R. v. De Oliveira, 2010 ONSC 5847
Reasons for Judgment of Backhouse, J. delivered October 25,2010
 Adenir De Oliveira is charged with 3 counts of attempt murder and three counts of assault. The accused has admitted he committed the acts alleged. The issue that must be determined in this case is whether the accused has proved on a balance of probabilities that he is not criminally responsible for the acts committed because at the relevant time he was suffering from a mental disorder which falls within Section 16 of the Criminal Code . For convenience, I set this provision out:
16. ( I) 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 (I). 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.
 On Friday, February 13, 2009, 5 friends in grade 9 at Toronto Northern Secondary School were enjoying a professional development day. They entered the Toronto subway at Dufferin and Bloor around rush hour at approximately 4:30 p.m. The accused entered right behind the boys who went down the stairs to the subway platform where they stood more or less in a line facing the track, waiting for the eastbound train. As the train approached, the accused pushed two of the boys, Jacob Greenspon and Asaf Shargall, onto the track and attempted to push a third boy, Antony Zalenka, onto the track. Asaf managed to roll off the track under the ledge of the subway platform and pull Jacob after him. The train ran over Jacob’s foot. He spent 3 Y2 weeks at the Hospital for Sick Children. Antony was tall for his age and was able to regain his balance from the accused’s pushes and stay on the platform.
 Jacob underwent a number of surgical operations including skin grafts to repair the damage to the first, second and third toes on his left foot. Ultimately two of his toes required amputation. He required extensive physiotherapy both in and out of hospital to relearn to walk and fortunately made good progress. Asaf was examined at the Hospital for Sick Children, was treated for a swollen right knee and released. u
 Many witnesses testified to the pandemonium that erupted at the platform level when people who had seen what had happened began to scream and yell that the boys had been pushed onto the track, pointing at the accused as the person responsible. Russell Cormier, then a TTC gate operator, was in the collector’s booth with the collector, Joseph DeGabrielis, when he heard the squeal of the train’s emergency brakes being applied and people screaming. He came out of the booth to see what was happening. He saw the accused coming up the stairs in the midst of a crowd of people pointing at him and screaming that he had pushed the boys onto the subway platform. In an effort to stop the accused, Mr.Cormier grabbed at him, striking him a couple of times. The accused flailed his arms, striking Mr. Cormier’s shoulder and the side of his head. Mr. Cormier described the accused as looking very distraught with a blank expression on his face. He testified that the accused took off at a brisk pace, travelling south on Dufferin Street. Mr. Cormier called 911 on his cellphone as he followed the accused past Weir Public School to a PizzaHut at the Dufferin Mall where the accused sat down on a rock. Pending the arrival of the police, Mr. Cormier heard the accused mumble in a different language, cry and then say in English that he had tried to get help, that he had gone to the doctor and to the hospital and that nobody would help him.
 After locking the money into the safe and padlocking the collector’s booth, TTC collector Joseph DeGabrielis also gave chase. He caught up with Mr. Cormier and the accused in front of Weir School and tried to pass to get ahead of the accused to box him in. He instructed him to stop. As he approached the accused, the accused took a swing at him but did not connect. He also attempted to photograph the accused and called 911. He described the accused as looking more scared than violent. His eyes seemed glazed. His face was expressionless. He had a stagger in his step. He reminded Mr. DeGabrielis of Frankenstein.
 Ricardo Mateus was waiting for his girlfriend near the collector’s booth at the Dufferin SUbway. After hearing people yelling that the accused had pushed the boys onto the platform, he too chased the accused. The accused noticed Mr. Mateus following him and he seemed to Mr. Mateus to get angry. He reached into his jacket, causing Mr. Mateus to be concerned that he
might have a weapon. When Mr. Mateus was approximately 4 or 5 feet from the accused, the accused took a swing at him but was too far away to make impact. He described the accused as walking slowly and looking confused and disoriented from beginning to end. His impression was that there was something wrong with him mentally. He saw the accused sit down on the rock at the PizzaHut and heard him say that he was sick, that he had been to the hospital and was denied care.
 Michael Yng, one of the 5 boys waiting on the subway platform, after seeing his friends pushed onto the track, initially gave chase before turning back out of concern for his friends. He described the accused as running in an unnatural way wit~ his arm movements uncoordinated with his leg movements. Antony Zelenka testified that after receiving two pushes on his left shoulder strong enough to push him towards the edge of the platform, he turned around and faced the accused before receiving another push. He also initially ran after the accused. He described the accused as looking blankly through him, not at him and as showing no emotion in his face. It gave him a creepy feeling. He testified that his impression was that the accused had mental health issues, that he was uncoordinated and very unnatural in his movements. He described the accused’s movements as a gallop-jog.
 Detecti ve Constable Brian testified that she first observed the accused after his arrest sitting in the squad car and made a notation in her notebook of “EDP” (short for Emotionally Disturbed Person.) She described him as staring blankly out of the car, not making eye contact, looking dazed, seeming dishevelled, sweating and crying.
 At the police station, the accused was described by various officers as cooperative, to have no problem following instructions, to be sombre, quiet, meek, and to cry occasionally. He was described by Constable Martin, whose contact with hjm occurred early in the morning on February 14, 2009 and who spoke to him in Portuguese, as being visibly upset, emotional and crying. The booking video shows the accused with eyes downcast answering basic questions. He stated that he was taking 3 different drugs and that he was having a problem with drugs. When asked if he was having suicidal thoughts, he said, “somebody give me and a gun and I’ll shoot myself.” When he was arrested, he had in his possession $882.00, 30 mg. of apotemazepan, 1 mg. of apo-Ioracepan and 75 mg. of venlafaxinexr. The videotape of the accused’s police interview shows him answering basic questions but unable or unwilling to talk about what had happened. He then kept his head down and did not answer any further questions.
