R. v. Hood, 2016 NSPC 19

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Hood , 2016 NSPC 19 Date: 2016-04-06 Docket: 2692944-2692949 Registry: Pictou Between: Her Majesty the Queen v. Carolyn Amy Hood VERDICT REGARDING CRIMINAL RESPONSIBILITY Restriction on Publication: Any information that could identify the complainants in this matter shall not be published in any document or broadcast or transmitted in any way. Judge: The Honourable Judge Del W.

Atwood Heard: 19, 20, 26, 27, 30 October 2015; 18 December 2015; 6 April 2016 in Pictou, Nova Scotia Charge: Sections 172.1, 153, 271, 151, 172.1, & 152 of the Criminal Code of Canada Counsel: T. William Gorman for the Nova Scotia Public Prosecution Service Joel E. Pink QC and Nasha Nijhawan for Carolyn Amy Hood By the Court: [ 1 ] Human interaction is becoming increasingly complex, with the complexity of human conflict increasing in direct proportion.

When that conflict becomes the subject of criminal or civil litigation, it is often the case that the evidence presented to courts will be involved, intricate, compound, even confusing, requiring sometimes specialist knowledge and training to unravel. [ 2 ] It would be uneconomical and inefficient to provide triers of fact and law with in-depth tuition in the vast arrays of specialty fields—subdivided generally into the mathematical, biological, physical and psychological sciences—that might get pitched at them in the course of hearing cases.

So it is that courts are called upon to receive the opinions of experts. [ 3 ] As well informed as the expert might be, the role of the expert in court is limited. This is because the decision-maker in court is the one who is accountable for the outcome. And so it is that judges must not delegate their judgment-making functions to expert witnesses. Judges must not allow themselves to be overwhelmed by expertise.

Much has been written in Canadian jurisprudence about the need for judges to act as gatekeepers in scrutinizing with care the reception of expert evidence. [ 4 ] One eminent academic recently restated the case made by those in the realm of “science studies” that the generalist public ought not allow itself to be trapped by science’s experimental and observational methods into believing that scientific knowledge is superior to every other kind of knowledge. [1] An interesting argument—but courts aren’t there yet.

Jurists consider the need for specialized knowledge to be irrefutable. [2] But the fact that expert evidence might be needed in a particular case does not mean that it ought to be perceived as coming into court with a fanfare, or an aura, or a bow, or some sort of super-added presumption of reliability. [ 5 ] The case of Carolyn Amy Hood had the court hear a great deal of expert evidence. That evidence had to do with whether Ms. Hood should be found not criminally responsible by reason of mental disorder in relation to a number of sex-related offences Ms.

Hood is alleged to have committed against two minors who were former students of hers. The opinions of the experts are divided: two called in Ms. Hood’s defence believe that she was not criminally responsible; one called by the prosecution believes that she was. Defence counsel urges the court to accept the opinions of the defence psychiatrists; the prosecution advocates strongly that I go with the prosecution expert.

[ 6 ] Part of the function of the judge as gatekeeper is maintaining a vigilance against the cognitive biases of, not only others, [3] but of the judge especially. [4] One of the most common cognitive-bias risks that I have had occasion to come across is the availability heuristic—that is, accepting that the only choices available to the court are the ones presented by counsel.

Accordingly it is important that I recognize that there are other choices available to the court: I may accept all, some or even none of the evidence of an expert, as an expert’s testimony is in most respects no different to that of a lay witness. [ 7 ] The effect of my analysis of all of the evidence in this case—expert and lay—is that I find Ms.

Hood has not persuaded the court on a balance of probabilities that she was suffering from a mental disorder at the time she committed her offences so as to negative her criminal responsibility, and I find her guilty as charged with respect to five of the counts, and guilty with one technical amendment to one of the counts to have it conform to the evidence. History of proceedings [ 8 ] Ms.

Hood is charged in information 690467 with six counts under the Criminal Code upon which the prosecution elected to proceed by indictment; the charges are: • Luring G., a person under the age of eighteen years, by means of telecommunication for the purposes of committing the offence of sexual exploitation—case 2692944; • Sexually exploiting G.—case 2692945; • Sexually assaulting L.—case 2692946; • Touching L. for a sexual purpose—case 2692947 ; • Luring L., a person under the age of eighteen years, by means of telecommunication, for the purposes of committing the offence of sexual exploitation—case 2692948; • Inviting L., a person under the age of sixteen years, to touch her body for a sexual purpose—case 2692949. [ 9 ] Ms.

Hood elected to have her trial in English in this court, and pleaded not guilty. [ 10 ] At the outset of the trial, Ms. Hood informed the court of her intention to advance a defence of mental disorder under s. 16 of the Code . Admissions and consent exhibits [ 11 ] Pursuant to s. 655 of the Code , defence and the prosecution admitted a number of facts, and consented to the admission of a number of records; these admissions and records were bound comprehensively in Exhibits Nos. 1, 2 and 2A; here is a

summary of the admissions: • Ms. Hood's date of birth is 26 May 1976; • At the time of the alleged offences she lived at 62 Claremont Avenue, Stellarton, Pictou County with her husband David Hood and their three pre-teenaged children; • Amy and her husband David Hood are separated; • Between 1 February 2013 and 17 October 2013, Ms.

Hood was employed as an elementary school teacher by the Chignecto Central Regional School Board and taught at Thorburn Consolidated School in Thorburn; she had taught grade six at that school for approximately eight years before being relieved of duties; • Prior to the alleged offences, Ms. Hood had a good work-employment record and was a respected teacher at Thorburn Consolidated School, with an excellent professional reputation; • Ms. Hood was in a position of trust or authority in relation to G. and L. at all material times; • Ms. Hood has no prior criminal record; • On 7 November 2013, Dr. T.

Vienneau, a physician practising in the specialty field of psychiatry, diagnosed Ms. Hood on a preliminary basis as suffering from Bipolar Mood Disorder-Type 1; • Prior to this diagnosis, Ms. Hood had had no known history of any mental illness, and had never received psychiatric treatment or hospital admission; • G. is a male, and was born on [identifying information redacted]; G. was 17 years of age at the time of the alleged offences, attending grade 11 at [identifying information redacted], Nova Scotia; • Ms.

Hood had been G’s grade six teacher, which was 5 years prior to the alleged offences; • The admissions made by Ms. Hood included extensive transcripts of text-messages she exchanged with G. between 1 February 2013 to 10 December 2013; defence counsel admitted the authenticity of these transcripts as an accurate record of text messages exchanged between Ms. Hood and G.;

• the text messaging was initially friendly only; however, the messages became sexually charged and explicit, and ventured into Ms. Hood inviting G. to engage in sexual acts with her in terms that left little to the imagination; • Ms. Hood forwarded sexually explicit photographs of herself to G. between March and September 2013; four of those photographs were included in Exhibit No. 1; • After Ms. Hood sent G. the sexually explicit photographs, G. sent Ms. Hood text messages in reply, and their messages continued for a period of time; • There was no physical sexual contact between Ms.

Hood and G.; • L. was born on [identifying information redacted]; • At the time of the alleged offences, L. was 15 years of age and a grade [identifying information redacted] student at [identifying information redacted]; • Ms. Hood had been L.’s grade 6 teacher, which 3 years prior to the alleged offences; • The admissions made by Ms. Hood included extensive transcripts of text messages she exchanged with L. between 1 February 2013 to 30 May 2013; defence counsel admitted the authenticity of these transcripts as an accurate record of text messages exchanged between Ms.

Hood and L.; , the messages became sexually charged and explicit, and ventured into Ms. Hood inviting L. to engage in sexual acts with her in terms, much as her texting with G., that were highly descriptive and sexually explicit; • L. asked Ms. Hood to send him sexually explicit photographs of herself; • Ms.

Hood sent L. sexually explicit photographs and videos of herself via text messaging and Snapchat between 1 February 2013 and 30 May 2013 (L. explained to me when he testified that Snapchat is a messaging application that can be installed on mobile devices; it allows users to exchange texts and photographs; it comes with a built-in privacy feature: messages—including attached photography—get deleted from a recipient’s mobile device within a few seconds unless the recipient captures a screenshot very quickly after a message has been opened); • In April 2013 L. went to Ms.

