Jun 1, 2020

MLB Headnote and Key Numbers

R. v. Richmond, 2016 ONCA 134 (CanLII)

R. v. Richmond (A.) (2016), 345 O.A.C. 131 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. FE.024

Her Majesty the Queen (respondent) v. Andrew Richmond (appellant)

(C52528; 2016 ONCA 134)

Indexed As: R. v. Richmond (A.)

Ontario Court of Appeal

Cronk, Epstein and D. Brown, JJ.A.

February 18, 2016.

Summary:

Following a trial before a judge and jury, the appellant was found guilty of the second degree murder of his mother. The next day, the appellant raised the defence of mental disorder under s. 16 of the Criminal Code. A criminal responsibility hearing ensued. The jury rejected the appellant's mental disorder defence and again found him guilty of second degree murder. The appellant was sentenced to life imprisonment, without parole eligibility for 12 years. The appellant appealed his conviction. He advanced one main ground of appeal, in two ways. First, he argued that the jury's rejection of his mental disorder defence was unreasonable because there was no rational foundation in the evidence for the jury to reject opinion evidence regarding his criminal responsibility set out in a pre-conviction, psychiatric assessment report. Second, the jury's rejection of his defence was unreasonable in light of fresh evidence of a post-conviction, psychiatric assessment of his criminal responsibility. He requested an order substituting a finding of not criminally responsible (NCR) by reason of mental disorder or, in the alternative, a new trial on the issue of criminal responsibility.

The Ontario Court of Appeal dismissed the appeal. The jury's verdict was reasonable and available to it on the evidence before it. Further, the fresh evidence tendered by the appellant could not reasonably be expected to have affected the verdict, and the appellant had not adequately explained his failure to tender post-conviction, psychiatric assessment evidence at his NCR hearing. Accordingly, the court denied leave to admit the fresh evidence on appeal.

Criminal Law - Topic 93.95

General principles - Mental disorder - Dispositions by court or review board - Appeals or judicial review - [See Criminal Law - Topic 107 and Criminal Law - Topic 4970].

Criminal Law - Topic 107

General principles - Mental disorder - Insanity, automatism, etc. - Evidence (incl. burden of proof) - Following a trial before a judge and jury, the appellant was found guilty of the second degree murder of his mother - The next day, the appellant raised the defence of mental disorder under s. 16 of the Criminal Code - A criminal responsibility hearing ensued - The jury rejected the appellant's mental disorder defence and again found him guilty of second degree murder - The appellant appealed his conviction - The appellant challenged the jury's rejection of his mental disorder defence and, hence, the reasonableness of the jury's verdict - He submitted, inter alia, that there were no material deficiencies in the foundation for Dr. Klassen's opinion that the appellant was not criminally responsible (NCR) for his mother's murder - The Ontario Court of Appeal stated that "On appeal, the Crown renews its argument, advanced at the NCR hearing, that Dr. Klassen's opinion regarding the appellant's criminal responsibility was flawed in two significant respects. First, it rested on a deficient factual foundation because Dr. Klassen did not have the benefit of any meaningful account from the appellant about the offence and because the appellant refused to allow the assessment team to interview any of his family members or his friends, including his former girlfriend. Second, in forming his opinion, Dr. Klassen relied on both a phenomenon reported in the psychiatric literature - the 'overkill phenomenon' - and an 'imposter theory', the applicability of which were significantly undermined on cross-examination. I agree with both aspects of the Crown's argument. The Crown established at the NCR hearing that Dr. Klassen's opinion rested on a fragile and incomplete foundation. This afforded a rational basis for the jury's rejection of his opinion regarding the appellant's criminal responsibility. Consequently, on the evidence tendered at the NCR hearing, the jury's verdict was not unreasonable" - See paragraphs 48 to 86.

