Court File and Parties

Ontario Court of Justice

Date: June 10, 2019

Court File No.: Brampton 18-711

Between:

Her Majesty the Queen

— and —

Yannick Tshiamala

Before: Justice I. Jaffe

Heard on: March 4, 5, 6, and 27, May 2 and 28, 2019

Reasons for Judgment released on: June 10, 2019

Counsel

C. Sibian — counsel for the Crown

The accused Yannick Tshiamala — on his own behalf

JAFFE J.:

Introduction

[1] Yannick Tshiamala is charged with assaulting his mother with a knife on December 6, 2018, and with unlawfully confining her during the assault. Mr. Tshiamala's trial commenced before me on March 4, 2019. The Crown called six witnesses and thereafter, Mr. Tshiamala testified that on December 6, 2018, he had received instructions from God to kill his mother and placing God above all else, he set out to follow those instructions.

[2] On March 6, 2019, in separate reasons, I found that the Crown had proven the actus reus of both offences. Left to be determined was whether or not Mr. Tshiamala's mens rea had also been proven. To that end and on the same day, I granted the Crown's application under s. 672.12 of the Criminal Code for an assessment order under s. 672.11.

[3] Mr. Tshiamala was admitted into Ontario Shores Centre for Mental Health Sciences on March 8, 2019. Dr. Elizabeth Coleman, a staff forensic psychiatrist with Ontario Shores performed the assessment and authored a 16-page report dated April 24, 2019. A copy of this report was given to Mr. Tshiamala on May 2nd and the matter returned before me on May 28, 2019 for the purpose of hearing Dr. Coleman's viva voce evidence.

[4] Mr. Tshiamala who remains self-represented by choice, had an opportunity to cross-examine Dr. Coleman. I also invited him to call evidence of his own in response to the Crown's application. Mr. Tshiamala made further remarks on his own behalf, but did not call any additional evidence.

[5] The Crown submits that it has established the preconditions of s. 16 of the Criminal Code, specifically, that it has proven on a balance of probabilities that at the time of the offences, Mr. Tshiamala was suffering from a mental disorder that rendered him incapable of knowing what he was doing was wrong.

[6] Mr. Tshiamala disputes entirely the findings of Dr. Coleman and strongly opposes an NCR finding. Mr. Tshiamala argues that he does not, nor did he ever, suffer from a mental illness and on the day in question, was merely following God's directions.

The Events of December 6, 2018

[7] Binku Tshishimbi, Mr. Tshiamala's mother, lived in a Brampton townhouse with her daughter and three sons, including Mr. Tshiamala. Ms. Tshishimbi testified that she had come home from work on December 6th and observed Mr. Tshiamala in the living room reading the bible. Mr. Tshiamala was shaking his head and singing and to Ms. Tshishimbi, her son did not appear to be in a "normal condition."

[8] Ms. Tshishimbi went to her bedroom but at some point, she heard her son come upstairs. Mr. Tshiamala stayed on the stairs, and continued singing. Eventually, Ms. Tshishimbi left her room to see what was going on and it was at that point she observed a knife on the carpet. Mr. Tshiamala, who was at that time naked and on his knees, told his mother that he wanted to take the knife and end her life. He added that he loved her but she did not listen to the Lord. Ms. Tshishimbi managed to call the police.

[9] Ms. Tshishimbi described how during this time, Mr. Tshiamala was holding a knife close to her body, so close that at one point the blade of the knife was touching her stomach. At other times, Mr. Tshiamala was making stabbing motions with the knife though he was stabbing at nothing in particular.

[10] Ms. Tshishimbi testified that she was cornered in her bedroom by her son. She said she could not run or leave as Mr. Tshiamala was blocking her. She was also afraid that if she pushed her son away, he would turn his attention to her daughter Rachel who had arrived on scene.

[11] Rachel also testified at the trial and her account is largely consistent with her mother's. She testified that she returned home from work on December 6th and heard her mother screaming for help. She ran upstairs and observed her brother Mr. Tshiamala, naked and holding a knife against their mother's hip.

[12] Rachel described how her mother was literally cornered, positioned as she was up against the corner of her small bedroom with a large king sized bed blocking her way. Rachel described that her mother kept trying unsuccessfully to get away. As Ms. Tshishimbi kept moving back towards the corner, her brother followed her all the while holding the knife towards his mother. Rachel observed that during this time, her mother was on the phone with the police. When the police arrived, Rachel met them downstairs and provided guidance to the police on where her brother was and what kind of weapon he was using.

[13] Officers Benes and McClinchey, both members of the Peel Regional Police Service also testified. They were called to the scene at approximately 5:04 p.m., and arrived four minutes later. As P.C. Benes approached the residence she could hear screaming. The door of the residence was pushed open and the officers were met by Rachel who provided instructions to her mother's bedroom. The officers proceeded upstairs.