 Teofila Prado testified that she met the accused in June or July, 2008 and a romantic relationship began. She noticed that he seemed depressed around October, 2008 and although there was no basis for him to be jealous, he questioned her about other men several times a week. She gave him a key to her apartment to alleviate his concerns. When the accused returned from Brazil in December, 2008, she noticed that he was always looking down. On January 7,2009, he was again questioning her about other men and his whole body was shaking. She called an ambulance to take him to emergency. From that date until! the date of the offences, there was a major change in his behaviour. He ate only small amounts, he was very depressed and when she was talking to him or the television was on, he was looking down, closing his eyes and not paying attention or watching.
Preliminary Evaluation of the accused on February 19,2009
 Dr. Julian Gojer, the accused’s expert witness, saw the accused at the Don Jail 6 days following the offences. Dr. Gojer first attended in the afternoon and was unable to see the accused who was reported to be unsettled and very disruptive. Dr. Gojer had to return later in the day on February 19, 2009 and see him across a glass barrier with the use of a telephone. He described the accused as unshaved, unkempt, anxious and at times looking fearful.
 The accused told him that he had been suffering from panic attacks since January, 2009 and that he had been started on antipsychotic medication. As soon as he began to take the medication, he told Dr. Gojer that he began to experience auditory hallucinations which told him to kill people. He denied any history of mental illness. He told Dr. Gojer that the guards were arranging for him to be raped and after that his body would be incinerated. He stated that he feared that at any moment he was going to be killed and believed that his conversations with Dr. Gojer were being monitored, that there were people talking or making noises on the telephone line and he could hear people talking in the distance. He appeared to Dr. Gojer to be responding to auditory hallucinations while talking to him. When Dr. Gojer said that he did not hear anyone, the accused became upset with him. The accused knew that he had been charged with attempt murder for pushing young males onto the subway tracks.
 Dr. Gojer’s opinion was that although a formal diagnosis was difficult to offer, the accused was presenting as suffering from Acute Psychotic Episode, the etiology of which was unclear.
 On February 20, 2009, the accused was admitted to the Assessment and Triage Unit at the Centre of Addiction and Mental Health (“CAMH”) pursuant to a court-ordered psychiatric assessment to determine whether he suffered from a mental disorder which would exempt him from criminal responsibility under s.16 of the Criminal Code.
Forensic Assessments of the accused
 Dr. Gojer, the accused’s expert witness and Dr. Jonathon Rootenberg who performed the court-ordered assessment at CAMH and was the Crown’s expert witness, each performed forensic assessments of the accused. Each wrote a detailed report which was filed on consent. Each testified and was cross-examined. Neither deviated from the conclusions reached in their reports.
 Both psychiatrists are highly qualified. They agree that the accused is a very ill person.They disagree on whether his illness meets the standard set out in s.16 of the Criminal Code. Not every illness which may fairly be described as a mental disorder meets the Section 16 criteria. Dr. Gojer concluded that the accused is not criminally responsible. However, Dr. Rootenberg, reached the opposite conclusion. The conclusion each psychiatrist reached is summarized below.
 The accused was suffering from a Major Depressive Illness with psychotic symptoms prior to the alleged offences and these persisted subsequent to the alleged offenses when Dr.Gojer saw him at the Don Jail and he was admitted to CAMH. The severity of his psychotic symptoms was short lived and abated following admission and treatment with anti-psychotic medication.
 The accused was experiencing very intense thoughts at the time the acts were committed that were compelling him to kill himself or others. These thoughts can be understood to be highly irrational. He said that he was unable to think of anything else at the time of the alleged otTences- that he wanted to kill or push three innocent young boys who he had no knowledge of, who had no relevance to him or his illness points to the sheer absurdity of his actions. That he acted on his thoughts in the presence of the public with no attempt to commit a crime and escape detection also points to how irrational his thinking was at the time the acts were comniitted. He has no significant history of aggression and as described by his family and his girlfriend, his actions appear to be totally out of character for him. The thoughts that the accused had are akin to severely depressed individuals who become quite irrational, believe their world is hopeless, that there is nothing to live for and kill themselves, kill a loved one or even a child, believing that it would be in the best interest of the loved one to die with them. The accused accepted the thoughts in his mind, which he experienced as very intense and as if they were voices in his head, that were directing him to kill himself or kill someone. He was not thinking of what the consequences were. He was disconnected from all else at the moment he acted. His actions were sudden and impulsive and in response to the irrational thoughts he had. His thinking was severely clouded by the depressive illness he had. He clearly was unable to weigh the pros and cons of his actions. While there are no indications that he was not able to appreciate the nature and quality of his actions, or their legal wrongfulness, at the time of the alleged offences, he was incapable of knowing that his actions were morally wrong. His severe depression with the irrational thoughts of harming himself or others robbed him of the ability to exercise rational choice. His actions were driven by irrational thinking and gerceptual experiences secondary to a severe depressive illness that robbed him of the capacity to know that what he was doing was morally wrong.
 In addition to the offences themselves, the accused’s demeanor described by all who saw him at the time of the offences, his delusions about his girlfriend, his paranoid behaviour in jail, his belief that the guards were going to rape and burn him and his bizarre behaviour in jail such as dancing nude on the bed and toilet seat shortly after the offences support a finding of psychotic episode.
 Rather than malingering, the accused tended to minimize the seriousness of what he was experiencing at the time the acts were committed. His lack of cooperation with the psychological testing performed by Dr. Wright at CAMH and his reporting of hallucinations upon being admitted to CAMH were consistent with his severe depression at that time, agitation, paranoia towards people and the medication that he was administered while at CAMH.