Hood’s classroom at Thorburn Consolidated School at the end of the school day and requested a ride home; • L. explained his request by telling Ms. Hood that if he took the school bus he would be late for work; • Ms. Hood agreed to drive L. home; • Ms. Hood picked up 3 other students at Thorburn Consolidated School and dropped them off at a nearby convenience store as they had requested her to do; Ms. Hood then continued to drive L. home, and parked in the driveway; there was no one inside; • while still inside Ms. Hood’s vehicle, L. asked Ms. Hood to give him a "blow job" ; • Ms.

Hood agreed; she put her mouth on L.’s penis; L. ejaculated into Ms. Hood’s mouth; • Ms. Hood did not remove any of her clothing; • This was the only physical sexual encounter between L. and Ms. Hood; • Prior to this sexual encounter, Ms. Hood had attended a few of L’s hockey and soccer games, and had spent time "hanging around" him and other students; • After the sexual encounter, Ms. Hood continued to send sexually explicit text messages to L.; • Dr.

Teresa Vienneau is a psychiatrist and duly qualified to give expert evidence on the assessment and diagnosis of psychiatric disorders and the impact of medications on prognosis and management of psychiatric disorders; • Dr. Lisa Ramshaw is an expert in forensic psychiatry and qualified to give expert evidence on the assessment and diagnosis of psychiatric disorders and their impact on criminal responsibility and functioning; Dr. Ramshaw is an an expert on the impact of medications on prognosis and management of psychiatric disorders; • Dr. Stephen J.

Hucker is an expert in forensic psychiatry and duly qualified to give expert evidence on the assessment and diagnosis of psychiatric disorders and their impact on criminal responsibility and functioning; Dr. Hucker is an expert on the impact of medications on prognosis and management of psychiatric disorders; • Dr. Risk Kronfli is a forensic psychiatrist and duly qualified to give expert evidence on the assessment and diagnosis of psychiatric disorders and their impact on criminal responsibility and functioning; Dr.

Kronfli is an expert on the impact of medications on prognosis and management of psychiatric disorders. [ 12 ] Formal admissions are to be treated by the court as conclusive of the facts that have been acknowledged as true. [5] As the qualifications of Drs. Vienneau, Hucker, Ramshaw and Kronfli in the field of psychiatric medicine were admitted by the prosecution and defence, it was not necessary for the court to conduct qualificational voir dires as would be required ordinarily pursuant to R. v.

Mohan , [6] and these medical professionals were permitted to give opinion evidence in their fields of expertise. [ 13 ] After the admissions were filed with the court, defence counsel admitted that the evidence established a prima facie case for the

prosecution with respect to each count. [ 14 ] Counsel also filed with the court as Exhibit No.2 a joint book of exhibits, made up of medical records, curricula vitae of the psychiatrists who were called to give evidence during the trial, and reports of three of those psychiatrists. Exhibit 2A was a supplementary medical record. The reports and records all pertained to the psychiatric assessment and treatment of Ms. Hood. [ 15 ] Implicit in all of this material presented to the court at the outset of the trial is that there is an air of reality to Ms.

Hood’s mental-disorder defence. [ 16 ] The court heard from a number of family, friends, co-workers and supervisors of Ms. Hood regarding her behaviour before, during and after the time of her actions which form the bases for the charges before the court. [ 17 ] I listened attentively to all of the evidence, and have reviewed it in detail in forming my judgment. Counsel have urged the court to focus on certain points; while I have done so, I have applied my judgment to all of the relevant evidence. Defence psychiatric evidence [ 18 ] The court heard as part of the case for the defence the testimony of Ms.

Hood's treating psychiatrist, Dr. T. Vienneau, as well as the forensic-psychiatric opinions of Dr. Lisa Ramshaw and Dr. Stephen Hucker. All three of these qualified experts diagnosed Ms. Hood as suffering from Bipolar Mood Disorder-Type 1. In addition, Exhibit No. 2 included the reports of Drs. Ogunsuna and O'Donovan who had treated Ms. Hood early on, and who also had reached this diagnosis. [ 19 ] Although called by the prosecution, Dr. Risk Kronfli agreed that he had no basis to challenge the diagnosis that, for some period of time during Ms. Hood’s 2013 medical history, Ms.

Hood had suffered from Bipolar Mood Disorder-Type 1. [ 20 ] I find that the medical diagnosis for Ms. Hood of Bipolar Mood Disorder- Type 1 is unchallenged. [ 21 ] Dr. Vienneau testified that she had received an urgent referral from Ms. Hood's family physician, a Dr. Park; Dr. Park informed Dr. Vienneau of his concerns about Ms. Hood’s mental health. After interviewing Ms. Hood and collateral sources on or around 7 November 2013, Dr. Vienneau diagnosed Ms. Hood with Bipolar Mood Disorder-Type 1. In addition, she evaluated Ms. Hood's General Assessment of Functioning (GAF) as 45 out of 100 at that time.

However, Dr. Vienneau did not believe that Ms. Hood was experiencing a manic episode when they first met: My interview with Ms. Hood on that day was challenging in some ways in that on the day of the presentation there were not concerning or glaring signs that Ms. Hood was still in the midst of an altered mental state. She presented to me in an organized fashion. She presented as a woman that was quite vulnerable considering the ... the grave circumstances that were surrounding her at that time.

She was genuine in my opinion, tearful and frightened, so again, the presentation was not consistent with mania at that time in my opinion. [ 22 ] Dr. Vienneau recommended that Ms. Hood be hospitalized, and began treating her with Lithium. Ms. Hood did not accept immediately Dr. Vienneau’s recommendation that she go to hospital. BY MR. PINK: And did Ms. Hood initially accept your advice about hospitalization? A. Initially, no. Q. What happened? A. What happened? Q. Did she ever accept your advice? A. Oh, yes. Yes.

So she was hospitalized on my recommendation in December of 2013 when we became more concerned that the illness was progressing in a manner that was dangerous to her and others. [ 23 ] Dr. Vienneau explained to the Court that bipolar disorder is episodic by nature, and that the severity of Ms.

Hood's symptoms of mania could have varied from day to day: So they will fluctuate through the course of the disease and it's different from person-to-person, so the timing of the mood episodes is different from person-to-person, the time they spent in ... in between episodes is different from person-to-person and then even within episodes my experience is that people's severity of the symptoms under which are occurring can be different from day-to-day. I hope that helps. [ 24 ] Dr. Vienneau described the reports of Ms.

Hood's symptoms of Bipolar Mood Disorder-Type 1 as "striking", and indicated that she believed that symptoms of mania had begun in March 2013, culminating in the summer of 2013. She characterized Ms. Hood's disorder as "severe". [ 25 ] On cross-examination, Dr. Vienneau testified that she had seen no evidence of Ms. Hood being psychotic. [ 26 ] A medical report set out in Exhibit No. 2 from a Dr. Ogunsona affirmed Dr. Vienneau's diagnosis. Dr. Ogunsuna was not called to give testimony. Dr. Ogunsona assessed Ms. Hood at the Aberdeen Hospital in December 2013; this was after Ms. Hood had been admitted as a patient.

Dr. Ogunsuna interviewed Ms. Hood’s husband, David Hood. Dr. Ogunsuna’s diagnosis of Ms. Hood was

“Bipolar Mood Disorder-Type 1: Most Recent Episode Manic. In Partial Remission". In addition, Dr. Ogunsona evaluated Ms. Hood's General Assessment of Functioning score at 50 out of 100 at that time. [ 27 ] Dr. Vienneau had referred Ms. Hood to Dr. Clair O'Donovan, a psychiatrist at Capital Health with a specialty in mood disorders; Dr. O’Donovan saw Ms. Hood on 3 June 2014. Dr. O'Donovan prepared a report which was included in Exhibit No. 2; Dr. O’Donovan was not called to give testimony. Dr. O’Donovan diagnosed Ms. Hood as having had Bipolar Mood Disorder-Type 1. [ 28 ] In her report to Dr. Vienneau, Dr.

O’Donovan made these observations: IMPRESSION: The history is consistent with mania, and a diagnosis of bipolar 1 disorder. There is an unequivocal change in perception, cognition, behavior and emotions, although with an insidious onset, and now offset. Here is collateral history to confirm requirement, duration and persuasiveness of symptoms for a diagnosis of manic episode. The question is whether there could still be a primary cause for this mania. It remains a concern for me because of the more striking features of difficulty with impulse that which occurs with the egocentric state of mania.

