Blake Jeffrey Schreiner Appellant (Applicant) v. His Majesty the King, 2023 SKCA 121

Court of Appeal for Saskatchewan Docket: CACR3491 Citation: R v Schreiner , 2023 SKCA 121 Date: 2023-11-07 Between: Blake Jeffrey Schreiner Appellant (Applicant) And His Majesty the King Respondent (Respondent) Before: Caldwell, Schwann and Kalmakoff JJ.A. Disposition: Conviction and sentence appeals dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Kalmakoff On appeal from: 2021 SKQB 175 , Saskatoon Appeal heard: May 16, 2023 Counsel: Patrick Thompson and Meagan Ward for the Appellant Grace Hession David for the Respondent Caldwell J.A. I. Overview [ 1 ] A judge of the Court of Queen’s Bench sitting alone convicted Blake Jeffrey Schreiner of second degree murder in the death of his spouse ( R v Schreiner , 2021 SKQB 175 [ Conviction Decision ]) and sentenced him to life imprisonment without eligibility for parole for 17 years ( R v Schreiner (24 September 2021) Saskatoon, CRM 158 of 2019 (Sask QB) [ Sentencing Decision ]). Mr.

Schreiner has appealed against his conviction and the period of parole ineligibility imposed on him. [ 2 ] Mr. Schreiner killed his wife by stabbing her more than 80 times. He does not dispute this fact. At trial, he claimed he was not criminally responsible for his wife’s death because he suffered from a mental disorder called schizotypal personality disorder [SPD]. The trial judge rejected that defence, finding that Mr. Schreiner was not suffering from a mental disorder within the meaning of s. 16 of the Criminal Code .

In the Conviction Decision and the Sentencing Decision , the trial judge relied on statements [Statements] Mr. Schreiner had made to a medical assessment team while under a court-ordered psychiatric assessment. [ 3 ] In his conviction appeal, Mr. Schreiner asserts that the trial judge erred by failing to ensure that he received a fair trial. He further submits that the trial judge erred by failing to give sufficient reasons for denying his application to be found not criminally responsible for his spouse’s death. Thirdly, Mr.

Schreiner alleges that the trial judge erred in law by finding that he had the mens rea to commit murder. Lastly, he asserts that the trial judge erred in law by misapprehending the evidence. In the sentence appeal, Mr. Schreiner says the trial judge erred in principle when imposing a 17-year parole ineligibility period and that it is demonstrably unfit. [ 4 ] Mr. Schreiner’s principal argument against his conviction and sentence is that the trial judge erred by relying on the Statements.

He asserts that the Statements are protected under s. 672.21 of the Criminal Code and were therefore not admissible for the purpose of establishing whether he had the mens rea for murder. While they meet the definition of “protected statement” under s. 672.21(1), I conclude that Mr. Schreiner himself triggered an exception to their protection under s. 672.21(2) by introducing them into evidence. The trial judge admitted the Statements for purposes that are permitted under s. 672.21(3).

All told, I conclude that the trial was not unfair and that the trial judge did not misapprehend the evidence or otherwise err when finding that Mr. Schreiner had the mens rea to commit murder. [ 5 ] The overarching issue in the sentence appeal is whether the trial judge erred when determining a fit period of parole ineligibility. I am not persuaded that the trial judge erred in his handling of Mr. Schreiner’s mental health and substance abuse issues or by relying on the Statements for sentencing purposes.

Moreover, in my assessment, 17 years of parole ineligibility is not demonstrably unfit in the circumstances of this murder and given Mr. Schreiner’s culpability for its commission. [ 6 ] I would dismiss Mr. Schreiner’s appeals against his conviction and his sentence. II. Background [ 7 ] About two years before the homicide, Mr. Schreiner lost his job and began abusing alcohol, marijuana, and hallucinogens (i.e., magic mushrooms or psilocybin). This behaviour strained his relationship with his spouse and, by early 2019, they were in the process of separating. At the time when he killed his spouse, Mr.

Schreiner was no longer living with her or their children.

[ 8 ] On January 29, 2019, Mr. Schreiner was visiting the family home at his wife’s invitation. Later that night when everyone was asleep, he stabbed her to death in her bedroom. Their 3-year-old son witnessed some of it. Mr. Schreiner confessed to the homicide in phone calls to family members and to a 911 operator. He surrendered to the police and gave a voluntary, warned statement in which he admitted to having killed his wife [Confession]. He did not, at that time, provide any information or exhibit behaviour that would invite concerns about his mental health. [ 9 ] After his arrest, Mr.

Schreiner was placed on remand and, due to his behaviour toward a cellmate, he became subject to a court-ordered psychiatric assessment at Saskatchewan Hospital in North Battleford, Saskatchewan, to determine his fitness to stand trial. He spent nearly a month there in early 2019 being assessed by Dr. Olajide Adelugba (a psychiatrist), Dr. Anne Pleydon (a psychologist), and Alma Mendez (a social worker) [Assessment Team]. Mr. Schreiner told the Assessment Team that he had not consumed hallucinogens on the night he killed his wife.

He alleged that she was going to “set [him] up to be a pedophile” to get custody of their children ( Conviction Decision at paras 59 and 69). The Assessment Team reported that Mr. Schreiner had further stated that, if he could not have the children, then neither could his wife ( Sentencing Decision at para 9). This was among the statements that were later admitted into evidence at trial. [ 10 ] Prior to his trial, Mr. Schreiner retained Dr. Mansfield Mela (a psychiatrist) to assess him in furtherance of his defence. Dr. Mela interviewed Mr.

Schreiner for five hours on July 25, 2019, and for four hours on November 23, 2019. During those interviews, Mr. Schreiner contradicted information that he had given the police and to the Assessment Team—specifically regarding his drug use and mental state at the time of the homicide. Notably, Mr. Schreiner provided Dr. Mela with hand-written booklets that were labelled “NCR 1, 2, 3 and 4” [NCR Booklets]. He had written the NCR Booklets after his assessment at Saskatchewan Hospital and once he had decided to advance a mental-disorder defence. Based on the information Mr. Schreiner had given him, Dr.

Mela diagnosed Mr. Schreiner as suffering from SPD at the time of the homicide. In rebuttal testimony for the Crown at trial, Dr. Adelugba critiqued Dr. Mela’s diagnosis and opined that Mr. Schreiner was not suffering from SPD. [ 11 ] In the Conviction Decision , when explaining his reasons for convicting Mr. Schreiner of second degree murder, the trial judge relied on the Statements and accepted Dr. Adelugba’s opinion over that of Dr. Mela, finding that Mr.

Schreiner had not “established on a balance of probabilities that he was suffering from a mental disorder when he killed [his spouse]” ( Conviction Decision at para 13). III. Issues [ 12 ] In his factum, Mr. Schreiner consolidated the eleven grounds of appeal from his notice of appeal to allege that the trial judge had erred when convicting and sentencing him by: (

a) failing to ensure that he received a fair trial; (

b) failing to give sufficient reasons for denying his application to be found not criminally responsible for his spouse’s death; (

c) finding that he had the mens rea to commit murder; (

d) misapprehending evidence; and (

e) imposing a 17-year period for parole ineligibility when sentencing him. IV. Analysis [ 13 ] The grounds for the appeal against conviction seek to undermine the weight the trial judge attributed to Dr. Adelugba’s opinion and to Dr. Mela’s opinion. For example, Mr. Schreiner challenges trial fairness in a way that would, if accepted, give rise to a conclusion that he was prejudiced because he was unable to respond to or address Dr. Adelugba’s testimony. He also argues that Dr. Adelugba’s diagnostic methodology is unknown or unestablished and, therefore, should have been given little weight.

He further aims to establish that the trial judge misapprehended the evidence or facts that each expert relied upon when forming their opinion, as well as other evidence relevant to the trial judge’s inquiry into whether he suffered from a mental disorder. He alleges that the trial judge failed to adequately explain his reasoning for rejecting Dr. Mela’s diagnosis. Throughout and at the end, Mr. Schreiner asserts that the trial judge erred when he concluded that Mr. Schreiner had the requisite intention to commit murder. A.

