R. v. Bharwani, 2025 SCC 26

SUPREME COURT OF CANADA
Citation: R. v. Bharwani, 2025 SCC 26			Appeal Heard: October 10, 2024 Judgment Rendered: July 25, 2025 Docket: 40781
Between:   Mohamed Adam Bharwani Appellant   and   His Majesty The King Respondent   - and -   Attorney General of British Columbia, Attorney General of Alberta, Criminal Lawyers’ Association, Empowerment Council, Independent Criminal Defence Advocacy Society and Criminal Trial Lawyers’ Association Interveners       Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
Reasons for Judgment: (paras. 1 to 138)	O’Bonsawin J. (Wagner C.J. and Côté, Rowe, Kasirer and Jamal JJ. concurring)
Joint Dissenting Reasons: (paras. 139 to 233)	Karakatsanis and Martin JJ. (Moreau J. concurring)

 

 

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

 

 

Mohamed Adam Bharwani                                                                           Appellant

v.

His Majesty The King                                                                                 Respondent

and

Attorney General of British Columbia,

Attorney General of Alberta,

Criminal Lawyers’ Association, Empowerment Council,

Independent Criminal Defence Advocacy Society and

Criminal Trial Lawyers’ Association                                                         Interveners

Indexed as: R. v. Bharwani

2025 SCC 26

File No.: 40781.

2024: October 10; 2025: July 25.

Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.

on appeal from the court of appeal for ontario

                    Criminal law — Trial — Fitness to stand trial — Accused with history of mental health challenges found fit to stand trial and convicted of first degree murder in death of roommate — Whether accused fit to stand trial — Criminal Code, R.S.C. 1985, c. C‑46, s. 2 “unfit to stand trial”.

                    Criminal law — Evidence — Admissibility — Fresh evidence — Accused charged with first degree murder in death of roommate — Accused raising defence of not criminally responsible on account of mental disorder — Expert evidence on accused’s understanding of moral wrongfulness of actions provided at trial by three psychiatrists — Accused found fit to stand trial and convicted — Accused seeking to adduce on appeal evidence of two additional psychiatrists and new evidence relating to credibility and reliability of psychiatrist who provided expert evidence on behalf of Crown at trial — Whether fresh evidence should be admitted.

                    The accused, who has a longstanding history of mental health challenges, was charged with first degree murder for killing his roommate. During the pre‑trial proceedings, the accused’s mental health fluctuated and several concerns were raised regarding his fitness to stand trial. The accused discharged counsel and elected to represent himself, prompting the court to appoint an amicus curiae. A jury ultimately found the accused fit to stand trial.

                    At trial, the accused raised a defence of not criminally responsible on account of a mental disorder (“NCRMD”). Three forensic psychiatrists were called to testify. The two psychiatrists called as experts for the defence diagnosed the accused as having symptoms of schizophrenia and psychosis and concluded that his mental disorder prevented him from understanding the moral wrongfulness of his actions at the time of the offence. The psychiatrist called as an expert by the Crown, W, also diagnosed the accused with schizophrenia, although he suggested that the accused may have been in a prodromal stage of the illness at the time of the offence. W’s opinion was that the accused was capable of appreciating the nature and quality of his actions, and that no symptoms would have left him incapable of knowing the moral wrongfulness of his actions at the time of the offence. The accused was convicted of first degree murder by a jury.

                    The accused appealed his conviction and brought a motion before the Court of Appeal to adduce fresh evidence from two additional psychiatrists, P and C, who provided post‑trial assessments of his fitness to stand trial and his NCRMD defence. The Court of Appeal dismissed both the motion and the appeal, holding that the accused had been fit to stand trial. The accused appeals to the Court, and brings a motion to adduce new evidence relating to judicial findings of fact concerning evidence given by W in two unrelated cases, R. v. Nettleton, 2023 ONSC 3390, and R. v. Minassian, 2021 ONSC 1258, 401 C.C.C. (3d) 123, along with their corresponding hearing transcripts, in which concerns about W’s note‑taking and drafting practices were raised.

                    Held (Karakatsanis, Martin and Moreau JJ. dissenting): The motion to adduce new evidence and the appeal should be dismissed.

                    Per Wagner C.J. and Côté, Rowe, Kasirer, Jamal and O’Bonsawin JJ.: An accused is fit to stand trial when they are able to make and communicate reality‑based decisions in the conduct of their defence or instruct counsel to do so. Conducting a defence includes making decisions that an accused must always make personally and those which relate to the exercise of their right to full answer and defence, such as decisions about pleas, the mode of trial, selection of counsel, whether to testify, whether to call or cross‑examine witnesses, and closing submissions, among others. The capacity required to make those decisions is a reality‑based understanding of the nature or object of the proceedings and their possible consequences, an ability to understand the available options and their consequences, and an ability to select between those options when making decisions. It is not required that an accused be able to make decisions in their best interests, but they cannot be overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder when making and communicating their decisions. In the present case, deference should be shown to the trial judge’s determination that although the accused’s mental disorder prevented him from making decisions in his own best interests, there were no reasonable grounds to believe that he did not understand the reality of his trial. With regard to the fresh evidence sought to be tendered at the Court of Appeal, it could not reasonably be expected to have affected the outcome and the court made no error that would warrant intervention. Likewise, the new evidence sought to be adduced before the Court could not reasonably have affected the result of the trial and therefore should not be admitted.

                    The requirement for an accused to be fit to stand trial is codified in s. 2 of the Criminal Code through the definition of “unfit to stand trial” and has its origin in the common law. The definition of “unfit to stand trial” states that the accused must have a mental disorder that leaves them unable to conduct a defence or to instruct counsel to do so. The heart of this definition is the term “conduct a defence”, which encompasses both the component elements of “a defence” and a capacity threshold to “conduct” that defence. A defence requires taking affirmative actions and making deliberate decisions, such as those an accused must make personally in every defence, even when represented by counsel. These decisions include, but are not limited to, entering a plea, electing the mode of trial, testifying in one’s own defence, selecting or discharging counsel, or choosing to represent oneself. Other defence decisions include those encompassed within the right to full answer and defence. The fitness to stand trial test is contextual, as it focuses on the decisions that form part of an accused’s defence in a specific case, and not in the abstract.

                    To be able to “conduct” such a defence, an accused must first have a reality‑based understanding of the nature or object and possible consequences of the proceedings. Second, an accused must have the capacity to make decisions. This requires the ability to understand available options, select from those options, and understand the basic consequences arising from those options. Finally, an accused must have the capacity to intelligibly communicate with the court, as well as counsel, since a defence invariably requires informing both of the decisions one has made.

                    Both the statutory context and legislative purpose of the definition of “unfit to stand trial” confirm that the definition seeks to ensure that, while the accused must be physically and mentally present at trial and be able to participate in proceedings, it is not required that they have advanced analytical capacity or act in their best interests. Specifically, the statutory context illustrates that a finding of unfitness can precipitate profound limitations on an accused’s liberty. Given the wide number of decisions that form part of “a defence”, applying a high bar for capacity to “conduct” that defence could potentially subject many accused to such limitations. The legislative history surrounding the codification of the definition of “unfit to stand trial” suggests that Parliament did not intend to impose a stringent standard for fitness, such as requiring the capacity to act in one’s best interests. As for the purpose underlying the requirement of fitness, it is rooted in the rights that underpin procedural fairness in criminal law. The definition of “unfit to stand trial” thus recognizes that an accused person has the right to control their own defence, which includes the right to be meaningfully present at one’s own trial and the right to make full answer and defence.

                    The capacity threshold requires that an accused be able to make and communicate reality‑based decisions in the conduct of their defence, and not be overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder when doing so. Mental health is a fluctuating concept, and an accused’s capacity may differ over time. However, transient mental health symptoms do not necessarily compromise an accused’s ability to conduct a defence, nor do they necessarily require a new fitness inquiry for each fluctuation. The primary consideration is always assessing the extent to which an accused’s mental disorder impairs their understanding of reality when making decisions in their defence since only an accused with an understanding of reality can be prosecuted. As such, the fitness to stand trial test allows an accused with a mental disorder to make unwise decisions, so long as they understand the reality of the situation and can intelligibly communicate. This standard of fitness to stand trial applies irrespective of whether the accused is represented by counsel or self‑represented. In the case of a self‑represented accused, the trial judge is always obliged to provide the necessary assistance to ensure a fair trial. Although a fair trial is not a substitute for fitness, the support that exists to safeguard an accused’s right to a fair trial can factor into the fitness analysis.

                    In the present case, the accused occasionally showed signs of delusional behaviour at trial, but was always brought back on track by the trial judge and amicus. He made reality‑based defence decisions, such as using his peremptory challenges. His questions and submissions also revealed that he had reviewed the disclosure in his case and understood its nature. The accused further demonstrated an understanding of the key legal questions at issue by challenging the voluntariness of his statement to the police and arguing that his mental health was relevant to the planning and deliberation element of first degree murder, over and above his NCRMD defence. He also displayed reality-based thinking on the question of calling witnesses, and ultimately called witnesses in his own defence. Although some instances in the record show that the accused made tactical decisions that hurt his interests, the trial judge did not find reasonable grounds to believe that the accused did not understand the reality of his trial.

                    With respect to fresh evidence, its admissibility is discretionary and is governed by the criteria of due diligence, relevance, credibility, and its potential effect on the result of the trial. There was no error in the Court of Appeal’s treatment of the fresh evidence in the present case. P’s conclusions were inconsistent with the trial record. He seemed unaware that the accused advanced an NCRMD defence at trial and opined that the accused did not trust anyone involved in the trial, despite clear evidence to the contrary. As for C, her evidence provided no new information and could not reasonably be expected to affect the result. C opined that the accused was fit at the time of trial, but maybe not at every point in time. However, the record supports the conclusion that despite moments of paranoid ideation, the accused was always quick to get back on track. In addition, C’s opinion that the accused was NCRMD at the time of the offence largely reiterates the evidence of the two defence experts at trial, which was presented to the jury. The fact that C is a Crown expert bears no relevance in the analysis nor does it supersede the general principles that apply to the admission of fresh evidence.

                    The admissibility of new evidence on appeal is also determined by established criteria. An appeal is not an opportunity to retry the case. New evidence must do more than merely supplement or correct the existing trial record. The proposed new evidence sought to be adduced before the Court in the present case does not meet this high threshold, assuming, without deciding, that the judicial findings of fact are capable of being admissible evidence. The present case is distinct from Nettleton as it does not involve a dangerous offender proceeding and, as agreed by the accused, no issue arises of copying and pasting from past reports. The judicial findings of fact in Nettleton are not relevant, except to impeach W’s general reliability at a level so far removed from the circumstances of this case that it would lack any real probative value. As for Minassian, W testified that his practice was to take notes on his laptop and incorporate them directly into his report, rather than maintaining separate documentation. This practice was not found to undermine the reliability of the information he gathered, nor of his opinion. In the present case, since W’s credibility and the reliability of his methodology were issues already presented to the jury, including those raised by the accused in his motion, the new evidence does not provide anything that was not already before the jury. Hearing of another instance of similar note‑taking practices is unlikely to be probative on the issue of W’s credibility and reliability.

                    Per Karakatsanis, Martin and Moreau JJ. (dissenting): There is agreement with the majority regarding the accused’s fitness to stand trial, but disagreement with the adjudication of the fresh evidence motions. The fresh evidence provides new, cogent reasons to doubt the safety of the jury’s verdict that the accused was criminally responsible for his actions at the time of the killing. Accordingly, the fresh evidence motions brought before the Court and the Court of Appeal should be allowed. The appeal should also be allowed, the conviction quashed, and a new trial ordered.

                    Courts of appeal are empowered under s. 683 of the Criminal Code to admit and consider fresh evidence when it is in the interests of justice. Fresh evidence should only be admitted if it could not have been adduced at trial through the exercise of due diligence, is relevant to a decisive or potentially decisive issue from the trial, is credible, and is reasonably capable of having affected the result reached at trial. These factors should be applied purposively, to ensure a balance between finality and justness in legal proceedings. The standard of proof when considering these factors is the balance of probabilities.

                    In this case, the transcripts and judgments from Nettleton and Minassian meet the due diligence test since they did not exist at the time of the accused’s trial. The transcripts and judgments in both those cases are also relevant. The copying and pasting from past reports and the inaccuracies found in Nettleton raise questions about the standard process W uses in drafting his reports, and about his willingness to accept that errors may negatively affect the reliability of his opinions. Given the demonstrated risk of serious errors emanating from W’s standard drafting process, the Nettleton evidence is relevant to testing the reliability and credibility of his evidence in this case. This is especially significant in the face of three other experts who concluded that the accused was NCRMD, including C. W’s description of the analysis sections of his reports as boilerplate and the evidence of his possible professional credibility bias are also relevant to his general reliability and credibility as an expert.

                    In Minassian, W’s note‑taking practice made it impossible for defence counsel — or for anyone — to review whether W’s report was a complete and accurate description of his long interviews with the accused, and to critically examine or challenge his findings and conclusions. The trial judge found that W’s “unusual” note‑taking practice did not undermine the reliability of his opinion, which attenuates the concerns regarding the process he uses to draft his reports. However, the Minassian transcripts and findings are still relevant to reliability and credibility since they suggest that concerns about W’s process of drafting reports went beyond copying and pasting, and were not restricted to the Nettleton case. W’s general practice of not making recordings or keeping comprehensive notes of his interviews with subjects is relevant to reliability, and would make it harder for an accused to uncover the types of errors present in Nettleton, where the reports did not reflect data related to the accused in that case. The Minassian transcripts could have assisted the accused in exploring whether the practice of destroying notes undermined the reliability of W’s opinion in this case.

                    As for the potential impact of the fresh evidence, the testimony in Nettleton could have affected the jury’s determination of W’s general reliability and credibility in this case. First, the jury could have found that the only expert to conclude that the accused was criminally responsible followed poor general practices in compiling his reports, by copying and pasting the analysis and conclusions sections from his other reports and changing the subjects’ names. Second, the fact that W testified that he reviewed one of his reports for hours without noticing the blatant errors shows an inattention to detail that could undermine his expert opinion. And third, W insisted on his report’s reliability after being confronted with the errors, and without further review, potentially showing professional credibility bias. This last concern is heightened in this case, where, under cross‑examination, W stated that he preferred his own recollection of interviewing the accused over the contradictory, contemporaneous notes taken by his resident. The Minassian transcripts could also have affected the jury’s verdict. In this case, W agreed that his note‑taking habits made it impossible to verify what was said during his interviews with the accused. Yet he continued to use the same technique during his interview with the accused in Minassian, years later. The jury in this case was not aware of these cogent reasons to potentially doubt W’s evidence.

                    Next, with regard to C’s fresh evidence, there may be nothing new, insofar as the jury heard similar evidence supporting the accused’s NCRMD claim from two other psychiatrists at trial. However, the circumstances here are unique. C’s opinion has novel value because of the decision to admit the fresh evidence of W’s testimony in other proceedings. Given the fresh evidence calling W’s reliability into doubt, C’s contrary opinion takes on new, probative value. That the experts retained by the Crown were divided between themselves on the central issue of whether the accused was NCRMD could have combined with the evidence of W’s potentially flawed practices to cause a reasonable juror to weigh W’s evidence on the issue of NCRMD differently.

                    Moreover, C’s opinion that the accused understood that his criminal acts were wrong in some background way, but that his psychotic symptoms made him feel compelled to act notwithstanding this background knowledge, is consistent with the legal test for an NCRMD verdict. To establish an NCRMD defence on the basis of incapacity to appreciate wrongfulness, an accused needs to prove that they suffered from a mental disorder at the time of their crime that rendered them incapable of appreciating that their actions were both legally wrong and morally wrong. There are two parts of the concept of knowledge of moral wrongfulness. The first part is a general capacity to understand that a criminal act is wrong. The second is a specific capacity to apply that knowledge rationally to choose to commit the specific criminal act in question. Merely knowing that a criminal act is morally wrong is not enough to preclude an NCRMD defence. The accused must also consciously choose to commit the immoral act, rather than acting on a compulsion caused by their mental disorder. Thus, to obtain an NCRMD verdict, an accused must show that their mental disorder made them feel entirely forced or obligated to commit a criminal act, such that they lacked the capacity to apply their knowledge of moral wrongfulness and choose not to act.

                    With respect to remedy, s. 686(1)(a)(iii) of the Criminal Code empowers a court of appeal to allow an appeal from a conviction if it concludes, on any ground, that there was a miscarriage of justice. A miscarriage of justice occurs when something other than an error of law or unreasonable verdict renders the verdict unsafe. It is a residual and broad basis of appeal, where the appellate court is satisfied that a trial was unfair or suffered from an appearance of unfairness that would shake public confidence in the administration of justice. An accused can challenge the fairness of their trial by demonstrating procedural unfairness, or by showing that the verdict was substantively unreliable. Admissible fresh evidence that calls the factual integrity of the trial verdict into doubt qualifies as a miscarriage of justice. In this case, a miscarriage of justice has taken place since the verdict might reasonably have been different on the totality of the evidence, including the fresh evidence.

Cases Cited

By O’Bonsawin J.