The profile is not inconsistent with one of the many versions of bipolar disorder that we see, but certainly does raise the possibility of an organic/medical cause. The MRI is very reassuring in that regard. However, I would suggest that you keep the possibility of behavioural variation in the early presentation of a neurodegenerative disorder. It seems the key to collateral history from mom in terms of change in personality functioning, particularly social appropriateness and executive function in the household. Other options I would be to consider neuropsychological testing and referral to a neurologist.

I do note the onset is somewhat late, although it may be that there were previous episodes in adolescence that did not come to her mind today. I do also note it is likely that visits to the office will not likely capture a variable fluctuating mood state which again makes collateral history critical. A tool I have useful in that regard, which often produces surprising results is the mixed mood form in the stable resource tool kit online . . . .

I think lithium is an excellent choice for her, and would recommend overall that she have more antimanic coverage than she currently has, given the very costly cost benefit in her case. Hence, if she can tolerate either more lithium or more quetiapine or change to a more antimanic atypical that should be considered. Finally, I have not seen the results of the B12 folate and TSH, and am working on the assumption that these are normal.

In the absence of a motor disorder it seems like Wilson's disease would be unlikely, as the main consideration would be frontotemporal dementia; again, the MRI is reassuring at this time. Thank you for a very clear history. I do not think I have anything to add to you in terms of assessment and management in her case, except to confirm that the picture presents in a similar fashion to me in assessment today, and particularly strong collateral history. Finally, I would suggest that the idea of mental health court remains a possibility in her case. [ 29 ] I have referred already to Dr.

Lisa Ramshaw’s admitted expertise. Dr. Ramshaw testified for the defence about the contents of her assessment of Ms. Hood, as included in Exhibit No. 2, and elaborated on her assessment. [ 30 ] Dr. Ramshaw was asked by defence counsel to complete an assessment of Ms. Hood’s criminal responsibility. Dr. Ramshaw reviewed material supplied to her by defence counsel; she also interviewed Ms. Hood and Ms. Hood’s mother, Ms. Muriel Hines. Dr. Ramshaw formed an opinion that Ms. Hood's history and representation was in keeping with a diagnosis of Bipolar Mood Disorder-Type 1. Dr.

Ramshaw's report stated: There was no evident personality disorder (including psychopathy), substance disorder or paraphilic disorder. Bipolar I Disorder tends to have its onset in the third or fourth decade of life. Once present, it is a lifelong illness. It is characterized by episodes of mania and episodes of depression. Frequently, episodes of normal mood are interspersed between extremes of mood.

A manic episode is characterized by an expansive or euphoric mood (though, the expansive mood tends to be brittle, and these individuals can easily become irritable), grandiosity or inflated self-esteem; sleep, appetite and behavioural disturbance; psychomotor agitation, over- talkativeness, flight of ideas and tangentiality in thought form; high risk behaviour, overspending and hypersexuality are common. Mania is also associated with impaired judgment and insight. Symptoms often fluctuate over time. Ten percent of persons with this disorder will have only manic episodes.

During the depressed phase of the illness, an individual will lose interest in their usual pursuits, will give evidence of disturbance of sleep and appetite, will have impaired concentration, will tend to feel helpless, hopeless and worthless, and may experience suicidal ideation. If untreated, depressed episodes tend to last six to nine months, whereas manic episodes will tend to last approximately four months, if untreated. In both manic and depressive phases, individuals may become psychotic.

This could include the presence of delusions, hallucinations, grossly disorganized thought and behaviour, or some combination of these. The course may be adversely affected by psychosocial stress, an unstructured living situation, substance abuse, non-compliance with psychiatric treatment or suboptimal treatment. Non-compliance with psychiatric treatment or suboptimal treatment is by far the most significant of these factors in promoting relapse into either mania or depression.

The mainstay of treatment for an individual with bipolar disorder is treatment with mood stabilizing medication, such as lithium carbonate or divalproic acid (Epival). Antipsychotic medication is often used during the acute phase of the illness or in refractory disorders. Once an individual has experienced two episodes of either mania or depression, treatment with pharmacotherapy is generally required in perpetuity. [ 31 ] Dr.

Ramshaw’s report went further: Based upon the psychiatric assessments in November and December 2013, collateral reports from family, her self reported experiences, and her improved mental state with medication, from a psychiatric perspective, Ms. Hood was highly likely suffering from a mental disorder (Bi Polar I Disorder - Manic Episode) at the time of her offending behaviors in 2013. Her manic symptoms included euphoria, heightened energy and confidence, reduced need for sleep, hypersexuality with a change in her sexual behavior, disinhibition, poor judgment, and poor insight.

While her mental state fluctuated (which is inherent to this mental disorder), it is likely that she was highly compromised during the behavior and her manic symptoms coincided and represent a change. Though some did not specifically notice a change in her presentation in 2013, there were many including family members who observed significant changed - albeit they were not in a position to understand what was driving those changes at the time.

Based upon her manic state, though her symptoms fluctuated and she likely had some insight some of the time, it is unlikely that she had any significant overall insight regarding her sexually inappropriate behavior in 2013. Her manic episode likely deprived her of the ability to rationally evaluate what she was doing, and it is doubtful that she had significant rational choice of whether or not to engage in the behavior based upon her manic

symptoms regarding sexual disinhibition. Based upon the above, on the balance of probabilities Ms. Hood was unlikely able to access the wrongfulness due to her impaired mental state as a result of her manic symptoms with disinhibition and lack of insight at the time. A defence of not criminally responsible on account of a mental disorder is therefore supported. [ 32 ] Dr. Ramshaw restated her conclusions on direct examination: BY MR. PINK: So that there is no misunderstanding I would like to summarize for the Court your evidence and please disagree if I say anything that is not correct.

Between March 1, 2013 and September 30th, 2013 Carolyn Amy Hood was suffering from a Doctor's perspective, a disease of the mind which amounted to a major mental illness? ANSWER BY DR. RAMSHAW: Yes. Q: Between March 1, 2013 and September 30, 2013 Carolyn Amy Hood as a result of her mental illness would not know that her criminal acts were morally wrong which is more than simply legally wrong and in light of normal societal standards?

A: Yes. [ 33 ] Further: So just to re-emphasize, it is my opinion that she does have bipolar 1 disorder, which is a major mental illness, that she does not have a personality disorder, she does not have a substance abuse disorder that we are aware of - this is based on the information available - and it was my opinion that there was no clear evidence of a sexual disorder, a paraphilic disorder, for example, a preference for individuals, minors, for children. [ 34 ] Dr. Ramshaw made it clear on cross-examination that it was her judgment that Ms. Hood’s cognitive deficit had to do with Ms.

Hood not knowing the moral wrongfulness of her actions. However, she was not satisfied that Ms. Hood would have been unable to appreciate the nature and quality of her actions. This is germane to the issue of whether Ms. Hood believed she was a teenager; the significance of this point is that, if it were to be proven that a mental disorder caused Ms. Hood to believe that she was an age peer of L. and G., that disorder-based delusional belief would excuse Ms. Hood from criminal liability as non-exploitive age-peer sexual contact between minors is not criminalized. If Ms.

Hood really had believed, due to a mental disorder, that she was a teenager engaging in sexual activity with age peers and, as a result, was incapable of appreciating that she was an adult engaging in illegal sexual activity with minors, her cognitive inability would excuse the criminality of her conduct. Dr. Ramshaw addressed the issue on cross as follows: A. I asked her about telling Dr. Hucker that she felt like she was 18, "didn't feel like a mother with three children." Clearly, she knew she was a mother with ... But she didn't feel like it.

"Acted as if I was a teenager, felt that I was one of them, obsessed with being current in their group." When I asked her about that, having told Dr. Hucker that, she replied, she responded to me ... Because I, I wanted to know more about whether it was a delusional belief or whether she was experiencing this as, that she's part of this group somehow or that she would like to be part of this group. She told me that she felt as though she was one of them and entitled to know about them. But it doesn't, it was not clear to me that she really believed she was a teenager.

