R. v. Arfmann

2020 BCSC 110 R. v. Arfmann

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Arfmann, 2020 BCSC 110 Date: 20200130 Docket: 67330 Registry: Chilliwack Regina v. Oscar Ferdinand Arfmann Restriction on Publication: Pursuant to s. 486.5(1) C.C.C. Pursuant to s. 486.5(1) of the Criminal Code there shall be no publication, broadcast or transmission in any way of any information that could identify any undercover police officers including any pseudonyms used by the undercover police officers involved in the investigation of the accused. A publication ban has been imposed pursuant to the inherent jurisdiction of the court prohibiting the publication, broadcast or transmission in any way, of any reference made in the course of submissions to the content of exhibits B, C, D and E of affidavit No. 1 of S. Lowe, sworn November 22, 2019, which are sealed. These publication bans apply until further order of the Court. These reasons for judgment comply with these publication bans. Before: The Honourable Madam Justice Ross Ruling with respect to NCRMD Hearing Counsel for the Crown: W.M. Stephen, QC T. Iandiorio Counsel for the Accused: F. Mahon M. Peters Amicus Curiae: J.M. Doyle, QC Place and Date of Hearing: New Westminster, B.C. January 13, 2020 Place and Date of Judgment: New Westminster, B.C. January 30, 2020 Table of Contents Introduction.. 4 Background.. 4 Legal Principles. 8 The Evidentiary Record..

15 Introduction [1] On January 13, 2020, the Court heard submissions with respect to the following questions: a) In circumstances in which there has been a verdict of guilty by the finder of fact but no conviction entered, does the court have jurisdiction to raise the issue of a not criminally responsible by reason of mental disorder ("NCRMD") disposition on its own motion where neither the Crown nor the defence raises the issue? b) If the court does have such jurisdiction, is it appropriate to exercise it in the circumstances of the present case? [2] I provided a brief oral ruling with reasons to follow declining to answer the first question and holding that if there was such jurisdiction, in my view this was not an appropriate case in which to exercise it. These are the reasons. Background [3] Oscar Arfmann was charged with the first degree murder of Constable John Davidson, a member of the Abbotsford Police Department, who was shot and killed on November 6, 2017, in the course of his duties. Mr. Arfmann was arrested and taken into custody shortly after the shooting where he has remained. [4] The Court made an order for an assessment pursuant to s. 672.11(a) of the Criminal Code, R.S.C. 1985, c. C-46, to address whether Mr. Arfmann was unfit to stand trial. At that juncture, Mr. Arfmann was not represented by counsel, having discharged the counsel who had been acting for him.

Counsel was appointed to represent Mr. Arfmann in relation to the issue of fitness to stand trial. [5] Mr. Arfmann was admitted to the Forensic Psychiatric Hospital for the purpose of the assessment, which was conducted by Dr. Johann Brink. Dr. Brink prepared a report dated July 18, 2018. Dr. Brink noted that Mr. Arfmann appeared to be suffering from some form of mental illness, but did not make a definitive diagnosis. He expressed the opinion that Mr. Arfmann: has a reasonable understanding of the nature and possible outcomes of the criminal proceedings against him. He is able to describe the roles and responsibilities of the major officers of the Court and believes that he will receive a fair trial. In my opinion, he would be able to communicate and instruct counsel. [6] Following the receipt of Dr. Brink's opinion, neither party sought a hearing on the issue of fitness and given his opinion, the Court did not direct a fitness hearing on its own motion. [7] Mr. Arfmann remained without counsel for an extended period. An order was made appointing amicus curiae. Mr. Arfmann retained his present counsel and a new trial date was set. With the agreement of all parties, the appointment of the amicus was extended and has continued to date. [8] Prior to the commencement of the trial, the defence applied for an order pursuant to s. 672.11(b) of the Criminal Code for an assessment of

whether Mr. Arfmann was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of s. 16(1). The order was granted and Mr. Arfmann was referred for an assessment. [9] Mr. Arfmann was admitted to the Forensic Psychiatric Hospital on April 24, 2019, for the assessment, which was conducted by Dr. Robert Lacroix. Dr. Lacroix provided a report dated June 30, 2019, in which he expressed the following opinion: Based on the available information, if it is found by the court that Mr. Arfmann committed the act in question, it is my medical opinion that on a balance of probabilities Mr. Arfmann: i. Was suffering from psychotic symptoms of Schizophrenia at the time of the alleged offence of November 6, 2017. ii. Despite suffering from psychotic symptoms, was capable of appreciating the nature and quality of his actions at the time of the alleged offence. iii. Despite suffering from psychotic symptoms, was capable of knowing the legal wrongfulness of his actions at the time of the alleged offence. [10] Dr. Lacroix noted that Mr. Arfmann denied that he had committed the offence and refused to discuss the offence. This made it difficult to give a definitive opinion with respect to his understanding of the moral wrongfulness of his actions. He suggested that: if it is established that Mr. Arfmann