                    Considered: R. v. Taylor (1992), 11 O.R. (3d) 323; R. v. Minassian, 2021 ONSC 1258, 401 C.C.C. (3d) 123; R. v. Nettleton, 2023 ONSC 3390; R. v. Hason, 2024 ONCA 369, 171 O.R. (3d) 225; referred to: R. v. Swain, [1991] 1 S.C.R. 933; R. v. Basque, 2023 SCC 18; R. v. Pritchard (1836), 7 C. & P. 303, 173 E.R. 135; Reference Re Regina v. Gorecki (No. 1) (1976), 14 O.R. (2d) 212; R. v. Robertson (1968), 52 Cr. App. R. 690; R. v. Steele (1991), 63 C.C.C. (3d) 149; R. v. Roberts (1975), 24 C.C.C. (2d) 539; R. v. Gibbons, [1946] O.R. 464; R. v. Woltucky (1952), 103 C.C.C. 43; R. v. Zora, 2020 SCC 14, [2020] 2 S.C.R. 3; R. v. T.J.F., 2024 SCC 38; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. J.D., 2022 SCC 15, [2022] 1 S.C.R. 287; Cooper v. The Queen, [1980] 1 S.C.R. 1149; R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575; R. v. Kahsai, 2023 SCC 20; R. v. Trought, 2021 ONCA 379, 156 O.R. (3d) 481; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696; R. v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73; R. v. White, 2022 SCC 7, [2022] 1 S.C.R. 64; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; Vescio v. The King, [1949] S.C.R. 139; R. v. Yscuado (1854), 6 Cox C.C. 386; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402; Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521; The Queen v. Laliberté (1877), 1 S.C.R. 117; R. v. J.J., 2022 SCC 28, [2022] 2 S.C.R. 3; R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489; R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Hertrich (1982), 67 C.C.C. (2d) 510; Aucoin v. The Queen, [1979] 1 S.C.R. 554; R. v. Rafilovich, 2019 SCC 51, [2019] 3 S.C.R. 838; R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35; R. v. Conception, 2014 SCC 60, [2014] 3 S.C.R. 82; R. v. Morrissey, 2007 ONCA 770, 87 O.R. (3d) 481; R. v. Walker, 2019 ONCA 765, 381 C.C.C. (3d) 259; R. v. Hureau, 2014 YKTC 36, rev’d in part 2014 YKSC 48; R. v. Jayne, 2008 ONCA 258, 90 O.R. (3d) 37; R. v. McGibbon (1988), 45 C.C.C. (3d) 334; R. v. Phillips, 2003 ABCA 4, 172 C.C.C. (3d) 285, aff’d 2003 SCC 57, [2003] 2 S.C.R. 623; R. v. Samaniego, 2022 SCC 9, [2022] 1 S.C.R. 71; Palmer v. The Queen, [1980] 1 S.C.R. 759; Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517; R. v. W.E.B., 2014 SCC 2, [2014] 1 S.C.R. 34; Canada (Attorney General) v. Fontaine, 2017 SCC 47, [2017] 2 S.C.R. 205; P. (W.) v. Alberta, 2014 ABCA 404, 378 D.L.R. (4th) 629; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182; R. v. Forcillo, 2018 ONCA 402, 141 O.R. (3d) 752; R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487; R. v. France, 2017 ONSC 2040, 36 C.R. (7th) 293.

By Karakatsanis and Martin JJ. (dissenting)

                    R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. Oommen, [1994] 2 S.C.R. 507; R. v. Nettleton, 2023 ONSC 3390; R. v. Minassian, 2021 ONSC 1258, 401 C.C.C. (3d) 123; R. v. Ghorvei (1999), 46 O.R. (3d) 63; Kolapully v. Myles, 2024 ONCA 350, 498 D.L.R. (4th) 383; R. v. Hason, 2024 ONCA 369, 171 O.R. (3d) 225; Palmer v. The Queen, [1980] 1 S.C.R. 759; Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517; R. v. Evans, [1993] 3 S.C.R. 653; R. v. France, 2017 ONSC 2040, 36 C.R. (7th) 293; R. v. Watson (1996), 30 O.R. (3d) 161; R. v. Mullins-Johnson, 2007 ONCA 720, 87 O.R. (3d) 425; R. v. Sherret-Robinson, 2009 ONCA 886; R. v. Kumar, 2011 ONCA 120, 268 C.C.C. (3d) 369; R. v. Brant, 2011 ONCA 362; R. v. Shepherd, 2016 ONCA 188; R. v. Blackett, 2018 ONCA 119; R. v. Doyle, 2023 ONCA 427, 428 C.C.C. (3d) 293; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182; R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330; Schwartz v. The Queen, [1977] 1 S.C.R. 673; R. v. Dobson, 2018 ONCA 589, 48 C.R. (7th) 410; R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687; R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575; R. v. Porter (1933), 55 C.L.R. 182; The Queen v. Borg, [1969] S.C.R. 551; Boivin v. The Queen, [1970] S.C.R. 917; R. v. Abbey, [1982] 2 S.C.R. 24; R. v. Ratti, [1991] 1 S.C.R. 68; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v. Tayo Tompouba, 2024 SCC 16; R. v. Hinse, [1997] 1 S.C.R. 3; Reference re: Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321; R. v. Stolar, [1988] 1 S.C.R. 480; R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628; R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694; R. v. Kahsai, 2023 SCC 20; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651; R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732; R. v. Morrissey (1995), 97 C.C.C. (3d) 193; R. v. Smith, 2021 SCC 16, [2021] 1 S.C.R. 530.

Statutes and Regulations Cited

Act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof, S.C. 1991, c. 43.

Canadian Charter of Rights and Freedoms, ss. 7, 11(d).

Criminal Code, R.S.C. 1985, c. C‑46, ss. 2 “mental disorder”, “unfit to stand trial”, 16, 650, 672.11, 672.12, 672.14, 672.22, 672.23(1), 672.31, 672.47, 672.48, 672.54, 672.58, 672.851, 683, 686.

Criminal Code, 1892, S.C. 1892, c. 29, ss. 659, 661(2), 737.

Criminal Lunatics Act, 1800 (U.K.), 39 & 40 Geo. 3, c. 94.

Mental Health Act, R.S.O. 1990, c. M.7.

Rules of the Supreme Court of Canada, SOR/2002‑156, r. 47.

Supreme Court Act, R.S.C. 1985, c. S‑26, s. 62(3).

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Tollefson, Edwin A., and Bernard Starkman. Mental Disorder in Criminal Proceedings. Scarborough, Ont.: Carswell, 1993.

Vauclair, Martin, Tristan Desjardins and Pauline Lachance. Traité général de preuve et de procédure pénales 2024, 31st ed. Montréal: Yvon Blais, 2024.

                    APPEAL from a judgment of the Ontario Court of Appeal (Fairburn A.C.J.O. and Doherty, Trotter, Harvison Young and Thorburn JJ.A.), 2023 ONCA 203, 166 O.R. (3d) 1, 424 C.C.C. (3d) 197, [2023] O.J. No. 1308 (Lexis), 2023 CarswellOnt 4029 (WL), dismissing the motion to adduce fresh evidence and affirming the conviction of the accused for first degree murder. Appeal dismissed, Karakatsanis, Martin and Moreau JJ. dissenting.

                    Delmar Doucette, Angela Ruffo and Cara Barbisan, for the appellant.

                    Karen Papadopoulos, Dena Bonnet and Jacob Millns, for the respondent.

                    Micah B. Rankin, K.C., for the intervener Attorney General of British Columbia.

                    Katherine E. Fraser, for the intervener Attorney General of Alberta.

                    Erin Dann and Meaghan McMahon, for the intervener Criminal Lawyers’ Association.

                    Sarah Rankin, Anita Szigeti, Carter Martell and Maya Shukairy, for the intervener Empowerment Council.

                    Caroline Senini and Sarah Pringle, for the intervener Independent Criminal Defence Advocacy Society.

                    Tania Shapka and Kathryn A. Quinlan, for the intervener Criminal Trial Lawyers’ Association.

                   The judgment of Wagner C.J. and Côté, Rowe, Kasirer, Jamal and O’Bonsawin JJ. was delivered by

                   O’Bonsawin J. —                                                                       

I.               Overview

[1]                              In our criminal justice system, every accused is presumed fit to stand trial. However, when a person with a mental disorder faces prosecution, their condition may impair their ability to exercise fundamental rights that ensure a fair trial. These rights include the accused’s right to control their own defence, to make full answer and defence, and to be present at their trial. To protect these rights and preserve the accused’s autonomy and dignity, the presumption of fitness can be rebutted if the accused meets the definition of “unfit to stand trial” in s. 2 of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”). This appeal provides the first opportunity for this Court to interpret that definition since its enactment in 1991.

[2]                              The appellant, Mohamed Adam Bharwani, was charged with first degree murder for killing Nyumwai Caroline Mkurazhizha,^[1] a 23-year-old international student with whom he shared a basement apartment along with two other tenants. Shortly after the homicide, the appellant was diagnosed with schizophrenia.

[3]                              During the pre-trial proceedings, several concerns were raised regarding the appellant’s fitness to stand trial. A jury ultimately found him fit to stand trial. At trial, the appellant, who chose to represent himself, advanced a defence of not criminally responsible on account of a mental disorder (“NCRMD”), but was convicted of first degree murder by a jury.

[4]                              The Court of Appeal for Ontario affirmed that the appellant had been fit to stand trial and dismissed his appeal against the conviction. It dismissed the appellant’s motion to adduce fresh evidence from two psychiatrists regarding both his fitness to stand trial and his NCRMD defence — the latter focused specifically on his understanding of the moral wrongfulness of his actions at the time of the offence — and declined to substitute the verdict of guilt with a finding of NCRMD.

[5]                              Before this Court, the appellant argues that the fitness to stand trial test, which stems from the definition of “unfit to stand trial” in s. 2 of the Criminal Code, requires an accused to have analytical capacity, meaning that an accused must possess the ability “to make rational decisions in the conduct of their defence” that are not based on delusions (A.F., at para. 24). On this basis, the appellant submits that he was unfit to stand trial. He further argues that the Court of Appeal erred in dismissing his motion to adduce fresh evidence.

[6]                              I disagree. As I will explain, an accused is fit to stand trial when they are able to make and communicate reality-based decisions in the conduct of their defence or instruct counsel to do so. Conducting a defence includes making decisions that an accused must always make personally and those which relate to the exercise of their right to full answer and defence, such as decisions about pleas, the mode of trial, selection of counsel, whether to testify, whether to call or cross-examine witnesses, and closing submissions, among others. The capacity required to make those decisions is a reality-based understanding of the nature or object of the proceedings and their possible consequences, an ability to understand the available options and their consequences, and an ability to select between those options when making decisions. Fitness to stand trial does not require an accused to make decisions in their best interests. Rather, it requires making decisions based on an understanding of reality that is not overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder. Transient mental health symptoms do not necessarily compromise an accused’s ability to conduct a defence. The focus is always on assessing the extent to which an accused’s mental disorder impairs their understanding of reality when making and communicating decisions in their defence.

[7]                              The Court of Appeal also correctly dismissed the appellant’s motion to adduce fresh evidence. I would likewise dismiss the appellant’s motion to adduce new evidence brought before this Court concerning the credibility and reliability of Dr. Scott Woodside.

[8]                              Accordingly, I would dismiss the motion to adduce new evidence and dismiss the appeal.

II.            Background

[9]                             The appellant has a longstanding history of mental health challenges dating back to his adolescence. In 2011, at 17 years old, he left his family home and lived in rooming houses, shelters, and on the streets. His mental health issues later intensified. On November 5, 2012, the appellant visited a medical clinic complaining of depression, “pressure”, and “obsessive thoughts” about “symmetry” (A.R., vol. IV, at p. 129). On January 9, 2013, he returned to the clinic, but left without receiving a diagnosis. Soon after, he moved back into his family home, only to leave again on January 28, 2013, and move into an apartment with three other tenants. The next day, the appellant returned to the medical clinic reporting “intrusive thoughts” about “symmetry” (p. 202). He also explained that he was experiencing “vivid dreams” and an “inability to control [his] thoughts” (p. 252). The doctor referred him for a psychiatric assessment and advised seeking hospital care if he experienced thoughts of harming himself or others.

[10]                          Four days later, the appellant took his roommate’s life. While she was in the shower, he retrieved a fireplace poker and concealed a knife in his sweatpants. As she exited, the appellant struck the victim with the fireplace poker, causing her to fall, and then strangled her to death. After the attack, he changed out of his wet clothes and covered the victim’s body with a bedsheet.

[11]                         Approximately an hour after the homicide, the appellant called 9-1-1 and stated that he was “turning [himself] in” (A.R., vol. X, at p. 2). He explained that he had killed his roommate, who was lying in the shower covered by a bedsheet. After the appellant hung up the phone, the operator called back twice. The appellant confirmed that the police should come to the lower entrance of the home, reiterated that he had killed the victim, and said that he would provide further details once the police arrived. Upon the police’s arrival, the appellant again declared: “I’m turning myself in” (A.R., vol. II, at p. 293).

[12]                          The appellant was immediately arrested and brought to the police station for questioning. He told the police officers that he wanted to go to court, receive his sentence, and go to jail. When asked if he felt remorse about the murder, he replied, “Yeah, I think it was . . . No, I wanted to go to jail” (A.R., vol. X, at p. 86). When questioned about wanting to go to jail, he said that “it was right for [him] and good for the law” (p. 86). When asked why he killed his roommate, he explained, “I couldn’t really think. But I did think before I did it. . . . I didn’t just go crazy and then do it. I did go crazy, but not just that” (p. 88). The appellant added that he “chose to kill her and spend time in jail”, acknowledging that killing her was “not right” and that he could see “how bad it is” (pp. 93 and 97). He suggested that his actions were influenced by “[m]ental poisons” (p. 116) and that he had “a million different influences, none in particular but, but a whole bunch of things” (p. 97).

III.         Judicial History

A.           Pre-Trial Proceedings

(1)          Set-Date Hearings Before the Ontario Superior Court of Justice (McMahon J.)

[13]                          The pre-trial proceedings were complexified by the appellant’s fluctuating mental health, multiple fitness to stand trial assessments, and self-representation. During the pre-trial proceedings and throughout the trial, the appellant maintained that he was fit to stand trial.

[14]                         On September 11, 2015, the appellant discharged both counsel who had represented him following his preliminary inquiry. Given that the appellant wished to represent himself, on September 23, 2015, McMahon J. appointed Dean Embry to act as amicus curiae. On that day, the appellant presented obvious mental health challenges, reacting angrily and poorly to the appointment of amicus and exhibiting signs of “some exaggeration and malingering” (R.R., vol. III, at p. 150). Despite these outbursts, McMahon J. concluded there was insufficient evidence to find the appellant unfit to stand trial.

[15]                         On October 13, 2015, the appellant presented delusions such as beliefs that gases were coming through the vent and individuals were placing medication in his food at the detention centre where he was remanded. Justice McMahon again decided there was insufficient evidence to order a fitness assessment for the appellant either on this date or a week later.

[16]                         Between late October and early December 2015, the appellant encountered difficulties with peace officers at the detention centre. These difficulties, considered in conjunction with the appellant’s mental state during the previous set-date hearing, led McMahon J. to order an assessment with the appellant’s consent under the Mental Health Act, R.S.O. 1990, c. M.7.

[17]                         The appellant was assessed approximately two weeks later by Dr. Angus McDonald who concluded unequivocally that the appellant was in a paranoid state, most likely because of an ongoing paranoid psychosis of several years in duration. He also determined that the appellant’s paranoid distrust was likely to raise doubts about his fitness to stand trial if he received no treatment.

[18]                          On January 21, 2016, McMahon J. ordered an assessment of the appellant’s fitness to stand trial (s. 672.11 Cr. C.). Dr. Treena Wilkie and Dr. Ajay Prakash opined that the appellant’s minimal cooperation prevented them from providing a definite opinion on his fitness to stand trial. They recommended an inpatient assessment to further investigate his fitness. This recommendation resulted in McMahon J. ordering a 30-day inpatient assessment under s. 672.14 of the Criminal Code. Twenty days later, Dr. Mitesh Patel opined that the appellant was fit to stand trial, and considered treatment unnecessary.

[19]                          In April 2016, after visiting the appellant at the detention centre, amicus expressed concerns about the appellant’s fitness to stand trial and submitted an application under s. 672.11 of the Criminal Code. In response, McMahon J. ordered a three-day fitness assessment (s. 672.12 Cr. C.). Dr. McDonald opined that there was enough evidence to displace the presumption of fitness and recommended a treatment order. This led to the appellant’s first fitness hearing.

(2)          Fitness to Stand Trial Hearings Before the Ontario Superior Court of Justice (Nordheimer J. and Code J.)

[20]                         At the first fitness hearing in May 2016, a jury found the appellant unfit to stand trial. Justice Nordheimer subsequently issued a make-fit treatment order, resulting in the appellant’s transfer to Waypoint Centre for Mental Health Care in Penetanguishene (s. 672.58 Cr. C.). In a report dated June 13, 2016, Dr. William Komer, who was responsible for the appellant’s care at Waypoint Centre, concluded that the appellant was fit to stand trial and that treatment was unnecessary.