The Conviction Decision and sufficiency of reasons [ 14 ] It is appropriate to begin the assessment of Mr. Schreiner’s grounds of appeal by confirming that the actus reus of culpable homicide was not at issue in this trial. As noted, Mr. Schreiner admitted to directly causing his spouse’s death by means of an unlawful act, which is a culpable homicide ( Criminal Code , s. 222 ). The principal issue at trial was whether the Crown had proven that Mr. Schreiner had the intention to commit murder. Culpable homicide is murder in the circumstances described in s. 229 (

a) of the Criminal Code : 229 Culpable homicide is murder (

a) where the person who causes the death of a human being (

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not[.] [ 15 ] If the trial judge had found that Mr. Schreiner did not have the intention to commit murder, then, absent the existence of a valid

defence, he would have been guilty of manslaughter because he had admitted to unlawfully causing his spouse’s death (Criminal Code,s. 234). However, as the trial judge found beyond a reasonable doubt that Mr. Schreiner had meant to cause his wife’s death, asupplementary issue at trial was whether the Crown had proven that the murder was “planned and deliberate” and therefore a first degreemurder (Criminal Code, s. 231(2)), failing which it would be a second degree murder (s. 231(7)). [16] Alongside the inquiry into his intention, Mr.

Schreiner asserted, as a defence, that he was not criminally responsible for hiswife’s death by reason of a mental disorder under s. 16 of the Criminal Code. That

section contains a presumption that accused personsare capable of appreciating the nature and quality of their acts and omissions and of knowing when their acts and omissions are wrong. Itplaces the burden on an accused person who raises a mental-disorder defence to prove that they are suffering from a mental disorder on abalance of probabilities. The

section reads: Defence of mental disorder 16(1) No person is criminally responsible for

an act committed or an omission made while suffering from a mental disorder thatrendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. Presumption

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

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on theparty that raises the issue. [17] With this understanding of the issues, the trial judge described the Crown and Mr. Schreiner’s respective burdens in the trial inthese terms: [4] There are two components to a Criminal Code, RSC 1985, c C-46, offence: the first is the act itself and the second is the intentionto commit the act. The Crown must prove both beyond a reasonable doubt. Mr. Schreiner has raised the defence that he is not criminallyresponsible by reason of mental disorder.

In this situation the trial can be divided into three parts. The first part requires the Crown toprove beyond a reasonable doubt that Blake Schreiner by an unlawful act caused the death of [his spouse]. The second part of the trial isabout whether Blake Schreiner has shown on a balance of probabilities that he suffered from a mental disorder which makes him notcriminally responsible for her death. If Mr. Schreiner does not establish that he suffered from a mental disorder which makes him notcriminally responsible, the trial moves to the third part.

In this part the Crown has to prove beyond a reasonable doubt that Mr. Schreinerhad the mental intent of first degree murder in [his wife’s] death. [18] Having established the framework for his decision, the trial judge moved quickly to conclude that the Crown had discharged itsburden of proving beyond a reasonable doubt that Mr. Schreiner had unlawfully caused his wife’s death. The relevant evidence wasprimarily the fact that Mr. Schreiner had confessed to the homicide several times, including through his in-court testimony. [19] Following his framework, the trial judge turned next to determine whether Mr.

Schreiner was not criminally responsible for theculpable homicide. He started this analysis by identifying the legal meaning of a “disease of the mind” and factors that affect the answer tothe legal question of whether an accused person suffers from a mental disorder. In both of these regards, he sought guidance from R vBouchard-Lebrun, 2011 SCC 58, [2011] 3 SCR 575, where LeBel J. wrote a unanimous decision stating: [38] This general principle [i.e., that the application of s. 16 and of s. 33.1 of the Criminal Code are mutually exclusive] does not seemparticularly contentious.

If the accused was intoxicated and in a psychotic condition at the material time, the problem the court faces is toidentify a specific source for his or her mental condition, namely self-induced intoxication or a disease of the mind, and determine whetherit falls within the scope of s. 33.1 or s. 16 Cr. C. This appears to be all the more difficult to do in cases in which the mental health of theaccused was already precarious prior to the incident in question, even if his or her problems had not yet been diagnosed at the time, and inwhich the psychosis emerged while the accused was highly intoxicated.

Yet this identification of the source of the psychosis plays a keyrole, since it will ultimately determine whether the accused will be held criminally responsible for his or her actions. [39] The law, as it now stands, includes a fairly general framework for resolving this difficult question. The starting point must be thelegal concept of “disease of the mind” as defined by Dickson J. in [Cooper v The Queen, (SCC), [1980] 1 SCR 1149], theleading case: In

summary, one might say that in a legal sense “disease of the mind” embraces any illness, disorder or abnormal condition which impairsthe human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental statessuch as hysteria or concussion. [Emphasis added by LeBel J.] … [61] For the purposes of the Criminal Code, “disease of the mind” is a legal concept with a medical dimension. Although medicalexpertise plays an essential

part in the legal characterization exercise, it has long been established in positive law that whether a particularmental condition can be characterized as a “mental disorder” is a question of law to be decided by the trial judge. In a jury trial, the judgedecides this question, not the jury. As Martin J.A. stated in an oft-quoted passage from [R v Simpson (1977), (ON CA),35 CCC (2d) 337 (Ont C.A.)], “[i]t is the function of the psychiatrist to describe the accused’s mental condition and how it is consideredfrom the medical point of view.

It is for the Judge to decide whether the condition described is comprehended by the term ‘disease of themind’” (p. 350). If the judge finds as a matter of law that the mental condition of the accused is a “mental disorder”, it will ultimately beup to the jury to decide whether, on the facts, the accused was suffering from such a mental disorder at the time of the offence. [62] Thus, the trial judge is not bound by the medical evidence, since medical experts generally take no account of the policy

component of the analysis required by s. 16 Cr. C. ([R v Parks, (SCC), [1992] 2 SCR 871 at 899-900]). Moreover, anexpert’s opinion on the legal issue of whether the mental condition of the accused constitutes a “mental disorder” within the meaning ofthe Criminal Code has “little or no evidentiary value” (R. v. Luedecke, 2008 ONCA 716, 269 O.A.C. 1, at para. 113). [63] The respective roles of the expert, the judge and the jury were summarized in R. v. Stone, (SCC), [1999] 2 SCR290.

Writing for the majority, Bastarache J. stated the following: Taken alone, the question of what mental conditions are included in the term “disease of the mind” is a question of law.

However, the trialjudge must also determine whether the condition the accused claims to have suffered from satisfies the legal test for disease of the mind.This involves an assessment of the particular evidence in the case rather than a general principle of law and is thus a question of mixed lawand fact. …The question of whether the accused actually suffered from a disease of the mind is a question of fact to be determined by thetrier of fact. [20] The trial judge also referred to R v Lesann, 2014 SKQB 332 at para 238, 455 Sask R 1, where Dawson J. adopted a statementof the law from R v Oakley (1986), (ON CA), 24 CCC (3d) 351 at 361, namely, that “Any medically recognized mentaldisorder or mental illness that could render a person incapable of appreciating the nature and quality of his act, or of knowing that it iswrong, is comprehended by the term ‘disease of the mind’, save that transient mental disturbances caused by such external factors asviolence or drugs do not fall within the concept” (Emphasis added). [21] Immediately following his references to R v Bouchard-Lebrun and R v Lesann, the trial judge set out his overall conclusion,writing, “For the reasons that follow I find that Mr.

Schreiner has not established on a balance of probabilities that he was suffering from amental disorder when he killed [his spouse]” (Conviction Decision at para 13). The remainder of his judgment explains why he reachedthat conclusion (at paras 14–107), why he found that the Crown had proven beyond a reasonable doubt that Mr. Schreiner had intended tokill his wife (at paras 108–120), and why he found the Crown had not proven beyond a reasonable doubt that the murder was planned anddeliberate (at paras 121–125). In the final paragraph of the Conviction Decision, the trial judge found Mr.

Schreiner guilty of seconddegree murder (at para 129). [22] Mr. Schreiner’s allegation that the trial judge failed to give sufficient reasons is without merit. The Conviction Decision chartsa logical pathway through the evidence with the route correctly marked by the legal issues that the trial judge was called upon to decide. Iacknowledge that it is somewhat difficult to read the Conviction Decision due to the absence of headings, but its course is nonethelessreadily apparent. [23] In short, the allegation that the trial judge provided insufficient reasons for the conviction is without merit. B.