committed the act in question and Your Ladyship finds that there is no reasonable reality-based motivation for the alleged offence, it would be reasonable to speculate that as a product of his psychotic symptoms Mr. Arfmann may have failed to rationally contemplate the moral wrongfulness of his actions. If this is found to be the case, Mr. Arfmann would satisfy the threshold required for a finding of NCRMD on the charge of Murder. [11] Dr. Lacroix also suggested that Mr. Arfmann might be more willing to discuss his thinking about the events of November 6, 2017, in the event that he was convicted. He suggested that the Court consider making an order for a further assessment in the event that Mr. Arfmann was found to have committed the offence. [12] The trial commenced on May 27, 2019. Mr. Arfmann did not put his mental condition at issue. He did not testify in the trial proper. The principle issue at trial was whether the Crown had discharged its burden of proof with respect to the identity of the person who shot and killed Constable Davidson. Mr. Arfmann was found guilty of the offence in reasons pronounced on October 10, 2019, indexed at 2019 BCSC 1618. [13] Following the verdict and before the conviction was entered, the defence applied for a further assessment of Mr. Arfmann's mental state at the time of the commission of the offence. That order was granted and Mr. Arfmann

was re-admitted to the Forensic Psychiatric Hospital on October 22, 2019, for a further assessment, which was conducted by Dr. Lacroix. A date was set for the trial of the NCRMD issue. [14] Dr. Lacroix provided the following opinion, which was essentially unchanged from his original opinion: Based on the available information, it is my medical opinion that on a balance of probabilities, at the time of the offence of November 2, 2017, Mr. Arfmann: i. Was suffering from psychotic symptoms of Schizophrenia. ii. Despite suffering from psychotic symptoms, was capable of appreciating the nature and quality of his actions. iii. Despite suffering from psychotic symptoms, was capable of knowing the legal wrongfulness of his actions. [15] Dr. Lacroix noted that Mr. Arfmann continued to deny that he committed the offence. Dr. Lacroix observed that: Mr. Arfmann's refusal to discuss the offence limits the ability to precisely link his psychotic symptoms with the offence. Despite this limitation, if it is determined that there is no reasonable reality-based motivation for the offence, one may infer from the totality of the available information, that as a result of his psychotic illness, on a balance of probabilities, Mr. Arfmann was unable to rationally contemplate the moral wrongfulness of his actions at the time of the offence. [16] Dr. Lacroix also noted that: One may conceptualize Mr.

Arfmann's motivation for committing the offence as being non-psychotic in origin. Mr. Arfmann was told directly by a witness that police were on their way. Constable Davidson was pursuing Mr. Arfmann in the stolen Mustang with red and blue police lights. He was dressed in a full working uniform of the Abbotsford Police Department. Mr. Arfmann's violent behaviour may be viewed as an impulsive act to avoid responsibility for having recently discharged his firearm moments before and stealing two vehicles. This would indicate that his rational decision-making capacity was not impaired by his psychotic beliefs. [17] Following the release of the report Mr. Arfmann's counsel advised the Court and the Crown that Mr. Arfmann did not intend to pursue an NCRMD disposition and wished to proceed directly to sentencing. He advised further that in his opinion Mr. Arfmann was fit to provide those instructions. Crown counsel advised that the Crown did not intend to raise the issue of NCRMD, and also wished to proceed directly to sentencing. [18] That was the situation that resulted in the hearing to address the question of the jurisdiction of the court, if any, to direct an NCRMD hearing on its own motion. The Court heard from the Crown and from the amicus. Mr. Arfmann did not make submissions on this issue. Legal Principles [19] The foundation for a NCRMD disposition is set out in s. 16 of the

Criminal Code, which provides: Defence of mental disorder 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. Presumption (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. Burden of proof (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. [20] As is evident from that section, the presence of a mental disorder is a necessary but not sufficient element of a finding of NCRMD. [21] The questions that are at issue in this hearing engage several principles that are fundamental to the criminal justice system. These principles were discussed by the Supreme Court of Canada in R. v. Swain, [1991] 1 S.C.R.