[21]                         At the second fitness hearing in August 2016, a jury found the appellant fit to stand trial.

B.            Ontario Superior Court of Justice (McCombs J.)

[22]                         On January 9, 2017, before the appellant’s arraignment, McCombs J. questioned the appellant to assess whether there were reasonable grounds to believe that he had become unfit to stand trial since his last fitness hearing. Justice McCombs was satisfied that the appellant was fit to stand trial because his responses demonstrated his understanding of the trial proceedings, the defence decisions he had to make, and the roles of legal actors, and showed his ability to communicate intelligibly.

[23]                         The appellant raised a defence of NCRMD at trial. Following a 10-week trial, the jury rejected the defence and found the appellant guilty of first degree murder.

[24]                         Three forensic psychiatrists, Dr. Gary Chaimowitz and Dr. Lisa Ramshaw for the defence, and Dr. Woodside for the Crown, provided expert evidence on the appellant’s understanding of the moral wrongfulness of his actions at the time of the offence.

[25]                         Dr. Chaimowitz first met with the appellant five days after the homicide. The appellant was not medicated at the time. Drawing on the circumstances of the event and the appellant’s condition during the examination, Dr. Chaimowitz diagnosed the appellant as having symptoms of schizophrenia and psychosis at the time of the offence.

[26]                         Dr. Chaimowitz re-evaluated the appellant approximately two weeks later, at which point the appellant was medicated. Dr. Chaimowitz determined that the appellant was experiencing hallucinations and had an active psychotic mental health disorder that was likely active at the time of the offence.

[27]                         Following an 80-day assessment conducted between June and August 2014, Dr. Chaimowitz concluded that the appellant’s mental disorder prevented him from understanding the moral wrongfulness of his actions at the time of the offence.

[28]                         Dr. Ramshaw met with the appellant on September 23 and October 29, 2014. Consistent with Dr. Chaimowitz’s conclusions, Dr. Ramshaw diagnosed the appellant with a major mental illness, most probably schizophrenia. She noted fluctuations in his mental state, a common symptom of psychosis. She concluded that, at the time of the offence, the appellant was more likely than not unable to assess the moral wrongfulness of his actions.

[29]                         Dr. Woodside met with the appellant four times between November and December 2014. He diagnosed the appellant with schizophrenia, although he suggested that he may have been in a prodromal stage of the illness at the time of the offence. Even if the appellant was experiencing active symptoms of psychosis at the time of the offence, Dr. Woodside concluded that he was capable of appreciating the nature and quality of his actions, and that no symptoms would have left him incapable of knowing the moral wrongfulness of his actions at the time of the offence.

C.            Court of Appeal for Ontario, 2023 ONCA 203, 166 O.R. (3d) 1 (Fairburn A.C.J.O. and Doherty, Trotter, Harvison Young and Thorburn JJ.A.)

[30]                         The appellant appealed his conviction. He argued that he was found fit to stand trial under an overly narrow interpretation of the definition of “unfit to stand trial” in s. 2 of the Criminal Code, set out in R. v. Taylor (1992), 11 O.R. (3d) 323 (C.A.). He also sought a substituted verdict of NCRMD based on fresh psychiatric evidence.

[31]                          The Court of Appeal for Ontario unanimously dismissed the motion to adduce fresh evidence and dismissed the appeal. It held that the appellant had been fit to stand trial and upheld the first degree murder conviction.

(1)          Reaffirming the Fitness to Stand Trial Interpretation Adopted in Taylor

[32]                         The Court of Appeal reaffirmed its decision in Taylor. It emphasized that the key question in determining fitness to stand trial is whether a mental disorder impairs an accused to the extent that they are unable to understand the nature or object and consequences of the proceedings. Fitness also requires the ability to communicate rationally, either with counsel or with the court. This includes the capacity to comprehend relevant information, apply that information to the decision‑making process, and intelligibly communicate.

[33]                         The court explained that Taylor rejected the stricter “analytic capacity” test, which would have required an accused to make decisions in their best interests. By doing so, Taylor protected the accused’s right to control their defence, a principle of fundamental justice under s. 7 of the Canadian Charter of Rights and Freedoms. The court also emphasized the serious consequences of unfitness findings and highlighted the existing safeguards during trial, including assistance from the trial judge, the Crown, and amicus.

(2)          Motion to Adduce Fresh Evidence on Fitness to Stand Trial

[34]                          The court then dismissed the appellant’s motion to adduce fresh evidence from two psychiatrists, Dr. Derek Pallandi and Dr. Sumeeta Chatterjee, who provided post-trial assessments of the appellant’s fitness to stand trial. It found Dr. Pallandi’s conclusions inconsistent with the trial record, which undermined the credibility of his opinion. It also dismissed Dr. Chatterjee’s opinion on the basis that her evidence provided no new information and, as such, could not reasonably be expected to affect the result.

(3)          Motion to Adduce Fresh Evidence on the NCRMD Defence

[35]                         The court also dismissed the appellant’s motion to adduce fresh evidence concerning the opinions of Dr. Pallandi and Dr. Chatterjee on his understanding of the moral wrongfulness of his actions at the time of the offence, and his request for a substituted verdict of NCRMD. It concluded that the jury was well equipped to decide on the NCRMD defence and that the fresh evidence could consequently not have reasonably affected the outcome of the trial.

IV.         Issues

[36]                          This appeal raises the following issues:

(1)          What is the proper interpretation of the definition of “unfit to stand trial” in s. 2 of the Criminal Code?

(2)          Did the Court of Appeal err in dismissing the motion to adduce fresh evidence concerning the appellant’s fitness to stand trial and his NCRMD defence?

(3)          Should the motion to adduce new evidence concerning the credibility and reliability of Dr. Woodside be allowed?

V.           Positions of the Parties

[37]                          The appellant argues that the Court of Appeal erred in its interpretation of the definition of “unfit to stand trial” in s. 2 of the Criminal Code. In his view, to be fit to stand trial, an accused with a mental disorder must have analytical capacity — that is, the ability to make “rational decisions” in the conduct of their defence (A.F., at para. 52). He submits that a “rational” decision is one that is “based on reason”, “grounded in reality” or “not based on psychotic delusions” (transcript, at p. 5). Such a decision can still be rational even if it is not “sensible”, and may appear “foolish or absurd” or “objectively poor” (p. 5). Applying this definition, the appellant contends that he was unfit to stand trial because he experienced auditory hallucinations and schizophrenic delusions throughout the proceedings, which prevented him from making decisions based on reason in the conduct of his defence (A.F., at paras. 39-43).

[38]                          The appellant also argues that the Court of Appeal erred in not admitting the fresh evidence of Dr. Pallandi and Dr. Chatterjee. Moreover, he asks that this Court allow his motion to adduce new evidence concerning the credibility and reliability of Dr. Woodside. He ultimately requests that this Court allow his appeal, quash his conviction, and either substitute an NCRMD verdict or order a new trial.

[39]                         The Crown replies that the Court of Appeal correctly interpreted the Criminal Code’s definition of “unfit to stand trial”. In the Crown’s view, there is no practical distinction between “the capacity to make decisions in one’s best interests” and “the ability to make rational decisions in the conduct of [one’s] defence” that are “based on reason” (R.F., at para. 24). Requiring an accused to be able to make rational decisions would infringe their right to control and present their defence under s. 7 of the Charter (para. 37; R. v. Swain, [1991] 1 S.C.R. 933). The Crown further argues that including an “analytical capacity” requirement in the fitness to stand trial test would undermine the autonomy of individuals living with mental health challenges by denying them the ability to make decisions afforded to other accused persons. Regardless, the Crown maintains that the appellant was fit to stand trial.

[40]                         The Crown also argues that the Court of Appeal correctly dismissed the motion to adduce the fresh evidence of Dr. Pallandi and Dr. Chatterjee. It asks this Court to dismiss both the appellant’s motion to adduce new evidence concerning the credibility and reliability of Dr. Woodside and the appeal.

VI.         Analysis

A.           Fitness to Stand Trial Test

(1)          Common Law Origins of Fitness to Stand Trial

[41]                         The requirement for an accused to be fit to stand trial, now codified in the Criminal Code through the definition of “unfit to stand trial”, has its origin in the common law and dates back to at least the ninth century (R. D. Schneider and H. Bloom, “R. v. Taylor: A Decision Not in the Best Interests of Some Mentally Ill Accused” (1995), 38 C.L.Q. 183, at p. 184). A brief review of the history of the fitness to stand trial requirement provides insight into the legal roots from which the current statutory definition of “unfit to stand trial” has evolved (R. v. Basque, 2023 SCC 18, at para. 41).

[42]                         The modern fitness to stand trial doctrine in the common law stems from the 1836 case of R. v. Pritchard (1836), 7 C. & P. 303, 173 E.R. 135, where Baron Alderson of the English Court of King’s Bench articulated the following factors for jurors to consider when deciding an accused’s fitness: “. . . whether he is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence — to know that he might challenge any of you to whom he may object — and to comprehend the details of the evidence . . .” (p. 135).

[43]                         Early English common law laid the foundation for fitness assessments in various common law jurisdictions (P. Brown, “Unfitness to plead in England and Wales: Historical development and contemporary dilemmas” (2019), 59 Med. Sci. Law 187, at p. 188). Commonwealth countries have adopted a flexible approach in the determination of fitness to stand trial, but none have required proof that an accused have analytical capacity or be able to act in their own best interests (W. J. Brookbanks and R. D. Mackay, “Decisional Competence and ‘Best Interests’: Establishing the Threshold for Fitness to Stand Trial” (2010), 12 Otago L.R. 265, at p. 267; see also Reference Re Regina v. Gorecki (No. 1) (1976), 14 O.R. (2d) 212 (C.A.), at p. 217, citing R. v. Robertson (1968), 52 Cr. App. R. 690 (Eng. C.A.)).

[44]                         In Canada, the first provision regulating an accused’s fitness to stand trial originated from the United Kingdom’s Criminal Lunatics Act, 1800, 39 & 40 Geo. 3, c. 94. This provision was incorporated into Canada’s original 1892 Criminal Code under s. 737, allowing courts to inquire whether the accused was “on account of insanity unfit to take his trial” (The Criminal Code, 1892, S.C. 1892, c. 29). At the time, the Criminal Code, 1892, did not define unfitness. The rule that an accused must be mentally fit to be tried was seen as “securely anchored in principles of justice as ancient and fundamental as the rule against trials in absentia and the right of an accused to make full answer and defence”, thus ensuring fairness to the accused (R. v. Steele (1991), 63 C.C.C. (3d) 149 (Que. C.A.), at p. 172; see also R. v. Roberts (1975), 24 C.C.C. (2d) 539 (B.C.C.A.), at p. 545; R. v. Gibbons, [1946] O.R. 464 (C.A.), at pp. 473-74; R. v. Woltucky (1952), 103 C.C.C. 43 (Sask. C.A.), at pp. 46-47).

[45]                         Approximately a century after the enactment of s. 737, Parliament enacted Bill C-30, An Act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof, S.C. 1991, c. 43, which codified the definitions of “unfit to stand trial” and “mental disorder” in s. 2 of the Criminal Code.

[46]                         Section 2 of the current Criminal Code defines when an accused is unfit to stand trial as follows:

unfit to stand trial means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to

 

(a) understand the nature or object of the proceedings,

 

(b) understand the possible consequences of the proceedings, or

 

(c) communicate with counsel;

[47]                         For over 30 years, the Court of Appeal for Ontario’s decision in Taylor and its interpretation of the definition of “unfit to stand trial” has been “generally considered to be the most authoritative case on point” regarding fitness to stand trial (H. Bloom, “Fitness to Stand Trial”, in H. Bloom and R. D. Schneider, eds., Law and Mental Disorder (2013), 211, at p. 213). As the Court of Appeal in this case summarized, a person is unfit to stand trial if, on account of mental disorder, they are unable to conduct a defence or to instruct counsel to do so. To be fit, an accused needs to have the ability to understand available options, select from those options, appreciate the basic consequences arising from those options, and intelligibly communicate their decision to either counsel or the court. Accordingly, an accused must possess a reality‑based understanding of the nature or object and possible consequences of the proceedings, as well as the ability to make decisions. However, an accused does not need to have the capacity to engage in analytic thinking and make decisions in their own best interests (C.A. reasons, at para. 167).

[48]                         Recall that before this Court, the appellant contends that this interpretation is incorrect because fitness to stand trial requires an accused to have analytical capacity, meaning an ability to make rational decisions “based on reason”, not delusions, in the conduct of their defence (A.F., at para. 53). As a result, the appellant claims that he was unfit to stand trial due to his auditory hallucinations and schizophrenic delusions, which impaired his ability to make rational decisions.

[49]                         By contrast, the Crown argues that the presence of delusions only vitiates an accused’s fitness to stand trial if they distort their understanding of the judicial process, which was not the case here.

[50]                         As I will explain, I substantially agree with the fitness to stand trial test articulated in Taylor as clarified by the Court of Appeal in this case, subject to certain elaborations and clarifications (see C.A. reasons, at para. 167). In what follows, and to avoid any confusion generated by vague expressions such as the “limited cognitive capacity” test or the “analytic capacity” test, I will speak of the “fitness to stand trial” test, as that is the language employed in the Criminal Code.

(2)          Proper Interpretation of the Definition of “Unfit to Stand Trial” in Section 2 of the Criminal Code

[51]                         Criminal law is no exception to the modern principle of statutory interpretation (R. v. Zora, 2020 SCC 14, [2020] 2 S.C.R. 3, at para. 33; R. v. T.J.F., 2024 SCC 38, at para. 52). The words of the definition of “unfit to stand trial” in s. 2 of the Criminal Code are to be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; R. v. J.D., 2022 SCC 15, [2022] 1 S.C.R. 287, at para. 21).

[52]                         The definition of “unfit to stand trial” states that the accused must have a “mental disorder” that leaves them unable “to conduct a defence . . . or to instruct counsel to do so”. Accordingly, a finding of unfitness requires affirmative answers to two questions: (1) Does the accused have a mental disorder and, (2) if so, does that mental disorder render the accused unable to conduct a defence or to instruct counsel to do so?

[53]                         “Mental disorder” is defined separately in s. 2 of the Criminal Code as a “disease of the mind”. This definition is broadly interpreted and includes “any illness, disorder or abnormal condition which impairs the human mind and its functioning”, excluding “self-induced” and “transitory” mental states (Cooper v. The Queen, [1980] 1 S.C.R. 1149, at p. 1159; see also R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575, at paras. 59-60). An accused is therefore unfit to stand trial if they suffer from a disease of the mind that renders them unable to conduct a defence or to instruct counsel to do so.

[54]                         The heart of the definition of “unfit to stand trial” is the term “conduct a defence”. It implies two concepts: the component elements of “a defence” and a capacity threshold to “conduct” that defence.

[55]                         The parties, the interveners, and the Court of Appeal devoted most of their argument and analysis to the capacity threshold for what it means to “conduct” a defence. Comparatively little attention has been paid to what “a defence” actually entails. However, since these two concepts operate in tandem, I first look to the components of “a defence”. To determine what capacity threshold Parliament intended, it is helpful to canvass the decisions and actions in “a defence” that an accused must be capable of executing or instructing counsel to execute.

(a)           Meaning of “a Defence”

[56]                         A defence requires taking affirmative actions and making deliberate decisions. At a minimum, this includes those actions and decisions that an accused must always make personally and those which relate to the exercise of their right to full answer and defence.

[57]                          It has long been recognized in our jurisprudence that there are decisions an accused must make personally in every defence, even when represented by counsel. Control over these decisions respects an individual’s autonomy and dignity, has deep roots in our criminal law, and is recognized as a principle of fundamental justice (R. v. Kahsai, 2023 SCC 20, at para. 43). These decisions are part of “a defence” as it is defined in “unfit to stand trial” in the Criminal Code.

[58]                          The non-exhaustive list of such decisions includes:

(1)          how to plead (G. A. Martin, “The Role and Responsibility of the Defence Advocate” (1970), 12 C.L.Q. 376, at p. 386; R. v. Trought, 2021 ONCA 379, 156 O.R. (3d) 481, at paras. 46-49; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 2; Pritchard);

(2)          the election of the mode of trial (Martin, at p. 387; R. v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73, at para. 18; Trought, at paras. 46‑49; R. v. White, 2022 SCC 7, [2022] 1 S.C.R. 64, at para. 5);

(3)          whether to testify in one’s own defence (C.A. reasons, at para. 125; Martin, at p. 387; Trought, at paras. 46-49; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 34);

(4)          whether to retain counsel or represent oneself (Vescio v. The King, [1949] S.C.R. 139, at p. 142, per Taschereau J., and at p. 147, per Rand J.; R. v. Yscuado (1854), 6 Cox C.C. 386 (Hertford Assizes)); and

(5)          whether to discharge counsel (R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 9).

[59]                         However, a “defence” includes more than just entering a plea, electing the mode of trial, testifying in one’s own defence, selecting or discharging counsel, or choosing to represent oneself.