I don't think she believed that she was a teenager, or at least at that juncture I don't believe she thought that. [ 35 ] Dr. Ramshaw admitted on cross-examination that, in preparing her written report, she did not have access to the text messages Ms. Hood had exchanged with L. and G. Dr. Ramshaw stated that she interviewed L. and G. prior to preparing her written report; she stated that she read the text messages after her written report had been prepared, and their content did not alter her opinion.

She did concede that the more information an expert assessor might have access to in rendering an opinion, the better. [ 36 ] I observed a subtle difference between Dr. Ramshaw’s written report and her testimony before the court. Dr. Ramshaw’s written report offered the following assessment: Instructing the boys not to tell others and to delete the messages, stating that her husband would think it was wrong, and covering up her behavior, indicates that she knew what she was doing was not approved of by others.

It does not, however, imply directly that she knew it was legally wrong, or that she believed that her behavior with the boys was morally wrong at the time.....These behaviours and thought processes were clearly different than previously and since that time, and were indicative that she did not comprehend the serious and legally wrongful nature of her behavior. (Emphasis added) [ 37 ] However, when presented on cross-examination with Ms. Hood’s text messages sent to L. in which Ms. Hood expressed concern about the police, Dr. Ramshaw appeared to alter her opinion: A.

It appears to indicate that, in that text message at that time, that she had some concerns about the cops, which would indicate that she had some concerns about the legal wrongfulness, yes. [ 38 ] I remind myself of the fact that Ms. Hood’s texting to L. about her worries regarding police did not occur at the same time as her sexual contact with L. However, it is proximate post-act conduct—in the form of an utterance, something which emanates from the mouth by way of the mind—from which her cognition at the time of her sexual activity with L. might, but not must, be inferred. [ 39 ] Although Dr.

Ramshaw might have been prepared to give way to some extent regarding her judgment whether Ms. Hood might have understood the legal wrongfulness of her conduct, Dr. Ramshaw held consistently to her opinion that Ms. Hood did not have the capacity to understand the moral wrong. [ 40 ] I have referred already to the admitted qualifications of Dr. Stephen Hucker. Dr. Hucker was asked by defence counsel to

perform a psychiatric assessment of Ms. Hood’s criminal responsibility. Dr. Hucker interviewed Ms. Hood’s husband, David Hood, Ms. Hood’s mother, Mrs. Muriel Hines, Ms. Hood’s brother, Mr. Allen Hines, Ms. Hood’s sister, Dr. Laura Hines, Ms. Hood herself, as well as Ms. Hood’s family physician, Dr. Tom Park, and Dr. Theresa Vienneau. Based on those interviews and his reviewing of pertinent medical records, Dr. Hucker prepared a report in which he concluded: Ms. Hood was mentally stable by the time I saw her and fully compliant with her medication regimen and psychiatric follow up. Four psychiatrists (Dr.

Vienneau, Dr. O'Donovan, Dr. Ogunsona and Dr. Ezema) have made the diagnosis of Bipolar Disorder Type 1based on their professional observations of her and taking into account the uncharacteristic behaviours and other disturbances reported by Ms. Hood and others during the preceding school year, and perhaps at times even before that.

Moreover, her family physician, who has known her since childhood clearly thought there was something seriously medically wrong with her when he saw her late 2013, sufficient to be concerned that she might have a physical condition such as a brain tumour (though this appeared to be ruled out by further investigation). In my opinion the diagnosis of Bipolar Disorder Type I (formerly referred to as manic-depressive psychosis) is correct: the disturbances described are fully compatible with this diagnosis and in my opinion there is no other explanation which accounts for the full clinical picture.

There is nothing whatever to suggest she has a personality disorder (such as psychopathy) or a primary sexual disorder. Her acknowledged interest in mild sado-masochism is well within the bounds of normality in her present culture and in any case has only surfaced during her manic episode. Type I Bipolar Disorder may manifest with different symptoms at different times. Prior to her most severe episode of mania described in the body of this report she likely experienced less severe mood swings including episodes of hypomania and also possibly times when she showed mixed hypomanic and depressive symptoms.

During the period when the alleged offense behaviours occurred, in my opinion, she manifested a full-blown manic episode. The currently recognized criteria for this condition in the most recent (fifth edition) of the American Psychiatric Association' s Diagnostic & Statistical Manual or DSM-5 are: A. A distinct period of abnormally and persistently elevated, expansive, or irritable mood and abnormally and persistently increased goal-directed activity or energy, lasting at least one week and present most of the day, nearly every day (or any duration if hospitalization is necessary). B.

During the period of mood disturbance and increased energy or activity, three (or more) of the following symptoms (four if the mood is only irritable) are present to a significant degree and represent a noticeable change from usual behaviour: Inflated self-esteem or grandiosity; Decreased need for sleep (e.g. feels rested after only three hours of sleep); More talkative than usual or pressure to keep talking; Flight of ideas or subjective experience of thoughts racing; Distractibility (i.e. attention too easily drawn to unimportant or irrelevant external stimuli), as reported or observed.

Increase in goal-directed activity (either socially, at work, or sexually) or psychomotor agitation (i.e. purposeless non-goal directed activity) Excessive involvement in activities that have high potential form painful consequence (e.g. engaging in unrestrained buying sprees, sexual indiscretions, or foolish business investments) . C. The mood disturbance is sufficiently severe to cause marked impairment in social or occupational functioning or to necessitate hospitalization to prevent harm to self or others, or there are psychotic features. D.

The episode is not attributable to the physiological effects of a substance (e.g. a drug abuse, a medication, other treatment) or to another medical condition. Note: Criteria A-D constitute a manic episode. At least one lifetime manic episode is required for a diagnosis of bipolar I disorder." In my opinion the manic episode was "severe", based on the fact that she experienced more than the number of symptoms that are required for the diagnosis. The evidence corroborates changes in Ms. Hood's behaviour in 2013 consistent with a bipolar manic episode. [ 41 ] Dr.

Hucker was asked the following questions on direct examination : BY MR. PINK: To summarize your evidence Doctor and correct me if I am wrong it is your professional opinion that between March 1, 2013 and September 30, 2013 Carolyn Amy Hood was suffering from a disease of the mind which would amount to a major mental illness? ANSWER BY DR. HUCKER: Yes. Q: Carolyn Amy Hood as a result of her mental illness would not understand the consequences of her physical act as opposed to mere awareness of her acts or in other words would not appreciate the nature and quality of her acts? A: Yes.

Q: Carolyn Amy Hood as a result of her mental illness would not know that her acts were morally wrong which is more than simply legally wrong keeping in mind the normal standards of Canadian society. A. Yes, I think that her ability was compromised as well. [ 42 ] To recap, Dr. Hucker’s report and his testimony on direct examination offered the opinion that Ms.

Hood might be excused from criminal responsibility based on both grounds described in s. 16 of the Code : first, that she did not have the capacity to appreciate the nature and quality of her acts, as she believed that she was an age peer of L. and G.’s—and so a teen, engaging in sexual activity and sexual conversation with other teens; second, that she was incapable of accessing the moral wrongfulness of her actions. Dr. Hucker was of the view that both of these cognitive deficits were due to Ms. Hood’s diagnosed Bipolar Mood Disorder-Type 1. [ 43 ] However, on cross-examination, Dr.

Hucker’s judgment seemed to waver somewhat, at least with respect to the issue of Ms. Hood’s appreciation of the nature and quality of her actions: Q. Now if you look at the bottom of the next paragraph, Statements Being Attributable to Amy Hood where she talks about in quotes, and they're interspersed with a series of dots where it says, like on the second-last line ... A. Uh-huh. Q. "It baffled me. I never looked at the person that way before. I felt like I was 18. I didn't feel like a mother with three children. I felt I was the same age." A. Right. Q. These were her feelings that she's describing, correct? A.

Yeah. I mean, I went into this in some detail. I had discussed it with Dr. Vienneau at some length because what it sounded like when I first heard it was that she believed herself to be, at the time, at that age. I satisfied myself, as you know from my conclusion, that that was not the case, that this was derived from what I described as a euphoric state where she felt so good, she felt that she was that age. And the young persons themselves described her as behaving that way. Some of them actually said it was like talking to one of their peers. So obviously she was into this in a big way.

