With Divided Medical Evidence in NCR Case, ONCA is Deferent to Jury: R v Downs

The not criminally responsible (“NCR”) regime is currently the subject of media and public scrutiny, with the proposed reforms of Bill C-14 (formerly C-54; Not Criminally Responsible Reform Act) in the Senate. In the recent decision of R v Downs, 2014 ONCA 20 [Downs], the Ontario Court of Appeal (“ONCA”) reviewed a case in which an NCR defence was put to the jury, but rejected due to conflicting medical evidence. In a society that perpetuates the myth that “just anyone can pretend to be insane to be found NCR,” this decision, where the ONCA was deferent to the jury’s factual finding, is significant.

Facts and Medical Evidence

The appellant, Jeffrey Downs, was a 35-year-old man at the time of the incidents in issue at trial, and suffered from schizophrenia since 2000 with a history of delusions. He was accused with brutally beating two elderly men at his rest home, one of whom died from his injuries. At the time that the police showed up, the appellant was found standing in a hallway adjacent to where the attacks took place, covered in blood, and immediately apologized for “hurt[ing] those people” and said that he wanted to go back to prison (Downs, para 8). He was described as looking aloof and whispering to himself. He continued repeating statements to the effect of committing a first degree murder, and other ramblings.

In the weeks leading up to the attacks, the appellant had violent and disruptive outbursts. The appellant testified that he could not sleep during the night of the incident, that he “was supposed to meet God that night … [and] God told him to [kick and hit the victims]” (para 23). He testified that he did not recall being arrested or making statements to the police. The day of the offences, the appellant was seen by a nurse at the jail and seemed disoriented and reported hearing voices, but did not mention any religious visions. Three days following the offences, he was medicated and observed by a doctor to be speaking normally and rationally.

NCR Assessment

The court ordered an NCR assessment of the appellant, and he met with a psychiatrist, Dr. Komer, approximately 20 times over the 60 day span. Dr. Komer found the appellant difficult to assess, but concluded that the appellant’s illness was active during the commission of the offences. He concluded that the appellant likely appreciated the nature of his acts, but lacked an understanding of their wrongfulness, and was of the opinion that the appellant was likely NCR. Another member of his clinical team, Dr. Litman, agreed that the appellant was likely NCR, but found that the appellant was malingering some psychiatric symptoms.

A Crown psychiatrist, Dr. Dickey, provided a second opinion, and was unable to conclude that the appellant was clearly NCR. He agreed with much of the substance of previous opinions, but was unable to see evidence of active schizophrenic symptoms that would impact the appellant’s appreciation of the wrongfulness of the acts, which is an essential element of the NCR finding. This was based on a changing nature of his reported hallucinations during the period immediately preceding the attacks, and on the basis that he did not report any religious hallucinations in his many statements to the policeuntil nearly two months after the offences. Another member of Dr. Dickey’s clinical team, Dr. Wright, agreed that the appellant was malingering, although the defence counsel in cross-examination highlighted a number of records that were not available when he formed his opinion.

Jury Decision and Issues on Appeal 

The appellant admitted the actus reus of the offences as charged; however, he argued that he was NCR due to his mental disorder. The Crown admitted that the appellant suffered from a mental disorder, but maintained that he was criminally responsible for the offences. The jury found that the appellant had not proven the defence of NCR, concluding that he had the necessary mens rea to commit the offences.

The issues on appeal concerned whether (1) the verdict was reasonable and supported by the evidence, and the trial judge erred by (2) failing to adequately instruct the jury on the steps to follow in analysis and using protected statements, (3) instructing the jury that they could use evidence of alleged malingering, and (4) telling the jury that the appellant’s ability to recall events was relevant in determining whether he was NCR. Here, I will focus on issue (1),  as the ONCA did not find any errors of law in how the trial judge instructed the jury.

Was the Verdict Reasonable and Supported by the Evidence?

The appellant made submissions that in cases of NCR assessment, there is a great risk of miscarriages of justice. He cited R v Molodowic, [2000] 1 SCR 420, in which the Supreme Court of Canada noted that juries may be unduly skeptical of NCR defences because of public perceptions of fabrication. Additional errors in the trial were also pointed out by the appellant, including that the trial judge did not properly instruct the jury to assign minimal weight to Dr. Wright’s evidence, as it was marginally probative, and that it was inappropriate for the Crown to repeatedly display graphic photos of the murder to the jury in light of the defence’s admission of the actus reus.

The ONCA held that there was no error in the trial judge’s treatment of Dr. Wright’s evidence, indicating that the jury had been appropriately cautioned. With respect to the use of the photos by the Crown, the Court similarly found no error in law. It held that the jury was not unfairly prejudiced or alienated by viewing the photos because they were relevant to the sustained and vicious nature of the attack (para 50). The very nature of the attack was, in the Crown’s opinion, necessary to infer its purposeful nature.

The ONCA noted that it also could have supported the defence position of NCR, as the severity of the aggression was consistent with Dr. Komer’s assessment. Finally, since the admissibility of the photos as exhibits was not challenged on appeal, the ONCA was deferent to the trial judge’s moderation of their use. It similarly concluded that there is no reason to assume that the jury would have been so inflamed as to not apply the law dispassionately (para 51).

With respect to the reasonableness of the verdict, the ONCA held that although a jury could have ruled in the appellant’s favour based on the evidence, the verdict was not unreasonable. This was observed to be a case in which there was no overwhelming evidence in favour of either party’s position. Since there was no error shown in the trial judge’s treatment of the evidence or jury instructions, the ONCA was deferent to the decision of the jury that the appellant did not meet the burden of establishing that he was NCR.

Policy Considerations

Downs demonstrates the high threshold that is necessary for an individual to be found NCR. The appellant had the evidence of two psychiatrists to support a finding of NCR and a Crown admission that he suffered from schizophrenia, but he was still found guilty of the offence as committed, based on contrary evidence. In a time when the government is trying to enact legislation to make the NCR regime more punitive, it is important to remember that it is exceptionally difficult to feign mental illness in an NCR assessment. The doctors conducting the assessments are generally able to note signs of malingering symptoms.

The particular challenge is in viewing the medical evidence as a whole and inferring the mental state of the accused person at the time of the offence, which is no easy task. It appears, in view of verdicts such as this, that the trier of fact is also extremely critical of the evidence, and inconsistencies in the medical evidence are unfavourable to an NCR accused. If there is a lack of public confidence in the administration of justice in cases involving NCR defences, as the media is reporting, then Downs should serve to boost this confidence.