D r. Rootenberg
 The accused’s self-reported symptoms, including prior beneficial response to antidepressant medication and historical information obtained from collateral sources is most consistent with Major Depression and an Anxiety Disorder with panic features. A Depressive Disorder with psychotic features is a diagnostic possibility for consideration but due to the clear pattern of malingering demonstrated by the accused during his assessment, this is a less likely diagnostic possibility.
 During the time period encompassing the offences, it appears from collateral information and from the accused’s self-report that he was acting impulsively and was quite upset and concerned that his girlfriend may have been seeing another man, specifically her ex-boyfriend. This contributed to lowering his already diminished self-esteem. He reacted to this by proceeding to the Ossington subway station in early January 2009 where he lay on the tracks in an apparent suicide attempt, claiming that nobody cared about him and there”fore he should die. He did not do so in response to auditory hallucinations commanding him to act in this manner.
 Collateral information from family members, from Dr. Eid and from the accused’s girlfriend does not support the presence of psychotic symptomatology historically or during the period immediately prior to the events in question; his reported distress is more consistent with abrupt discontinuation of Effexor, including irritability, agitation, sleep disruption and sweating.
 The accused was unable to explain why he ran from the subway platform after pushing the victims onto the tracks on February 13, 2009, given his statement that he had not engaged in any wrongdoing, and was merely responding to either command hallucinations or thoughts that directed him to carry out the actions in question. However he was quite vague and contradictory with respect to when he first heard either auditory hallucinations or experienced these thoughts directing him to harm any individuals. The fact that he ran conveys knowledge of the possible consequences of his actions resulting from the circumstances in question indicating his awareness of the wrongfulness of his conduct at that time.
 The accused blamed the antipsychotic agent Seroquel for having caused the hallucinations that he reportedly experienced during the time period encompassing the offences. This medication is used to treat psychotic symptoms and perceptual disturbances, including auditory hallucinations and would not cause them.
 Given the above, his credibility and veracity of his self-report is highly suspect, including his assertion that he was responding to command hallucinations that directed him to push the victims onto the subway tracks.
 Upon arrival at CAMH on February 20, 2009, the accused was seen by Dr. Blumberger, the admitting physician who noted under diagnostic impressions:“‘jyIr. De Oliveira is a 48 year old male with a history of major depression, possible generalized anxiety disorder and panic attacks, who discontinued his medication in April:2008 and reportedly experienced a major depressive episode. It appears as if he
developed a severe worsening and psychosis associated with his depression. It is unlikely that the medication caused the psychosis, but rather his symptoms became too severe and treatment was instituted too late. Currently, he denigs all psychotic symptoms. This may be related to him receiving a consistent dose of quetiapine while in jail, if in fact he received it.”
 The Crown called Dr. Percy Wright, a psychologist who was part of the CAMH multidisciplinary team. He first met with the accused to commence the psychological testing on March 11, 2009, almost one month after the offences. By this time, the accused had been receiving Effexor, Lorazepam and Olanzapine for some time. Dr. Wright thought it was 5 mg. of Olanzapine the accused was receiving but did not pay close attention to what dosages of medication he was receiving. He was not of the opinion that the medication the accused was taking would affect the results of the psychological testing other than in quite subtle ways. He did acknowledge that depression and sleeplessness could affect one’s energy to participate in testing. He was of the opinion that even if extremely paranoid, one would very much want to engage and explain one’s correct version of events. He 4Jld not kept notes of the amounts of time he spent with the accused and estimated them. He made very few notes. His report referred to “very brief interviews” with the accused.
 Of the 8 tests Dr. Wright wished to administer, the accused either declined to do them (in the case of 3 tests-the Rey Complex Figure Test, PAl and ADS) or his effort was suspect (in regard to 2 tests-the Bender and the WAIS III). The accused was administered the TOMM which Dr. Wright found suggested malingering cognitive impairment, the M-FAST which Dr. Wright found suggested malingering psychiatric symptoms and the SIMS which Dr. Wright found suggested over reporting of neurological, affective, psychotic, low intelligence and amnestic symptoms.
 Dr. Wright was cross-examined on why the psychological testing he performed did not include the SIRS test. He accepted that the text “Clinical Assessment of Malingering and Deception” by Richard Rogers was the most comprehensive text on the subject available to psychologists and is viewed as scientifically valid in the scientific community. He agreed with
p.67 of the text wherein it states: t.t
“Vitacco and Rogers (2005) have recommended comprehensive three-stage model for the detection of malingering in a correctional setting. Step 1 consists of an initial clinical screening evalution. Step 2 involves a systematic screening using brief instruments such as the MFast or SIMS. Step 3 calls for a comprehensive evaluation consisting of a review of records, validating measures (SIRS, PAl or MMPI-2) and several interviews. Although this approach is highly commendable, many correctional institutions will not possess the resources needed to carry out the three stages on a regular basis.
The finding that an inmate patient has malingering one or more symptoms of psychosis does not rule out the presence of true mental disorders … Kupers (2004) and Knoll(2006) have suggested some clinical indicators that caution against classifications of malingering(see Table 4.7). Inmates evidencing several of these indicators are likely to have a genuine disorder, irrespective of response style issues.”
 Dr. Wright further agreed with p.330 of the text wherein it states:
“Finally, the SIMS should not be used beyond its stated purpose as a screen for malingering. The definitive classification of malingering requires more comprehensive measures (eg.SIRS) and multiple sources of data(e.g.psychiatric and medical history).”
 Dr. Wright disagreed with the statement at p.321 that the SIRS test has been widely adopted as the gold standard and should be considered the strongest measure for feigned mental disorders. He testified that there was a sensitivity problem With the SIRS by which he meant that it was not sensitive enough. He testified that the SIRS test had been used at CAMH and his experience was that this measure missed very clear cases of malingering. The psychological testing performed in conjunction with Dr. Gojer’s assessment by Dr. M.Kalia included the SIRS test and did not indicate malingering.