Trial fairness [24] At the bottom line, I find no unfairness in the trial judge’s rejection of Dr. Mela’s diagnosis and no error leading to the denial ofMr. Schreiner’s application to be found not criminally responsible on that basis. As is readily understood from the Conviction Decisionand the record, the trial judge distinguished between the expert opinions before him based on their dissimilar factual foundations and noton the different diagnostic methodologies employed by the psychiatrists, although he had concerns in that regard as well. As I read theConviction Decision, the trial judge chose to accept Dr.

Adelugba’s opinion because he accepted most of the facts upon which it waspremised. He rejected Dr. Mela’s diagnosis of SPD because he had rejected many of the assumptions and facts upon which it was based.In my judgment, the trial judge was entitled to do exactly that, and the verdict of guilt and rejection of the s. 16 defence flow straight fromhis decision not to accept Dr. Mela’s diagnosis. [25] Moreover, the trial judge was not required to reject Dr. Mela’s diagnosis in order to deny Mr. Schreiner’s defence.

Chiefly inthis regard, it is evident that the trial judge found as fact, and attributed significant weight to the fact, that Mr. Schreiner had admitted tobeing a heavy user of psilocybin at the time of the murder. To the trial judge, that fact alone negated the viability of the mental-disorderdefence. [26] I will now explain my overall conclusions about trial fairness and the trial judge’s rejection of the mental-disorder defence. 1. It was for the trial judge to determine whether Mr. Schreiner suffered from a mental disorder [27] Even if he had accepted Dr.

Mela’s opinion, the trial judge was not bound to conclude, as a matter of law, that Mr. Schreinersuffered from a mental disorder within the meaning of s. 16 of the Criminal Code or, as a question of mixed fact and law, that he wassuffering from a mental disorder at the time of the murder. [28] As the trial judge understood, a disease of the mind or mental disorder is a legal concept in the criminal law (R v Bouchard-Lebrun, at para 61; see also R v Stone, (SCC), [1999] 2 SCR 290).

The expert medical evidence adduced at trial formsthe evidentiary basis that informs the answer to the legal question of whether the accused person suffers from a mental disorder. It is forthe trial judge, whether sitting alone or with a jury, to answer that question of law; but, in doing so, the judge is “not bound by the medicalevidence” (R v Bouchard-Lebrun at para 62, citing R v Parks, (SCC), [1992] 2 SCR 871 at 899–900).

The Supreme Courthas said that “an expert’s opinion on the legal issue of whether the mental condition of the accused constitutes a ‘mental disorder’ withinthe meaning of the Criminal Code has ‘little or no evidentiary value’” (R v Bouchard-Lebrun, quoting R v Luedecke, 2008 ONCA 716 atpara 113, 236 CCC (3d) 317). [29] The question of whether the accused person was suffering from a disease of the mind at the material time is a question of factfor the trier of fact to determine (R v Stone at para 143).

That question was not addressed in the Conviction Decision because the trialjudge found as a matter of law that Mr. Schreiner was not suffering from a mental disorder. [30] In short, the trial judge properly approached the legal question of whether Mr. Schreiner suffered from a mental disorder withinthe meaning of s. 16 of the Criminal Code. I will next explain why the trial judge did not err in his consideration of this question.

2. The trial judge was entitled to reject the SPD diagnosis [31] Before he began his analysis of the expert evidence, the trial judge wrote: [18] The expert opinions are only part of the equation as the cases referred to have suggested. I need to look at all of the evidence that Iaccept in assessing whether Mr. Schreiner has on a balance of probabilities established he was suffering from a mental disorder.

Whenassessing the experts’ opinions it is worthwhile to keep in mind the comments of Justice Kalmakoff (as he then was) in Casbohm vWinacott Spring Western Star Trucks, 2019 SKQB 44 at para 99, [2019] 9 WWR 714, where he stated: [99] The weight afforded to an expert’s opinion is also affected by the degree to which the factual foundation for that opinion issupported by the evidence. In order for expert opinion evidence to be given any weight, it must be supported by a proper factualfoundation: R v Gibson, 2008 SCC 16 at para 58, [2008] 1 SCR 397.

This does not mean that every fact upon which an expert relies informing an opinion must be proven to the court’s satisfaction before the opinion is admissible. Deficiencies or shortcomings in the proofof the facts underlying the expert’s opinion go to weight, not admissibility: R v Skorlatowski, 2016 SKCA 5, 472 Sask R 257. The morethe proven facts align with the factual foundation relied upon by the expert, the more weight the expert’s opinions are entitled to, and viceversa. [32] As to his weighing of Dr.

Mela’s expert evidence, I accept that the trial judge was “entitled to examine the factual foundationsof the opinion and… entitled to accord less weight to that opinion where it is not based on facts proved at trial and/or where it is based onfactual assumptions with which [the trial judge disagreed]” (R v Molodowic, 2000 CSC 16 , 2000 SCC 16, [2000] 1 SCR 420 atpara 7). In fact, the trial judge was entitled to reject Dr. Mela’s opinion simply because he disagreed with the facts and factual assumptionsupon which it was premised, even if it had not been contradicted by Dr.

Adelugba (R v Molodowic, at paras 8–10). [33] Since Dr. Mela’s diagnosis was the only medical evidence at trial relevant to the establishment of a mental disorder, itsrejection meant that there was an insufficient evidentiary basis for the trial judge to find that Mr. Schreiner had proven on a balance ofprobabilities that he was not criminally responsible for his wife’s murder by reason of mental disorder. 3. The trial was not unfair by reason of the sequence of expert testimony [34] In argument, Mr.

Schreiner intertwined his submissions about trial fairness and the sufficiency of the trial judge’s reasons forrejecting the defence of mental disorder. Under the first avenue, he asserted that the way in which the evidence of Drs. Mela and Adelugbawas introduced at trial was unfair. In the latter argument, he submitted that the trial judge failed to give reasons for acceptingDr. Adelugba’s opinion over that of Dr. Mela. [35] I cannot accede to either of these arguments.

To appreciate this conclusion, it is necessary to keep in mind that the broad, legalconcept of mental disorder excludes “self-induced states caused by alcohol or drugs” that impair the human mind and its functioning(Cooper v The Queen, (SCC), [1980] 1 SCR 1149 at 1150; see also R v Lesann at para 39). It is also helpful to know whatled Dr. Mela to form his opinion that Mr. Schreiner had been suffering from SPD at the time of the homicide and why Dr. Adelugba wascalled to testify about Dr. Mela’s diagnosis. [36] Mr.

Schreiner began by arguing that the trial was unfair because the Crown failed to disclose the entirety of Dr. Adelugba’sopinion before calling him to testify. He further says that the Crown failed to put portions of Dr. Adelugba’s opinion to Dr. Mela in cross-examination, contrary to the rule in Browne v Dunn, (1893), 6 R 67 (HL). This alleged unfairness meant, he submits, that his counsel wasunable to effectively scrutinise or test Dr. Adelugba’s critique of Dr. Mela’s diagnosis thereby prejudicing his ability to defend himself. [37] This trial was not, as Mr.

Schreiner contends, a battle of diagnostic methodologies. The trial judge reviewed the experts’methodologies when discussing their evidence in the Conviction Decision and he accepted that of Dr. Adelugba, but he was not required toprefer one methodology over the other. As noted under an earlier heading, the trial judge was entitled to outright reject or give littleweight to Dr. Mela’s diagnosis or, even if he had accepted it, to find that Mr.

Schreiner was not, as a matter of law, suffering from amental disorder, or not suffering from a mental disorder at the time of the homicide, as a matter of mixed fact and law. [38] In the same vein, the methodology Dr. Adelugba described was not a Crown theory that had to be disclosed in advance or put toDr. Mela in cross-examination under the rule in Browne v Dunn. This is explained by the sequence of the psychiatrists’ testimony at trial. [39] In evaluating Mr. Schreiner’s trial fairness arguments, it is critical to understand that the Crown called Dr. Adelugba to rebutDr. Mela’s evidence.