She obviously felt herself to be like them, and she was intruding in their lives, wanting to know more about who was dating who and that kind of thing. So I think that was what she was describing, not a true delusion or anything like that. (Emphasis added) [ 44 ] Dr. Hucker agreed on cross-examination that his collection of information from Ms. Hood’s family regarding her symptomology did not inform him of a specific timeline when particular symptoms were being exhibited by Ms. Hood: Q.

And based upon your interview and your collection of information from those individuals, did you get a specific timeline from the sister, brother, or mother about symptoms they reported to you, like when it occurred as it relates to the events that resulted in the charges that bring us here? A. Not really. I mean, they were reporting symptoms throughout that period and past those dates. But they and everybody else seemed to have trouble actually saying which symptoms might have been present at what stage.

So I would have to say manic symptoms ... everything on the list was recorded by somebody at some point during that period. But more specific than that, I mean, nobody was taking notes obviously so ... Q. It was a generalized report. A. Yeah. From that point of view, yeah. [ 45 ] Dr. Hucker agreed on cross-examination that Ms. Hood did not appear to be psychotic at any point in time relevant to this trial. [ 46 ] To sum up the psychiatric opinions presented during the defence case, it was Dr. Hucker's professional opinion that Ms.

Hood did not have the capacity to appreciate the nature and quality of her putatively criminal acts, and did not have the capacity to know that they were morally wrong; Dr. Ramshaw did not offer an opinion as to whether Ms. Hood appreciated the nature and quality of her acts, but limited her judgment to concluding that Ms. Hood did not have the capacity to know them to be wrong. Defence witnesses: family members Dr. Laura Hines - sister of Amy Hood [ 47 ] A number of Ms. Hood’s immediate family testified in her defence. The first was Laura Hines.

[ 48 ] Dr. Laura Hines is a dental surgeon who practises in the Annapolis Valley, and is the younger sister of Carolyn Amy Hood by 7 years. She testified that she and Ms. Hood had had a very close sibling relationship. During 2013, Dr. Hines visited her sister approximately every other weekend. [ 49 ] In the fall of 2012 and throughout much of 2013, Dr. Hines noticed big changes in Ms. Hood, including loss of weight, heightened energy levels, rapidity of speech and shortened attention span.

She also noticed that her sister was texting obsessively, and that she seemed unable to have an organized conversation with others. [ 50 ] Dr. Hines described one occasion when running with her sister; Dr. Hines was unable to keep pace and Ms. Hood took off ahead and ran up a hill by herself. This Dr. Hines believed was a change in behaviour for Ms. Hood; it indicated to Dr. Hines that Ms. Hood was not able to focus on her running companion, but was behaving in a self-centred manner, with an excess of energy. [ 51 ] Dr. Hines also noticed a change in the way in which Ms. Hood dressed and groomed herself.

She observed her sister wearing tighter and more youthful clothes; Ms. Hood began dying her hair an extreme bleached- blonde colour, and was applying more make up than usual. Dr. Hines described her sister as having been a conservative dresser prior to this conspicuous change in behaviour. [ 52 ] Dr. Hines told the court that her sister previously had experienced serious body-image issues, particularly with respect to her stomach; it used to be the case that Ms. Hood would not let others see her getting dressed and would never wear revealing clothing. Because of this history, Dr.

Hines was particularly shocked when she learned in 2013 that her sister had sent sexually explicit photographs of herself, as it was a marked departure from her normal modest behaviour. [ 53 ] Dr. Hines recalled observing during 2013 a significant change in her sister’s sense of self-esteem; Dr. Hines believed at first that this was a good thing. However, she observed later Ms. Hood becoming increasingly self-centred and less focused on her family. [ 54 ] Finally on direct, Dr.

Hines noted that, once her sister had begun taking prescribed medication, she returned to being her old self, wearing the styles of clothes that she used to wear, toning down her makeup, and becoming once again a more reserved person, able to have organized and normal conversations. [ 55 ] Dr. Hines acknowledged on cross-examination that, when she questioned Mr. Hood about her volume of texting, her sister offered the rationalization that other teachers did it, too.

Allen Hines - brother of Amy Hood [ 56 ] Much as his sister Laura Hines, Allen Hines testified that he had noticed a significant change in his sister in 2013. During the 2012-2013 school year, he saw Ms. Hood every morning when she dropped her son off at his house for childcare. [ 57 ] Mr. Hines told the Court that, prior to 2012, Ms. Hood was someone whom he had “looked up to”; she was his moral compass. He described an organized, tidy and thoughtful person, whose priorities were her family, teaching and taking care of other people. Things changed in 2013. Mr.

Hines described his sister in 2013 as someone with high energy, getting by on very little sleep and a very poor diet. Mr. Hines testified to the change in Ms. Hood’s appearance and stated that she became disorganized. He said that everything about Ms. Hood was heightened, everything was energized; her attention span was much shorter and scattered, as if her mind were running a hundred miles per hour. Mr. Hines said that it was difficult to have a conversation with Ms. Hood, as she was constantly changing topics. Ms.

Hood would take her brother’s advice no longer, whereas, prior to the change in personality, she would have always considered his opinions. [ 58 ] Mr. Hines described a distinct shift in Ms. Hood's priorities; he stated that she had become more self-confident and also more self-involved by 2013. [ 59 ] Mr. Hines described instances when Ms. Hood would arrive in his driveway at 7:15 am to drop of her son; she would be speeding and blaring music in her car. [ 60 ] Mr. Hines stated that, prior to Ms.

Hood’s change in personality, she had been a person who was self-conscious about her body, and had always been very conservative in her dress. When he heard about Ms. Hood sending intimate pictures of herself to her students he was horrified, because that was not the sister whom he had known. [ 61 ] Just as Laura Hines, Mr. Hines felt Ms. Hood had become her old self again after starting medication. [ 62 ] Mr. Hines acknowledged on cross-examination that, when he questioned Ms. Hood about her volume of texting, his sister offered the rationalization that other teachers did it, too. Muriel Hines - mother of Ms.

Hood [ 63 ] Mrs. Muriel Hines testified that she saw her daughter 3 to 4 times a week in 2013. [ 64 ] She described her daughter Amy as honest, a person with integrity, one who knew the difference between right and wrong. Her daughter came from a law-abiding family. When Mrs. Hines learned about the allegations, she was shocked and dumbfounded. [ 65 ] In the first part of 2013, Mrs. Hines noticed a big change in her daughter's behavior. [ 66 ] Mrs. Hines perceived that Ms. Hood began projecting an unusually high energy level, was disorganized and seemed to be "falling apart".

She told the court that, during this period, Ms. Hood could easily be distracted and did not appear to be her normal self. When asked on direct examination to describe this distractibility Mrs. Hines stated: "She would start one task, leave it and go to another task, leave it, go to another task. She could not stay focused on one thing. "

[ 67 ] Mrs. Hines noticed that, beginning in 2013, her daughter seemed to be running a lot, and getting thinner and thinner. Mrs. Hines noticed that Ms. Hood was more talkative and spoke a lot more loudly. Mrs. Hines described Ms. Hood’s excessive smartphone texting, which occurred even when her daughter was driving. It also was most unusual that Ms. Hood would brush off her mother’s advice. [ 68 ] Mrs. Hines, too, noticed changes in Ms. Hood’s appearance and dress during 2013. [ 69 ] Mrs. Hines went to medical appointments with her daughter; she stated that, when she spoke to Dr. Vienneau, Dr. Ogunsona, Dr.

Ramshaw and Dr. Hucker, she described in response to their questions what she had seen of her daughter’s changed behaviour and appearance. She was never contacted by Dr. Kronfli. [ 70 ] Mrs. Hines noted that, after Ms. Hood had been placed on Lithium and Seroquel, she returned to being her old self. Prosecution evidence—school board personnel, acquaintances, and the complainants [ 71 ] The prosecution called a number of witnesses—school-board personnel, acquaintances of Ms. Hood’s, and the complainants. Christopher Calvin Boulter - Coordinator of Human Resources for the Chignecto Regional School Board [ 72 ] Dr.

Christopher Boulter testified about how the issue of Ms. Hood’s conduct with former pupils had come to the attention of the Chignecto Regional School Board and how the board handled the complaint. He testified about a meeting that he had had with the accused on October 30, 2013. Dr. Boulter told the Court that he had never met Ms. Hood before that meeting. The prosecution sought to elicit from this witness evidence about the type of employee Ms. Hood had been; I did not allow this examination, as it was clear that Dr. Boulter had had no first-hand experience observing Ms.