 Dr. Wright conceded that a finding that an inmate patient has malingered one or more symptoms of psychosis does not rule out the presence of true mental disorders. On crossexamination, he testified if one does not observe bizarre behaviour during a 45 day assessment period, that is important. He testified that had the accused exhibited behaviour such as dancing nude on a toilet that absolutely could affect his opinion of malingering and that this was potentially psychotic behaviour. He had not read the notes from the Don Jail and was not aware that the accused was described as uncontrollable and had been observed dancing nude on the bed and toilet seat on February 19, 2009.
 Dr. Wright testified that psychosis is not a typical trajectory of depression and is suspect. He stated that he had seen it claimed many times but he had not actually seen it more than a few times.
 The Crown called Dr. Karim Eid, the accused’s family doctor since 1995. Dr. Eid is an extremely busy family physician. Nevertheless, he made time for the accused, even when he showed up without an appointment. In addition to treating the accused for physical ailments, he treated him for depression, sleeplessness and symptoms of anxiety. In December, 2001, he prescribed an anti-depressant, Effexor, which the accused took when he was given free samples and was less compliant when he had to pay for the prescription. He described the accused as appearing less depressed when he was taking the Effexor and more significantly disturbed when he was not taking it. He identified other factors which played a role in exacerbating the accused’s difficulties including relationship difficulties and financial strain. In 2007, Dr. Eid reported in his notes that the accused described himself as “getting crazy” when facing financial strain.
 Dr. Eid recorded in his notes that in April, 2007, the accused went to the emergency department and was hospitalized at Humber Weston, that he was hallucinating and had to be
strapped down in the hospital. Dr. Eid made an appointment for him to see a psychiatrist in May, 2007 but the accused left a message at his office that he did not want to go. Dr. Eid testified that he offered him a referral to a psychiatrist many times but the accused’s response was to say that he trusted him and that when Dr. Eid treated him, he got better.
 In October, 2007, Dr. Eid made a note that the accused was displaying agitated behaviour, paranoia, making a threat and cursing other people. He accused two women at different times of infidelity. Dr. Eid believed that he was paranoid and obsessive which he recorded in his notes on January 5, 2009. On that date, Dr. Eid recorded in his notes that the accused had stopped taking Effexor for 8 months because of erectile disfunction and that since stopping it, he had no erectile problems and was reluctant to go back on it. Although his notes do not reflect these facts, Dr. Eid asserted that he continued to advise the accused to seek a psychiatric consultation and advised him to use Cialis.
 The day after seeing Dr. Eid on January 5, 2009 where Dr. Eid noted that he was paranoid and obsessive and was not taking the Effexor, the accused lay on the subway tracks and was taken by the police to Toronto Western Hospital. He reported to the emergency department that he felt he was going to die, his mind was going crazy and he was unusually tight in his chest. When he was followed up at the Urgent Care Clinic at the Toronto Western Hospital, he told hospital authorities that he felt he was going to die and did not care, that he had knives in his chest, that this was the strongest panic attack he had had and he felt that his brain was not
 Dr. Mackenzie, a psychiatric resident, at the Urgent Care Clinic at Toronto Western Hospital prepared a report dated January 9, 2009. The report referred to seeing the accused in clinic after a serious, impulsive episode on January 6, 2009 where he lay on subway or streetcar tracks in the context of a likely conflict with his current girlfriend. He was diagnosed as having an adjustment disorder with anxiety, paranoid conduct, impulsive dramatic traits, relationship issues and few friends and other support. The report noted that the accused was quite adamant that he experiences no suicidal or homicidal ideation and that he has restarted his effexor which he finds very helpful. The plan for his care which was discussed with Dr. Eid and forwarded to him included:
1) referring him for an outpatient psychiatric assessment if Dr. Eid continued to have concerns about his mental state in the days and weeks to come; and
2) sending him for a risk assessment through Forensic Psychiatry (available through CAMH) if Dr. Eid had any concerns about his risk of violence toward himself or another ego his girlfriend.
 Dr. Eid saw the accused on 2 further occasions following his laying on the subway tracks, January 21, 2009 and February 2, 2009. The accused complained of panic attacks, sleeplessness, great anxiety and agitation. On neither occasion did Dr. Eid observe any hallucinations or psychosis and the accused denied feeling suicidal. On February 2, 2009, he prescribed the :lccllsed the anti-psychotic medication, seroquel.
 There is no evidence that Dr. Eid at any time provided a prescription for Cialis or that he arranged a psychiatric consultation or signed a referral for such a consultation (other than on the one occasion in 2007 referred to above). Dr. Eid believed the accused was functioning under his care and therefore a psychiatric referral was unnecessary nor did he think the accused would agree to go. He took comfort from Dr. Mackenzie’s assessment which Dr. Eid felt was consistent with his own opinion and treatment.
Submissions of the Parties
 The defence submits the following:
 The accused’s mental state at the time of the offences was so disordered by a disease of the mind (either major depression or major depression with psychotic episode) that he was unable to distinguish between moral right and wrong. Most evidence points in the direction of the accused meeting the Section16 criteria: the irrational nature of the crime, the observations by the civilian witnesses, the police and the videos of the accused at the time of the offences, the evidence of Ms. Prado of his increasing depression in January, 2009, the observation of the accused’s brother in Brazil who spent 28 days with him in December, 2008 that he was getting increasingly worse, the accused’s paranoia and obsession with unfaithfulness noted by Dr. Eid in January, 2009, his panic attacks, his loss of almost 10% of his weight, his laying down on the subway tracks and his bizarre behaviour as observed shortly after his arrest at the Don Jail and by Dr. Gojer. The Crown’s suggestion that the accused attacked the victims because they were young and happy and had everything to look forward to in their lives and he was angry is pure speculation.