Nonetheless, even though Dr. Adelugba’s testimony did not form part of its case against Mr. Schreiner, the Crownhad disclosed his full assessment report and his conclusions to Mr. Schreiner prior to the trial. Unlike the circumstances in R v Doonanco,2020 SCC 2, [2020] 1 SCR 9, trial fairness was not called into question in this case by the sequence of the witnesses’ testimony, under therule in Browne v Dunn, or by a failure to disclose expert evidence. Before trial, Mr. Schreiner knew what Dr. Adelugba had concluded andon what basis he had reached his conclusions. It is true that Dr.

Adelugba did not express a view about SPD in his report, but thepossibility of that condition did not arise from his assessment of Mr. Schreiner at Saskatchewan Hospital. He was asked to testify about itonly in rebuttal to the expert evidence Mr. Schreiner had led in his defence. [40] It is also notable that these issues—whether Mr. Schreiner was not criminally responsible by reason of mental disorder andabout Dr. Adelugba’s expert assessment of him—arose after the close of the Crown’s case, prior to a finding of guilt. When he testified inhis own defence, Mr.

Schreiner adduced four journals [Journals] he had kept in advance of the killing, wherein he had described hisexperiences experimenting with hallucinogens. He testified in detail and at length about his drug use. [41] When his counsel asked him questions about what he had told Dr. Adelugba and the Assessment Team and what he had left out,Mr. Schreiner denied telling them that he had killed his wife because she was going to take the children from him. He asserted that thisidea had come from or had been suggested by Dr. Adelugba. Mr.

Schreiner acknowledged that he had not told the Assessment Team abouthis experiences with hallucinogens in the months prior to the killing. He also confirmed that he never discussed his Journals with theAssessment Team. Lastly, Mr. Schreiner testified that he was aware that Dr. Adelugba had not diagnosed him with a mental disorder.

[42] In the course of case for the defence, Dr. Mela then testified. He was qualified as a forensic psychiatrist entitled to give opinionevidence on the assessment, diagnosis and characteristics of mental disorders and the effects of substances on mental states. Dr. Melaconfirmed that he had evaluated Mr. Schreiner on two occasions. In his written report, Dr. Mela diagnosed Mr. Schreiner as suffering fromsocial anxiety disorder, alcohol-use disorder, hallucinogen-use disorder, and SPD. He testified that SPD is a mental disorder and, while ithad not interfered with Mr.

Schreiner’s ability to appreciate the nature and quality of his acts when killing his wife, it did render himincapable of knowing that his acts were wrong—which is an opinion with “little or no evidentiary value” (R v Bouchard-Lebrun, quotingR v Luedecke, at para 113). [43] Perhaps most importantly, Dr. Mela testified that, during the first interview, Mr. Schreiner had told him that he was high onmagic mushrooms at the time of the murder. He gave Dr. Mela the Journals, which he had written before the homicide. However, asDr. Mela acknowledged in his testimony, Mr.

Schreiner changed his story before the second interview, stating that he had not consumedhallucinogens before the killing. In the second interview, Mr. Schreiner also gave Dr. Mela three of the four newly hand-written NCRBooklets to review. The three NCR Booklets were admitted into evidence in the trial through Dr. Mela, who summarised their contents aswell as that of the Journals in his testimony. In this regard, Dr. Mela mentioned, among other things, Mr. Schreiner’s impression ofhimself as a king and as Jesus Christ, and his references to Illuminati and Freemason messaging. Critically, Dr.

Mela opined that, even ifMr. Schreiner had been under the influence of hallucinogens at the time of the killing, they would have triggered and exacerbated thesymptoms of his SPD disorder. [44] As noted, Mr. Schreiner supplied Dr. Mela with information that differed from what he had disclosed to the Assessment Team,including the Journals and NCR Booklets. Based on this information about the range of symptoms Mr. Schreiner said he had manifested,Dr. Mela concluded that Mr. Schreiner was suffering from SPD at the time of the murder. Despite that, under cross-examination aboutMr.

Schreiner’s changing story and his mental condition, Dr. Mela conceded that it was “—possible. Absolutely” that Mr. Schreiner hadmade it all up after the fact. [45] To speak plainly, if I were assessing Dr. Mela’s evidence afresh, instead of assessing the allegations of error in the trial judge’sconclusions, I would have given as little weight to Dr. Mela’s diagnostic opinion in the legal analysis as did the trial judge simply onbased on the contradictory drug-use information that Mr. Schreiner had provided and upon which Dr.

Mela had relied when forming thatopinion (see Cooper v The Queen; R v Bouchard-Lebrun; and R v Lesann). [46] Important to the issue of trial fairness, it was following this testimony by Dr. Mela that the Crown called Dr. Adelugba totestify in rebuttal to it. Dr. Adelugba was qualified as an expert forensic psychiatrist entitled to give opinion evidence on the assessment,diagnosis and characteristics of mental disorders and the effects of substances on mental states. His report resulted from a series ofAssessment Team interviews with Mr. Schreiner and from monitoring him at length in March and April of 2019.

As noted, Dr. Adelugbaconcluded that Mr. Schreiner suffers from alcohol-use disorder, alcohol-induced mood disorder, generalized anxiety disorder with panicattacks, major depressive disorder with prominent features of anxiety, and cannabis-use disorder. Dr. Adelugba testified that, whileMr. Schreiner had exhibited some traits that were common to SPD, they did not meet the diagnostic criteria for it in his opinion. [47] When asked about SPD diagnosis, Dr. Adelugba described a methodology that was different from that employed by Dr. Mela.He agreed with Dr.

Mela that five out of nine possible SPD traits were required for an SPD diagnosis but said he could not diagnoseMr. Schreiner with SPD because his symptoms, such as anxiety or alcohol use, were attributable to other disorders. The traitsDr. Adelugba noted in Mr. Schreiner’s case were, in his opinion, clinical features of disorders from which Mr. Schreiner had suffered forsome time and were, therefore, not attributable to SPD. By way of explanation, Dr. Adelugba testified that SPD manifests much earlier inlife than at Mr. Schreiner’s age and continues throughout the life of a patient. Importantly, Dr.

Adelugba testified that, because thesymptoms Mr. Schreiner had disclosed to Dr. Mela were attributable to other psychiatric conditions or to drug use, they could not be usedto satisfy the diagnostic criteria for SPD. Dr. Adelugba also confirmed that Mr. Schreiner’s use of psylocibin was not part of his initialassessment because Mr. Schreiner had not disclosed his use of magic mushrooms during the interviews with the Assessment Team. [48] It is also important to recall that, in his testimony, Mr. Schreiner had called Dr.

Adelugba’s credibility into question by statingthat the psychiatrist had suggested to him that his motivation had been to kill his wife so she would not have the children. In addition to Dr.Adelugba, the Crown called the two other members of the Assessment Team to testify in rebuttal. They and Dr. Adelugba each attributedto Mr. Schreiner a remark similar to: “If I can’t have the kids, then [she] can’t either”. Furthermore, Dr. Pleydon and Ms. Mendezcorroborated Dr. Adelugba’s testimony that, during the interviews with Mr.

Schreiner, their questioning of him had been open-ended, non-confrontational and non-suggestive. [49] Lastly in terms of trial fairness, I observe that Mr. Schreiner did not complain to the trial judge about a Crown failure todisclose Dr. Adelugba’s evidence, non-compliance with the rule in Browne v Dunn, or the sequence of the experts’ testimony. [50] In sum, the trial judge was entitled to reject Dr. Mela’s expert opinion because he disagreed with its factual foundation,particularly with respect to Mr. Schreiner’s psilocybin use around the time of the murder.

This meant that there was no factual basis uponwhich the trial judge could have found that Mr. Schreiner was suffering from a mental disorder within the meaning of s. 16 of theCriminal Code at the time of the murder. Further, trial fairness was not brought into question by Dr. Adelugba’s rebuttal testimony. Asthese conclusions are readily drawn from the record and the reasons given by the trial judge in the Conviction Decision, there is no basisto find that the trial judge failed to give sufficient reasons for rejecting Mr. Schreiner’s mental-disorder defence. 4.

The trial judge did not misapprehend the evidence [51] Mr. Schreiner argues that the trial judge erred by misapprehending evidence in a way that negatively affected his assessment ofMr. Schreiner’s credibility and thereby undermined the evidence of a mental disorder.