Hood at work; his knowledge of the calibre of Ms. Hood’s performance in class was based entirely on school-board business records made by others—which are inherently hearsay—for which no notice had been given, and which were not put before the court by the prosecution in any event. On cross-examination, Dr. Boulter testified that, during his meeting with Ms. Hood, he had observed that she had no sense of boundary to a shocking degree, that she was laughing and joking inappropriately, and did not appear to recognize the seriousness of what was going on. Mr.

Stephen Barker - Principal of Thorburn Consolidated School [ 73 ] Stephen Barker testified primarily as to how it was that Ms. Hood's matter had gotten reported to the Chignecto Regional School Board. I received this evidence as narrative, not as truth of its content. [ 74 ] Mr. Barker then went on to confirm that Ms. Hood had enjoyed a fantastic reputation as a teacher prior to 2013, and that she had been well respected by both students and staff. Although he had seen Ms. Hood daily in the school during the 2012-2013 school year, he had never sat down with her to evaluate her work during that period.

He testified that he had noticed that the junior high students were frequently in her classroom and that she was working late during this period, more often than had been usual for her in previous years. Mr. Barker said that he had no knowledge of Ms. Hood’s personal behavior or habits outside of school; nor did he know anything about her home life or social life. The Complainant L. [ 75 ] As set out in the admissions of counsel, L. received sexually explicit text messages from Ms. Hood, and experienced one episode of sexual contact with Ms. Hood in April 2013. [ 76 ] L. told the court that Ms.

Hood had been his grade 6 teacher in 2009-2010. Other than seeing her in the hallway, he had had very little contact with Ms. Hood in grades 7 and 8. It was not until he had started grade 9 that Ms. Hood began texting him. [ 77 ] L. testified that Ms. Hood was texting him, not as a teacher, but as a friend; he said that, as time went on, Ms. Hood’s text messages became more sexual and weird. [ 78 ] L. said he noticed many differences between Ms. Hood’s appearance and behaviour in 2013, compared to the year she had been his teacher; by 2013, she appeared to be very interested in what teenagers were doing.

The Complainant G. [ 79 ] G. received sexually explicit text messages from Ms. Hood in 2013. [ 80 ] G. testified that Ms. Hood had been his grade 6 teacher in 2008. He had had no unusual contact with Ms. Hood until after graduating from grade 9. After that, Ms. Hood began contacting him by text message with increasing frequency; the nature and tone of the text messages changed to a level of familiarity, as if Ms. Hood were one of his friends. [ 81 ] Ms. Hood sent G. paragraph-long messages in rapid succession, and the messages became increasingly sexualized in nature. Ms.

Hood's language also changed to include greater use of slang and obscenity. The messages became so weird that G. told the court he thought Ms. Hood was a "psycho". [ 82 ] G. said that Ms. Hood treated him as a friend and wanted to hang out with him. He, too, confirmed a change in Ms. Hood’s

appearance and behavior, markedly different from what he had known of her in prior years. Karyn Chabassol [ 83 ] Ms. Chabassol told me that Ms. Hood had taught her two sons. She saw Ms. Hood at parent-teacher meetings approximately 3-4 times a year, for about forty-five minutes per session. Ms. Chabassol described two encounters with Ms. Hood which she considered unusual. [ 84 ] The first encounter was in March 2013, during a parent-teacher meeting for one of Ms. Chabassol’s sons. Ms. Hood couldn't stop talking about how much she relied on the friendship of Ms.

Chabassol’s other son, and described him as her "therapist". Ms. Chabassol told the court that she found it very strange for a grown woman to seek the advice of a teenager. [ 85 ] The second strange encounter between Ms. Hood and Ms. Chabassol happened in July 2013. The Hood and Chabassol families went on a camping trip together as part of a very large group. Ms. Chabassol testified that, during this trip, Ms. Hood had approached her several times seeking out the son Ms. Hood had termed her therapist. Ms. Chabassol said she was not keen on the idea of Ms. Hood having contact with her son. Ms.

Chabassol agreed with defence counsel that Ms. Hood's behaviour in July 2013 was different from what she had observed of Ms. Hood previously in professional settings. Sarah Danielle English [ 86 ] Ms. English was enrolled in Ms. Hood's grade 6 class in the Fall of 2008. While in grades 7-9, she worked on the school yearbook with Ms. Hood. [ 87 ] Ms. English testified that she and Ms. Hood became very close during this period, and that she came to rely on her as a mentor, or "second mother". However, starting in 2012 and continuing into 2013, Ms. English observed a significant change in Ms.

Hood's behaviour towards her. [ 88 ] Ms. English testified that Ms. Hood was preoccupied with the junior high students who were hanging out in her classroom, and that her former mentor ceased being a "second mother" to her. She also noted a change in Ms. Hood's appearance: her hair was blonder and she was dressing more in the style of a teenager. Ms. English also agreed that Ms. Hood was running a lot more often. M.G., mother of G. [ 89 ] M.G.’s information pertained mostly to her son, G. She had had little contact with Ms.

Hood, and her evidence, while entirely credible, does not have a significant bearing on this case. Charles Dougal MacInnis [ 90 ] I would make the same observation of the evidence of Mr. MacInnis, a co-worker of Ms. Hood’s. His limited contact with Ms. Hood did not allow him to offer much in the way of relevant evidence weighing on the issue of Ms. Hood’s criminal responsibility. David Hood - husband of Amy Hood [ 91 ] David Hood testified that he and Ms.

Hood had been married since 1999. [ 92 ] He stated that he first became aware of his wife’s difficulties when she informed him in the Fall of 2013 she had been suspended from her teaching job. He attested that Ms. Hood told him that the suspension must have had to do with rumours about her having sex with a student; she told him that she had known about the rumours for a couple of months. Mr. Hood was assured by his wife that these were rumours only; nothing had ever really happened. [ 93 ] At one point in time—the exact date was not pinned down on direct—Mr.

Hood learned that his wife had sent text messages to a student. Ms. Hood came to the Wellness Centre where Mr. Hood worked as the building manager; she revealed to her husband that she had sent a picture of herself in a thong to a student, and that the student had sent her a picture of his penis. [ 94 ] Mr. Hood remembered accompanying his wife to the office of her defence counsel. Mr. Hood told the court that he had been assured by his wife that she had told him everything; however, after meeting with counsel, she revealed that she had sent texts and pictures to G. [ 95 ] Mr. Hood told the court about taking Ms.

Hood to see Dr. Vienneau in November 2013, and about her being admitted to hospital around Christmas of 2013. According to Mr. Hood, his wife returned home not long after her admission; they went for a New- Year’s-Day walk, and then got back home. Mr. Hood asked his wife if there was anything more; she proceeded to disclose her sexual encounter with L., along with the names of other students whom she had been texting. [ 96 ] All this led up to 28 March 2014; Mr. Hood told the court that, on that date, early in the morning, he found his wife with their daughter’s iPod; Mr. Hood said that Ms.

Hood panicked and wanted to delete material from the iPod. He observed on the iPod explicit sexual texts which Ms. Hood had sent to a student. [ 97 ] Mr. Hood acknowledged on cross-examination that he had called his ex-wife a "pedophile" on more than one occasion and had recently told her that she would be going to jail, so that he would end up with custody of their children. [ 98 ] There is no doubt that Mr. Hood harboured hard feelings against his wife. He acknowledged having made these comments to her, and did appear to project himself in court as a stoic; he felt betrayed.

[ 99 ] Mr. Hood agreed that he had initially gone along with the diagnosis of bipolar mania in his interviews with Dr. Vienneau and Dr. Ogunsona. However, when interviewed by Dr. Hucker, which took place after the break down of the marriage—a breakdown that he attributed to Ms. Hood’s deceit and selective disclosure—he downplayed this, and seemed to question whether his wife had been mentally ill at all. Prosecution evidence—Dr. Risk Kronfli [ 100 ] I have referred already to Dr. Risk Kronfli’s admitted expertise. Dr.