Criminal Law - Topic 108

General principles - Mental disorder - Insanity, automatism, etc. - Procedure - On December 6, 2006, following a trial before a judge and jury, the appellant was found guilty of the second degree murder of his mother - The next day, the appellant raised the defence of mental disorder under s. 16 of the Criminal Code - A criminal responsibility hearing ensued - On December 14, 2006, the jury rejected the appellant's mental disorder defence and again found him guilty of second degree murder - The appellant appealed his conviction - The appellant submitted, inter alia, that, in light of the manner in which the criminal responsibility hearing unfolded, the jury would have been especially skeptical of the appellant's mental disorder defence, leading to heightened concern that the appellant was wrongfully convicted - The Ontario Court of Appeal rejected this submission - There was no claim here of hearing unfairness - Nor would such a claim be sustainable - The court was not prepared to assume, on this record, that the jury did not perform its assigned task impartially and in accordance with the law - There was no basis for appellate interference with the jury's verdict on this ground - See paragraphs 87 to 94.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - On December 6, 2006, following a trial before a judge and jury, the appellant was found guilty of the second degree murder of his mother - The next day, the appellant raised the defence of mental disorder under s. 16 of the Criminal Code - A criminal responsibility hearing ensued - On December 14, 2006, the jury rejected the appellant's mental disorder defence and again found him guilty of second degree murder - The appellant appealed his conviction - He argued, inter alia, that the jury's rejection of his not criminally responsible (NCR) defence was unreasonable in light of fresh evidence of a post-conviction, psychiatric assessment of his criminal responsibility - The appellant argued that the fresh evidence satisfied the cogency inquiry because it pertained to a post-conviction, psychiatric assessment of the appellant's criminal responsibility and supplied, for the first time, the appellant's account of his mother's killing - The Ontario Court of Appeal held that the fresh evidence tendered by the appellant could not reasonably be expected to have affected the verdict, and the appellant had not adequately explained his failure to tender post-conviction, psychiatric assessment evidence at his NCR hearing - Accordingly, the court denied leave to admit the fresh evidence on appeal - See paragraphs 95 to 111.

Cases Noticed:

R. v. Oommen (M.), [1994] 2 S.C.R. 507; 168 N.R. 200; 155 A.R. 190; 73 W.A.C. 190, refd to. [para. 52].

R. v. Ratti, [1991] 1 S.C.R. 68; 120 N.R. 91; 44 O.A.C. 161, refd to. [para. 54].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161, refd to. [para. 54].

R. v. Campione (F.E.) (2015), 329 O.A.C. 245; 2015 ONCA 67, refd to. [para. 54].

R. v. Woodward (B.D.), [2009] O.A.C. Uned. 610; 2009 ONCA 911, refd to. [para. 54].

R. v. Molodowic (A.J.), [2000] 1 S.C.R. 420; 252 N.R. 250; 145 Man.R.(2d) 201; 218 W.A.C. 201; 2000 SCC 16, refd to. [para. 57].

R. v. Grandbois (D.N.) (2003), 168 O.A.C. 1; 174 C.C.C.(3d) 181 (C.A.), refd to. [para. 57].

R. v. Molodowic (A.J.) (1998), 126 Man.R.(2d) 241; 167 W.A.C. 241 (C.A.), refd to. [para. 58].

R. v. W.H., [2013] 2 S.C.R. 180; 442 N.R. 200; 335 Nfld. & P.E.I.R. 1; 1040 W.A.C. 1; 2013 SCC 22, refd to. [para. 59].

R. v. Hartman (R.) (2015), 336 O.A.C. 329; 326 C.C.C.(3d) 263; 2015 ONCA 498, refd to. [para. 95].

R. v. Reeve (M.) (2008), 236 O.A.C. 92; 233 C.C.C.(3d) 104; 2008 ONCA 340, refd to. [para. 95].

Truscott, Re (2007), 226 O.A.C. 200; 225 C.C.C.(3d) 321; 2007 ONCA 575, refd to. [para. 95].

R. v. Truscott - see Truscott, Re.

R. v. Ross (D.) (2009), 246 O.A.C. 201; 2009 ONCA 149, refd to. [para. 100].

R. v. Maciel (R.) (2007), 222 O.A.C. 174; 219 C.C.C.(3d) 516; 2007 ONCA 196, refd to. [para. 110].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 16(1) [para. 51].

Counsel:

Apple Newton-Smith, for the appellant;

Alison Wheeler, for the respondent.

This appeal was heard on September 17, 2016, before Cronk, Epstein and D. Brown, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Cronk, J.A., and was released on February 18, 2016.