 Dr. Rootenberg’s analysis is flawed because: (i) he failed to consider significant evidence; (ii) he relied upon flawed psychological testing; and (iii) early in the assessment, the accused was prescribed anti-psychotic medication. Dr. Rootenberg completed his assessment and concluded that the accused did not meet the Section 16 criteria without seeing the TTC surveillance tape of the accused at the scene, the other videos of the accused walking down Dufferin Street, the Don Jail records, the booking tape, the police interview tape, the tape of the interview of the accused by the police, the police notes and the witness statements.
 The purpose of the Court-ordered assessment was to assess whether the accused suffered from a mental disorder within Section 16, not to treat him by prescribing anti-psychotic medication prior to forming an opinion and thereby polluting the assessment. The absence of psychotic symptoms relied upon by Dr. Rootenberg is due to his failure to be thorough, to his discounting the accused’s talk of guards wanting to rape and burn him as a realistic fear of threats by the guards and by ignoring the observations of Dr.Gojer recorded in his February 19, 2009 report.
 Dr. Wright’s psychological testing is completely flawed because it did not begin until :lIl1 lost two weeks after the accused began to receive the anti-psychotic medication, Olanzapane, Dr. Wright had available only the material Dr. Rootenberg had, the accused only completed 3
tests and Dr. Wright did not use the SIRS test, considered the gold standard test for feigned
 It is inconsistent for Dr. Rootenberg to conclude that the accused was not experiencing a psychotic episode and yet prescribe anti-psychotic medication and continue to prescribe it for the accused on his discharge from CAMH.
 Foundational to Dr. Rootenberg’s conclusion that the accused was malingering and that he knew his conduct was wrong was the accused running from the scene yet Dr. Rootenberg did not have the videos and witness statements that suggested that the accused may have been running in response to the people screaming and pointing at him.
 If the Court finds that the accused does not fall within Section 16, the Crown has not established the specific intention necessary to prove attempt murder.
 The Crown submits the following:
 It is conceded that there is evidence the accused suffered from a mental disorder or disease of the mind as defined in Section 16 but it did not impact on the accused to the extent that it rendered him incapable of knowing that the acts he committed were morally wrong. The accused told Dr. Gojer in an interview in August, 2010 that he knew that if he jumped, he would be dead and that if he pushed the boys onto the tracks they could be hurt. Hence, the accused was aware of the consequence of his actions and made a choice to save himself.
 Exhibits 5(A),(B) and (C) , being the still pictures of the TTC surveillance tape which were taken within minutes of the offences, show the accused appearing to be of sound mind. In one of the pictures he appears to be looking back, suggesting awareness that he had done something wrong and was trying to get away. He waited until there was an oncoming train and then gave at least 5 pushes to the victims, suggesting deliberate acts. His nmning from the scene and his assaults on people chasing him show that he knew what he had done was wrong.
 Dr. Gojer agreed that a multi-disciplinary assessment at CAMH over a 45 day period was the gold standard and the best venue within which to conduct an assessment.
 The evidence supports that the accused was feigning: no reporting of auditory hallucinations on any prior occasion on which the accused received medical attention; the accused refusing to talk to Dr. Rootenberg about the acts he committed; the accused giving contradictory answers about the reported auditory hallucinations; and the accused’s readiness to talk about his difficulties.
 Dr. Gojer was selective when he attempted to find consistency in the accused’s different\’crsions of why he committed the offences and attempted to rationalize the inconsistent versions by saying that the accused was a poor historian. The inconsistent versions cannot be rationalized
and the Crown does not rely on the accused’s various accounts of what occurred.
 To members of the public, the accused appeared to be crazy because of what he had done. People do not want to think someone normal could do something so awful. Under section 16(2), the accused is presumed to be sane until the contrary is proved. Dr. Gojer started from the premise that the acts committed demonstrated mentally m:1behaviour and did not consider that the acts were committed intentionally or purposively. Dr. Gojer’s February 19, 2009 report was prepared at the request of the defence and is not objective. The accused’s own words for the most part have been interpreted by Dr. Gojer. He assumes that the perpetrator of the acts is psychotic as opposed to a starting assumption that the person is sane.
 The accused’s statements while he sat on the rock that he went to the doctor and the hospital and could not get medication were not irrational-he was announcing his problem and giving excuses. He did not say he heard voices or had hallucinations. His behaviour and demeanor was not consistent with a psychotic episode. His crying and intense sobbing in the police car and at the police station can be explained by his being very upset that he had been arrested for attempt murder. He was able to answer all sorts of questions when he was paraded. His comment about suicide has to be understood in the context of how unlikely a venue it was for this to occur. The observation of EDP (“Emotionally Disturbed Person”) in Officer Brian’s police notes has to be considered in the context of a seasoned police officer working in a division where there are a lot of mental health issues and her evidence that he was not on the severe end ,1 of EDP. The accused’s refusal to answer questions about the offences at his police interview is consistent with his evasiveness with Dr.Rootenberg and Dr. Wright and suggests he is aware of his dire legal predicament.
 The Crown called as witnesses Dr. Wright whose psychological testing and Dr. Eid whose background as the accused’s family doctor were relied upon by Dr. Rootenberg in his assessment. This reduces the frailty of relying on second hand evidence. In contrast, the psychologist utilized by Dr. Gojer was not called as a witness and Dr. Gojer relied in large part upon Dr. Rootenberg’s assessment and upon Ms. Prado. Ms. Prado knew nothing of the accused’s suicide attempt or subsequent assessment by Dr. Mackenzie. This shows that the accused can feign normalcy.
 Dr. Gojer concluded that the fact Dr. Eid prescribed the anti-psychotic drug Seroquel for the accused was evidence that the accused was psychotic. Dr. Eid’s evidence, however, was that he prescribed Seroquel to treat the accused’s depression. The accused did not want to take ErTexor because of the side effect of impotence and did not ,want to take Cialis because it was too expensive.
