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Criminal - NCR - Qualified Practitioners. R. v. Pereira
In R. v. Pereira (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here in a murder trial where the "primary issue was whether the appellant was not criminally responsible (“NCR”)", but the defendant was found guilty (and thus criminally responsible).
Here the court asks whether a psychologist's evidence could be considered toward an NCR finding where the "Attorney General has not designated psychologists to complete NCR assessments" (only psychiatrists) [under CCC 672.1]:(3) The trial judge did not err in his treatment of the evidence of Dr. Pomichalek
[39] As set out above, the trial judge considered and rejected the evidence of the defence’s expert psychiatrist, Dr. Gojer, expressing serious concerns about his lack of objectivity.
[40] The appellant does not argue that the trial judge erred with respect to his assessment of Dr. Gojer’s evidence or his decision to disregard it for the reasons set out above. Rather, the appellant asserts that the trial judge erred by not considering the evidence of a psychologist, Dr. Pomichalek, whose assessment of the appellant was conducted in conjunction with Dr. Gojer.
[41] Dr. Pomichalek’s assessment was that the appellant likely was NCR. According to the appellant, Dr. Pomichalek played a key role within the appellant’s trial, testifying for over two days, and preparing a 60-page psychological report (that was filed as an exhibit at trial) based on extensive interviewing and testing of the appellant. In particular, the appellant argues that the trial judge failed to consider the implication of the appellant being at “very close to the upper limit of Mild Intellectual Disability range” and that his memory was at an “extremely low range”.
[42] The Crown argues that the trial judge properly considered the substance of Dr. Pomichalek’s evidence, but contends that Dr. Pomichalek was not eligible to complete an NCR assessment on his own. Dr. Pomichalek is a forensic and clinical psychologist. Section 672.1 of the Criminal Code requires that an NCR assessment only be completed by “a medical practitioner or any other person who has been designated by the Attorney General as being qualified to conduct an assessment of the mental condition of the accused”. In Ontario, the Attorney General has not designated psychologists to complete NCR assessments. Dr. Pomichalek, as part of a team of experts, was to perform psychological testing which would contribute to the NCR assessment report written by a psychiatrist, Dr. Gojer. According to the Crown, it would not have been appropriate for the trial judge to rely on Dr. Pomichalek’s final NCR conclusion.
[43] It is apparent from his reasons that the trial judge did not ignore Dr. Pomichalek’s evidence. For example, at para. 70 of his reasons, the trial judge states, “[t]he psychological testing done on Mr. Pereira shows he has a very poor short-term memory and is functioning at a very low level.” Given that the defence relied on Dr. Gojer’s assessment of the appellant, it was appropriate that the trial judge focused on Dr. Gojer’s evidence.
[44] Finally, with respect to whether the trial judge could rely on Dr. Pomichalek’s assessment on its own as a basis for an NCR designation, the appellant referred to lower court decisions where the evidence of psychologists have been referred to in an NCR analysis, but provides no principled rationale for why the Criminal Code should be interpreted as permitting non-medical practitioners as qualified to conduct an assessment for purposes of the NCR determination. If it were necessary to reach this question, I would conclude Dr. Pomichalek’s evidence on its own could not be a basis for an NCR expert assessment.
[45] Therefore, I would reject this ground of appeal.
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