling pain in the back of his head and ringing in his ear. He started to experience pain in his lower neck.

He asked his brother to crack his back, but it did not work. He asked “Tommy” to crack his back. Tommy gave him a shoulder massage. The pain in his ear and head were worse suddenly and became excruciating. He thought Tommy caused it. He testified that he recalls the ringing being 100 times louder on February 3, 2022, and feeling that his head was going to explode. Mr. House punched Tommy two or three times and ran out the back door. He remembers putting a stick in his ear and felt it break off in his ear which made it worse. [ 161 ] Mr.

House testified that he does not recall running in a snowstorm without a coat, or the cottage. He does not remember the people in the cottage, a knife, digging at his head with the knife, chasing Paul Pender with the knife, stabbing him, the immediate aftermath of the stabbing, the police arriving, or what he said to the police. Mr. House said he does not remember anything until some point when he was in the hospital interacting with the nurse. Findings of Fact Regarding Mr. House’s Symptoms [ 162 ] I have considered the totality of the evidence with respect to Mr.

House’s symptoms prior to February 3, 2022, some of which is summarized above. [ 163 ] The evidence of Mr. House’s drug use is somewhat inconsistent. What emerges though is a clear picture that he had been abusing drugs for a long period of time, particularly in the year or so leading up to February 3, 2022. [ 164 ] I find that Mr. House did not drink, smoke marijuana, or use drugs before the age of 17. I find that he began using marijuana when he was 17 and by the time he was 21 he was using it regularly. He began drinking when he was about 18. Mr.

House used Percocet occasionally beginning when he was 18 and began using it regularly at least by the time he was about 24 or 25. He began using cocaine around the time he was 19 or 20 and used it occasionally for a few years, then increased his usage over time. [ 165 ] In 2019, Mr. House abstained from using cocaine and Percocet for about 10 months, until late 2019. During that time, he used marijuana every day. After relapse, Mr. House began using cocaine and Percocet again, with his use becoming heavy after June 2020. In the year or so before February 3, 2022, Mr.

House used cocaine, Percocet, and marijuana every day right up until February 3, 2022. [ 166 ] As of February 3, 2022, Mr. House typically consumed about 1.5 grams of cocaine throughout the day as well as Percocet and

marijuana. He consumed half a gram of cocaine and one or two Percocet pills when he woke up and before leaving for work aroundnoon. When he arrived at work, he consumed another quarter gram of cocaine, a Percocet, and some marijuana. He consumed anotherquarter gram of cocaine and a Percocet at the first break. He was provided with and consumed another half gram of cocaine later in theday. [167] I find that Mr. House began to see what he called spirits as an early adolescent. His

interpretation of the meaning of the spiritshe saw was influenced by his Indigenous heritage. I find that he began to yell at the spirits to leave at least by the time when he was 21 or22 years old and that this continued right up until February 3, 2022, including during 2019 when he was not using cocaine and Percocet. [168] I find that Mr. House had a paranoid belief that he was being followed which began before he started using drugs or drinkingalcohol. It intensified over time to the point where he began to hear things in the house, and he eventually came to believe that there werepeople in the attic.

The evidence suggests and I accept that this more specific belief occurred in the two or three years before February 3,2022. [169] It is difficult to determine precisely when Mr. House began to believe that there was a camera in his ear and when he trulybecame obsessed with a belief that there were cameras being planted in his home. Mr. Stevens-Ferreira and Mr. House’s evidencesuggests that this belief did not begin until after June 2020. I find that some time before February 3, 2022, Mr.

House developed adelusional belief that there was something in his ear that at some point he came to believe was a camera, and that he believed that therewere cameras planted in his home or that someone was trying to place cameras in his home. [170] I find Ms. Duby’s evidence as to Mr. House’s suicide attempts and the incidents of violence in the month before February 3,2022 was not credible and that Ms. Duby was embellishing Mr. House’s symptoms during that time. Notwithstanding that she says Mr.House attempted suicide twice and violently attacked her twice the week before February 3, 2022, Ms.

Duby did not tell the police aboutthese events. I do not accept Ms. Duby’s evidence about Mr. House’s suicide attempts in the month before February 3, 2022. Mr. Houseprovided no such evidence. I do not accept Ms. Duby’s account of the two incidents of intimate partner violence. In doing so, I amcognizant that victims of intimate partner violence do not necessarily report such incidents to the police or others and that this alone doesnot undermine their credibility. [171] I find that Mr. House did have episodes of anger directed toward Ms.