 Dr. Gojer challenged Dr. Rootenberg’s assessment on a number of grounds:
1) Anti-psychotic medication was prescribed for the accused which potentially masked symptoms. However, the CAMH assessment had 2 fairly fulsome interviews with the accused and opportunity to observe him prior to the commencement of the Olanzapane and the accused was inconsistent in his reporting of hallucinations prior to starting on Olanzapane.
2) Dr. Rootenberg should not have relied upon Dr. Wright’s opinion that the accused was malingering. However, very little weight should be accorded to Dr. Kalia’s psychological testing relied upon by Dr. Gojer based on Dr. Wright’s evidence that the accused could have learned from the prior testing and his disagreement with Dr. Kalia’s interpretation of one of his tests which overemphasized psychotic symptoms.
3) Dr. Rootenberg did not have all the records prior to rendering his opinion. However,he has now viewed all the videos, audios, records and read the transcripts of the witnesses’ evidence from the preliminary inquiry and his opinion remains the same.Based on Dr. Rootenberg’s evidence, very little weight should be accorded to the evidence of the civilians.
 The intention to murder does not require planning. While his acts may have been impulsive, he intended to kill and the elements of attem1?,t murder have been made out. The accused should be convicted of attempt murder.
The Legal Question
 In R. v. Dammen (1994) 2 S.C.R.507, Justice McLaughlin cites the following passage from “Insanity as a Defence” (1965-66), 8 Crim.L.Q.240 by G.Arthur Martin, Q.C.(later Martin lA.) at p.246:
29 In considering whether an accused was, by reason of insanity, incapable of knowing the nature and quality of the act committed by him, or that it was wrong, the legally relevant time is the time when the act was committed. The accused may by a process of reconstruction after committing some harmful act realize that he has committed the act and know that it was wrong, That is not inconsistent with an inability to appreciate the nature and quality of the act or to know that it was wrong at the moment of committing it.
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. In such a situation the accused would be exempt from criminal liability.
Justice McLaughlin states:
21 A review of the history of our insanity provisions 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 acts.
The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not. The inability to make a rational choice may result from a variety of mental disfunctions; as the following passages indicate these include at a minlh1um the states to which the psychiatrists
testified in this case-delusions which make the accused perceive an act which is wrong as right or justifiable, and a disordered condition of the mind which deprives the accused of the ability to rationally evaluate what he is doing.
 An accused will be abler to invoke the insanity defence successfully under Section 16(2) if he can establish that he was incapable of knowing that the act in question was morally wrong in the particular circumstances. (See R. v. Chaulk  3 S.C.R.1330, per Cory J. at paras.l11-114).
 For reasons that I am about to elaborate, I have concluded that the accused has satisfied me on the balance of probabilities that he is not criminally responsible. My reasons for reaching this conclusion are these:
 Dr. Gojer provided what I found to be a compelling explanation for the accused’s conduct. The commission of a crime with no motive on strangers in a public place is bizarre conduct. He described a series of events with the accused cascading more and more out of control, culminating in a psychotic episode during which the offences occurred. He testified to the accused’s suffering from a lengthy history of depression, the symptoms of which resumed and were exacerbated when he discontinued taking his anti-depressant medication, Effexor, seven or eight months prior to the events on February 13, 2009. On the other hand, Dr. Rootenberg was unable to provide any cogent explanation for the accused’s conduct.
 Both Dr. Gojer and Dr. Rootenberg agreed that the ‘accused met the criteria for suffering a major depressive episode at the time of the offences. In the months leading up to February 13, 2009, family members and his girlfriend observed his condition to deteriorate and his depression to worsen. In the month preceding the February 13, 2009 offences, he became obsessive and paranoid about his girlfriend cheating on him as noted by his family doctor. There was no basis for the accllsed’ s belief that Ms. Prado was cheating on him. He was unable to sleep, had panic attacks and lost weight. His girlfriend testified that he was shaking all over on January 5, 2009 and was taken by ambulance to Humber Hospital for what was diagnosed as a panic attack. The following day, he lay down on the subway tracks. When he was taken to the emergency department, he reported that he felt he was going to die, his mind was going crazy and he was unusually tight in his chest. When he was assessed at the Urgent Care Clinic at the Toronto Western Hospital, he told hospital authorities that he felt he was going to die and did not care, that he had knives in his chest, that this was the strongest panic attack he had had and he felt that his brain was not stopping. In reaching his conclusions, Dr. Gojer was alive to the presumption of sanity in Section 16. I am satisfied that he approached his assessment with an open mind, and mindful of the presumption of sanity. He did not begin with a presumption of insanity in explaining the accused’s conduct.
 Dr. Gojer and Dr. Blumberger, who saw the accused closest in time after the date of the offences (6 days and 7 days after respectively), both formulated preliminary diagnoses of a severe worsening of depression and psychosis associated with it. Dr, Rootenberg acknowledged that Dr. Gojer’s observations of the accused on February 19,2009 were accurately reported.
 I have concluded, with respect, that Dr. Rootenberg’s approach to analyzing the accused was flawed. The accused was treated with anti-psychotic medication 6 days after he was admitted to CAMH. The accused was assessed while under the ameliorating effects of this medication, the dosage of which was doubled 4 days later. Dr. Rootenberg acknowledged on cross-examination that Olanzapane had the potential to alleviate psychotic symptoms. In fact, after the accused began to receive anti-psychotic medication, he ceased to maintain that he was hearing voices or auditory commands and his bizarre behaviour ended. I accept as valid the criticism of Dr. Gojer that the assessment should have been carried out before he was medicated if one were seeking to understand his condition at the time of the commission of the events.