That is, he submits that the trial judge failed toconsider or misapprehended evidence that was relevant to his credibility on the material issue in dispute – i.e., whether he suffered from amental disorder at the time of the homicide. [52] The standard for demonstrating a misapprehension of the evidence that has resulted in a miscarriage of justice is stringent,comprising the following elements (R v Lohrer, 2004 SCC 80, at para 2, [2004] 3 SCR 732; see also R v Morrissey (1995), (ON CA), 97 CCC (3d) 193 at 221 (Ont CA)):

(

a) the misapprehension must go to the substance of the evidence not its detail; (

b) the misapprehension must be central to the judge’s reasoning and not peripheral; and (

c) the error must play an essential role in the narrative of the judgment and in the reasoning process that resulted in theconviction. [53] This Court recently summarised the law of misapprehension of evidence in R v Owston, 2023 SKCA 101, where it wrote in itsper curiam reasons: [25] The failure to consider relevant evidence, or the assessment of evidence using an incorrect legal principle, is an error of law: R vNecroche, 2018 SKCA 24 at para 38; and R v J.M.H., 2011 SCC 45 at paras 29–30, [2011] 3 SCR 197.

For an appeal to be successful onthe ground of misapprehension of the evidence, two elements must be established. First, it must be shown that the trial judgemisapprehended the evidence.

Second, it must be shown that the misapprehension was material and essential to the trial judge’s reasoning:R v Lohrer, 2004 SCC 80, [2004] 3 SCR 732; and R v C.B., 2020 SKCA 65 at para 24 [C.B.]. [26] A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to thesubstance of the evidence or a failure to give proper effect to the evidence: C.B. at paras 26–28; and R v Morrisey (1995), (ON CA), 97 CCC (3d) 193 (Ont CA) [Morrisey].

The failure to consider evidence can include the failure to resolve materialinconsistencies in the evidence: R v Dinardo, 2008 SCC 24 at para 31, [2008] 1 SCR 788. [27] There is a stringent standard to establish a misapprehension of the evidence. The alleged mistake must be so central to the trialjudge’s reasons that it results in the appellant not receiving a fair trial. See: Morrisey at 221. [54] In the appeal from his conviction, Mr. Schreiner asserts that the trial judge failed to consider or misapprehended three areas ofevidence.

However, none of his assertions satisfy the requirements described in R v Owston and R v Lohrer. Mr. Schreiner’s complaints ofmisapprehension are not based on how the trial judge apprehended the evidence but on his weighing of the evidence or the inferences hedrew from it. As the Court in R v Swales, 2014 BCCA 350, 360 BCAC 291, remarked: [49] It is not enough for the appellant to merely suggest a different

interpretation of the evidence, or merely point to some evidencewhich arguably weighs against the trial judge’s finding. Mere differences in

interpretation on factual matters are not misapprehensions butsimple disagreement with the judge’s differing view of the evidence. (Emphasis added) [55] As I conclude below, there is no indication that the trial judge failed to direct himself to the relevant issues, failed to considerevidence relevant to a material issue, failed to resolve material inconsistencies in the evidence, was mistaken as to the substance of theevidence, or failed to give proper effect to the evidence (R v Owston at para 26).

As he did not err in his appreciation of the evidence, theR v Lohrer miscarriage-of-justice factors are not engaged here. If they were, I would conclude that none of the alleged errors go to “thesubstance of material parts” of the evidence that bear on an “essential

part in the reasoning process” that led to Mr. Schreiner’s conviction(R v Loher at para 2). While the evidence in question formed part of the basis for the trial judge’s credibility assessment, it did not play apivotal role in that analysis, in the narrative of the judgment, or in the trial judge’s reasoning process resulting in Mr. Schreiner’sconviction. a. The evidence with respect to an alleged family history of schizophrenia [56] Mr. Schreiner argues that the trial judge mischaracterized the evidence adduced with respect to there being a history ofschizophrenia in Mr. Schreiner’s family.

He specifically takes issue with the trial judge’s statements about the lack of evidence ofschizophrenia on the paternal side of his family in the following paragraph of the Conviction Decision: [72] Dr. Mela went on to testify that SPD traits show up between adolescence and early adulthood. He said that in order for a diagnosisof SPD to be made a person had to have five of the nine identifiable traits of SPD listed in the DSM-5. Mr. Schreiner had seven of thesetraits. Dr.

Mela went on to testify that hearing voices was not necessarily part of the disorder but notions of magical thinking and unusualperceptional disturbances can include hearing voices. Dr. Mela testified that SPD is often found in families with a history of schizophrenia,but the family history of mental health issues is not a determinative cause of SPD. Instead, it gives an increased chance of SPD. Dr. Melaalso referred to schizophrenia from the paternal part of Mr.

Schreiner’s family; however, I could find no evidence of that in theSaskatchewan Hospital or any other information at trial. (Emphasis added) [57] Respectfully, it is clear from the trial judge’s reasons that he found there was no independent evidence of a paternal history ofschizophrenia. However, it was not an error to say that confirmation of that assertion was not found in the Assessment Team’s evidence orin any evidence from a source other than Dr. Mela. Nonetheless, I cannot interpret paragraph 72 of the Conviction Decision as a findingthat there was “no evidence” at all, as Mr. Schreiner argues. That

interpretation is precluded by the trial judge’s comments elsewhere inthe Conviction Decision, for example: [81] Dr. Mela in his testimony leaves the impression that the family history of schizophrenia was a strong factor in assessing SPD. Notthat it was a trait found in DSM-5 as the traits are individual to the person involved; however, it is an indicator that helped confirm thediagnosis. In respect of the issue of mental health issues and schizophrenia, the testimony of family does not support this as a fact on thematernal side.

There was no independent evidence of a schizophrenia issue on the paternal side of the family as stated by Dr. Mela. [82] The evidence of Ms. Mendez is also important in this regard. She said that Mr. Schreiner in the first interview indicated no historyof family mental health issues. In the second interview Mr. Schreiner stated that there was a history of mental illness in his family, and inthe third interview Mr. Schreiner was no longer sure. The use by Dr. Mela of this history was not warranted.

(Emphasis added) [58] As the foregoing excerpts demonstrate, the trial judge was well aware that there was evidence other than Dr. Mela’s evidencethat was relevant to the issue of whether Mr. Schreiner had a paternal-family history of schizophrenia. He referred to the evidence of Dr.Mela and that of the Assessment Team and knew what Mr. Schreiner had told each of them in this regard. He also took into account thetestimony of Mr. Schreiner’s family members, which he found did not support the conclusion that there was a family history ofschizophrenia. Importantly, the trial judge understood that Mr.

Schreiner had provided the Assessment Team with inconsistent and evencontradictory information about his family’s mental health history. As Mr. Schreiner was the sole source of the mental health informationDr. Mela had relied upon, the trial judge was understandably concerned about how that affected the reliability of Dr. Mela’s opinion. Inmy judgment, the trial judge, as the trier of fact in this case, was entitled to take that view of the evidence. [59] I reject Mr. Schreiner’s argument that the trial judge mischaracterised the evidence regarding a paternal family history ofschizophrenia.

As the trial judge concluded, there was no reliable evidence to support Mr. Schreiner’s assertion in that regard. b. Exhibit D-10 [60] Mr. Schreiner also argues that the trial judge drew an adverse inference about his credibility by misapplying the evidence thatthe Assessment Team and Dr. Mela had each relied upon to form their opinions. He specifically takes issue with the trial judge’s treatmentof Exhibit D-10, which is a 2010 letter from Sun Life Financial [Sun Life] to Dr. Balaton (Mr. Schreiner’s family doctor). This letter wasintroduced through Dr.

Mela as one of the documents he had referred to when compiling his psychiatric report for the defence. [61] As background to the Sun Life letter, Mr. Schreiner had applied for insurance benefits through Sun Life in 2010. The letterindicated that he claimed to suffer from a “debilitating psychiatric illness”, which required him to take time away from work (ConvictionDecision at para 52). Sun Life had difficulty reconciling this diagnosis with the fact that Mr.

Schreiner was then currently attendinguniversity and seemingly able to function appropriately in that environment—a circumstance that the trial judge agreed was perplexing. [62] In his appeal, Mr. Schreiner says that the trial judge incorrectly found “there was no more evidence provided” regarding theSun Life letter (Conviction Decision at para 54). He argues that Dr. Mela explained in cross-examination that Mr. Schreiner had receivedaccommodations in university, which allowed him to succeed there, and the trial judge ignored this evidence.