933. The central issue in Swain was whether it is inconsistent with the basic tenets of our legal system for the Crown to raise evidence of mental disorder over and above the wishes of the accused. The first basic tenet that is identified is that the adversarial system is a fundamental part of our legal system. As Chief Justice Lamer, as he was then, stated at 970-972: This Court has, on numerous occasions, acknowledged that the basic principles underlying our legal system are built on respect for the autonomy and intrinsic value of all individuals. In Re B.C. Motor Vehicle Act, supra, at p. 503, I referred to the principles of fundamental justice as: ... essential elements of a system for the administration of justice which is founded upon a belief in "the dignity and worth of the human person" (preamble to the Canadian Bill of Rights, R.S.C. 1970, App. III) and on "the rule of law" (preamble to the Canadian Charter of Rights and Freedoms). Similarly, in R. v. Morgentaler, [1988] 1 S.C.R. 30, Wilson J. stated, at p. 171: In my opinion, the respect for individual decision-making in matters of fundamental personal importance reflected in the American jurisprudence also informs the Canadian Charter. Indeed, as the Chief Justice pointed out in R. v. Big M Drug Mart Ltd., beliefs about human worth and dignity "are the sine qua non of the political tradition underlying the

Charter". This Court has also recognized the constructs of the adversarial system as a fundamental part of our legal system. In Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, Sopinka J., in analyzing the doctrine of mootness, stated, at pp. 358-59: The first rationale for the policy and practice referred to above is that a court's competence to resolve legal disputes is rooted in the adversary system. The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome. Similarly, in R. v. Hebert, [1990] 2 S.C.R. 151, at p. 195, Sopinka J. referred to "our accusatorial and adversarial system of criminal justice". The Ontario Court of Appeal has also acknowledged the adversarial process as an integral part of our system of justice. In Phillips v. Ford Motor Co. of Canada Ltd. (1971), 18 D.L.R. (3d) 641, Evans J.A. stated, at p. 661: A trial is not intended to be a scientific exploration with the presiding Judge assuming the role of a research director; it is a forum established for the purpose of providing justice for the litigants. Professor Weiler, in "Two Models of Judicial Decision-Making" (1968), 46 Can. Bar Rev. 406, at p. 412, has characterized the adversarial process as follows: An adversary process is one which satisfies, more or less, this

factual description: as a prelude to the dispute being solved, the interested parties have the opportunity of adducing evidence (or proof) and making arguments to a disinterested and impartial arbiter who decides the case on the basis of this evidence and these arguments. This is by contrast with the public processes of decision by "legitimated power" and "mediation-agreement", where the guaranteed private modes of participation are voting and negotiation respectively. Adjudication is distinctive because it guarantees to each of the parties who are affected the right to prepare for themselves the representations of the basis of which their dispute is to be resolved. [22] The second principle of fundament justice is the right of an accused person to control his own defence. This is an aspect of the respect of the autonomy and dignity of the individual. As Lamer C.J. states at 972: Given that the principles of fundamental justice contemplate an accusatorial and adversarial system of criminal justice which is founded on respect for the autonomy and dignity of human beings, it seems clear to me that the principles of fundamental justice must also require that an accused person have the right to control his or her own defence. The appellant has properly pointed out that an accused will not be in the position of choosing whether to raise the defence of insanity at his or her trial

unless he or she is fit to stand trial. If at any time before verdict there is a question as to the accused's ability to conduct his or her defence, the trial judge may direct that the issue of fitness to stand trial be tried before matters proceed further (see Criminal Code, s. 543, now s. 615). Thus, an accused who has not been found unfit to stand trial must be considered capable of conducting his or her own defence. An accused person has control over the decision of whether to have counsel, whether to testify on his or her own behalf, and what witnesses to call. This is a reflection of our society's traditional respect for individual autonomy within an adversarial system. In R. v. Chaulk, supra, I indicated that the insanity defence is best characterized as an exemption to criminal liability which is based on an incapacity for criminal intent. In my view, the decision whether or not to raise this exemption as a means of negating criminal culpability is part and parcel of the conduct of an accused's overall defence. [23] The final principle of fundament justice which is engaged in relation to this issue is that a person who had a mental disorder at the time of the offence ought not to be convicted under the criminal law if s. 16(1) applies. [24] The court in Swain resolved the balancing of these fundamental principles with the creation of a new common law rule. Pursuant to

