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| John L. Hill |
However, by March, it was unclear if a murder trial would proceed. A psychiatrist, Dr. David Tano, wrote that Fong has “significant difficulties with autistic spectrum disorder and obsessive-compulsive disorder.” The psychiatrist continued, “Given his cognizant difficulties, despite coaching efforts to teach him the various aspects of the court proceedings, at this point I cannot medically state that he appreciates the nature of the proceedings of the court, nor can I state that he can advise his counsel.”
Because of his disabilities, Fong had been unable to live independently. He resided with his parents; his
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In one of Fong’s early court appearances, Tano stated that Fong would not even “fulfill the threshold of … a limited cognitive capacity test.” Tano noted that Fong’s lack of understanding of what death is demonstrated that he wasn’t able to comprehend legal proceedings. He added, “As a result of my examination and information concerning the alleged offence before your honour, it is my opinion that Mr. Fong does not meet the medical criteria for fitness to stand trial.”
But by July 2020, an Alberta Review Board panel determined he had the capacity to understand the legal process. The defence and Crown agreed to skip a preliminary hearing, and Fong was scheduled for trial. It took until 2024 for the trial to be completed. In the end, the jury deliberated for just three hours and returned a verdict of guilty of second-degree murder. Fong was sentenced to life imprisonment without the possibility of parole for 10 years.
The Alberta Court of Appeal heard Fong’s grounds and delivered its decision on Sept. 2, 2025 (R. v. Fong, 2025 ABCA 295).
During the trial, the Crown introduced expert rebuttal evidence to challenge the testimony of Fong’s expert, Dr. Oluyemisi Ajeh, and Fong’s mother, And Yee Ling Fan. Ajeh did not testify about the accused’s capacity to understand right from wrong. Psychologist Dr. Andrew Haag, called as a rebuttal witness by the Crown, said he assessed Fong for criminal responsibility more than two years after he killed his elderly father and that he understood his act was morally wrong.
The court noted that admitting rebuttal evidence is unusual because it might allow the Crown to split its case and gain an unfair advantage. However, the Court of Appeal was willing to overlook this and remain deferential to the judge’s decision, unless it could be demonstrated that such evidence caused unfairness or prejudice to the case on trial (R. v. Anderson, 2009 ABCA 67; R. v. Doonanco, 2019 ABCA 118). Ajeh’s evidence emphasized the impact of the appellant’s cognitive challenges, his simplistic and literal understanding, and his difficulty in understanding long-term consequences. Ajeh diagnosed her client as having complex post-traumatic stress disorder as a result of the emotional and physical abuse he experienced at the hands of his father. That evidence, coupled with Fan’s testimony regarding the appellant’s inability to understand death and Ajeh’s qualified answers in that regard, provided a proper basis for the admission of rebuttal evidence.
The issue in the case was whether Fong possessed the necessary intent to commit murder. He was not pursuing an insanity defence. The Crown did not split its case; it rebutted evidence put forward by the defence (R. v. S.M., 2025 ONCA 18).
Fong’s appellate counsel also argued that the jury might have been biased when the trial judge discussed the qualifications of Ajeh. The instruction was necessary to ensure that the jury focused on the evidence regarding the accused’s ability to form an intent, rather than on whether he actually possessed the intent.
Defence also raised concerns about expert reliance on hearsay evidence and an insufficient review of expert evidence. The Appeal Court panel gave these concerns short shrift.
Another point of debate was whether the trial judge erred in not submitting self-defence to the jury. It was suggested that threats toward Fong stemmed from a history of violence with his father. His cognitive difficulties may have hindered his ability to stop applying force once it began. However, it was acknowledged and established that excessive force was used, and self-defence should not have been left for the jury (R. v. Harris, 2023 ABCA 90; R. v. Newborn, 2020 ABCA 120).
The Appeal Court could find no reviewable error and dismissed Fong’s appeal. This appears to be a case where the defence made a judgment call to either pursue an insanity defence under s. 16 of the Criminal Code or seek a lesser sentence due to diminished responsibility. Was Fong mad or bad? Should he have been exempted from criminal responsibility for being incapable of appreciating the nature and quality of his act or knowing that it was wrong? Defence lawyer Katherin Beyak hoped for a manslaughter conviction. How Fong survives the next 10 years or more in a penitentiary will determine the wisdom of the defence choice.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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