A judge is not required tospeak to “each and every item of evidence” in their written reasons (R v Owston at para 35) and, in any event, the trial judge in this caseseems to have been aware of the reason for Mr. Schreiner’s academic success through Dr. Mela’s explanation of it: [54] There was no more evidence provided with respect to the issue of the Sun Life interaction, although it is noteworthy that Mr.Schreiner completed his geology degree with honours.

Although the…Sun Life information was not something that SaskatchewanHospital had in formulating their analysis, clearly from the information provided would have no impact on them. I cannot see how thisinformation and Dr. Mela’s analysis assists in the diagnosis of SPD. (Emphasis added) [63] Regardless, even if the trial judge overlooked the accommodation explanation in Dr. Mela’s analysis, it is obvious fromparagraph 54 of the Conviction Decision that Mr. Schreiner’s university accommodations were neither material nor essential to the trialjudge’s reasoning when convicting him.

The issue in that regard was whether Mr. Schreiner was suffering from a mental disorder thatrendered him incapable of knowing that his behaviour was morally wrong when he killed his wife. Exhibit D-10 does not address thatissue or a mental disorder within the meaning of the Criminal Code. Moreover, the accommodation issue goes to the detail of Exhibit D-10 not the substance of that evidence. [64] At its core, this allegation of error asks this Court to rehash the trial judge’s decisions about the weight of evidence and theinterpretation he gave to Dr. Mela’s expert evidence. Mr.

Schreiner has not identified, however, any palpable or overriding error in thatregard. I would also remark that there was a considerable body of other evidence that the trial judge relied upon in his assessment of Mr.Schreiner’s credibility and, therefore, of the reliability of the information Dr. Mela had relied on. This includes, most critically, thefrequent inconsistency between the information Mr. Schreiner had provided to and as between the Assessment Team and Dr. Mela (seee.g., Conviction Decision at paras 83–85). [65] In direct answer to Mr.

Schreiner’s allegation under this heading, I conclude that the trial judge did not misapprehend thesubstance of the Sun Life letter and, more specifically, did not misapprehend it in a way that could have affected the outcome of thecredibility assessment or the verdict. As such, the trial judge’s handling of the Sun Life letter provides no basis for setting aside hisjudgment (R v Lohrer at para 7). c. The evidence of Mr. Schreiner’s family and friends [66] Lastly under misapprehension of the evidence, Mr. Schreiner argues that the trial judge failed to consider or to appreciate theevidence of defence witnesses.

I find no merit to the allegation that he failed to consider this evidence. The trial judge devoted 26paragraphs of the Conviction Decision to the evidence of Mr. Schreiner’s friends, family and other lay defence witnesses, which herecounted in significant detail (at paras 26–51). [67] As to his alleged misapprehension of it, Mr. Schreiner says that the trial judge ignored the fact that he could accept “some, allor none” of the defence witnesses’ evidence (R v Morin, (SCC), [1988] 2 SCR 345 at 357). I do not accept that as a validproposition.

The trial judge thoroughly considered the evidence of the witnesses in question and found that it established thatMr. Schreiner had not been exhibiting abnormal behaviour “until around 2017 when Mr. Schreiner [was] 36 years of age” (ConvictionDecision at para 27). I agree that this was an important finding because, as the trial judge went on to observe, Dr. Mela had testified to theeffect that SPD, which has “a longstanding pattern of behaviour and experience”, would “by definition… show up in late adolescence toearly adulthood” (at paras 26 and 27). While Dr.

Mela qualified his testimony by suggesting that the age of symptom onset “is notnecessarily a closed book” (at para 27), the trial judge also understood Dr. Mela to have been “equivocal in that regard” (at para 26), and

he knew that Dr. Adelugba did not agree with that qualification (at para 27). [68] As I see it, Mr. Schreiner is asking this Court to draw a different inference than the trial judge did from the lay defencewitnesses’ evidence and, thereby, to become concerned about his assessments of Mr. Schreiner’s credibility and of the reliability of hisevidence on the issue of mental disorder. However, the fact that Mr. Schreiner takes a different view of what that evidence demonstratesdoes not—in and of itself—establish that the trial judge misapprehended it.

Moreover, having reviewed the testimony of the defencewitnesses, I am unable to agree that the trial judge misapprehended it. Its collective thrust is that Mr.

Schreiner had not exhibited abnormalbehaviour until he was well into adulthood, around the time when he began experimenting with psilocybin, which, based on the NCRBooklets, the trial judge found had resulted in “dramatic effects and mystical experiences” and “hallucinatory effects” beginning in 2016or 2017 (Conviction Decision at paras 75 and 126). [69] I would reject the argument that the trial judge failed to consider or misapprehended the evidence of Mr. Schreiner’s family andfriends. 5. The trial judge was entitled to admit and rely on the Statements [70] In the conviction and sentence appeals, Mr.

Schreiner argues that the Statements were protected by s. 672.21(1) of the CriminalCode and, therefore, that it was an error for the trial judge to have relied on them as evidence of Mr. Schreiner’s culpability, both whenconvicting him and for the purposes of determining a fit sentence. [71] Parliament enacted s. 672.21 to provide a degree of confidentiality to an accused person who is ordered to undergo a psychiatricassessment while acknowledging that a criminal trial is a search for the truth (R v G.(B.), (SCC), [1999] 2 SCR 475 atparas 36–39).

The provision deems inadmissible any statements made by an accused person to the persons conducting a court-orderedpsychiatric assessment unless the accused consents to the admission of the statements or they are tendered for a purpose enumerated in s.672.21(3) (see R v Genereux (2000), (ON CA), 154 CCC (3d) 362 at para 30 (Ont CA)). [72] In the conviction appeal, Mr. Schreiner asserts that the Statements were admissible only for the purposes of evaluating hismental-disorder defence and were improperly used for the purpose of establishing mens rea.

He specifically takes issue with theinformation the trial judge relied upon in paragraph 115 of the Conviction Decision: [115] Further information regarding intent comes from [Mr. Schreiner’s] discussions with the team at the Saskatchewan Hospital, fromtheir evidence and the report filed in court. He told the Saskatchewan Hospital team that he was wondering if [his wife] was setting himup for divorce to keep custody. He told them his thoughts were racing and that he was having panic attacks. He was afraid that [his wife]did not want him in his children’s lives.

A consistent theme appeared to be that if he could not be part of the children’s lives then [hiswife] would not be part of their lives either. He admitted that he thought about killing her or not for 15 minutes. He remembers stabbingher once. He told the Saskatchewan Hospital team about his concerns respecting removal from his children’s lives and [his wife]’s actionsthat he interpreted as attempting to remove contact with his children. He said that while thinking of all of this, including whether or not heshould kill her, he went outside for a smoke.

When he came back he thought he needed to get rid of [his wife]. He told the SaskatchewanHospital he got the knife, went into [his wife]’s room, took a deep breath and then stabbed her once during which time she screamed. Hetold them he remembered holding her down with his elbow while she struggled. This information voluntarily passed on to theSaskatchewan Hospital has him contemplating whether or not he should kill [his wife] immediately before the act. He then purposivelystabs her. He continues to stab her.

Getting the knife, going into her bedroom while she slept, having thought that if he can’t have thechildren neither will she makes it seem clear that he meant to kill her. That is what he was thinking immediately before he went into thebedroom and then he acted out on it. a.

The Statements are protected statements under s. 672.21 [73] The first question, which is easily answered, is whether the Statements were protected within the meaning of s. 672.21(1) of theCriminal Code, which defines protected statement as follows: Definition of protected statement 672.21(1) In this section, protected statement means a statement made by the accused during the course and for the purposes of anassessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone actingunder that person’s direction. [74] On the record in this case, Mr.

Schreiner made the Statements to the Assessment Team during interviews at SaskatchewanHospital, a psychiatric hospital, that were conducted “during the course and for the purposes of” a court-ordered assessment to determinehis fitness to stand trial.