that rule: a) The defence is entitled to put mental capacity at issue at any time, either before or after a finding by the trier of fact that the accused committed the offence; b) If the accused puts his mental capacity at issue in the course of the trial, the Crown is entitled to lead evidence in relation to that issue; and c) The Crown is entitled to raise the issue on its own motion after a finding by the trier of fact that the accused has committed the offence but, before the verdict is entered. [25] Pursuant to s. 672.12(1) of the Criminal Code, the court may make an assessment order at any stage of the proceedings. This, in my view, provides a significant safeguard with respect to the principle of fundamental justice that a person who had a mental disorder at the time of the offence as defined by s. 16 of the Criminal Code ought not to be convicted. Section 672.11 provides that such an order may be made where the court has "reasonable grounds to believe that such evidence is necessary to determine" one of the enumerated issues. Thus, it is clear that an evidentiary foundation is required as a basis for the assessment order. As Justice Wedge noted in R. v. Piette, 2005 BCSC 1724 at para. 57, the results of such an assessment may persuade one or the other of the parties to invoke the NCRMD defence. [26] A second important safeguard with respect to this principle is the role of Crown counsel. This role was described in Boucher v. The Queen, [1955] S.C.R.

16. The duty of Crown was set out by Justice Rand at 23-24: It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with a greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. [27] Thus, for example in R. v. Fluxgold, 2009 ONCJ 201, during the course of the trial neither the Crown nor the defence raised the issue of whether the accused was NCRMD. The court made an order for an assessment on its own motion. The author of the assessment expressed the opinion that the accused suffered from schizophrenia and that the NCRMD defence was available to him in relation to the charge of sexual assault. The Crown then stated that it was now raising the issued of whether the s. 16(1) defence was available to the accused. [28] In the case of the issue of fitness to stand trial, s.

672.23(1) of the Criminal Code expressly provides that the court may direct, on its own motion, a trial of the issue of whether the accused is unfit to stand trial. Again, the order requires an evidentiary basis of "reasonable grounds". There is no such express provision in relation to the court directing a trial of the issue of NCRMD on its own motion. [29] In Piette, the accused had been charged with a series of offences arising from his involvement in a driving incident. Neither Crown nor defence put NCRMD at issue. The trial judge ordered an assessment on her own motion over the objection of defence (at para. 20). Subsequent to the report, the trial judge entered a verdict of NCRMD over the objection of both Crown and defence (at paras. 2, 23-26). On appeal, Justice Wedge concluded that the trial judge had erred in so doing: [61] The trial judge in the present case faced challenging circumstances. There was the bizarre but honestly-held belief of Mr. Piette as to what had occurred on the day in question, the evidence of witnesses with respect to the accused's strange behaviour, and the puzzling evidence of medical professionals who treated the accused shortly after the collisions. The trial judge was confronted with the position of both the Crown and the defence that the mental capacity of the accused was not in issue. In the face of these circumstances, the trial judge

ordered the assessment by Dr. Levy. Even after receiving this assessment, both parties maintained their position that mental capacity was not in issue. The trial judge clearly felt she had no option but to raise the issue independently and reach a verdict of NCRMD. [62] However, I am persuaded that the trial judge, by intervening in this way, deprived Mr. Piette of his constitutional right to control the conduct of his defence at trial. His fitness to stand trial was not in question. He was entitled to the presumption of mental capacity as provided for under s. 16(2), and he chose to rely on that presumption. Neither party wished to raise the issue of Mr. Piette's mental capacity. As a result, s. 16(3), which assigns the burden of proof to the party raising the issue, was not engaged. [63] Since the defence of mental incapacity was not raised by either party, the burden was on the Crown to prove both actus reus and mens rea. The Crown acknowledged that it had failed to prove the essential ingredient of mens rea, and no finding with respect to that element of the offence was made by the trial judge. [64] Had the issue of mental capacity not been raised independently by the Court, Mr. Piette might have received an outright acquittal. As observed by Wilson J. in Swain, therein lies the danger of the old common law rule depriving an accused of the right to control the conduct of

