A Crown lawyer has argued that certain evidence and arguments should be limited at a hearing next month to determine whether convicted killer Gabriel Klein is “not criminally responsible due to mental disorder” (NCRMD).
The Crown brought forward a motion on Friday (Oct. 16) in B.C. Supreme Court in New Westminster.
Prosecutor Rob Macgowan urged the judge to not allow any submissions at the hearing (scheduled to start Nov. 9) on the first branch of an NCRMD designation (section 16 of the Criminal Code) – that an individual was incapable of appreciating the nature and quality of the act at the time they committed it.
Macgowan asked the judge to only allow submissions on the second branch – that an individual, due to a mental disorder, was incapable of knowing that an act was wrong at they time they committed it.
Klein was convicted in March of the second-degree murder of Letisha Reimer, 13, and the aggravated assault of her 14-year-old friend (whose name is protected by a publication ban). The pair, whom Klein did not know, were attacked in the rotunda of Abbotsford Senior Secondary on Nov. 1, 2016.
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Klein’s sentencing hearing was originally scheduled to take place Sept. 23 and 24 in New Westminster but Reimer’s family was told the week before that Klein had been granted an NCRMD hearing.
Nine dates for the hearing have been scheduled in November and December.
Due to occupancy limits in the courtroom due to COVID-19, reporters listened in via teleconference to Friday’s arguments.
Macgowan argued that the judge should not hear evidence or arguments on the first branch of section 16.
He said allowing such information now would only contradict the findings already made by the court at the end of Klein’s trial.
The defence at trial argued that Klein was suffering from a mental illness at the time of the stabbings, and should be found guilty of manslaughter.
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But Justice Heather Holmes convicted him of second-degree murder, saying the evidence did not support that he was suffering from a mental disturbance when he stabbed the two girls.
“Mr. Klein conceded at trial that he was guilty of manslaughter .. which is inconsistent with a post-verdict submission that Mr. Klein did not know what he was doing when he stabbed the victims,” Macgowan said on Friday.
He said there were “tactical decisions” made by Klein and his lawyers at trial, which included not having Klein testify and not proceeding with an NCRMD defence, although at the outset of the trial they had indicated they would.
Macgowan said that all the relevant evidence was presented at trial in relation to whether Klein appreciated the nature and quality of the act of stabbing the two girls.
He said statements presented at trial in which Klein said he was “delusional, heard voices instructing him to kill” were found by the court to be “worthy of extremely little weight” and did not raise “a reasonable doubt on intent.”
“The Crown submits that this is a finding that cannot be revisited,” Macgowan said.
Defence lawyer Martin Peters began his arguments around 11:30 a.m. on Friday, but due to long periods of his microphone cutting out during the teleconference, only a small portion of his argument could be heard.
He disagreed with Macgowan that evidence on the first branch of section 16 should not be heard at the hearing.
“That doesn’t contradict the earlier finding; it is simply the exception that flows from the subsequent evidence,” he said.
Justice Holmes is slated to give her ruling on Nov. 9 – the first day of the NCRMD hearing – on what evidence and statements she will allow.
Klein was initially found unfit to stand trial after he was diagnosed with schizophrenia, but was later found to be fit for trial.
An NCR ruling means that a judge believes an individual did not have the capacity to appreciate his or her actions and/or know right from wrong at the time of their offence.
Individuals who receive such a ruling fall under the mandate of the BC Review Board, which conducts an assessment to determine whether the person should be detained in a hospital, discharged in the community under certain conditions or discharged without conditions.
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