The jurisprudence on this question consistently holds that statements made by an accused to a psychiatrist oranyone acting under a psychiatrist’s direction during a court-ordered psychiatric assessment are protected statements under s. 672.21(1)(see, e.g., R v G.(B.) at para 18; R v White, 2002 SKQB 73 at para 41, [2002] 7 WWR 704; R v Bharwani, 2023 ONCA 203 at para 210,424 CCC (3d) 197; R v S.P., 2010 ONCA 696 at para 32, 262 CCC (3d) 490; and R v Edwards (2004), (ON CA), 187CCC (3d) 129 at para 54 (Ont CA)). As Drs. Adelugba and Pleydon and Ms.

Mendez were directly involved in this psychiatricassessment, they are persons “specified in the assessment order or the disposition” or parties “acting under [the] direction” of thosepersons. [75] The Statements fell squarely within the definition under s. 672.21(1) of the Criminal Code. They were, therefore,presumptively inadmissible as evidence against Mr. Schreiner pursuant to s. 672.21(2): Protected statements not admissible against accused

(2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent ofthe accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.

b. The Statements are exempted from the s. 671.21(2) protection [76] The next question is whether the Statements satisfied an exemption to the s. 672.21(2) prohibition on their admission. Here,Mr. Schreiner argues that the Statements could only be admitted for one of the purposes set out in s. 672.21(3) of the Criminal Code andthen only if the voluntariness of the statement had been proven or admitted. Under this heading, I conclude that s. 672.21(3) released theStatements from the prohibition on their admission in two ways and that a voir dire into voluntariness was not required. i. The s. 671.21(3)(

e) and (

f) exemptions applied [77] In my judgment, the Statements were admissible into evidence at trial for the purposes identified in ss. 672.21(3)(

e) and (f): Exceptions

(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of … (

e) determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mentaldisorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mental capacity forcriminal intent into issue, or if the prosecutor raises the issue after verdict; (

f) challenging the credibility of an accused in any proceeding where the testimony of the accused is inconsistent in a material particularwith a protected statement that the accused made previously; or … [78] As to the first of these exemptions, Mr. Schreiner’s defence at trial was, as noted, that he was not criminally responsible for hiswife’s death under s. 16 of the Criminal Code by reason of a mental disorder. By his testimony and that of Dr. Mela, he put his “mentalcapacity for criminal intent into issue” and triggered the exception in s. 672.21(3)(e).

Under the second, due to the inconsistency in theevidence arising from his testimony and from what he had told Dr. Mela, the Statements were admissible in challenge to Mr. Schreiner’scredibility under s. 672.21(3)(f). [79] These points do not necessarily allow a trial judge to use protected statements for the truth of their contents (see R v G.(B.)),but, as I explain later in these reasons, Mr. Schreiner’s tactical decisions at trial loosened the limitations on the trial judge’s use of theStatements, chiefly because Mr. Schreiner challenged their truthfulness and the credibility of Dr.

Adelugba with respect to his Statementthat he had killed his wife so that she could not have their children, a motivation that he testified had originated with the Assessment Team. c. A voluntariness voir dire was not required [80] With respect to whether the trial judge should have held a voir dire into voluntariness, Mr.

Schreiner relies on R v Quinton,2021 ONCA 44, 399 CCC (3d) 514, where the Court stated that “[a] trial judge is obliged to conduct a voir dire into the admissibility of aconfession, even in the absence of objection, unless the right to a voir dire has been expressly waived” (at para 45). [81] At trial, Mr. Schreiner did not object to the admission of the Statements or request a voir dire or otherwise put theirvoluntariness at issue.

Nonetheless, the Court in R v Quinton held that “if a statement of the accused is admitted into evidence without avalid waiver [of the voir dire requirement], the trial judge will have committed a reversible error if clear evidence exists in the recordwhich objectively should have alerted him or her to the need for a voir dire” (at para 47; see also R v Hodgson, (SCC),[1998] 2 SCR 449 at para 41). [82] As the decision in R v Quinton recognises, the Supreme Court has left the necessity of a voluntariness voir dire to bedetermined on a case-by-case basis (R v G.(B.) at para 50).

The majority decision in R v G.(B.) only states that a voluntariness voir dire ismandatory when a confession in a protected statement has been derived from a prior confession that was found to be inadmissible.Mr. Schreiner did not raise a derived-confession issue at trial or in his appeal against his conviction, and he could not have raised itbecause he had agreed that the Confession was voluntary. Moreover, given the record of the circumstances in which the Statements wereadmitted into evidence, a voluntariness voir dire was unnecessary. Although it is not an issue in this appeal, Mr.

Schreiner’s testimonyalso made it unnecessary to determine whether the Statements were prior inconsistent statements. [83] For these reasons, I conclude that the circumstances did not require the trial judge to conduct a voluntariness voir dire on hisown motion. d. Mr. Schreiner consented to the admission of the Statements and waived the protection under s. 671.21(2) [84] The Supreme Court of Canada has ruled that mere silence or a lack of objection by an accused does not constitute consent unders. 672.21(2) (R v Park, (SCC), [1981] 2 SCR 64 at 74, and R v G.(B.) at para 51). On this basis, Mr.

Schreiner argues that,like the accused in R v S.P., he did not consent to the admission of the Statements for any purpose other than his defence. The samecircumstance arose in R v Genereux, where “both parties accepted that the purpose of the [psychiatric] assessment was to determine theappellant’s fitness to stand trial and to assess his possible exemption from criminal responsibility” (at para 30). Following the reasoning inR v Genereux, I agree with Mr.

Schreiner that his consent to undergo a court-ordered psychiatric assessment could not have, on its own,been taken to constitute his consent to the Statements being used as evidence against him at trial. This is, however, where the similaritywith R v Genereux ends. [85] At trial, Mr. Schreiner himself adduced many of the Statements into evidence through his own testimony and Dr. Mela’stestimony and report. In his testimony, Mr. Schreiner put the truth of the Statements and Dr. Adelugba’s credibility at issue. He could not,

therefore, object to their use by the Crown at trial in response to the issues he had raised. This fact distinguishes this case from R v G.(B.),where the accused successfully challenged the admissibility of a statement to the police that was improperly entered into evidence by theCrown through psychiatric evidence. Taking the trial record into account, I would hold that Mr. Schreiner had consented to the admissionof the Statements into evidence for the purposes described. [86] In the same vein, by his tactical use of the Statements in the trial, Mr.

Schreiner can be taken to have waived the protectionsunder s. 672.21. Mr. Schreiner acknowledges that his conversations with Dr. Mela were not subject to the same protections as theStatements, but he asserts the Statements were, unless repeated or adopted by him, not admissible for the truth of their contents. Thisargument breaks down quickly on a review of the transcript and the evidence at the trial including the confession. The fact is thatMr. Schreiner adopted or challenged through his testimony and in his conversations with Dr. Mela, which Dr.

Mela recounted at trial,much of the information contained in the Statements. This was, in large measure, the information the trial judge summarised in paragraph115 of the Conviction Decision and, by doing so, Mr. Schreiner waived its protection under s. 672.21(2). I conclude the trial judge did noterr when he used that exposed information in the course of establishing whether Mr. Schreiner had the requisite mens rea for murder. [87] In short, a voluntariness voir dire was not required in the circumstances of this case because the Statements were notconfession-derived statements, Mr.

Schreiner’s tactical decisions at trial waived any inquiry into their admissibility for purposes otherthan his s. 16 defence, and he adopted the Statements as true through his and Dr. Mela’s evidence, thereby sanctioning their broader use inthe trial. e.

Summary on the issue of protected statements [88] Mr. Schreiner himself placed his Statements before the trial judge through his own testimony and the evidence of Dr. Mela’sreport. In doing so, Mr. Schreiner consented to the admission of the Statements and tactically waived the protection provided by s. 672.21of the Criminal Code. Further, it was not necessary to hold a voir dire into the voluntariness of the Statements because Mr.

Schreinernever suggested that they were made involuntarily and no conflict with the confessions rule arose in the circumstances of this case. [89] Having placed the Statements in evidence himself, the limited admissibility permitted by the Criminal Code no longer applied.The Crown was entitled to ensure that the trial judge had a balanced view of that evidence, especially since Dr. Mela’s report, whichreferenced the Statements, presented a different explanation for the murder and shifting information about Mr. Schreiner’s moralculpability. It was not up to Mr.