Kronfli reviewed on direct examination the diagnostic criteria for a manic episode and stated that symptoms must be present for at least a week for the diagnosis to be valid. [ 101 ] Dr. Kronfli joined with the defence experts in stating that Bi-Polar Mood Disorder is a lifelong disease; however, he expressed doubt that what he felt had been described by Drs. Hucker and Ramshaw as a prolonged manic episode could have lasted for eight months. [ 102 ] In wrapping up direct examination, Dr. Kronfli stated: A. My final opinion to the Court is that I believe that Ms.

Hood has at one point or another fulfilled the criteria for Bipolar Mood Disorder, Type I, most recent episode manic. I don’t agree with the fact that there was a severe manic episode that has been ongoing from February to September. As I mentioned, I’ll leave it at that from what I said and I do believe that on the balance of probability, with a high level of medical certainty, I would say, in my opinion, that Ms.

Hood had the capacity to appreciate, know the wrongfulness of her action, the consequences of her action and definitely the nature and quality of those actions in every sense that could be from a psychiatric point of view that she appreciated the legal and moral and ethical consequences of her actions. My extended opinion is that Ms. Hood enjoyed the action. They caused a relief for her from the situation that she found herself in and that, in my opinion, that was the main drive for her actions. [ 103 ] Dr. Kronfli was cross-examined thoroughly by defence counsel. [ 104 ] Dr.

Kronfli acknowledged on cross-examination that he had not conducted collateral interviews with friends or family members of Ms. Hood’s. He met with Ms. Hood on one occasion only. He did not speak to Ms. Hood's treating physicians, including Dr. Vienneau, or refer to their medical records or reports that covered the span of time immediately before, during, and immediately after Ms. Hood’s diagnosed Bipolar Mood Disorder-Type 1 episode. Dr. Kronfli did not perform any standardised psychological testing of Ms. Hood. He did not form a diagnosis for Ms.

Hood, and admitted on cross-examination that this was a step required normally in a forensic psychiatric assessment. Dr. Kronfli testified that he destroyed the working notes which he had complied in completing his report on Ms. Hood. The Criminal Code [ 105 ]

Section 16 of the Criminal Code addresses exemption from criminal responsibility due to mental disorder in this way: 16

(1) No 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.

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), 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 the party that raises the issue. [ 106 ]

Section 2 of the Code defines mental disorder as a disease of the mind. [ 107 ]

Section 16 was reformed substantially into its present phrasing, and the definition of mental disorder introduced into s. 2, in virtue of S.C. 1991, c. 43, which created an entirely new procedural scheme for assessing, trying and managing accused persons suffering from mental disorders. [7] Gone was outdated terminology such as “insanity” and “natural imbecility”.

The move toward modernising the law regarding mental disorder and criminal responsibility can be traced back to October 1979; it was then that federal and provincial justice ministers decided to move forward on a broad review of Canadian criminal law, including, germane to this case, the law pertaining to diminished criminal responsibility. [8]

Summary of evolution of mental-disorder law [ 108 ] The evolution of the law relating to mental disorder and criminal responsibility was summarised comprehensively by Myers J. of the British Columbia Supreme Court in R. v. Ari : 8 The treatment of severely mentally ill people by our common-law criminal justice system has slowly evolved along with society and the medical profession's changing understanding of mental illness and its causes and its manifestations. 9 Historically, mentally ill people who committed crimes were required to stand trial like any other offender, and were either found

guilty or not guilty; there was no possibility of a special verdict or defence of "insanity".

The law developed by the 16th century to thepoint where a jury was entitled to render a special verdict that the accused was "insane" at the time of the offence, a verdict which almostautomatically led to a pardon. 10 By 1603, "insanity" became recognized as a defence rather than a special verdict, but the requirement was that the accused be so"absolutely mad" as to lack any understanding whatsoever of what he or she had done. 11 The common law retreated from the requirement of absolute mental incapacity in a decision of the English House of Lords in 1843- M'Naghten's Case.

The House of Lords held that in order "to establish a defence on the ground of insanity, it must be clearly provedthat, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, asnot to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong". 12 In 1892 the M'Naughten defence was codified in Canada in s. 11 of The Criminal Code, 1892. However, an acquittal pursuant tothat

section of the Criminal Code did not automatically result in an absolute discharge for the accused. Rather, it resulted in indefinitedetention "in strict custody" at the pleasure of the Lieutenant Governor of the province. 13 In 1991, the Criminal Code was amended to create a new scheme for the management of mentally ill offenders. Among otherchanges, the verdict of "not guilty on account of insanity" was changed to "not criminally responsible on account of mental disorder". 14 The Criminal Code amendments also created an entirely new system for managing offenders who were found not criminallyresponsible by reason of mental disorder, which is found under

Part XX.1 of the Criminal Code and is largely the system that is in placetoday. It is discussed further below. 15 Both the older law and the current law arise from the fact that society has recognized that it is unjust to blame and punish a personwho, at the time they commit an offence, was not a sane, responsible agent capable of discerning right from wrong, or of appreciating thenature or quality of his or her actions. A person must have the capacity for rational choice if he or she is to be legally blameworthy.

Thisfundamental concept is in no way intended to diminish the gravity of the actions of the accused; rather, it is a statement that the accusedcommitted his or her actions because of an illness, not because he or she had a criminal mind.[9] Criminal liability and mental disorder [109] In R. v.

Bouchard-Lebrun, LeBel J. described the foundational importance of exempting from criminal liability those who, as aresult of mental disorder, do not have the cognitive ability to know that their conduct is morally wrong: 44 The defence of not criminally responsible on account of mental disorder, which Parliament codified in s. 16 Cr. C., addressesconcerns that are very legitimate in a democratic society.

Insofar as the principles governing this defence are properly applied, a verdictof not criminally responsible on account of mental disorder protects the integrity of our country's criminal justice system and thecollective interest in ensuring respect for its fundamental principles. A review of the fundamental principles of criminal law that underliethe defence of mental disorder confirms the importance of this defence in Canadian criminal law. 45 According to a traditional fundamental principle of the common law, criminal responsibility can result only from the commissionof a voluntary act.

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

an act that constitutes a criminaloffence. 46 For

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

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

(SCC), [1984] 2 S.C.R. 232, at p. 249). The control may be physical, in which case voluntariness relates to the musclemovements of a person exerting physical control over his or her body. The exercise of a person's will may also involve moral controlover actions the person wants to take, in which case a voluntary act is a carefully thought out act that is performed freely by an individualwith at least a minimum level of intelligence (see H. Parent, Responsabilité pénale et troubles mentaux: Histoire de la folie en droitpénal français, anglais et canadien (1999), at pp. 266-71).

Will is also a product of reason. 48 The moral dimension of the voluntary act, which this Court recognized in Perka, thus reflects the idea that the criminal law viewsindividuals as autonomous and rational beings. Indeed, this idea can be seen as the cornerstone of the principles governing the attributionof criminal responsibility (L. Alexander and K. K. Ferzan with contributions by S. J. Morse, Crime and Culpability: A Theory ofCriminal Law (2009), at p. 155).

When considered from this perspective, human behaviour will trigger criminal responsibility only if itresults from a "true choice" or from the person's "free will". This principle signals the importance of autonomy and reason in the systemof criminal responsibility. As the Court noted in R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687: The treatment of criminal offenders as rational, autonomous and choosing agents is a fundamental organizing principle of our criminallaw. Its importance is reflected not only in the requirement that

an act must be voluntary, but also in the condition that a wrongful actmust be intentional to ground a conviction... . Like voluntariness, the requirement of a guilty mind is rooted in respect for individualautonomy and free will and acknowledges the importance of those values to a free and democratic society ... . Criminal liability alsodepends on the capacity to choose - the ability to reason right from wrong. [Emphasis added; citation omitted; para. 45.] 49 This essential basis for attributing criminal responsibility thus gives rise to a presumption that each individual can distinguish rightfrom wrong.

The criminal law relies on a presumption that every person is an autonomous and rational being whose acts and omissionscan attract liability. This presumption is not absolute, however: it can be rebutted by proving that the accused did not at the material timehave the level of autonomy or rationality required to attract criminal liability.

Thus, criminal responsibility will not be imposed if theaccused gives an excuse for his or her act that is accepted in our society, in which there is "a fundamental conviction that criminalresponsibility is appropriate only where the actor is a discerning moral agent, capable of making choices between right and wrong" (R. v.Chaulk, (SCC), [1990] 3 S.C.R. 1303, at p. 1397).