[60]                         The common law characterized fitness to stand trial by reference to an accused’s capacity to make full answer and defence and their right to be physically and mentally present at trial, which in turn reflect basic principles of fairness in criminal law (Roberts, at p. 545; Woltucky, at pp. 46-47; Steele, at pp. 172-73 and 181). Parliament built on this common law when enacting the statutory definition of “unfit to stand trial”, and we can continue to take guidance from this source in determining what other decisions are captured in the meaning “conduct a defence” (see R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at paras. 13-18). While legislation may prevail over the common law, “it must be presumed that a legislature does not intend to change existing common law rules in the absence of a clear provision to that effect” (Basque, at para. 40, quoting Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521, at para. 56).

[61]                         Accordingly, other defence decisions include those encompassed within the right to full answer and defence, a right rooted in the pre-Charter common law and now enshrined and guaranteed under ss. 7 and 11(d) of the Charter (see, generally, Criminal Code, 1892, s. 659; The Queen v. Laliberté (1877), 1 S.C.R. 117, at p. 140, per Ritchie J.; Roberts, at p. 545; Woltucky, at pp. 46-47; Steele, at pp. 172-73 and 181; R. v. J.J., 2022 SCC 28, [2022] 2 S.C.R. 3, at paras. 113-14). This right guarantees the accused a fair opportunity to challenge the evidence and present a defence (R. v. Harrer, [1995] 3 S.C.R. 562, at para. 13).

[62]                         The relevance of the right to full answer and defence to the fitness test is apparent, as it aligns with the principle “that a prosecution not proceed where an accused is not able to adequately respond to the state. Th[is] rul[e] [is] in place to protect the accused” (R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489, at para. 21, quoting R. D. Schneider, “Mental Disorder in the Courts: Absolute Discharge for Unfits?” (2000), 21 For The Defence 36, at p. 38).

[63]                         As a result, for the purpose of interpreting the meaning of “a defence”, the right to full answer and defence includes at least three relevant components:

(1)          the right to challenge the Crown’s case, which primarily manifests itself in the right to cross-examine Crown witnesses to challenge their credibility and reliability (R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 2);

(2)          the right to advance a defence, which includes the right to elicit evidence from Crown witnesses, to call witnesses, and to lead relevant evidence with a probative value not substantially outweighed by its prejudicial effect (R. v. Seaboyer, [1991] 2 S.C.R. 577, at pp. 611-12; J.J., at para. 133). This right is also a feature of a right to be present at their own trial (s. 650 Cr. C.; R. v. Hertrich (1982), 67 C.C.C. (2d) 510 (Ont. C.A.), at p. 537, per Martin J.A.); and

(3)          the right to address the trier of fact, which includes the right to make a closing address to the jury, or where there is no jury, to the trial judge (Aucoin v. The Queen, [1979] 1 S.C.R. 554; Criminal Code, 1892, s. 661(2); Kahsai, at para. 52).

[64]                          This list is not intended to be comprehensive. Trials are complex and unpredictable. No two trials are alike, and no two defences will necessarily be conducted in the same way. In Pritchard, the trial judge instructed the jury that “[i]t is not enough that [the accused] may have a general capacity of communicating on ordinary matters”; the accused must “comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation” (p. 135 (emphasis added)).

[65]                         An accused may be required to make other decisions at trial that will form part of their defence. In this sense, the fitness to stand trial test is contextual, as the inquiry focuses on the decisions that form part of an accused’s defence in a specific case, and not in the abstract.

(b)          Capacity Threshold to “Conduct” a Defence

[66]                         With this understanding of “a defence” in mind, I now interpret what it means to be able to “conduct” such a defence. Specifically, it is necessary to determine what threshold of capacity Parliament intended for an accused to meet when making decisions in their defence or instructing counsel to do so. 

[67]                         The text of the statutory definition of “unfit to stand trial” provides some guidance on the requisite capacity threshold that an accused must possess. The definition notes “in particular” that an accused is unfit if they are unable to (1) understand the nature or object of the proceedings, (2) understand the possible consequences of the proceedings, or (3) communicate with counsel. The use of “or” between these requirements suggests that if the court is satisfied that the accused is unable to meet one of them, they are unfit to stand trial, as they lack the capacity to “conduct” a defence.

[68]                         These three requirements are clearly non-exhaustive, as indicated by the term “in particular” (R. v. Rafilovich, 2019 SCC 51, [2019] 3 S.C.R. 838, at para. 69; R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392, at para. 24). They are simply illustrative of the level of capacity that the term “conduct” seeks to convey and are based in comprehension and communication. Importantly, none of these requirements suggest that an accused must be capable of acting at an advanced analytical capacity or in their own best interests.

[69]                         However, capacity to conduct a defence requires more than a mere understanding of the nature or object of the proceedings and their possible consequences, and being able to communicate. For example, the right to full answer and defence includes the right to receive disclosure from the Crown, before trial, of all relevant, non-privileged information in its possession or control (R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 336; R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35, at para. 18). The right to full answer and defence rings hollow if an accused learns of the Crown’s evidence for the first time in the courtroom. To conduct a defence, an accused must therefore understand the concept of disclosure. The capacity threshold must accordingly include the capacity to understand the nature of disclosure. If, due to a mental disorder, an accused is unable to understand that disclosure is evidence that can potentially be used at their trial, then they will be incapable of conducting a defence.

[70]                         In sum, as the Court of Appeal noted, the following guidance can be discerned from the text of the statutory definition. First, an accused must have a reality‑based understanding of the nature or object and possible consequences of the proceedings (see C.A. reasons, at para. 116). Second, an accused must have the capacity to make decisions. This requires “the ability to understand available options, the ability to select from those options, [and] the ability to understand the basic consequences arising from those options” (para. 167). Finally, an accused must have the capacity to intelligibly communicate with the court, as well as counsel, since a defence invariably requires informing both of the decisions one has made (see para. 119).

[71]                         Having considered the text of the definition of “unfit to stand trial”, I now turn to the statutory context and legislative purpose.

(c)           Statutory Context and Legislative Purpose

[72]                         The statutory context and legislative purpose both confirm that the definition of “unfit to stand trial” in s. 2 of the Criminal Code seeks to ensure that, while the accused must be physically and mentally present at trial and be able to participate in proceedings, it is not required that they have advanced analytical capacity or act in their best interests.

[73]                         The statutory context illustrates the high stakes of a finding of unfitness. If an accused is found unfit to stand trial, s. 672.31 of the Criminal Code directs that any plea made be set aside and any jury discharged. An unfit accused is placed under the jurisdiction of a Review Board until they are either found fit to stand trial or permanently unfit to stand trial (ss. 672.47, 672.48 and 672.851 Cr. C.). The unfit accused is denied their trial until found fit. Under the jurisdiction of a Review Board, an accused can be detained for prolonged periods and be subjected to forced medical treatment (ss. 672.54 and 672.58 Cr. C.; R. v. Conception, 2014 SCC 60, [2014] 3 S.C.R. 82, at para. 31). In short, a finding of unfitness can precipitate profound limitations on an accused’s liberty (see C.A. reasons, at paras. 145-52). Given the wide number of decisions that form part of “a defence”, applying a high bar for capacity to “conduct” that defence could potentially subject many accused to such limitations. On the other hand, a test that is set too low is also undesirable as it can result in findings of fitness for accused who may be unable to meaningfully exercise their right to be physically and mentally present at trial, to control their defence and to make full answer and defence.

[74]                         Bill C-30’s legislative history also helps understand the capacity threshold intended by Parliament. Bill C-30 furthered two main objectives: enhancing societal protection against those accused with mental disorders who are dangerous, and ensuring that accused with mental disorders are afforded due process, fundamental fairness, and rights for their protection in the criminal justice system (Minutes of Proceedings and Evidence of the Standing Committee on Justice and the Solicitor General, No. 7, 3rd Sess., 34th Parl., October 9, 1991, at p. 7:6). During parliamentary debates, the Minister responsible acknowledged that some accused who are fit to stand trial may nonetheless be “acutely mentally ill” (House of Commons Debates, vol. III, 3rd Sess., 34th Parl., October 4, 1991, at p. 3298). This suggests that Parliament did not intend to impose a stringent standard for fitness, such as requiring the capacity to act in one’s best interests.

[75]                         The purpose underlying the requirement of fitness is rooted in the rights that underpin our understanding of procedural fairness in criminal law. The definition of “unfit to stand trial” in s. 2 recognizes that because our system of criminal justice is “founded on respect for the autonomy and dignity of human beings”, an accused person has the right to control their own defence (Swain, at p. 972). This includes the right to be meaningfully present at one’s own trial and the right to make full answer and defence (R. v. Morrissey, 2007 ONCA 770, 87 O.R. (3d) 481, at para. 36).

[76]                         Parliament aimed to strike a careful and effective balance between these competing interests. The appellant’s position that the presence of any delusional thinking must render an accused unfit to stand trial would undermine this legislative equilibrium. Such an approach fails to reflect the purpose underpinning the definition of “unfit to stand trial” in s. 2 of the Criminal Code.

(d)          Conclusion

[77]                         To conclude, the text, statutory context, and purpose of the definition of “unfit to stand trial” support an interpretation of the capacity threshold that requires an accused to be able to make reality-based decisions in the conduct of their defence and intelligibly communicate these decisions to counsel or the court. This necessitates a reality-based understanding of the nature or object and possible consequences of the proceedings, as well as an ability to understand the available options and their consequences, and to select between those options when making decisions. The accused is not required to make decisions in their best interests, but cannot be overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder when making and communicating these decisions.

[78]                         While the Criminal Code defines “unfit to stand trial” with reference to the inability to conduct a defence “at any stage of the proceedings”, this incapacity must be assessed holistically, recognizing that an accused’s mental state may fluctuate. Transient mental health symptoms do not necessarily compromise an accused’s ability to conduct a defence. A momentary delusion that prevents an accused from making reality-based decisions does not render the accused unfit, so long as the trial judge and other courtroom participants can help the accused get back on track to meet the capacity threshold when decisions in their defence must be made. The primary consideration is always assessing the extent to which an accused’s mental disorder impairs their understanding of reality when making decisions in their defence.

[79]                         The capacity threshold applies, at a minimum, when an accused is making decisions that are integral to conducting a defence. These include those that the accused must make personally and those which relate to the exercise of the accused’s right to full answer and defence. Accordingly, to be fit to stand trial, an accused must be able to make and intelligibly communicate reality-based decisions about pleas, the mode of trial, selection of counsel, whether to testify, whether to call or cross-examine witnesses, and closing submissions, among others.

[80]                         This definition of the capacity threshold sets minimum standards of fairness by ensuring that only accused with an understanding of reality are prosecuted. This prevents inaccurate determinations of guilt and punishment, allows the accused to meaningfully participate in the proceedings with the aim of protecting their constitutional rights, and upholds the dignity and ultimate fairness of the trial.

[81]                         This level of capacity falls short of requiring effective or wise decisions. That an accused may make objectively poor decisions in the conduct of their defence is irrelevant to the issue of their fitness to stand trial. The fact that an accused is “unable” to mount a defence due to being legally untrained, unsophisticated, or driven by motivations unrelated to the truth-seeking function of the trial (such as vengeance, religious devotion, or obstruction) plays no role in the inquiry. The accused may still be fit to stand trial even if they face difficulties commonly encountered by self‑represented accused in legal proceedings (see Kahsai, at para. 43; R. v. Walker, 2019 ONCA 765, 381 C.C.C. (3d) 259, at para. 63). The accused has a constitutional right to control their own defence, including the right to forgo viable defence strategies, or to present no defence at all (Swain, at p. 972; Kahsai, at para. 43).

(3)          Self-Representation and Fitness to Stand Trial

[82]                         This standard of fitness to stand trial applies irrespective of whether the accused is represented by counsel or self-represented. As a result, self-represented accused must meet this standard of fitness when making decisions that are always reserved to an accused personally, and must be capable of communicating their decisions to the court.^[2]

[83]                          Again, a reality-based understanding is necessary for those decisions that an accused must make personally and those which relate to the exercise of their right to full answer and defence. All the rights afforded to an accused in the conduct of a defence require that the accused understand the key legal issues that arise in their prosecution. This means that, at a minimum, a self-represented accused must have a reality-based understanding of the elements of the offences they have been charged with. A self-represented accused must also meet the fitness to stand trial standard while reviewing disclosure and making decisions that fall within their right to full answer and defence. Guidance on what other issues are important can be drawn from those which trial judges must explain to a self-represented accused, under their general duty to ensure a fair trial (see, generally, Kahsai, at para. 54; R. v. Jayne, 2008 ONCA 258, 90 O.R. (3d) 37; R. v. McGibbon (1988), 45 C.C.C. (3d) 334 (Ont. C.A.), at pp. 347-48).

[84]                          Mental health is a fluctuating concept, and an accused’s capacity may differ over time. This does not mean that a new fitness inquiry is necessarily required for each fluctuation. The trial judge, the Crown, and amicus may be able, individually or collectively, to impress the reality of the situation upon an accused who experiences occasional delusions, such that they meet the fitness standard when making decisions in their defence.

[85]                         A trial judge is always obliged to provide a self-represented accused any assistance that is necessary to ensure a fair trial (J.D., at para. 34; R. v. Phillips, 2003 ABCA 4, 172 C.C.C. (3d) 285, at paras. 23-24, aff’d 2003 SCC 57, [2003] 2 S.C.R. 623; R.-A. Laniel, A. Bahary-Dionne and E. Bernheim, “Agir seul en justice: du droit au choix — État de la jurisprudence sur les droits des justiciables non représentés” (2018), 59 C. de D. 495, at pp. 519-20). A trial judge who observes that an accused is drifting from the reality-based capacity threshold can also exercise their inherent trial management powers to give the accused an opportunity to “get back on track” (see, generally, R. v. Samaniego, 2022 SCC 9, [2022] 1 S.C.R. 71, at paras. 19-23). The trial judge’s tools include calling for breaks or adjournments, encouraging the accused to consult with amicus, allowing the accused “do-over” leeway, and explaining court procedures and the accused’s legal options.

[86]                          However, these actors cannot make an accused fit by simply intervening and conducting a defence on their behalf. A fair trial is not a substitute for fitness. Nonetheless, the support that exists to safeguard an accused’s right to a fair trial can factor into the fitness analysis.

(4)          Application to the Facts

[87]                          The appellant does not challenge the jury’s second fitness finding that he was fit to stand trial. However, he argues that the trial record shows that he was unfit during his trial.

[88]                          Under s. 672.22 of the Criminal Code, an accused is presumed fit to stand trial. Section 672.11(a) states that a court may order an assessment of an accused’s “mental condition” if it has reasonable grounds to believe that such evidence is necessary to determine whether the accused is unfit to stand trial. Section 672.12(1) makes clear that a court may make such an order of its own motion, or on application by the accused or prosecution. Closely related, s. 672.23(1) states that “[w]here the court has reasonable grounds . . . to believe that the accused is unfit to stand trial, the court may direct, of its own motion or on application of the accused or the prosecutor, that the issue of fitness of the accused be tried.”

[89]                          Overseeing a trial involving a self-represented accused with a mental disorder is one of the most challenging tasks a trial judge can face. The trial judge will have the best perception of the accused’s capacity in the courtroom, and appellate judges should recognize the trial judge’s advantage when reviewing the record to determine whether they erred in not calling a fitness assessment under ss. 672.11(a) and 672.12(1), or a trial of fitness under s. 672.23(1).

[90]                          I agree with the Court of Appeal’s assessment that the trial judge was a model of patience and fairness, always making sure that the appellant understood what was going on, so that he could make reality-based decisions. The trial judge stated that he would ensure that the appellant was able to control his own defence and make full answer and defence. At the commencement of the trial, the trial judge went through a lengthy discussion with the appellant to make sure he understood the proceedings and the roles of the legal actors involved. This discussion showed no warning signs of unfitness. Amicus agreed that, based on this dialogue and his personal conversations with the appellant, there was no need for a new fitness assessment. Following this initial discussion, neither the appellant, the trial judge, the Crown, nor amicus suggested a need for a new fitness assessment or trial of fitness.

[91]                          While the appellant occasionally showed signs of delusional behaviour at trial, he was always brought “back on track” by the trial judge and amicus. His delusions therefore did not prevent him from conducting his defence as he wished, at a reality-based level of competence.

[92]                          For example, after the appellant devoted his first opening submissions to paranoid concerns rather than to issues in the trial, the trial judge granted him leave to make a second opening. This second opening demonstrated reality-based thinking. The appellant explained the basis of his NCRMD defence and outlined the evidence he intended to present.

[93]                         There are other instances in the record where the appellant showed reality‑based defence decisions. For instance, he demonstrated an advanced understanding of the applicable law on peremptory challenges. During jury selection, the appellant used his peremptory challenges, with a stated goal of “aiming to see 12 male jurors” (R.R., vol. VI, at p. 393). His questions and submissions also revealed that he had reviewed the disclosure in his case and understood its nature.

[94]                          The appellant demonstrated an understanding of the key legal questions at issue. He challenged the voluntariness of his statement to the police, in submissions that the trial judge stated were of assistance. Later, he argued that his mental health was relevant to the planning and deliberation element of first degree murder, over and above his NCRMD defence. The trial judge referred to the appellant’s closing submissions, provided in writing for incorporation into the jury charge, as “very thoughtful” (R.R., vol. XV, at p. 304). These actions show that the appellant understood what was going on at his trial, and that he was pursuing trial tactics and strategies to avoid a conviction.