 I also find it inconsistent to assert that the accused was not experiencing a psychotic episode when the decision was made to treat him with anti-psychotic medication. Dr. Rootenberg testified that he would not prescribe anti-psychotic medication unless there were overt psychotic symptoms. On 3 of the 7 occasions Dr. Rootenberg saw the accused, he prescribed anti-psychotic medication. On February 26, 2009, he saw the accused who talked of seeing dead people and of the guards and inmates wanting to rape and bum him. Notwithstanding that he prescribed him 5 mg. of Olanzapine daily at this time, Dr. Rootenberg in his testimony dismissed this as evidence of paranoia or delusions, stating that guards commonly ,1 threaten inmates. Although in general there may be cases where there are threats of violence by guards against prisoners, it is much more likely on the facts of this case, in the absence of any evidence of any actual threats, and considering the accused’s behaviour while in the Don Jail, that these were paranoid delusions. Four days after starting the accused on anti-psychotic medication and just before Dr. Rootenberg left for a 2 week period required by other commitments, he upgraded the dosage to 10 mg. daily. On March 19, 2009, there was a Code White at CAMH (used where there are staff or patient safety issues) as a result of the accused becoming very agitated, climbing up and banging his head on the windowsill and stating that he wanted to die. At that time, Dr. Rootenberg issued instructions for the accused to receive additional anti-psychotic medication of 5 mg. of Olanzapine every 4 hours on an as needed basis.On March 31, 2009 Dr. Rootenberg completed his assessment and concluded that the accused was malingering and should continue to receive antidepressant and anxiety reducing medication but not anti-psychotic medication. Yet, on his cross-examination, it was disclosed that when the accused was discharged from CAMH around the same time, Dr. Rootenberg recommended that the accused continue to receive 10 mg. of Olanzapine daily. The accused did in fact continue to receive 10 mg. of Olanzapine in the Don Jail until the daily”posage was increased to 12.5 mg. on July 5, 2009 and to 15 mg. on August 13, 2009. If the view was not seriously held that he had psychotic symptoms, it seems to me that he would not have been treated with anti-psychotic medication and he would not have been prescribed an increase in the dosage.
 Dr. Rootenbcrg accepted as a diagnostic possibility that the accused was suffering from a Vfajor Depressive Illness with psychotic features and then rejected it as less likely because of what he concluded was a clear pattern of malingering demonstrated by the accused during his ~lssessment. FIe testified that he only came to the diagnosis of malingering after Dr. Wright did the psychological testing later in March, 2009. By the time Dr. Wright met with the accused for the tirst time, he had been on anti-psychotic medication for approximately 2 weeks.
 Dr. Rottenberg’s reasons for concluding that the accused was malingering can be summarized as:
1. Upon being admitted to CAMH, the accused reported having hallucinations or hearing voices telling him to kill himself or kill someone else. He had not reported this previously to anyone, including his family doctor or Toronto Western Hospital. He was evasive and gave contradictory answers about the reported auditory hallucinations.
2. The accused was found to be task avoidant in completing the psychological testing.
3. The accused was unable to explain why he ran from the subway platform after pushing the victims onto the tracks which was inconsistent with responding to hallucinatory ~1 voices.
 I found Dr. Gojer’s evidence on the issue of the accused’s malingering and his conclusion to the contrary to be compelling. He posited reasonable alternate explanations for what Dr.Rootenberg concluded was malingering by the accused. For example, Dr. Gojer testified that by the time Dr. Wright performed the psychological testing, the accused had been started for the first time on Olanzapine, an antipsychotic drug which tends to cause sleepiness and lethargy and he was re-started on Effexor which he had been off for many months. These facts and the fact that he was suffering from a major depressive illness could also explain why he did not fully engage in or complete the psychological testing. Dr. Gojer testified that the fact that the accused first said he had hallucinations and later described it as thoughts rather than voices can be attributed to a number of factors other than malingering: his lack of sophistication, lack of education, language difficulty, inability to describe what was happening to him and to the masking of symptoms by the drugs he was prescribed during the CAMH assessment. He testified that it would have been difficult for the accused to feign his behaviour as described by the various observers at the time the acts were committed. ,1
 I find the conclusion that the accused was malingering to defy common sense. The various witnesses to the offences described the accused as having a blank expression on his face,eyes glazed, having something wrong with him mentally, mumbling, crying, looking blankly through the person, showing no emotion, uncoordinated and very unnatural in his movements.Detective Brian made a notation in her notebook of “EDP”, short for Emotionally Disturbed Person. Although she attempted to minimize this in her testimony by saying that the accused was at the low end of the scale, this was not reflected in her notes. The booking video and interview video show the accused with eyes downcast. Upon admission to the Don Jail following the offences, he was put on suicide watch. The evidence of those who observed the accused during and after the attack is relevant to the assessment of his mental state. (R. v. Wade (1994) 0.1.543 (OnLC.A.) at para.79). I find the witnesses’ impressions are reliable and the T.T.C. still pictures are not inconsistent with the witnesses’ evidence. It would be mere speculation to interpret the still pictures in the fashion contended for by the Crown. Dr. Rootenberg did not take into account the description of the accused’s appearance at the time of the offences which supports the conclusion of Dr. Gojer. ,Dr. Rootenberg did not factor in the n.:actions and impressions of the witnesses and the police. These are relevant not only to whether
the Section 16 criteria are satisfied but also to the issue of the accused’s feigning. The failure to consider this evidence militates against the reliability of Dr. Rootenberg’s conclusion.