In Ruzic, the Court recognized the existence of a principle offundamental justice that "only voluntary conduct - behaviour that is the product of a free will and controlled body, unhindered byexternal constraints - should attract the penalty and stigma of criminal liability" (para. 47). 50 Insanity is an exception to the general criminal law principle that an accused is deemed to be autonomous and rational. A personsuffering from a mental disorder within the meaning of s. 16 Cr. C. is not considered to be capable of appreciating the nature of his or heracts or understanding that they are inherently wrong.

This is why Lamer C.J. stated in Chaulk that the insanity provisions of theCriminal Code "operate, at the most fundamental level, as an exemption from criminal liability which is predicated on an incapacity forcriminal intent" (p. 1321 (emphasis deleted)). 51 The logic of Ruzic is that it can also be said that an insane person is incapable of morally voluntary conduct. The person's actionsare not actually the product of his or her free will. It is therefore consistent with the principles of fundamental justice for a person whosemental condition at the relevant time is covered by s. 16 Cr.

C. not to be criminally responsible under Canadian law. Convicting a personwho acted involuntarily would undermine the foundations of the criminal law and the integrity of the judicial system. 52 However, the defence of mental disorder remains unique. It does not result in acquittal of the accused, but instead leads to a verdictof not criminally responsible.

That verdict triggers an administrative process whose purpose is to determine whether the accused is asignificant threat to the safety of the public, to take any necessary action to control that threat and, if necessary, to provide the accusedwith appropriate care. A verdict of not criminally responsible on account of mental disorder thus gives effect to society's interest inensuring that morally innocent offenders are treated rather than punished, while protecting the public as fully as possible. 53 An accused who is found not criminally responsible becomes subject to the scheme established in

Part XX.1 of the Criminal Code.Parliament adopted the current scheme after this Court had held in R. v. Swain, (SCC), [1991] 1 S.C.R. 933, that aCriminal Code provision requiring the automatic and indeterminate detention of an accused found not criminally responsible violated theright to liberty guaranteed by s. 7 of the Charter. In Winko v. British Columbia (Forensic Psychiatric Institute), (SCC),[1999] 2 S.C.R. 625, McLachlin J. (as she then was) explained the principles underlying the application of

Part XX.1 of the CriminalCode as follows: In

summary, the purpose of

Part XX.1 is to replace the common law regime for the treatment of those who offend while mentally illwith a new approach emphasizing individualized assessment and the provision of opportunities for appropriate treatment. Under PartXX.1, the NCR accused is neither convicted nor acquitted. Instead, he or she is found not criminally responsible by reason of illness atthe time of the offence. This is not a finding of dangerousness. It is rather a finding that triggers a balanced assessment of the offender'spossible dangerousness and of what treatment-associated measures are required to offset it.

Throughout the process the offender is to betreated with dignity and accorded the maximum liberty compatible with

Part XX.1's goals of public protection and fairness to the NCRaccused. [Emphasis added; para. 43.][10]

Knowing and appreciating [ 110 ] What does it mean, within the context of s. 16 of the Code , to “appreciate” the nature and quality of

an act or omission, or to “know” that it is wrong? R. v. Cooper delved into a legal definition: In contrast to the position in England under the M'Naghten rules, where the words used are "knows the nature and quality of his act", s. 16 of the Code uses the phrase "appreciating the nature and quality of

an act or omission". The two are not synonymous. The draftsman of the Code , as originally enacted, made a deliberate change in language from the common law rule in order to broaden the legal and medical considerations bearing upon the mental state of the accused and to make it clear that cognition was not to be the sole criterion. Emotional, as well as intellectual, awareness of the significance of the conduct, is in issue.

The Report of the Royal Commission on Law of Insanity as a Defence in Criminal Cases (McRuer Report) (Canada, Queen's Printer, 1956) contains a useful discussion on the point: The word "appreciating", not being a word that is synonymous with "knowing", requires far-reaching legal and medical consideration when discussing Canadian law. It had its origin in the Stephen Draft Code . Not infrequently judicial reference is made to the New Oxford Dictionary for the definition of words used in Canadian statutes. The New Oxford Dictionary gives five different uses of the word "appreciate", depending on the context.

The one applicable to this statute is "2. To estimate aright, to perceive the full force of. b. esp. to be sensitive to, or sensible of, any delicate impression or distinction. Until the truth of any thing ... be appreciated, its error, if any, cannot be detected." An examination of the civil law of England and Canada shows that there is an important difference between "know" or "knowledge" on the one hand and "appreciate" or "appreciation" on the other when used and applied to a given set of circumstances.

This is best illustrated by the principles of law underlying those cases in which the maxim volenti non fit injuria is involved. There is a clear distinction between mere knowledge of the risk and appreciation of both the risk and the danger. (at p. 12) To "know" the nature and quality of

an act may mean merely to be aware of the physical act, while to "appreciate" may involve estimation and understanding of the consequences of that act. In the case of the appellant, as an example, in using his hands to choke the deceased, he may well have known the nature and quality of that physical act of choking. It is entirely different to suggest, however, that in performing the physical act of choking, he was able to appreciate its nature and quality in the sense of being aware that it could lead to or result in her death.

In the opinion of the medical expert who testified at the trial, the appellant could have been capable of intending bodily harm and of choking the girl, but not of having intended her death. Our Code postulates an independent test, requiring a level of understanding of the act which is more than mere knowledge that it is taking place; in short, a capacity to apprehend the nature of the act and its consequences.

The position in law is well expressed in the McRuer Report at p. 12: Under the Canadian statute law a disease of the mind that renders the accused person incapable of an appreciation of the nature and quality of the act must necessarily involve more than mere knowledge that the act is being committed, there must be an appreciation of the factors involved in the act and a mental capacity to measure and foresee the consequences of the violent conduct. It should be noted that the issue of appreciation of the nature and quality of the act was not before this Court in Schwartz v. The Queen (supra) .

The sole issue was the meaning of the word "wrong". The decision in Schwartz should not be taken as authority for the proposition that "appreciating" the nature and quality of

an act is synonymous with "knowing" the physical character of that act. The test proposed in the McRuer Report , which I would adopt, (save for deletion of the word "fully" in the fourth line) is this: The true test necessarily is, was the accused person at the very time of the offence--not before or after, but at the moment of the offence-- by reason of disease of the mind, unable fully to appreciate not only the nature of the act but the natural consequences that would flow from it?

In other words was the accused person, by reason of disease of the mind, deprived of the mental capacity to foresee and measure the consequences of the act? (at p. 13) The legally relevant time is the time when the act was committed. In R. v. O'Brien (supra) Ritchie J.A. referred to the McRuer Report and stated at pp. 301-2: "If an accused person is to be deprived of

the protection of s. 16, he must, at the time of committing the offence, have had an appreciation of the factors involved in his act and themental capacity to measure and foresee the consequences of it." (His emphasis.) In the Simpson decision, Martin J.A. offered the view that s. 16(2) exempts from liability an accused who, due to a disease of themind, has no real understanding of the nature, character and consequences of the act at the time of its commission. I agree.

With respect,I accept the view that the first branch of the test, in employing the word "appreciates", imports an additional requirement to mereknowledge of the physical quality of the act. The requirement, unique to Canada, is that of perception, an ability to perceive theconsequences, impact, and results of a physical act. An accused may be aware of the physical character of his action (i.e., in choking)without necessarily having the capacity to appreciate that, in nature and quality, that act will result in the death of a human being.

This issimply a restatement, specific to the defence of insanity, of the principle that mens rea, or intention as to the consequences of

an act, is arequisite element in the commission of a crime.[11] Presumptions, proofs and procedure [111] Sub-s. 16(2) of the Criminal Code presumes mental order. This presumption is rebuttable, and may be raised by either thedefence or—subject to an order of proof dependent upon the position adopted by an accused toward s. 16—the prosecution.

The burdenof proving mental disorder of a nature and degree sufficient to negative criminal responsibility is upon the party asserting it; the standardof proof is upon a balance of probabilities. [112] Expressed more finely, an accused is exempt from criminal liability if the accused proves on a balance of probabilities that: • At the time of the act or omission forming the subject matter of the charge,

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