his defence. [30] The court in Fluxgold questioned Piette. However, that case is not persuasive because the decision does not provide any reasons for that conclusion and, in any event, it was obiter dicta for the reason noted above at para. 27. [31] In R. v. Harvey, 2014 BCSC 1692 at paras. 24-27, aff'd 2016 BCCA 149, Justice Humphries referred to both Piette and Fluxgold. However, like Fluxgold, the court "was saved from having to decide whether to raise NCRMD itself because" Crown advanced s. 16. [32] Justice DeWitt-Van Oosten, as she was then, in R. v. Whitlock, 2017 BCSC 1998 at para. 9, put the state of the law regarding NCRMD in more explicit terms, citing Harvey and Piette for the proposition that "[t]he Court has no jurisdiction, of its own accord, to make such a determination". In Whitlock, the court ordered an assessment after the Crown applied pursuant to s. 672.11(b), following a finding of guilt on a charge of second degree murder. The report was equivocal and the Crown ultimately did not pursue a NCRMD verdict, see paras. 7-9. [33] In my view Harvey does not stand for the proposition that the court has no jurisdiction to order an NCRMD hearing on its own motion. Justice Humphries did not rule on that question. Moreover she noted important distinctions between the circumstances of both Piette and Fluxgold and the case before her. [34] In R. v. Rooney (J.J.) (1995),

126 Nfld. & P.E.I.R. 68 (P.E.I.S.C.T.D.), the Crown had initiated the proceeding to determine criminal responsibility. However, at paras. 4 and 5, Justice Jenkins noted that had the Crown not taken this step the court would have initiated a NCRMD hearing and the Crown would have still had the burden under s. 16(3). In the trial judgment, R. v. Rooney (J.J.) (1994), 126 Nfld. & P.E.I.R. 17 (P.E.I.S.C.T.D.), with respect to a s. 16 hearing, Justice Jenkins said: [190] Our system of criminal justice is based on the principle that people are responsible for their acts. Those who choose to disobey the law are subject to punishment. However, the law exempts from criminal responsibility those who are incapable of making a rational choice due to mental disorder. Where there is some evidence upon which the finder of fact could conclude the accused is mentally disordered, the Court should ensure the issue is raised before conviction. Responsibility for the administration of justice involves maintaining the integrity of the process. Following Swain, where the accused chooses not to raise mental disorder within the trial, and it does not through the trial itself become an issue, the Crown or the Court should raise the issue, and the Court should hear and determine the issue, after the verdict and before the conviction. [191] The new Criminal Code amendments do not fully address the process

for determination of the issue of criminal responsibility. The details of administration appear to be left, with the Attorney General to formulate guidance for the Crown prosecutors, and for the Court to govern the hearing process in accordance with the Criminal Code requirements. See Tollefson and Starkman: Mental Disorder in Criminal Proceedings at pp. vii, 13, 32 and 35-38. [35] Justice Jenkins appears to develop the court's jurisdiction to act on it own motion from Swain. This analysis is not as reasoned as that of Justice Wedge in Piette, which is of this court, has been followed in Whitlock, and is potentially binding in this matter, see Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 at 592-93. [36] There is, however, an important factual distinction between the circumstances of the present case and those in Piette. In that case, the court's intervention took place before a finding that the accused had committed the offence, thereby, as Justice Wedge notes, depriving the accused of the possibility of an acquittal. However, in the present case there has been a finding of guilt. Moreover, given the offence at issue is the first degree murder of a police officer acting in the course of his duties, the sentence is mandatory. There is no discretion to consider the issue of mental disorder as an aspect going to the appropriate sentence. [37] I am mindful of the Ontario Court

of Appeal's position that, at the appellate level, a court may consider NCRMD on its own motion. As stated in R. v. Pietrangelo, 2008 ONCA 449 at para. 78: The law recognizes that it may be in the public interest to permit the Crown to raise the issue of NCRMD for the first time on an appeal by the accused. There is ample authority for the proposition that the issue of NCRMD can be raised on such an appeal, over the objections of the accused, by the Crown or by an appellate court on its own motion: see R. v. Irwin (1977), 36 C.C.C. (2d) 1 (Ont. C.A.); R. v. Ta (2002), 164 C.C.C. (3d) 97 (Ont. C.A.). [Emphasis added.] [38] This was cited with approval by the Alberta Court of Appeal in R. v. Hasad, 2015 ABCA 338 at para. 9, where the court said "it is open to this court to consider the NCR defence, on its own motion, once a guilty verdict has been rendered - provided it is in the interests of justice and the community to do so". However, the court determined the principle was inapplicable. [39] Much like Fluxgold and Rooney, the analysis in Pietrangelo, and the line of cases the court relies on, with respect to the court's jurisdiction to embark on a fresh NCRMD hearing is not as robust as Piette to the contrary. [40] In my view, the question of whether a court can, on it own motion, embark on a NCRMD hearing is unresolved as it relates to the circumstances in the present case.