Duby but did not recall the events. [172] I find that on February 3, 2022, Mr. House was driven out of the house where he was working because of excruciating pain inhis ear and head. Once outside, he put a stick in his ear and believed it broke off in his ear. I find that Mr. House has no memory of whathappened after that, until in the hospital when he was interacting with the nurse. [173] I find that while in hospital after stabbing Paul Pender, Mr. House continued to believe that there was something in his ear andthe next morning, during the police interview, Mr. House believed there was a camera in his ear.

The Expert Evidence [174] The reports of Dr. Gojer and Dr. Chaimowitz contain statements made to them by Mr. House, Ms. Duby, and others. While theexperts can relate what they have been told by Mr. House as a basis of their opinion, the statements are not admitted for the truth of thestatements and they are not proof of the facts contained therein: R. v. Kirby, (ON CA), [1985] O.J. No. 166, 10O.A.C. 356, at para. 59; R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852. [175] The utterances or statements made by Mr.

House in the Agreed Facts and to the police in the hours after his arrest are relevantto and admissible in support of the psychiatric expert opinion proffered at trial: R. v. Edgar (2000), (ON CA), 142C.C.C. (3d) 401 (Ont. C.A.). The probative value lies in the extent to which the utterances appear to be irrational or delusional: Edgar, atparas. 23 and 24. [176] I note that both experts agreed that Mr. House suffers from a substance use disorder. Dr. Chaimowitz’s Assessment of Mr. House [177] Dr. Chaimowitz and his team assessed Mr. House in hospital for 60 days. Dr. Chaimowitz met with Mr.

House about once aweek for an hour. He interviewed Ms. Duby in Mr. House’s presence. [178] Dr. Chaimowitz’s report includes the Psychological Assessment Note prepared by Dr. Mamak dated June 8, 2022. Dr. Mamaknoted that: In reviewing his history, as stated, it does appear that Mr. House was experiencing a variety of psychiatric symptoms in the months priorto the index offence. Specifically, he reported symptoms consistent with ideas of reference and paranoid ideation. [179] Dr. Chaimowitz did not believe that Mr. House was malingering. He accepted that Mr.

House had no recollection of whatoccurred the evening of the stabbing. His overriding impression was that Mr. House was a kind, thoughtful, remorseful individualstruggling with what he had done. [180] Dr. Chaimowitz’s opinion was that Mr. House did not meet the criteria for a mental disorder. He is of the opinion that Mr.House chose to use drugs, and the consequence of using those drugs was that he suffered a psychotic episode that led to the death of PaulPender. He said that absent Mr.

House using the substances he did, and absent “whatever happened on that day with whatevercombination of things that were going on with him”, he would not do it again. Dr. Gojer’s assessment of Mr. House

[ 181 ] Dr. Gojer met with Mr. House for five hours over three different days in 2023. He spoke with Ms. Duby although he does not think what she said is reliable. He met with Mr. House’s mother but did not find her to be reliable. He spoke with Mr. Stevens-Ferreira after preparing his report and reviewed his testimony. [ 182 ] In Dr. Gojer’s opinion, if the symptoms predated drug use, presented themselves at the time of the offence, were chronic and continuous even after a month of no longer using drugs, and if medication was required to control the symptoms, Mr.

House is suffering from a mental illness. [ 183 ] Taking into account Mr. House’s symptoms before he began to use drugs, his ongoing symptoms over the years, the witnesses’ description of Mr. House’s conduct at the cottage the night of February 3, 2022 as set out in the Agreed Facts, the body cam video, the police interview video, the ongoing symptoms described by Dr. Chaimowitz, and that anti-psychotic medication was required to control Mr. House’s symptoms, Dr. Gojer’s opinion is that Mr.

House: a. suffers from a mental illness, specifically, schizophrenia and a differential diagnosis of schizophrenia spectrum disorder or other psychotic disorder; b. could not exercise rational thought and choice on the night of February 3, 2022; c. did not appreciate the nature and consequences of his behaviour; d. suffered from a psychosis on the evening of February 3, 2022 which was a continuation of a pre-existing belief system and delusions arising out of a mental illness; and e. was disconnected from his surroundings and was in a state of automatism as a result of the psychotic state he was in. [ 184 ] Dr.

Gojer also opines that Mr. House has suffered from chronic depression better understood as a persistent depressive disorder. Schizophrenia [ 185 ] Dr. Chaimowitz testified that schizophrenia is understood as a spectrum with different subtypes. For some, schizophrenia conditions accelerate quickly; for some it is chronic; for some it is characterized by delusions and hallucinations; for some only delusions; some people have disorganized thinking; some have rapid cognitive decline; some have flat affect; and usually there is social and occupational decline.