[95]                          During the hearing before this Court, the appellant’s counsel argued that one passage in the record suggested that the appellant “believed if he named his witnesses his witnesses would be in danger of being killed” (transcript, at p. 13). If true, this claim would raise concerns about delusional thinking that could have prevented the accused from meeting the reality-based capacity threshold for exercising his right to full answer and defence. However, I disagree that the record supports this inference.

[96]                          Early in the trial, the appellant expressed an intention to call witnesses. He asked the court for help in understanding the procedures for doing so and the procedural implication it would have on the Crown’s right to a rebuttal. This displayed reality‑based thinking on the question of calling witnesses.

[97]                          Some time later, when prompted by the trial judge to provide more details on the witnesses he intended to call, the appellant gave a long, rambling answer. This answer included the statement “What must be understood is that the people who try to interfere in the proceedings which take place here do much harm for me, but that is not the only thing, they do much harm for other people as well” (R.R., vol. X, at p. 11). Before this Court, the appellant argues that this passage demonstrates a delusional fear that his witnesses were at risk of physical harm and death. However, at trial, the appellant particularized his concerns about “harm” as meaning negative publicity. After a discussion with the trial judge, the appellant requested that he be allowed to hold back on declaring to the jury whether he would call witnesses until after the trial judge ruled on an outstanding voir dire. Shortly after, the appellant outlined specific witnesses he intended to call. The trial judge was very patient and ordered a recess so the appellant could consult with amicus.

[98]                         Ultimately, the appellant did call witnesses in his own defence. These witnesses provided relevant evidence about the long history of his mental health challenges. I therefore do not accept the appellant’s argument that his delusions prevented him from calling witnesses in the conduct of his defence. It is not borne out on the record.

[99]                          The appellant directs this Court to other instances in the record where he made tactical decisions that hurt his interests, such as insisting on asking a police witness a question that risked eliciting evidence of his criminal record. In my view, at their highest, these examples show that the appellant’s mental disorder may have prevented him from making decisions at trial in his best interests. The fitness to stand trial test allows an accused with a mental disorder to make unwise decisions, so long as they understand the reality of the situation and can intelligibly communicate. The trial judge recognized that the appellant’s mental disorder prevented him from making decisions “in his own best interests” (R.R., vol. IX, at p. 291), but did not find reasonable grounds to believe that the appellant did not understand the reality of his trial. I would defer to that determination.

[100]                      In conclusion, there is no basis to interfere with the Court of Appeal’s review of the trial judge’s decision not to order another fitness assessment or another trial of fitness.

B.            The Court of Appeal Did Not Err in Dismissing the Motion to Adduce Fresh Evidence Concerning Fitness to Stand Trial and the NCRMD Defence

[101]                      The appellant argues that the Court of Appeal erred in dismissing the motion to adduce the fresh evidence of Dr. Pallandi and Dr. Chatterjee on the fitness and NCRMD issues. I disagree.

[102]                     The interest of justice is the overarching principle that governs the admission of fresh evidence. Fresh evidence should generally not be admitted if, with due diligence, it could have been presented at trial. Fresh evidence must also be relevant and bear upon a decisive or potentially decisive issue in the trial. It must be credible, meaning reasonably capable of belief, and such that, if believed, it could reasonably be capable of affecting the outcome of the trial when considered in conjunction with existing evidence (Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775; Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, at paras. 30-36; s. 683(1) Cr. C.).

[103]                     The decision to admit fresh evidence is discretionary (Palmer, at p. 775). When a court of appeal acts as a court of first instance, it is entitled to the same deference as the trial judge in making findings based on that fresh evidence (R. v. W.E.B., 2014 SCC 2, [2014] 1 S.C.R. 34, at para. 2). As a result, this Court may only intervene in an appellate court’s decision not to admit fresh evidence where the court of appeal has “clearly misdirected [itself] on the facts or the law, proceeded arbitrarily, or if the decision is so clearly wrong as to amount to an injustice” (Canada (Attorney General) v. Fontaine, 2017 SCC 47, [2017] 2 S.C.R. 205, at para. 36, quoting P. (W.) v. Alberta, 2014 ABCA 404, 378 D.L.R. (4th) 629, at para. 15).

(1)          Fresh Evidence on Fitness to Stand Trial

[104]                     The appellant argues that the Court of Appeal overlooked the core of the expert evidence provided by Dr. Pallandi and Dr. Chatterjee — namely, that Dr. Pallandi believed that the appellant’s defence was governed by his paranoid psychosis, and that Dr. Chatterjee identified periods at trial during which the appellant was unfit (A.F., at para. 56, fn. 49).

[105]                     In my view, the Court of Appeal did not err in its treatment of this fresh evidence.

[106]                     Dr. Pallandi seemed unaware that the appellant advanced an NCRMD defence at trial. He also opined that the appellant did not trust anyone involved in the trial, despite clear evidence that the appellant did come to trust and rely on the advice of amicus. I see no basis to interfere with the Court of Appeal’s rejection of Dr. Pallandi’s evidence given that “[t]he trial record reveals that the appellant actually did entrust fundamental duties to amicus at trial” and that Dr. Pallandi’s view — that the appellant was unaware of his mental illness — is inconsistent with the fact that he advanced an NCRMD defence (paras. 198-99).

[107]                     Moreover, Dr. Chatterjee opined that the appellant was fit at the time of trial. The appellant relied upon one line from her cross-examination where she stated that “fitness does fluctuate, and that [she is] not suggesting that at every point in time he would have met th[e] threshold for fitness” (A.R., vol. VIII, at p. 233). However, she immediately clarified: “But on balance, even when he does go off the rails, within a reasonable amount of time through my retrospective analysis he is able to get back on track, stay on point and to mount a rational defence that arguably, even in the best interest threshold, may have been in his best interest . . .” (p. 233).

[108]                     The Court of Appeal correctly concluded that, although the record reflected instances of paranoid ideation, the appellant was always quick to get back on track (para. 203). The record therefore supports the conclusion that the appellant was fit to stand trial, and the fresh evidence provided by Dr. Chatterjee could not reasonably be expected to have affected the outcome.

(2)          Fresh Evidence on the NCRMD Defence

[109]                      The appellant’s argument focuses on Dr. Chatterjee’s NCRMD opinion, which concluded that he was NCRMD at the time of the offence. She concluded that the appellant had schizophrenia and that while he

was generally capable of knowing the act of murder was morally wrong, through the distorted lens of a severely psychotic individual experiencing intense distress, he was unable to apply this knowledge to his decision‑making at the material time. His psychotic state compelled him to act in this extreme fashion, believing that there was no other option left for him to find respite from his suffering. The totality of his state deprived him of the capacity to know his actions were morally wrong at the material time.

 

(A.R., vol. VII, at p. 249)

[110]                      The appellant places a great deal of significance on the fact that Dr. Chatterjee was retained by the Crown following the conclusion of the trial. Respectfully, the fact that Dr. Chatterjee is a Crown expert bears no relevance in the analysis nor does it supersede the general principles that apply to the admission of fresh evidence. Although expert witnesses are retained by the parties, they “have a special duty to the court to provide fair, objective and non-partisan assistance”, which prevails over any obligation owed to the party that retained them (White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 2; see also para. 30).

[111]                     The proposed fresh evidence presents no new information and largely reiterates the evidence of Dr. Chaimowitz and Dr. Ramshaw, which was presented to the jury. There is no suggestion that the jury was improperly instructed in respect of that evidence. As such, Dr. Chatterjee’s evidence could not reasonably be expected to have affected the outcome of the trial as it would do nothing more than add a “third voice” to an issue that was thoroughly addressed (R. v. Forcillo, 2018 ONCA 402, 141 O.R. (3d) 752, at para. 109; see also C.A. reasons, at paras. 258-59).

[112]                      The principle of finality, which prevents cases from being endlessly retried whenever fresh evidence emerges, is essential to maintaining the integrity of the criminal process (G.D.B., at para. 19). The Court of Appeal correctly applied the principles governing the admission of fresh evidence and made no error that would warrant the intervention of this Court.

[113]                     Nonetheless, the Court of Appeal provided an additional reason to dismiss the motion to adduce fresh evidence, stating that “Dr. Chatterjee’s opinion on NCR[MD] does not align with the law” (para. 262; see also paras. 263-65). As it is unnecessary to address this obiter dictum to resolve the present appeal, I decline to comment on this issue.

C.            The Motion to Adduce New Evidence Concerning the Credibility and Reliability of Dr. Woodside Should Be Dismissed

[114]                      The appellant has applied to adduce new evidence before this Court pursuant to s. 62(3) of the Supreme Court Act, R.S.C. 1985, c. S-26, and r. 47 of the Rules of the Supreme Court of Canada, SOR/2002‑156.

[115]                     The evidence the appellant seeks to introduce relates to judicial findings of fact concerning Dr. Woodside’s evidence in two unrelated decisions of the Ontario Superior Court of Justice, along with their corresponding hearing transcripts. In those instances, concerns about Dr. Woodside’s note-taking and drafting practices were raised (R. v. Minassian, 2021 ONSC 1258, 401 C.C.C. (3d) 123; R. v. Nettleton, 2023 ONSC 3390; see also R. v. Hason, 2024 ONCA 369, 171 O.R. (3d) 225).

[116]                     Relying on this evidence, the appellant argues that several factors undermine the credibility and reliability of Dr. Woodside’s opinion in this case. These factors include Dr. Woodside’s failure to examine the basis of Dr. Chaimowitz’s conclusions that the appellant was actively psychotic five days after the homicide, Dr. Woodside’s note-taking methodology, and Dr. Woodside’s dismissal of the NCRMD opinion offered by Dr. Chatterjee (appellant’s reply to motion to adduce new evidence, vol. I, at p. 2, para. 7).^[3]

[117]                     The Crown replies that judicial findings of fact are not evidence. However, if the appellant intends to rely substantively on those findings to impeach Dr. Woodside’s credibility and reliability, then the transcripts of the evidence upon which the judicial findings of fact were made are essential (respondent’s response to motion to adduce new evidence, at paras. 15-16). The Crown further argues that neither the judicial findings of fact nor the transcripts meet the standard set out in Palmer, as they are not sufficiently probative to have affected the verdict (paras. 22-28).

[118]                     An appeal is not an opportunity to retry the case. New evidence must do more than merely supplement or correct the existing trial record (M. Vauclair, T. Desjardins and P. Lachance, Traité général de preuve et de procédure pénales 2024 (31st ed. 2024), at para. 51.1). As I previously explained, the admissibility of new evidence on appeal is governed by four criteria: due diligence, relevance, credibility, and its potential effect on the result of the trial (Palmer, at p. 775).

[119]                     I conclude that the new evidence could not reasonably have affected the outcome of the trial. As established in R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, new evidence must have “such probative force that if presented to the [jury] and believed it could be expected to have affected the result” (para. 27). Neither the judicial findings of fact nor transcripts in Nettleton or Minassian meet this high threshold. As a result, I would dismiss the appellant’s motion.

[120]                     I will now review the judicial findings of fact and transcripts in both Nettleton and Minassian. For the purposes of this appeal, I will assume, without deciding, that the judicial findings of fact are capable of being admissible evidence.

(1)          Judicial Findings of Fact and Transcripts in Nettleton

[121]                     In Nettleton, Dr. Woodside authored three reports as part of a dangerous offender proceeding. Dr. Woodside treated key sections of his dangerous offender reports as boilerplate. He admitted that he had copied and pasted sections from a report prepared for a different individual, which resulted in multiple errors. These included the attribution of false mental disorders, incorrect references to gang affiliations, and inaccurate claims of prior criminal offences. When queried about the many errors in the reports under cross-examination, he doubled down on some of his mistakes and “did not doubt the correctness of his work even when he had good reason to do so” (para. 62).

[122]                     Justice Bird concluded that these errors, along with Dr. Woodside’s responses when questioned about them, raised serious concerns about the reliability of his reports and showed professional credibility bias (paras. 64 and 70-73).^[4] As a result, Bird J. ruled his evidence inadmissible.

[123]                     Dr. Woodside’s reliability was also a subject of discussion in Hason, a case involving an accused designated as a dangerous offender based on Dr. Woodside’s assessment (paras. 21 and 26-27). The trial judge heavily relied on Dr. Woodside’s evidence in imposing an indeterminate sentence (paras. 31 and 121). Drawing on Nettleton, Tulloch C.J.O. concluded that the sentence was unsafe. Accordingly, he allowed the sentence appeal and ordered a new penalty hearing and a fresh dangerous offender assessment.

[124]                     The present case is procedurally distinct from Nettleton. The judicial findings of fact in Nettleton, and in Hason, were made in the context of a dangerous offender proceeding.

[125]                     More importantly, the issue of copying and pasting from past reports does not arise here. There is no suggestion whatsoever that Dr. Woodside used boilerplate language in his opinion on the issue of NCRMD. The appellant agreed that, while the use of boilerplate language is a “red flag” in Dr. Woodside’s evidence, “it is not one that was in play in the present case” (appellant’s reply to motion to adduce new evidence, vol. I, at p. 4, para. 14).

[126]                     I do not contest that this practice of copying and pasting from “boilerplate” sections of past reports might have the potential to undermine Dr. Woodside’s testimony in some cases. For example, if there were another dangerous offender proceeding in which the court relied on Dr. Woodside’s opinion, and there were reasons to believe that he employed the same copying and pasting practice there, then the judicial findings of fact and transcripts in Nettleton could very well be relevant to Dr. Woodside’s testimony in that case, as they were in Hason. But this stands in contrast to the present case, where Dr. Woodside’s evidence was given in the context of an NCRMD proceeding, not a dangerous offender proceeding. I therefore disagree with my colleagues’ statement that “the jury could have found that the only expert to conclude that the appellant was criminally responsible followed poor general practices in compiling his reports, by copying and pasting the analysis and conclusions sections from his other reports and changing the subjects’ names” (para. 185). This is because there was an entirely different kind of report at issue here, dealing with an entirely different subject matter.

[127]                     As a result of the above, it is unclear to me how the judicial findings of fact in Nettleton would have been relevant, except to impeach Dr. Woodside’s general reliability at a level so far removed from the circumstances of this case that it would lack any real probative value. The appellant writes that he is not asking “for a general inference that Dr. Woodside’s opinion evidence is unreliable in every case” (appellant’s reply to motion to adduce new evidence, vol. I, at p. 2, para. 6). However, given that the cross-examination in Nettleton does not address the same errors as those raised about Dr. Woodside’s evidence in the present case, that cross-examination cannot be relevant to Dr. Woodside’s reliability in any way, but in a way that attacks his general reliability in a manner that could apply to any case in which he has testified.

[128]                     It is true that Dr. Woodside preferred his own notes to those of Dr. Ansarian, the resident assisting him, where they conflicted on the contents of the appellant’s interviews. But that expressed preference is not analogous to Dr. Woodside’s continued insistence on the reliability of his reports in Nettleton, even after being confronted with errors. As such, his preference for his own notes would not have reasonably affected the verdict in the present case. It was up to the jury to decide whether Dr. Woodside’s notes were accurate in light of those taken by Dr. Ansarian. The jury was equipped to assess whether these conflicts between Dr. Ansarian’s notes and Dr. Woodside’s account affected the credibility and reliability of his report, given the thorough examination by amicus.

[129]                     Simply put, if the evidence of Dr. Woodside’s use of “boilerplate” language in the context of a dangerous offender proceeding is found to be admissible in the present case — one dealing with an entirely different subject matter and where it is conceded that the problematic copying and pasting technique at issue in Nettleton is not used — then such evidence would seem to be admissible in every case where Dr. Woodside has testified. It must be remembered that, even in the circumstances of Nettleton, Bird J. was careful to limit her assessment of Dr. Woodside’s qualifications “to the unique facts of th[at] case” (para. 9). She acknowledged that he was “an extremely knowledgeable and experienced forensic psychiatrist” who had conducted over 160 court-ordered assessments (para. 9).

(2)          Judicial Findings of Fact and Transcripts in Minassian

[130]                     In Minassian, Dr. Woodside was cross-examined on the absence of separate notes from his interview with the accused during an assessment for autism spectrum disorder (para. 254). He clarified that his practice was to take notes on his laptop and incorporate them directly into his report, rather than maintaining separate documentation (para. 254). This approach limited the ability to cross-examine him on discrepancies between his report and the accused’s answers. Justice Molloy did not find this practice “to undermine the reliability of the information he gathered, nor the reliability of his opinion” (para. 254). Ultimately, Molloy J. relied on Dr. Woodside’s conclusions and agreed with their underlying rationale.

[131]                     A review of the proceedings in this case confirms that Dr. Woodside’s credibility and the reliability of his methodology were issues presented to the jury. The new evidence does not provide anything that was not already before the jury.