Nevertheless, the issue before the Court can, and should, be resolved without addressing that question. The Evidentiary Record [41] Assuming without deciding that the court does have jurisdiction to direct an NCRMD hearing on its own motion, in my view there must be some evidentiary basis to support such an exercise of discretion, at a minimum the "reasonable grounds" provided for in ss. 672.11 and 672.23. [42] I have concluded that no such reasonable grounds or evidentiary basis is present in the circumstances of this case. I note that: a) There is no medical opinion that Mr. Arfmann falls within the scope of a s. 16(1) NCRMD disposition; b) The Court heard from many witnesses to the events, including civilian witnesses, police who attended at the scene of Mr. Arfmann's arrest and Russell Podmerow, a paramedic who attended at the scene of the arrest. None of this testimony put Mr. Arfmann's mental capacity at issue; c) Mr. Arfmann exercised his right of silence and did not testify in the trial proper. In both assessments conducted by Dr. Lacroix he denied committing the offence and refused to discuss the circumstances. [43] In his first report, Dr. Lacroix invited the Court to speculate that as a product of his psychotic symptoms, Mr. Arfmann may have failed to rationally contemplate the moral wrongfulness of his actions. However, a court is not entitled to speculate. In the

second report, Dr. Lacroix suggests that if it is determined that there is no reasonable reality based motivation for the offence, one may infer that as a result of his psychotic illness, Mr. Arfmann was unable to rationally contemplate the moral wrongfulness of his actions. [44] The issue of the motive for the offence was addressed at trial, albeit in the context of the issue of identity. It was addressed as follows in the reasons, indexed as 2019 BCSC 1618: [180] Motive is not an essential element of the offence. However, evidence of motive is a relevant factor in relation to the issue of identity. Case law has established that proven absence of motive may raise a reasonable doubt: see, e.g. R. v. Ruffolo, 2010 BCSC 1630 at para.

671. In Lewis v. The Queen, [1979] 2 S.C.R. 821 at 835, Dickson J., as he then was, noted that "proved absence of motive is always an important fact in favour of the accused and ordinarily worthy of a note in a charge to the jury". [181] Counsel for the defence submits that in the present case there is a proved absence of motive given that there is no evidence to suggest that Mr. Arfmann and Constable Davidson were known to one another, citing R. v. Thompson (1992), 83 C.C.C. (3d) 273 (B.C.C.A.). Counsel submits that given the circumstantial nature of the case, the proved absence of motive is a critical factor, citing Markadonis v. The King, [1935] S.C.R. 657 at 665. [182] The cases distinguish between a proved absence of motive and an absence of a proven motive. In my view this is not a case of a proved absence of motive. Defence argues that Mr. Arfmann and Constable Davidson were strangers and I accept that there is no evidence that they were personally acquainted. However Constable Davidson was responding to calls concerning a stolen vehicle and shots fired in the business complex. Mr. Arfmann had stolen that vehicle. There is evidence, which will be addressed later in these reasons, that he had fired those shots. Moreover there is evidence that the person who fired the shots had been told by Mr. McDonald that the police were on their way. Thus while they were strangers in

relation to their personal lives, there is evidence that the two were related as suspect and responding officer. [183] As Dickson J. noted in Lewis, the issue of motive ranges on a continuum. In the present case I do not conclude that this relationship amounts to evidence of a motive to murder. However the absence of a personal relationship or evidence of motive arising from such a relationship does not give rise to a reasonable doubt in the circumstances of the present case. [45] The defence did not use the same language as Dr. Lacroix - "proven absence of motive" on the one hand and "no reasonable reality-based motivation" on the other. However, what is clear is that the Court did not agree based on the evidence adduced at trial that there was a proven absence of motive. Given that the Court has already heard the evidence of the witnesses to the events, the only evidence which could cast further light onto this issue is Mr. Arfmann, but he is not a compellable witness. [46] As noted above, the issue of the court's jurisdiction in these circumstances raises important constitutional principles of fundamental justice. In my view, the jurisdiction question after a finding of guilt should be determined in a case in which the court would exercise such jurisdiction to order a hearing on its own motion. This is consistent with the principle of restraint in constitutional cases, see Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R.

97. In that case, Justice Sopinka described the policy as follows, at para. 9: The policy which dictates restraint in constitutional cases is sound. It is based on the realization that unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen. [47] In the result, as noted, I have concluded that I would not direct a hearing into Mr. Arfmann's mental capacity on the Court's own motion in the circumstances of the present case. I therefore decline to express an opinion with respect to the issue of the court's jurisdiction. "Ross J."