 One might have expected the accused if he was malingering to continue to say he heard voices. He did not. After initially saying that he heard command voices which told him to commit the offences, he later denied that he heard voices then or later. When he was first interviewed by Dr. Gojer, he denied any history of ment&l illness although he had a lengthy history of depression. When he was interviewed by Dr. Blumberger, he denied any family history of psychiatric illnesses although he had several family members who suffered from mental illness including a sister who was institutionalized for schizophrenia and despite using Olanzapane, showed “auditive delusions and primary delirium”. When he was tested by Dr.Wright and asked the question: “People can put thoughts in my mind against my will”, he answered “False”.
 I tlnd that the accused’s behaviour leading up to, during and shortly after the February 13, 2009 incident is consistent with the accused suffering from a major depressive illness with a psychotic episode and is inconsistent with and not explained by a conclusion that the accused was malingering. Dr. Rootenberg’s conclusion does not explain or account for the accused’s lengthy history of depression, his family history of schizophrenia and psychosis with its genetic predisposition, the well-known side-effects of going off anti-depressant medication, the change in his behaviour described by his significant other, Ms. Prado, his paranoia about her infidelity, his increased attendances to seek medical help in January and February, 2009, his laying down on the subway tracks in January, 2009 and his statement to the medical authorities at Toronto Western Hospital where he was subsequently taken that he “had knives in his chest” and he “felt desperate for help. My brain is not stopping.”
 Dr. Rootenberg chose to infer that the accused’s leaving the scene as awareness of guilt i.e. he knew what he was doing was morally wrong. However, the other inference that arises is that the crowd was screaming and pointing at him and he ran away in response to the crowd’s behaviour which is consistent with witnesses describing him as walking at a normal pace down the street and sitting on the rock outside the PizzaHut, waiting for the police to arrive. This latter inference is a rational one. At the time Dr. Rootenberg completed his assessment, he had no information with respect to the reaction of the crowd or the people screaming. The failure to consider these facts casts doubt on his conclusion. Additionally, in preparing his assessment, Dr. Rootenberg did not have relevant and material evidence of the accused’s behaviour in the Don Jail such as his being uncontrollable and dancing nude on his bed and toilet. Those notes were available to the Crown and were highly relevant to the accused’s behaviour shortly after the offence occurred. Dr. Rootenberg chose to render his opinion prior to receiving and reviewing the notes. I do not give any weight to his testimony that this evidence would not have changed his opinion when he did not consider it at the appropriate time.
 In my respectful opinion, Dr. Eid was shocked by what the accused did and was anxious to detlect any criticism of his role as his physician. Hence his evidence with respect to recommending Cialis and offering many times to refer the accused to a psychiatrist. I do not believe this evidence. It is not cOIToborated by his notes which should have reflected a prescription or a referral. Moreover, it does not seem likely that Cialis would be prescribed to a
patient who cannot afford Effexor. It is to be regretted that after the incident in January, 2009 when the accused lay on the subway tracks and the assessment at Toronto Western Hospital, that he was not referred to a psychiatrist for ongoing monitoring and treatment. Nevertheless, Dr. Eid did his best. He is not a psychiatrist and as I have noted he was very busy. He did not fully understand the accused’s condition which was complicated and confusing because of its multifaceted aspect: adjustment disorder; depression; anger; paranoia; hallucinations, psychosis, dc. He had no reason to anticipate that the accused would commit these acts and what happened is not his fault. Dr. Eid’s evidence does not detract from the conclusions of Dr. Gojer.
 I formed the impression in listening to Dr. Wright’s evidence that he approached his task with a bias, namely that he believed that most people who presented with major depression with a psychotic episode were feigning. His rejection of the standard test for determining malingering was based on his view that too many malingerers escape. This reasoning is circular. Section 16 issues are extremely important both to the accused and the public. A fact specific inquiry is necessary. All relevant facts must be considered. In this case, Dr. Wright did not consider all relevant facts. His refusal to recognize the impact of the medication and of the accused’s illness on his ability to perform the tests seemed to me to flow frdin his bias that persons with a major depressive illness and a psychotic episode are malingering. Those facts which militate against his preconceived view are ignored. For example, he concluded that the CAMH staff had overreacted to the accused’s behaviour in calling a Code White. He refused to acknowledge that anti-psychotic medication which was being administered to the accused is designed to relieve the symptoms of psychosis, an uncontrovertible fact. While conceding that bizarre behaviour observed during the assessment period would have been important and could have affected his opinion of malingering, he did not take into account the accused’s bizarre behaviour at the Don Jail because he was completely unaware of it.
 Dr. Wright also fastened on the accused’s conclusion that the anti-psychotic medication, Seroquel, had caused the voices. Dr. Wright’s opinion was that because Seroquel did not cause the voices, therefore the accused is malingering. This reasoning is flawed. The fact that the accused drew an inaccurate connection about the cause of the voices does not mean that these voices did not exist. It is not uncommon for people to search to explain phenomena such as their medical conditions. For the accused to conclude that the,yoices were caused by the Seroquel because the voices occurred after he took it is typical human reasoning which is often mistaken. j’\ conclusion of malingering from a mistaken self-diagnosis of causation is plainly wrong. All in all, I was left with the impression that Dr. Wright did not have an open mind and that his conclusions about malingering were not reliable.
 I find that at the time he committed these acts, the accused’s mind was devoid of any thoughts other than pushing the victims or killing himself. His thought processes were impacted at that time to such an extent that he was unable to weigh the pros and cons of his actions and was incapable of appreciating that what he was doing was morally wrong.
 In the result, although the accused committed the acts alleged against him, he has satisfied me on a balance of probabilities that he was at the time suffering from a mental disorder
so as to be exempt from criminal responsibility on all charges pursuant to section 16(1) of the Criminal Code.
Released: October 25,2010
20 CITATION: R. v. De Oliveira, 2010 ONSC 5847
COURT FILE NO.: 0491
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
ADENIR De OLIVEIRA
Reasons for Judgment of Backhouse, J. delivered October 25,2010
Released: October 25,2010