[132]                     During the trial, amicus played a significant role in helping the appellant advance his defence of NCRMD. The appellant entrusted amicus to lead evidence of the defence experts and cross-examine Dr. Woodside. In doing so, amicus questioned Dr. Woodside’s note-taking and report-drafting practices, as well as his reliance on both his own notes and those of Dr. Ansarian. Amicus also referred extensively to Dr. Chaimowitz’s report, repeatedly citing excerpts to Dr. Woodside and questioning some of his conflicting conclusions, which Dr. Woodside sought to justify. Dr. Chaimowitz and Dr. Ramshaw also reviewed Dr. Woodside’s opinion and raised concerns during their testimony.

[133]                     In closing submissions, the appellant told the jury that he had felt pressured during his interview with Dr. Woodside and admitted that “[a] lot of what [he] said to him is not true” (R.R., vol. XV, at p. 106). Similarly, amicus urged the jury not to believe Dr. Woodside and to treat his opinion “with extreme skepticism”, arguing that he either failed to review all the available evidence or did so unfairly (p. 152). Amicus raised concerns about Dr. Woodside’s professional credibility bias, arguing that he was “willing to . . . defend . . . absurd positions or interpretations just to hold the position that he . . . had taken”, pointing to Dr. Woodside’s claim that maybe the appellant “kill[ed] [the victim] simply because he was annoyed” (p. 154). Amicus said that Dr. Woodside was “absurdly defensive” when “[c]onfronted with mounting evidence of [the appellant’s] psychosis” (p. 155). He also criticized the limited experience of Dr. Angela Carter, the forensic psychologist who supported aspects of Dr. Woodside’s conclusions. Amicus exhorted the jury to take a “serious pause” and have “serious concern” about Dr. Woodside’s objectivity, imploring that his conclusions reflected a “predetermined goal” that did “not square with the evidence” unless one were to “ignore the inconvenient bits” or “tailor his opinion to fit the evidence” (p. 156).

[134]                     During the charge to the jury, McCombs J. stated that amicus had emphasized Dr. Chaimowitz’s advantage in having seen the appellant five days after the homicide, unlike Dr. Woodside. He also summarized the five expert opinions presented at trial, which came from two forensic psychologists and three forensic psychiatrists. Justice McCombs explained to the jury that the appellant’s position was that the evidence of Dr. Woodside and Dr. Carter is unreliable and should be rejected.

[135]                     The jury had access to the entirety of the evidentiary record underpinning the psychiatric opinions, which included other key pieces of evidence that could have played a significant role in dispelling or confirming any doubts it may have had. These key pieces of evidence included the transcript of the 9-1-1 call, the appellant’s statement to the police, and the opinions of two forensic psychologists on the appellant’s potential mental disorder, one of whom, like Dr. Woodside, concluded that the appellant did not have a mental disorder that impaired his mind at the time of the offence.

[136]                     The fact that Dr. Woodside used a similar note-taking process in another, later case would not have had an effect on the present case. As detailed above, the jury was aware of his note-taking practices and, in my view, hearing of another instance of similar note-taking practices is unlikely to be probative on the issue of Dr. Woodside’s credibility and reliability. Even if I were to accept, for argument’s sake, that evidence of poor note‑taking practices in another case could affect the credibility and reliability of Dr. Woodside’s evidence and his qualification as an expert in another case, it must also be considered that these note‑taking practices did not, in fact, detract from his reliability in Minassian. Justice Molloy found that Dr. Woodside’s note-taking practices did not undermine the reliability of the information gathered or of his opinion in that case.

[137]                     In the present case, the jury was well equipped to make a difficult decision in light of contradictory expert opinions concerning the NCRMD defence. The appellant bore the burden of proving, on a balance of probabilities, that he was NCRMD. There is no suggestion that the trial judge improperly instructed the jury on this point. Despite the concerns raised about Dr. Woodside’s practices during the trial, the jury was entitled, on the basis of the evidence, to conclude that the appellant had not met that burden. It would be improper for me to speculate about what may have influenced the jury’s reasoning. What is clear, however, is that numerous concerns about the credibility and reliability of Dr. Woodside were squarely before the jury, including those raised by the appellant in his motion to adduce new evidence.

VII.      Disposition

[138]                      For these reasons, I would dismiss the motion to adduce new evidence and dismiss the appeal.

                   The reasons of Karakatsanis, Martin and Moreau JJ. were delivered by

                   Karakatsanis and Martin JJ. —

I.               Overview

[139]                     Every criminal justice system faces the challenge of how to treat individuals affected by mental illness fairly, if and when they are charged with crimes. In this case, after years of exhibiting symptoms of an undiagnosed mental disorder, the appellant, Mohamed Adam Bharwani, killed his roommate, Nyumwai Caroline Mkurazhizha, because she gasped at and gossiped about the messiness of his room. After he took her life, he called the police, admitted his actions, and stated that he felt guilty, knew he would have to go to jail, that what he did was not right and how turning himself in was the “right thing to do” (R.R., vol. II, at p. 345).

[140]                     We agree with Justice O’Bonsawin’s reasons regarding the appellant’s fitness to stand trial. But we disagree with her adjudication of the fresh evidence motions. In our view, the fresh evidence provides new, cogent reasons to doubt the safety of the jury’s verdict that the appellant was criminally responsible for his actions at the time of the killing. This evidence should be admitted and a new trial ordered, to prevent a miscarriage of justice.

[141]                      The basic assumption of our criminal law is that the accused is a rational, autonomous person who acts voluntarily and can appreciate the nature and quality of an act and differentiate right from wrong (R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1320). This assumption is brought into question when an accused suffers from a mental disorder or delusion that causes them to be incapable of holding and applying knowledge of moral wrongfulness. In such cases, the not criminally responsible (NCR) defence in s. 16 of the Criminal Code, R.S.C. 1985, c. C-46, exempts the accused from criminal liability.

[142]                      The parties led extensive evidence at trial, including from three psychiatrists, about the appellant’s mental state and whether he was NCR at the time of the killing.

[143]                      The expert relied upon by the Crown, Dr. Scott Woodside, interviewed the appellant approximately 22 months after the offence occurred. He concluded that the appellant was criminally responsible for his actions, that he was not actively psychotic at the time of the killing, and that even if he was, he was still capable of knowing his actions were morally wrong.

[144]                     All other experts in this case — the other two at trial called by amicus, and two more consulted after trial, one by the appellant and one by the Crown — concluded that the appellant was NCR.^[5] Dr. Gary Chaimowitz first interviewed the appellant five days after the killing and testified that the appellant met the legal definition of NCR, as his psychosis was sufficiently active that it distorted any sense of right or wrong and prevented him from knowing that what he was doing was morally wrong. Similarly, Dr. Lisa Ramshaw interviewed the appellant approximately 19 months after the killing and determined that he was actively psychotic at the relevant time, holding delusional beliefs stemming from his schizophrenia. She found that he likely was “unable to [assess] the moral wrongfulness on account of his mental illness” (A.R., vol. V, at p. 244).

[145]                      The jury rejected the appellant’s NCR defence and found him guilty of first degree murder. To render that verdict, the jury necessarily accorded more weight to the expert evidence called by the Crown than it did to that of the two other experts.

[146]                     For the first time before this Court, the appellant tenders troubling fresh evidence — in the form of transcripts of testimony in other proceedings — impugning the professional competence of the critical psychiatric expert witness called by the Crown at trial. These transcripts and the judgments arising from those proceedings raise serious questions about the practices Dr. Woodside used to gather information, as well as to write and review the reports he provided in criminal proceedings. Most notably, he admitted that he has a standard practice of copying and pasting sections of his psychiatric reports from reports he previously created for other people. This process led him to submit evidence, in at least one proceeding, containing grave errors: important information about the ostensible subject of the report was inaccurate because it was based on another accused’s crime(s), personal history, and/or individual conditions. Despite this expert’s claims of reviewing his reports carefully, his mistakes were repeated or even compounded between drafts, and significant mistakes ended up in the opinions he submitted into evidence. The fresh evidence also suggests that this expert is reluctant to reconsider his previously stated opinions, even after learning of the many harmful factual errors underlying those opinions.

[147]                     Unlike our colleague, we would grant the appellant’s motion to adduce this fresh evidence. The appellant’s mental state at the time of the killing was the central issue at trial. Dr. Woodside was the only psychiatrist to opine that the appellant was criminally responsible. All other experts were of the view that the appellant was NCR. The fresh evidence is reliable and may cast the verdict into doubt: it could provide a reasonable, correctly instructed jury with new, cogent reasons to doubt the opinion put forward by this essential witness for the Crown. Such new information may also have tipped the balance if jurors had concerns arising from his cross-examination, which they ultimately overcame in deciding to prefer his testimony.

[148]                     We would also admit the fresh evidence of Dr. Sumeeta Chatterjee, the psychiatrist whom the Crown asked to write a report after the trial had ended, and who concluded that the appellant was NCR at the time of the killing. The Court of Appeal for Ontario dismissed the appellant’s motion to adduce Dr. Chatterjee’s evidence (2023 ONCA 203, 166 O.R. (3d) 1). We agree with the Court of Appeal that normally the value attached to the finality of verdicts means that courts will strictly review fresh evidence to determine if it is truly new. However, when the appeal raises serious questions about the soundness or safety of the verdict, the desire for finality can give way to the imperative of fairness and the protection of liberty. In our view, and for the reasons provided, finality must give way in the unique circumstances of this case.

[149]                     We also disagree with the Court of Appeal’s conclusion that Dr. Chatterjee’s opinion should be rejected because she applied the wrong legal standard for the NCR defence. It held that an accused who knew that their criminal acts were morally wrong can never establish an NCR defence, even if they felt compelled to act due to a mental disorder. Respectfully, this interpretation is contrary to this Court’s authoritative decision in R. v. Oommen, [1994] 2 S.C.R. 507. We rely on Oommen for the established proposition that an accused is NCR if they were incapable of knowing at the time of their criminal acts that their acts were morally wrong, or if they were incapable of rationally applying any such knowledge. An accused who feels compelled or forced to act due to a mental disorder is not capable of rationally applying any knowledge of moral wrongfulness they may have had. That accused is therefore NCR, even if they knew that their criminal acts were morally wrong.

[150]                     Considering the fresh evidence, we conclude that there is a material risk that the appellant’s criminally responsible verdict was based on potentially unsound, flawed, or unreliable expert evidence. While we do not find that the conviction for first degree murder and rejection of the NCR defence was an unreasonable verdict, we conclude this case is a miscarriage of justice, under s. 686(1)(a)(iii) of the Criminal Code. We would therefore admit the fresh evidence, allow the appeal, quash the conviction, and order a new trial.

II.            Analysis

A.           Fresh Evidence Regarding the Appellant’s NCR Claim

[151]                      The jury heard opinions from three psychiatrists on whether the appellant was NCR at the time of the murder. Dr. Chaimowitz and Dr. Ramshaw answered yes. Dr. Woodside answered no.

[152]                      The appellant challenges the jury’s finding that he was criminally responsible with two forms of fresh evidence. First, he seeks (for the first time before this Court) to introduce evidence challenging the reliability and credibility of Dr. Woodside’s opinion. Second, he challenges the Court of Appeal’s decision not to admit Dr. Chatterjee’s fresh expert opinion that he was NCR.

(1)          Dr. Woodside

[153]                      Dr. Woodside’s evidence was essential to the Crown’s case. Without his testimony, there was no expert evidence to challenge the appellant’s claim that he was NCR due to mental disorder.

[154]                      Amicus and the appellant consented to Dr. Woodside’s qualification as an expert. However, they questioned his reliability and credibility through cross‑examination. The jury’s verdict demonstrates that it preferred the evidence of Dr. Woodside over that of Dr. Chaimowitz and Dr. Ramshaw.

[155]                     The appellant now tenders the transcripts from Dr. Woodside’s testimony in R. v. Nettleton, 2023 ONSC 3390, and R. v. Minassian, 2021 ONSC 1258, 401 C.C.C. (3d) 123, as fresh evidence to impugn the soundness of his expert opinion in this case. He also points to the judgments of Bird J. and Molloy J. from those cases, for their commentary on the impact of Dr. Woodside’s testimony in the broader contexts of those proceedings. 

(a)           Threshold — Are Judicial Findings of Fact Admissible Evidence?

[156]                      The Crown raises a threshold objection to considering the judgments in Nettleton and Minassian as fresh evidence. It argues that judicial findings of fact are not themselves evidence, and so cannot be admitted as fresh evidence. As support, it cites to R. v. Ghorvei (1999), 46 O.R. (3d) 63 (C.A.), where Charron J.A. held that “it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case” (para. 31). Justice Charron reasoned that the fact of the rejection merely represents a judicial opinion, which is not useful to subsequent triers of fact who do not have access to the factual foundation for that opinion. This rationale was demonstrated on the facts of that case, where Charron J.A. concluded that the judicial finding in question had been premised on a misapprehension of the evidence in the prior proceeding. 

[157]                     We note that the Court of Appeal for Ontario has questioned whether Ghorvei should apply to expert witnesses (Kolapully v. Myles, 2024 ONCA 350, 498 D.L.R. (4th) 383, at para. 30, fn. 3, citing Inquiry into Pediatric Forensic Pathology in Ontario: Report (2008) (the Hon. S. T. Goudge, Commissioner)). We need not decide in this case whether the rule in Ghorvei is sound, either in general or as applied specifically to expert witnesses. We agree with the Court of Appeal in R. v. Hason, 2024 ONCA 369, 171 O.R. (3d) 225, at paras. 113-15, that the concerns in Ghorvei do not apply when a court has access to the evidentiary record and factual foundation underlying the prior judicial findings on witness credibility or reliability.

[158]                      Here, this Court has access to the relevant transcripts from Nettleton and Minassian. It is therefore appropriate to consider the findings of Bird J. and Molloy J. in those two cases, alongside the evidence of the transcripts themselves, to more fully appreciate the impact and significance of Dr. Woodside’s testimony in those cases.

(b)          The Palmer Test

[159]                     Courts of appeal are empowered under s. 683 of the Criminal Code to admit and consider fresh evidence when it is “in the interests of justice”. In applying this standard, courts usually consider the four principles from Palmer v. The Queen, [1980] 1 S.C.R. 759. Fresh evidence should only be admitted if it could not have been adduced at trial through the exercise of due diligence, is relevant to a decisive or potentially decisive issue from the trial, is credible, and is reasonably capable of having affected the result reached at trial. These factors should be applied purposively, to ensure a balance between finality and justness in legal proceedings (Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, at paras. 29-34). The standard of proof when considering these factors is the general standard for the admissibility of evidence, namely the balance of probabilities (R. v. Evans, [1993] 3 S.C.R. 653, at p. 664).

(i)            Adduced Through the Exercise of Due Diligence

[160]                      The transcripts from Nettleton and Minassian meet the due diligence test since they did not exist at the time of the appellant’s trial (see, generally, Barendregt, at paras. 59-61). Dr. Woodside testified in this case in March 2017. He testified in Minassian in December 2020. And he testified in Nettleton in May 2023. The Crown also does not challenge the authenticity of the transcripts or judicial opinions. The live issues are thus whether this evidence bears on the reliability and credibility of Dr. Woodside’s testimony in this case, and whether, if believed, it could reasonably be expected to have affected the result reached at trial.

(ii)          Relevance of Nettleton and Minassian Transcripts and Judgments

[161]                      We are satisfied on the balance of probabilities that the transcripts from Nettleton and Minassian and the judgments in those proceedings are relevant in that they bear upon a decisive or potentially decisive issue in the appellant’s trial. They are relevant to Dr. Woodside’s reliability and credibility and the weight a juror could give to his opinion.

[162]                      In Nettleton, Dr. Woodside was cross-examined as part of a dangerous offender proceeding. He conceded that there were many errors in the reports he prepared for the court. These errors included diagnosing Mr. Nettleton with the wrong psychiatric conditions, and setting out an inaccurate criminal history. Dr. Woodside also listed inaccurate scores on various psychiatric assessment tests. It emerged during Dr. Woodside’s testimony that his general practice, when writing a report, is to copy and paste sections from his previous reports concerning other individuals. He would change the name of the report’s subject, but otherwise would not replace the data. This meant that his reports included a large quantity of inaccurate information, describing an entirely different person. New errors appeared in a later report that were not present in the previous report. He testified that these errors could have been added because as he updated his reports, he kept copying and pasting from multiple other reports.

[163]                     Dr. Woodside generally acknowledged the factual errors in his reports, including in his conclusions and recommendations. But at other times, he defended the reliability of his reports based on coincidental similarities between Mr. Nettleton and whoever the copied and pasted report was originally used for (what he termed the “overall feel or import” of the two assessments) (appellant’s reply to motion to adduce new evidence, vol. I, at p. 96).

[164]                      Dr. Woodside claimed that he proofread his reports, but did not notice the errors, because he does not pay close attention to what he termed the “boilerplate” parts of his reports. The Crown pointed out errors from one report to him before his testimony, but he still missed other errors, which were carried over into a subsequent report. He missed these errors despite testifying that he spent hours reviewing and editing the report. He agreed that he should have caught the errors but did not. Despite the manifold errors in his reports, he maintained confidence in his opinions on Mr. Nettleton’s psychiatric condition, and stated that he felt no need to reconsider or reassess his conclusions.