Schreiner to pick and choose what parts of the Statements could be used by the trial judge. [90] In short, the Statements, while initially protected under s. 671.21(2), were admitted for purposes provided for under s.672.21(3), and their broader use by the trial judge was sanctioned by Mr. Schreiner’s tactical decisions at trial, specifically by adoptingthem in his testimony and entering them into evidence through Dr. Mela’s psychiatric report. Therefore, the trial judge did not err byestablishing mens rea on the basis of protected statements. C.

Sentence Appeal: Parole Ineligibility [91] I find no merit to the sentence appeal. Under the fundamental principle of sentencing (Criminal Code, s. 718.1), a fit sentence isone that is proportionate to the gravity of the offence and the moral culpability of the offender (R v Lacasse, 2015 SCC 64, [2015] 3 SCR1089). [92] In R v Lacasse, Wagner J. (as he then was) described the standard of appellate review of a sentence in terms that reinforce thesubjective aspects of crafting a sentence: [11] This Court has on many occasions noted the importance of giving wide latitude to sentencing judges.

Since they have, inter alia,the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to thecircumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in thisregard. The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention.

Ultimately, exceptwhere a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not varythe sentence unless it is demonstrably unfit. … [39] This Court has reiterated on many occasions that appellate courts may not intervene lightly, as trial judges have a broad discretionto impose the sentence they consider appropriate within the limits established by law: s. 718.3(1) of the Criminal Code; see also R. v.Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46; R. v.

L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14; R. v.L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, at para. 25; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 43-46. [40] In this regard, Iacobucci J. explained in Shropshire that consideration of the fitness of a sentence does not justify an appellate courttaking an interventionist approach on appeal: An appellate court should not be given free rein to modify a sentencing order simply because it feels that a different order ought to havebeen made.

The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen andheard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only bemade if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable. [para. 46] [93] The period of parole ineligibility imposed after a conviction for second degree murder must accord with the fundamentalprinciple of sentencing under s. 718.1 of the Criminal Code.

In crafting a fit sentence, the sentencing court must consider: (

i) thecircumstances of the offender; (ii) the nature of the offence; and (iii) the circumstances surrounding the commission of the offence(Criminal Code, s. 745.5). The sentencing court must also address the objectives of sentencing engaged in the circumstances (s. 718).Addressing these requirements in R v Goforth, 2021 SKCA 20 at para 133, 400 CCC (3d) 1, per R v Goforth, 2022 SKCA 107 at para 5,this Court remarked:

[133] Under the Criminal Code, the minimum period of parole ineligibility for second degree murder is 10 years but, exercising thediscretion afforded under s. 745.4 of the Criminal Code, a sentencing court may substitute a greater period of ineligibility of up to 25 years(s. 745(c)). The discretion afforded under s. 745.4 allows the sentencing court to craft a fit sentence having proper regard for the offender,the circumstances of the offence and the relevant objectives and principles of sentencing.

The discretion is necessary due to the broadscale of gravity and similar breadth of moral culpability in second degree murder cases (see R v Shropshire, (SCC), [1995]4 SCR 227 at paras 30–31). [94] Mr. Schreiner asserts that the trial judge erred in principle in two ways that affected his sentence. First, he says the trial judgefailed to assign significant mitigating weight to his mental health and substance abuse issues. Second, he submits the trial judge erred byrelying on a statement in which he had said, “If I can’t have the kids, [she] can’t either”.

Lastly, he submits that 17 years of paroleineligibility is a demonstrably unfit sentence. [95] As to the first alleged error in principle, the trial judge acknowledged in the Sentencing Decision that Mr. Schreiner’s mentalhealth issues were a mitigating factor. He was careful to distinguish those issues from SPD, as a mental disorder under s. 16 of theCriminal Code. Even though the trial judge remarked that he found it difficult to ascertain the degree to which Mr. Schreiner’s mentalhealth had affected the murder, he nonetheless acknowledged that it was a mitigating factor in sentencing.

The weight to be given to amitigating factor lies with the sentencing court not this Court. I would reject this ground of appeal because it fails to disclose an error inprinciple. [96] I further reject the allegation that the trial judge erred by referring to a statement when sentencing Mr. Schreiner. As I havefound, the Statements were admissible evidence and could be used to determine Mr. Schreiner’s moral culpability at the trial stage of thismatter. The statement is evidence going to motive and intent. It demonstrates the reason for the murder, which was to permanently thwartthe victim because Mr.

Schreiner believed that she was trying to take their children from him. At its core, the statement is compellingevidence of Mr. Schreiner’s animus toward his spouse. Furthermore, Mr. Schreiner made much the same statement in the Confession,which was admitted into evidence as a voluntary and warned statement. As such, I find no error in principle in the trial judge’s reliance onthe statement when concluding that the murder was “particularly heinous” (Sentencing Decision, at para 110). [97] In appealing against his sentence, Mr.

Schreiner also complains that 17 years of parole ineligibility is demonstrably unfit in thecircumstances, but I find no merit to that allegation either. In brief terms, the murder involved an attack on a sleeping victim awoken bythe first of approximately 80 stab-wounds that ended her life after a brief defensive struggle that was witnessed, in some part, by her three-year-old son. The victim’s dying utterances were directed toward her child.

While the effects of a child witnessing their father stab theirmother to death seem impossible to quantify in terms of offence gravity and of the offender’s moral culpability for the offence, it must bedone. In that regard, I will simply agree with the trial judge’s assessment that this was a “particularly heinous” killing (at para 110). [98] The cases raised by Mr. Schreiner do not establish that his sentence is disproportionate when compared with those imposed onsimilar offenders who have committed similar offences in similar circumstances.

In his submissions, he relied heavily on R v Lenius, 2007SKCA 65, 221 CCC (3d) 368, and the cases cited therein, which identified a range of 12–15 years of parole ineligibility in thecircumstances of a spousal murder. The majority of the Court in that case reduced a 15-year ineligibility to 12 years for a strangulationcommitted by a spouse with mental health issues in the near presence of his children.

However, the dissenting judge in R v Lenius wouldnot have interfered with the sentence, holding that 15 years of parole ineligibility was “not demonstrably unfit or manifestly excessive” inthose circumstances (at para 65). Mr. Schreiner also refers to R v Walchuk, 2001 SKCA 36, 207 Sask R 233 (16 years), R v Huska, 1997SKCA (SentDig) 23 (15 years), and R v Strang, 2017 SKQB 319 (17 years on a joint submission). [99] I do not accept Mr. Schreiner’s characterisation of the murder in R v Lenius as “more brutal”. The trial judge was in the bestposition to assess the gravity of the murder committed by Mr.

Schreiner and to determine, having regard to its circumstances, a just andappropriate sentence that is consistent with the objectives and principles enumerated in the Criminal Code. As the case law establishes,and as Mr. Schreiner acknowledged in the sentencing hearing, a second degree murder committed in these circumstances brings thesentencing objectives of denunciation and general deterrence to the forefront (see also, Criminal Code, ss. 718.04, 718.2(a)(ii), 718.2(a)(iii), and 718.201).

While I am not persuaded that the trial judge deviated from the sentencing range, even if he had, that fact alone wouldnot justify intervention by this Court. [100] In my assessment, the trial judge was careful to account for the circumstances of the murder as well as the aggravating andmitigating factors arising in this matter when determining an appropriate period of parole ineligibility.

He entertained a reasonable doubtabout whether the murder was planned and deliberate in the Conviction Decision, but he plainly found that it had been neither a whollyimpulsive nor a spontaneous homicide in the Sentencing Decision. It was, as he remarked, a “particularly heinous” murder (at para 110).At the end of the appellate inquiry into sentence fitness, I am unable to find error in or to disagree with the trial judge’s conclusion that a17-year period of parole ineligibility is a proportionate response to the horrific gravity of this murder and to Mr. Schreiner’s moralculpability for its commission.

That is, it is a fit sentence in my judgment. [101] As Mr. Schreiner has failed to demonstrate that his sentence is the product of an error in principle or demonstrably unfit, I woulddismiss the sentence appeal. V. Conclusion [102] I would dismiss the conviction and sentence appeals in this case. “Caldwell J.A.” Caldwell J.A.I concur. “Schwann J.A.” Schwann J.A.I concur. “Kalmakoff J.A.” Kalmakoff J.A.