There are variations of intensity and the ratio of those symptoms. [ 186 ] Dr. Chaimowitz testified that schizophrenia usually, but not always, begins in the late teens or early twenties and the primary symptoms are hallucinations and delusion. He acknowledged that many people develop schizophrenia even if no one else in the family has it, but chances are higher if someone in the family has it. Schizophrenia is generally a progressive condition, and individuals usually come to the attention of the authorities as the disease progresses. Dr.

Chaimowitz acknowledged that some people with schizophrenia can do some of the things Mr. House has been able to do. He agreed that substance use and stressors may contribute to schizophrenia if Mr. House had a predisposition for it and that long-standing substance abuse was a factor that could make Mr. House’s brain more vulnerable to a psychotic disorder. [ 187 ] Dr. Chaimowitz did not exclude a diagnosis of schizophrenia but thinks such a diagnosis is “way less” likely, and that what happened on February 3, 2022 was a result of the drugs taken.

His report states that “[i]t is possible that the paranoid delusions that he experienced in the lead up to the index offence, and that he continued to manifest during his detention and hospitalization, were early signs of a major mental disorder, such as schizophrenia or a delusional disorder.” He notes that “it is quite possible that these delusional ideas and beliefs were a function of sustained drug use. Notably, with the use of antipsychotic medications, these symptoms have abated”. I do not read “possible” or “quite possible” as rising to the level of “more likely than not”. [ 188 ] Dr.

Chaimowitz acknowledged the possibility that Mr. House was suffering from schizophrenia but was unwavering in his opinion that he was not. He said that even if he had schizophrenia, were it not for the drugs that he took that day, he would not have committed the offence. In Dr. Chaimowitz’s view, Mr. House used drugs which changed his mental status, and he developed psychotic symptoms. [ 189 ] Dr. Chaimowitz’s opinion that Mr. House did not have schizophrenia was based on several factors. Schizophrenia has a hereditary component which was absent from Mr. House’s family.

The deterioration in relationships, education or work usually associated with schizophrenia were not present in Mr. House’s life. He said notwithstanding his many challenges, Mr. House was able to graduate from high school, maintain a long-term relationship, maintain a residence, continued to work in various capacities, volunteered, stayed out of the criminal justice system, and did his best to raise five children with his spouse. [ 190 ] In Dr. Chaimowitz’s opinion, Mr.

House’s paranoid symptoms, hallucinations, hearing things and believing things were happening around him was caused by long-standing substance abuse. In his opinion, Mr. House seeing spirits was not a “culture bound” experience. In his view, the acute, rapid escalation to being a violent incomprehensible person was substance induced and not schizophrenia. [ 191 ] Dr. Gojer indicated similar symptoms of schizophrenia to those identified by Dr. Chaimowitz. He included symptoms like staring into space or catatonic symptoms. Dr.

Gojer noted that it is common that people have both substance use disorder and schizophrenia. [ 192 ] Dr. Gojer agreed that a diagnosis of schizophrenia requires a history of ongoing delusions and hallucination for an extended time. There can be a genetic component that can be triggered by stress, trauma, or use of drugs. A genetic history of schizophrenia is not determinative but could add support to a finding of schizophrenia. There is no single cause for schizophrenia. [ 193 ] Dr. Gojer testified that talk of being followed is strong evidence of persecutory or paranoid delusions. Hearing or seeing things

that are not there are an indication of hallucinations. These are prominent features of psychotic illness, particularly schizophrenia. The longer symptoms are present, the more likely the person has a mental illness. Dr. Gojer testified that some people with schizophrenia are high functioning and can complete degrees and maintain jobs, depending on the impact of the delusion and hallucinations on their functioning. [ 194 ] Dr.

Gojer explained schizophrenia spectrum disorder is applicable where a person does not have all the symptoms of schizophrenia, or they exist in varying degrees, duration, timing, or causative factors. [ 195 ] Dr. Chaimowitz said that the symptoms of substance-induced psychosis in the acute moment feel and sound very much like the same symptoms as a psychotic episode of schizophrenia. In the report, Dr. Mamak says it is very difficult to tease apart whether Mr.

House’s symptoms of paranoia were triggered by his substance use or whether his substance use served to elevate or bring to the surface symptoms that were already present. [ 196 ] Dr. Gojer agreed that it can be difficult to determine whether the use of drugs with potential psychotic effe

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