[165]                      In her judgment, Bird J. listed 13 errors in Dr. Woodside’s reports and concluded that he was overly confident in the quality of his work, leading him to miss obvious errors. She concluded that he suffered from professional credibility bias^[6] and was unreliable, thus he could not be qualified as an expert. She was careful to note that her conclusion was “restricted to the unique facts [in Nettleton]” and acknowledged Dr. Woodside’s extensive education and experience as a forensic psychiatrist (Nettleton, at para. 9). She also noted that he had been qualified as an expert in “more than 160 court‑ordered assessments pursuant to Section 752.1 of the Criminal Code” (para. 9).

[166]                      The transcripts from Nettleton and Bird J.’s judgment are relevant to the appellant’s case. They raise questions about the process Dr. Woodside uses in drafting his reports, and about his willingness to accept that errors may negatively affect the reliability of his opinions. The Crown correctly notes that the appellant has not pointed to any direct evidence of carelessness or copying and pasting in this case. However, Dr. Woodside testified in Nettleton that he used his standard practice for drafting reports in that case. Given the demonstrated risk of serious errors emanating from his standard process, the Nettleton evidence is relevant to testing the reliability and credibility of his evidence in this case.

[167]                     The copying and pasting from past reports and the inaccuracies found in Nettleton are especially significant in the face of three other experts who concluded that the appellant was NCR, including Dr. Chatterjee. Dr. Woodside’s description of the analysis sections of his reports as “boilerplate” and the evidence of his possible professional credibility bias are also relevant to his general reliability and credibility as an expert (see, generally, Hason, at para. 109; R. v. Watson (1996), 30 O.R. (3d) 161 (C.A.); S. N. Lederman, M. K. Fuerst and H. C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (6th ed. 2022), at ¶¶10.153-10.156).

[168]                      Justice Bird’s findings in Nettleton could also help the trier of fact. As Tulloch C.J.O. noted in Hason, at para. 116: “Justice Bird is an experienced criminal trial judge whose decision exposed concerning red flags regarding Dr. Woodside’s expert testimony.” Her assessment of that testimony can only benefit this Court by giving it a fair and balanced picture of the impact of Dr. Woodside’s errors on his reliability, in the fuller context of that case.

[169]                     Turning to Minassian, the transcripts show that Dr. Woodside interviewed the accused in that case for approximately 12 hours, allowing the accused “a fair bit of freedom” to answer questions (appellant’s reply to motion to adduce new evidence, vol. III, at p. 11). He took 23 pages of notes from the interviews, and then compiled a report. On cross-examination, he stated that his practice is not to record his interviews, but to incorporate all of his rough interview notes verbatim into his reports. This practice made it impossible for defence counsel — or for anyone — to review whether Dr. Woodside’s report was a complete and accurate description of his long interviews with the accused, and to critically examine or challenge his findings and conclusions.

[170]                      In her reasons for judgment, Molloy J. called Dr. Woodside’s note-taking method “unusual” and found that it frustrated cross-examination; however, she rejected “the suggestion that he did this in order to protect himself from cross-examination” (Minassian, at para. 254). She found that the practice did not undermine the reliability of his opinion.

[171]                      Justice Molloy’s assessment of the impact of Dr. Woodside’s note-taking practices attenuates the concerns regarding the process he uses to draft his reports. However, the Minassian transcripts and findings are still relevant to reliability and credibility. They suggest that concerns about his process of drafting reports went beyond copying and pasting, and were not restricted to the Nettleton case (see also Hason, at para. 103). A general practice of not making recordings or keeping comprehensive notes of his interviews with subjects is relevant to reliability, and would make it harder for an accused to uncover the types of errors present in Nettleton, where the reports did not reflect data related to Mr. Nettleton. While Molloy J. did not find that the practice undermined reliability in Minassian, the transcripts from that case could have assisted the appellant in exploring whether the practice of destroying notes did so in this case. The transcripts could have assisted the appellant in challenging the reliability of Dr. Woodside’s opinion based on an ongoing practice that makes it difficult to examine or challenge his findings and conclusions against the original data from the accused.

(iii)        Materiality: Impact on Result

[172]                      In our view, Dr. Woodside’s testimony in Nettleton and Minassian could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result of the trial in this case.

1.              Evidence at Trial

[173]                      There was extensive evidence led at trial about the appellant’s mental health. The appellant started showing signs of a mental health disorder in high school. In elementary school, he had been a successful, high-achieving student. In high school, the appellant became withdrawn, started using marijuana, and exhibited signs of extreme paranoia. His family started noticing hallucinatory symptoms and agitation around sound and light.

[174]                     The appellant’s parents first took him to see a pediatrician specializing in adolescent medicine in 2009, when he was 15 years old. He did not want to attend. The doctor concluded that the appellant was angry and seemed to need help, but was resistant to services. The doctor scheduled a follow-up appointment, but the appellant did not attend. The appellant later dropped out of high school. In May 2011, he was picked up by police at a park and taken to a hospital for an involuntary psychiatric assessment. He was assessed with “behavioural problems” and a “budding alcohol and marijuana problem” before he was discharged (R.R., vol. II, at p. 108). He was told to leave his family home in September 2011. The appellant became homeless, sometimes living on the streets, and sometimes in shelters. In November 2012, the appellant attended a walk-in clinic, where he complained of “pressure” and “obsessive thoughts” regarding symmetry (R.R., vol. XII, at p. 116).

[175]                     The appellant moved back into his family home for two weeks in January 2013. His brother testified that during these weeks leading up to the killing, the appellant appeared “very abnormal”, zoning out and speaking incomprehensibly (R.R., vol. XI, at p. 27). He seemed depressed, with “[n]o ambition to do anything” (p. 31).

[176]                      The appellant visited a walk-in clinic for mental health issues three times in January 2013. At his first consultation, he denied having any suicidal or homicidal ideations. He discussed with the doctor his history of anxiety, depression, and obsessive-compulsive disorder. He expressed a need for “symmetry” in his life, and concerns about “intrusive thoughts” (R.R., vol. XII, at pp. 178 and 193). He stated that he had “vivid dreams in the daytime” where he was “still aware of reality” (p. 193). The doctor noted that he was experiencing “intrusive thoughts”, feelings of worry, and insomnia (p. 221).

[177]                      At trial, the doctor testified that at his third and final consultation, the appellant “seemed like [he] had a good sense of reality”, although he had symptoms of a mental health condition (R.R., vol. XII, at p. 197). The doctor referred the appellant to a mental health specialist. He never attended.

[178]                      Four days after the appellant last saw a doctor, he killed Ms. Mkurazhizha.

[179]                      After killing Ms. Mkurazhizha, the appellant cooked a can of soup, and then called 9-1-1. On the 9-1-1 call, the appellant reported that he had killed the victim because she “did some things which were really offensive to [him], and [he] couldn’t take it” (R.R., vol. II, at p. 295). During an interview with police, the appellant stated that he had been planning the killing for two days. He said that he killed her because she had peeked in his room and “gasped” at the mess, and then gossiped about it to her friends on the phone (p. 358). In his bedroom, police found a note reading “YAP . . . GOSSIP . . . Judge” (A.R., vol. X, at p. 16).

[180]                      During his police interview, the appellant also stated that he knew what he did was “not right”, and that he killed the victim because of “[m]ental poisons” (R.R., vol. II, at pp. 365 and 384). He said that an appropriate sentence would be for him to be whipped.

[181]                      Dr. Chaimowitz assessed the appellant five days after the killing. The appellant appeared “floridly psychotic with numerous psychotic symptoms, bizarre and confused thinking, symptoms that were likely driving his behaviours” (R.R., vol. II, at p. 74). In his report, Dr. Chaimowitz concluded that the appellant suffered from schizophrenia at the time of the offence and met the test for a finding of NCR. The appellant knew that his criminal acts were legally wrong, but he was not able to know that what he was doing was morally wrong.

[182]                      Dr. Ramshaw assessed the appellant approximately 19 months after the murder. She agreed with Dr. Chaimowitz’s opinions on the appellant’s schizophrenia and NCR status.

[183]                      By contrast, Dr. Woodside assessed the appellant approximately 22 months after the murder. He concluded that the evidence that the appellant was psychotic in the relevant period was “quite limited” (R.R., vol. II, at p. 196). He concluded that even if the appellant had been suffering from schizophrenia, his symptoms would not have rendered him incapable of knowing the legal or moral wrongfulness of his acts. Dr. Woodside therefore opined that the appellant was criminally responsible.

[184]                      Against this backdrop, we assess the potential impact of the fresh evidence.

2.              The Fresh Evidence, Assessed Alongside the Trial Record, Could Have Made a Difference to the Jury’s Verdict

[185]                      The testimony in Nettleton could have affected the jury’s determination of Dr. Woodside’s general reliability and credibility in this case. First, the jury could have found that the only expert to conclude that the appellant was criminally responsible followed poor general practices in compiling his reports, by copying and pasting the analysis and conclusions sections from his other reports and changing the subjects’ names. Second, the fact that he testified that he reviewed one of his reports for hours without noticing the blatant errors shows an inattention to detail that could undermine his expert opinion. And third, he insisted on his report’s reliability after being confronted with the errors, and without further review, potentially showing professional credibility bias. This last concern is heightened in this case, where, under cross-examination, Dr. Woodside stated that he preferred his own recollection of interviewing the appellant over the contradictory, contemporaneous notes taken by his resident, Dr. Ansarian.

[186]                      Dr. Woodside testified in Nettleton that he followed his general practice in compiling reports in that case. There is thus reason to believe that the problems that plagued his work in Nettleton may also have been at play in this case. While the Crown argues that there is no sign that Dr. Woodside copied and pasted his report in this case, the concerns about poor practices and inattention to detail are general in nature. Possible bias is also a concern in this case, where psychiatric opinion was starkly divided. Dr. Chaimowitz interviewed the appellant days after the murder and concluded that he was “floridly psychotic”. Dr. Woodside disagreed with this opinion, despite having first interviewed the appellant many months later. Dr. Woodside did not ask Dr. Chaimowitz for the notes underlying his opinion, even though he acknowledged under cross-examination that he could have done so and this “could have been helpful” (R.R., vol. XIV, at p. 291).

[187]                      The Minassian transcripts could also have affected the jury’s verdict. In this case, Dr. Woodside agreed that his note-taking habits made it impossible to verify what was said during his interviews with the appellant. Yet he continued to use the same technique during his interview with the accused in Minassian, years later. This again could show a resistance to change established views and practices in the face of fresh evidence.

[188]                      The jury in this case was not aware of these cogent reasons to potentially doubt Dr. Woodside’s evidence. It merits repeating: Dr. Woodside was the only expert to opine that the appellant was criminally responsible. Every other psychiatrist who examined the appellant, even the Crown’s subsequently retained expert, opined that the appellant was NCR. In these circumstances, questions about Dr. Woodside’s reliability or credibility could have affected the verdict.

[189]                      Justice O’Bonsawin would dismiss the fresh evidence motion, largely since “numerous concerns about the credibility and reliability of Dr. Woodside were squarely before the jury, including those raised by the appellant” (para. 137). We disagree. The jury did not know that Dr. Woodside had a standard practice of copying and pasting his reports. It did not know that this practice would lead him to submit reports to a court that, taken together, contained 13 errors, including on basic, essential biographical information about his subject. It did not know that one senior jurist would conclude that his “unusual” note-taking practices — which in this very case he admitted prevented others from reviewing his work — frustrated cross-examination (Minassian, at para. 254). And it did not know that another experienced jurist would learn of his standard method for writing reports and conclude that “Dr. Woodside is unable or unwilling to fulfill his duty as an expert” (Nettleton, at para. 60).

[190]                      We cannot agree that in light of this fresh evidence, this jury would necessarily still have accepted Dr. Woodside’s opinion. That the jury accepted his evidence despite some challenges to his evidence does not mean that new challenges to his credibility and reliability could not reasonably have changed the result.

[191]                     The fourth Palmer criterion must be approached purposively (Barendregt, at para. 63). One purpose of fresh evidence in the criminal law context is to prevent wrongful convictions. Expert evidence that may be unreliable or dubious is widely recognized as a cause of wrongful convictions (see, e.g., The Commission on Proceedings Involving Guy Paul Morin: Report (1998), vol. 1, at p. 315). Courts and inquiries have rightly acknowledged the dangers of expert evidence (Inquiry into Pediatric Forensic Pathology in Ontario; R. v. Mullins-Johnson, 2007 ONCA 720, 87 O.R. (3d) 425; R. v. Sherret-Robinson, 2009 ONCA 886; R. v. Kumar, 2011 ONCA 120, 268 C.C.C. (3d) 369; R. v. Brant, 2011 ONCA 362; R. v. Shepherd, 2016 ONCA 188; R. v. Blackett, 2018 ONCA 119; R. v. Doyle, 2023 ONCA 427, 428 C.C.C. (3d) 293). Our common law has evolved to provide trial judges with broad discretion to exclude expert opinion evidence (White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 16-23; R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 90).

[192]                      When the Court of Appeal for Ontario was asked to admit evidence from the Nettleton proceedings in Hason, Tulloch C.J.O. admitted fresh evidence of Dr. Woodside’s testimony from that case, as it potentially undercut his reliability and credibility in Hason and raised red flags in respect of a potential wrongful indeterminate sentence (paras. 106-18). The Court of Appeal ordered a rehearing on penalty since the sentencing judge relied on Dr. Woodside’s evidence to impose an indeterminate sentence and “may well not have reached the same conclusion if he had known of Dr. Woodside’s careless practice” (para. 88).

[193]                      The admission of fresh evidence is a case-specific exercise. We agree with the Court of Appeal in Hason that Nettleton and Minassian do not mean that every verdict in every case where Dr. Woodside testified must be quashed. The appropriate remedy will depend on the importance of Dr. Woodside’s evidence in each case, and the full record led at trial and through admissible fresh evidence.

[194]                      Finally, we wish to be clear that we do not conclude that Dr. Woodside’s evidence in this case was unreliable or not credible. Dr. Woodside did not have standing to make submissions before this Court, and we are not in a position to make definitive findings on his methods and reliability. We conclude only that the fresh evidence is sufficient to raise material concerns about his evidence that would not have been apparent to the jury at the time of trial, but could realistically have affected its verdict. That is sufficient to admit the fresh evidence under Palmer.

(c)           Conclusion

[195]                     In sum, we would admit the transcripts of Dr. Woodside’s testimony in Nettleton and Minassian, contextualized by the judgments in those cases, as fresh evidence.

[196]                      Before considering remedy, we turn to the appellant’s fresh evidence motion brought before the Court of Appeal relating to his NCR claim.

(2)          Dr. Chatterjee

[197]                      The Crown retained Dr. Chatterjee after trial to provide a fresh opinion on the appellant’s fitness to stand trial and NCR status. While Dr. Chatterjee opined that the appellant had been fit throughout trial, she also opined that the appellant was NCR at the time of the killing. The appellant sought to admit Dr. Chatterjee’s opinion as fresh evidence before the Court of Appeal.

[198]                      The Court of Appeal dismissed the appellant’s fresh evidence motion relating to Dr. Chatterjee’s NCR opinion for two reasons. First, it emphasized the “need for finality in criminal verdicts” and held that given the evidence of Dr. Chaimowitz and Dr. Ramshaw, there was “nothing new” in the consistent opinion of Dr. Chatterjee (paras. 266-67). The jury had heard “much the same” evidence, and it did not matter that Dr. Chatterjee was retained by the Crown (para. 258). Second, it held that Dr. Chatterjee’s evidence “does not align with the law” governing the NCR verdict (para. 262).

[199]                      We agree with the Court of Appeal that finality is important in legal proceedings (Barendregt, at para. 43). However, when the fresh evidence raises serious questions about the soundness or safety of the verdict, the desire for finality may give way to the imperative of trial fairness and the preservation of liberty. In our view, and for the reasons provided, finality must give way in the unique circumstances of this case.

[200]                      At a basic level, there may be nothing “new” in the content of Dr. Chatterjee’s opinion, insofar as the jury heard similar evidence supporting the appellant’s NCR claim from Dr. Chaimowitz and Dr. Ramshaw. We agree that it will rarely suffice to argue, as the appellant does, that what is new is that the fresh evidence opinion was sought and received by the Crown. This is because an expert’s opinion must “not change regardless of which party retained him or her” (White Burgess Langille Inman, at para. 32). It follows that Dr. Chatterjee’s opinion cannot be admissible as fresh evidence simply because she was retained by the Crown.

[201]                      However, the circumstances here are unique. On appeal before the Court of Appeal, the Crown sought another expert psychiatric opinion that reached the opposite conclusion to the one it led in evidence before the jury. Further, that second, contrary opinion concerned the main issue in a first degree murder trial involving a self-represented person advancing an NCR defence.

[202]                      Dr. Chatterjee’s opinion has novel value because we have admitted the fresh evidence of Dr. Woodside’s testimony in other proceedings. In these circumstances, there are new reasons to doubt the reliability and credibility of the methods used by the only witness to opine that the appellant was criminally responsible. Dr. Chatterjee’s evidence must be assessed in the context of this new issue that arises for the first time before us. It demonstrates the isolated nature of Dr. Woodside’s opinion and the potential consequence of reliance on an expert opinion whose reliability has been put into issue. It is not only that Dr. Chatterjee’s report adds weight to one side. It goes further to potentially reinforce the concerns raised by the transcripts from other cases about Dr. Woodside’s potentially flawed methods. Jurors may have been willing to overlook concerns raised about his reliability and credibility under cross-examination in this case, since he was qualified as an expert and bound by the professional practices required of his profession. But, given the fresh evidence calling Dr. Woodside’s reliability into doubt, Dr. Chatterjee’s contrary opinion takes on new, probative value.

