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Elements of the offence - Mens rea - Insanity or mental disorder - Finding of not criminally responsible - Knowledge of wrongfulness

Thursday, March 23, 2017 @ 8:00 PM  

Appeal by the accused, Sualim, from dismissal of his application for a not criminally responsible (NCR) declaration. The accused was convicted of five counts of robbery and theft over $5,000 in connection with a string of armed robberies. Following the convictions, an NCR hearing was conducted on various dates in 2013 and 2014. Two forensic psychiatrists testified. They agreed the accused suffered from a major mental illness, that he experienced psychotic symptoms in the days preceding the robberies, that his behaviour was goal-directed at the time of the offences, that he was able to appreciate the nature and consequences of his actions, and that he knew his actions were legally wrong. The two experts disagreed on whether the accused knew his actions were morally wrong. In each instance, the experts based their respective conclusions on the accused’s divergent statements during their interviews. The trial judge attributed no weight to the expert evidence, as they were based on the accused’s hearsay self-reporting. The judge accordingly concluded the defence failed to meet the onus of establishing the accused was NCR at the time of the offences. The judge subsequently declined to re-open the hearing after being advised of an agreement between counsel that the hearsay aspects of the psychiatric evidence were admissible. The accused appealed.

HELD: Appeal allowed. The trial judge erred in her treatment of the accused’s self-reports to the two experts and, consequently, in her assessment of the experts’ opinions. No error arose from the judge’s failure to give effect to counsel’s agreement to admit the accused’s self-reports for the truth of their contents, as the judge was unaware of the agreement until advised post-decision. However, the judge erred in her approach to re-opening the application and declining to do so in the face of the new information regarding counsel’s agreement. Contrary to her understanding, the trial judge had authority to re-open the application. In addition, without further analysis, the experts’ opinions on whether the accused appreciated the moral wrongfulness of his acts at the time of the offences could not be rejected simply because the accused’s statements to the experts were conflicting. It was incumbent upon the trial judge to determine relative reliability of the expert opinions based on the underlying information upon which they were based. A new NCR hearing was ordered.