[203]                      Dr. Chatterjee’s opinion could have had a material effect on the verdict. The evidence of Dr. Woodside’s potentially flawed practices could, on its own, be enough to potentially undermine his reliability and credibility in the eyes of the jury. That the experts retained by the Crown were divided between themselves on the central issue of whether the appellant was NCR could have combined with this evidence to cause a reasonable juror to weigh Dr. Woodside’s evidence on that issue differently. These two bodies of fresh evidence could have added to any concerns jurors may have had with his evidence given the cross-examination at trial, notwithstanding that he was qualified as an expert.

[204]                      We also do not accept the Court of Appeal’s conclusion that Dr. Chatterjee’s opinion is inconsistent with the legal test for an NCR verdict. The parties and several interveners ask this Court to address this important question of law, and unlike O’Bonsawin J. we would do so.

(a)           The Legal Test for an NCR Verdict

[205]                     Dr. Chatterjee opined that the appellant understood that his criminal acts were wrong “in some background way”, but that his psychotic symptoms made him feel compelled to act notwithstanding this background knowledge (A.R., vol. VIII, at p. 25). The legal relevance of this opinion depends on whether an accused who knew that their actions were morally wrong, but whose mental disorder made them feel so irresistibly compelled to act that they could not consciously apply that knowledge to rationally make a choice, can still be NCR.

[206]                      The NCR defence is enshrined in s. 16 of the Criminal Code:

16 (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

 

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

 

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

[207]                      In Chaulk, at pp. 1352-57, this Court held (overruling Schwartz v. The Queen, [1977] 1 S.C.R. 673) that the word “wrong” in what is now s. 16(1) means both legally wrong and morally wrong. To establish an NCR defence on the basis of incapacity to appreciate wrongfulness, an accused therefore needs to prove that they suffered from a mental disorder at the time of their crime that rendered them incapable of appreciating that their actions were both legally wrong and morally wrong.

[208]                      The Court of Appeal in this case held, at para. 264, that “an accused is not NCR if they knew that society regarded their actions as morally wrong yet proceeded to commit the actions anyway”. The court quoted R. v. Dobson, 2018 ONCA 589, 48 C.R. (7th) 410, at para. 24, for the proposition that such an accused cannot be NCR “even if he believed that he had no choice but to act, or that his acts were justified” (para. 264 (emphasis added)).

[209]                      The appellant and several interveners object to this statement of law from Dobson, arguing that it gives rise to incongruous results and contradicts this Court’s prior judgment in Oommen. The Crown defends Dobson as consistent with Oommen and a correct summation of the legal test for an NCR verdict.

[210]                      The answer lies in bedrock principles of criminal law, which inform the NCR defence as it has been interpreted in this Court’s precedents.

[211]                      The criminal law will not punish a person who lacks the capacity to reason through options and consciously choose whether to act. As this Court stated in R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at para. 45:

Like voluntariness, the requirement of a guilty mind is rooted in respect for individual autonomy and free will and acknowledges the importance of those values to a free and democratic society: [R. v. Martineau, [1990] 2 S.C.R. 633], at pp. 645-46. Criminal liability also depends on the capacity to choose — the ability to reason right from wrong. [Emphasis added.]

[212]                      G. Ferguson distilled the underlying rationale of the NCR defence in “A Critique of Proposals to Reform the Insanity Defence” (1989), 14 Queen’s L.J. 135, at p. 140:

Put simply, our principles of criminal law and criminal sanctions are based on an assumption about human nature — the assumption that human beings are rational and autonomous. We have the capacity to reason right from wrong, and the capacity to choose right or wrong. These assumptions may be incorrect, but they are, and are likely to remain, the theoretical basis of our criminal law. It is these dual capacities — reason and choice — which give moral justification to imposing criminal responsibility and punishment on offenders. If a person can reason right from wrong and has the ability to choose right or wrong, then attribution of responsibility and punishment is morally justified or deserved when that person consciously chooses wrong. [Emphasis added.]

We agree with this understanding of the NCR defence. Punishing a person who cannot rationally apply their knowledge to consciously choose whether to commit criminal acts is fundamentally unjust and would violate an “essential basis for attributing criminal responsibility” (R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575, at para. 49).

[213]                      This principle finds application in Oommen. The specific legal question at issue in Oommen related to the scope of the phrase “knowing that [the act] was wrong” in s. 16(1) of the Criminal Code. The Court held, at p. 516:

A review of the history of our insanity provision and the cases indicates that the inquiry focuses not on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act. [Emphasis added.]

[214]                      This passage is clear. An accused is NCR if they committed a crime due to feelings of compulsion caused by a mental disorder, provided that compulsion prevented them from rationally applying any knowledge that their criminal acts were morally wrong.

[215]                      Oommen identified two parts of the concept of knowledge of moral wrongfulness. The first part is a general capacity to understand that a criminal act is wrong. The second is a specific capacity to “apply” that knowledge rationally to choose to commit the specific criminal act in question. Feelings of intense compulsion might not affect an accused’s general knowledge of whether an act is morally wrongful. But intense feelings of being compelled or forced to act can prevent an accused from “applying” their understanding of moral wrongfulness to specific actions.

[216]                      Oommen relied on two authorities in reaching this conclusion. First, the High Court of Australia decision in R. v. Porter (1933), 55 C.L.R. 182, at pp. 189-90, which defined the test with reference to whether “through the disordered condition of the mind [the accused] could not reason about the matter with a moderate degree of sense and composure” (emphasis added). Second, an article by G. Arthur Martin, “Insanity as a Defence” (1966), 8 C.L.Q. 240, at p. 246:

A person may have adequate intelligence to know that the commission of a certain act, e.g., murder, is wrong but at the time of the commission of the act in question he may be so obsessed with delusions or subject to impulses which are the product of insanity that he is incapable of bringing his mind to bear on what he is doing and the considerations which to normal people would make the act right or wrong. [Emphasis added.]

[217]                      These authorities each make clear that merely knowing that a criminal act is morally wrong is not enough to preclude an NCR defence. The accused must also consciously choose to commit the immoral act, rather than acting on a compulsion caused by their mental disorder.

[218]                      The Crown is correct that Oommen, at p. 521, quoted Edwin A. Tollefson and Bernard Starkman, Mental Disorder in Criminal Proceedings (1993), at pp. 40-41, to show that the NCR defence focuses on cognitive capacity, and not on volition. However, the quote from this authority goes on to recognize that mental disorders can generate such strong impulses as to render a person incapable of cognitive reasoning at the moment of their criminal acts:

Section 16 of the Canadian Criminal Code employs a “cognitive test” and does not provide exemption from criminal responsibility for people who claim that mental disorder rendered them incapable of controlling their volition. It has been recognized, however, that evidence of irresistible impulse may be adduced as a symptom of disease of the mind which will be taken into account by the jury in determining whether the accused was suffering from mental disorder to the extent of being rendered incapable of exercising the “cognitive” functions of appreciating the nature and quality of the act or omission or of knowing that it was wrong. [Emphasis added.]

We agree. Intense feelings of compulsion caused by a mental disorder can support an NCR verdict. An accused who claims that they felt compelled to commit a criminal act due to a mental disorder may blur the theoretical line between volition and capacity. But as a practical matter, this Court has long recognized that claims of “irresistible impulses” can support an NCR defence (The Queen v. Borg, [1969] S.C.R. 551; Boivin v. The Queen, [1970] S.C.R. 917, at p. 920; R. v. Abbey, [1982] 2 S.C.R. 24, at pp. 38‑39). Simply put, the legal test for an NCR verdict considers capacity to choose, in addition to the capacity to understand the morality of one’s decisions.

[219]                      The Crown also relies on R. v. Ratti, [1991] 1 S.C.R. 68, in support of the narrower test for an NCR verdict applied by the Court of Appeal in this case. In Ratti, the Court applied the definition of “wrong” from Chaulk, and held that a trial judge had misdirected a jury that “wrong” means only legally, and not morally, wrong. On the facts before it, the Court decided to order a new trial, rather than substitute a verdict of NCR. The Court did so because:

It is not sufficient to decide that the appellant’s act was a result of his delusion. Even if the act was motivated by the delusion, the appellant will be convicted if he was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society. [Emphasis in original; p. 80.]

[220]                      We do not agree that this statement excludes an accused who feels compelled, as opposed to merely motivated, by delusions to commit a criminal act from being found NCR. Ratti held that the simple presence of delusions is not enough to assume that an accused is NCR. That is consistent with Oommen’s later holding that when an accused meets the high burden of proving that their delusions went beyond motivation and made them feel irresistibly compelled or forced to commit an act, it follows that they were deprived of their ability to bring their “mind to bear on what [they are] doing”. That accused’s background knowledge of moral wrongfulness is an insufficient basis for criminal liability.

[221]                      To be clear, this is a stringent test (see, e.g., Borg, at pp. 560-61). An accused who knew that their criminal acts were morally wrongful will not be found NCR simply because their mental disorder made the choice to commit those acts appear more attractive or imperative. To obtain an NCR verdict, that accused must go further and show that their mental disorder made them feel entirely forced or obligated to commit a criminal act, such that they lacked the capacity to apply their knowledge and choose not to act.

[222]                      In sum, this Court’s jurisprudence allows for an NCR verdict for an accused with a background understanding of moral wrongfulness, whose mental disorder compels them to act in a way that prevents them from applying that understanding at the moment of their criminal acts. It follows that Dobson impermissibly narrowed Oommen to the extent that it effectively reads out the capacity to choose to act, where an accused is incapable of consciously applying their knowledge that society would view their criminal act as morally wrong.

[223]                      We return to the Court of Appeal’s judgment in this case. In finding that Dr. Chatterjee’s report reflected an incorrect interpretation of the word “wrong” in the definition of NCR in s. 16(1) of the Criminal Code, the Court of Appeal, at para. 263, focused on the following part of Dr. Chatterjee’s cross-examination:

Q. . . . If [the appellant] felt he had no choice but to kill the victim to get relief from his pressures or his suffering, on the way you phrased it in your opinion, how does that necessarily lead to the conclusion that he didn’t know it was morally wrong to kill her as opposed to leading to the other conclusion that he killed the victim in order to find relief from his own suffering or feelings regardless of knowing it was morally wrong?

 

A. So to back up for one second. Again, it’s not my opinion that he did not know that his actions were morally wrong. It’s my opinion that he was unable to apply his understanding of moral wrongfulness to his actions at the material time because of the intensity of his psychotic symptoms.

 

The choice to do so, or whether he was compelled to do so in either case in the scenarios that you presented were still based on a psychotic rationale that he felt compelled to act upon.

 

So I’m not sure if I’m understanding the either/or in this scenario. I don’t see it as an either/or. I see that he was intensively psychotic and that his actions were predicated on that psychosis that led to him feeling compelled, or him deciding, if you will, that he had no other option available to him. But that doesn’t take away that he did know it was wrong in some background way. [Emphasis added.]

 

(A.R., vol. VIII, at pp. 24-25)

[224]                      A reasonable, properly instructed jury could infer from this evidence that the appellant’s mental disorder made him feel compelled or forced to commit his criminal acts, such that “he [was] incapable of bringing his mind to bear on what he [was] doing” notwithstanding his knowledge that those acts were morally wrong. Under Oommen, that inference supports an NCR verdict. The Court of Appeal erred in holding otherwise.

B.            This Case Is a Miscarriage of Justice Requiring a New Trial

[225]                      The appellant asks that this Court quash his conviction for first degree murder and substitute a verdict of NCR, based on the fresh evidence regarding Dr. Woodside and the opinion of Dr. Chatterjee. In the alternative, the appellant asks that this Court order a new trial.

[226]                      A court of appeal’s remedial authority in an appeal from a conviction is contained exclusively in s. 686 of the Criminal Code (R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 29; R. v. Tayo Tompouba, 2024 SCC 16, at para. 146). Section 686(1)(a) empowers a court of appeal to allow an appeal if it concludes that:

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

 

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

 

(iii) on any ground there was a miscarriage of justice;

After a court of appeal allows an appeal from a conviction, it can substitute an acquittal or order a new trial under s. 686(2).

[227]                      A court of appeal may conclude on the totality of the record, including the admitted fresh evidence, that no reasonable, properly instructed jury could convict the accused. In such a case, there has been an unreasonable verdict under s. 686(1)(a)(i), and the court should allow the appeal and enter an acquittal under s. 686(2)(a) (Tayo Tompouba, at para. 55; R. v. Hinse, [1997] 1 S.C.R. 3; Reference re: Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 247).

[228]                     This Court’s jurisprudence also features cases where fresh evidence is admitted that casts doubt on the soundness of the verdict entered at trial, but does not reach the high standard for finding the verdict unreasonable. In such cases, this Court has allowed the appeals and ordered new trials under s. 686(2)(b) (R. v. Stolar, [1988] 1 S.C.R. 480, at pp. 491-92; R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628; R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at paras. 76-77; see also Truscott, at para. 110). These cases do not clearly indicate which “branch” of s. 686(1)(a) they apply to allow the appeals. In our view, these cases are best categorized as miscarriages of justice.

[229]                      A miscarriage of justice, as understood within s. 686(1)(a)(iii), occurs when something other than an error of law or unreasonable verdict renders the verdict unsafe. It is a residual and broad basis of appeal, where the appellate court is satisfied that a trial was unfair or suffered from an appearance of unfairness that would shake public confidence in the administration of justice (Tayo Tompouba, at paras. 72-73, 152 and 165; R. v. Kahsai, 2023 SCC 20, at para. 67).

[230]                     A fair trial is “one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused” (R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 22, quoting R. v. Harrer, [1995] 3 S.C.R. 562, at para. 45, per McLachlin J. (as she then was); see also R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 48; Kahsai, at para. 35). An accused can therefore challenge the fairness of their trial by demonstrating procedural unfairness, or by showing that the verdict was substantively unreliable (see, e.g., R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 1, citing R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221; R. v. Smith, 2021 SCC 16, [2021] 1 S.C.R. 530, at para. 2). Where fresh evidence is admitted under Palmer and reveals a verdict to be potentially unsound, the public interest in getting at the truth is subverted. In such circumstances, the accused’s trial will have been unfair, in fact or in appearance (see, generally, Khelawon, at para. 48; Kahsai, at para. 35). Admissible fresh evidence that calls the factual integrity of the trial verdict into doubt therefore qualifies as a miscarriage of justice.

[231]                      Turning back to this case, the fresh evidence is insufficient to meet the high standard for an unreasonable verdict. The fresh evidence provides new reasons to doubt Dr. Woodside’s opinion, but we cannot conclude definitively that a reasonable, correctly instructed jury would disbelieve him. A reasonable, correctly instructed jury on this augmented record could still conclude that Dr. Woodside’s problematic practices do not impact his conclusions in this case, and so accept his evidence, reject the appellant’s NCR claim, and convict the appellant of first degree murder.

[232]                      However, we are satisfied that a miscarriage of justice has taken place under s. 686(1)(a)(iii). There is a body of expert opinion evidence in the record to the effect that the appellant was NCR. Against this evidence stands the opinion of one expert, whose reliability and credibility the fresh evidence provides new reasons to doubt. In these circumstances, we conclude that the verdict might reasonably be different on the totality of the evidence, including the fresh evidence. The appellant’s conviction for first degree murder is unsafe, and he is entitled to a new trial.

III.         Conclusion

[233]                      We would allow the appellant’s fresh evidence motion brought before this Court, allow the appellant’s fresh evidence motion brought before the Court of Appeal, allow the appeal, quash the conviction, and order a new trial.

                    Appeal dismissed, Karakatsanis, Martin and Moreau JJ. dissenting.

                    Solicitors for the appellant: Furgiuele Law, Toronto; Ruffo Law, Toronto; Cara Barbisan, Toronto.

                    Solicitor for the respondent: Attorney General of Ontario, Crown Law Office — Criminal, Toronto.

                    Solicitor for the intervener Attorney General of British Columbia: Ministry of Attorney General of British Columbia — B.C. Prosecution Service, Victoria.

                    Solicitor for the intervener Attorney General of Alberta: Alberta Crown Prosecution Service — Appeals and Specialized Prosecutions Office, Edmonton.

                    Solicitors for the intervener Criminal Lawyers’ Association: Embry Dann Law, Toronto; Davies McMahon, Ottawa.

                    Solicitors for the intervener Empowerment Council: McKay Ferg, Calgary; Anita Szigeti Advocates, Toronto; Martell Defence, Toronto; Shukairy Law, Ottawa.

                    Solicitors for the intervener Independent Criminal Defence Advocacy Society: Peck and Company, Vancouver.

                    Solicitors for the intervener Criminal Trial Lawyers’ Association: Pringle Law, Edmonton; Dawson Duckett Garcia & Johnson, Edmonton.