[14] Upon entering the bedroom, the officers observed Mr. Tshiamala holding a knife to his mother's stomach while chanting. Mr. Tshiamala ignored the officers' numerous requests of him to drop the knife. Eventually, P.C. McClinchey deployed her taser bringing the confrontation to an end.

[15] Mr. Tshiamala testified in his own defence. Mr. Tshiamala is a deeply religious man who at the age of 22, became a youth pastor. Mr. Tshiamala considers himself a prophet of God and explained that throughout the day on December 6th he was meditating and studying the scripture. He was alone in the home and hours before his mother returned home from work, God surprised him in a sudden and unexpected way by tempting him and telling him to take off his clothes. He perceived this as being a test of his character and faith. His obedience to this command was a demonstration of his faith.

[16] Mr. Tshiamala's mother returned home earlier than he had expected and while he was still naked and deep in meditation. Mr. Tshiamala covered himself with a blanket but appreciated that, to his mother, the scene must have looked strange. He himself acknowledged that his experience with God on that day was exceptional.

[17] Later that afternoon, Mr. Tshiamala received another command from God. In this command, God told him to kill his mother, but at the same time, God let him know that no harm would come to her. Loving God above all else, Mr. Tshiamala had no choice but to follow God's command and the vision that God presented to him. He got up, grabbed a knife and went upstairs where his mother was located.

[18] Mr. Tshiamala testified that he looked at his mother and told her that he did not fear God which, as Mr. Tshiamala explained to the Court, was his way of rationalizing why God would make him kill her. Mr. Tshiamala explained that as much as the events of December 6th were abnormal, it was normal for him to follow God's command.

[19] Significantly, Mr. Tshiamala does not disagree that on December 6th, he confronted his mother in her bedroom while brandishing a knife. In fact, he explained that he went upstairs with the intention of killing his mother, albeit in faithful obedience of God's command.

[20] On the day the matter returned for the purpose of hearing Dr. Coleman's evidence, Mr. Tshiamala further testified that at the same time God was directing him to kill his mother, God also offered him assurances that no harm would come to her. Mr. Tshiamala asserts that the fact that his mother emerged from this assault with no injuries despite having a knife held to her stomach, is proof of the accuracy of God's word.

Section 16 of the Criminal Code

[21] Section 16 of the Code, provides the statutory backdrop against which the evidence in this case must be assessed. The section provides as follows:

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.

(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.

(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.

[22] Section 16 provides two instances where a mental disorder would exempt an accused from criminal responsibility: if it rendered the accused incapable of understanding what he was doing, or if it rendered the accused incapable of understanding that the act was wrong. It is the second branch of s.16 which is engaged in this case as there is no dispute that Mr. Tshiamala knew he was taking steps towards killing his mother.

[23] The term "knowing that the act was wrong" has received judicial interpretation over the years, most notably by the Supreme Court in R. v. Chaulk, [1990] 3 S.C.R. 1303, and R. v. Landry, [1991] 1 SCR 99, which confirmed that the term includes an appreciation that an act was morally wrong. In other words, even if an accused appreciates the legally wrongfulness of his acts, if his mental disorder rendered him incapable of knowing it was morally wrong, he will be exempt from criminal responsibility.

[24] A few year later, the Court in R. v. Oommen, [1994] 2 S.C.R. 507, had another opportunity to further define the meaning of "knowing that the act was wrong." In Oommen, the Court confirmed that a s. 16 inquiry must not focus on an accused's general capacity to know right from wrong, but on whether an accused's mental disorder rendered him unable to make a rational choice about whether or not to act. The Court explained the central question as follows at para. 26:

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 minimum 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.

[25] An accused's mere subjective belief that what he was doing was right – even if that belief was the product of a disordered mind – will not exempt him from criminal responsibility as long as he retained an ability to know the act was wrong by societal standards: R. v. Ross, 2009 ONCA 149, at para. 27. R. v. Campione, 2015 ONCA 67, at para. 30. In Campione, albeit in the context of jury instructions, the Court framed the central question as follows, at paras. 39 and 41:

The ultimate issue for the jurors to determine was whether - in spite of her delusions and any honest belief in the justifiability of her actions - the appellant had the capacity to know that those actions were contrary to society's moral standards.

In short, a subjective, but honest belief of the justifiability of the acts-however unreasonable that belief may be – is not sufficient, alone, to ground an NCR defence, because an individual accused's personal sense of justifiability is not sufficient. The inquiry goes further. The accused person's mental disorder must also render him or her incapable of knowing that the acts in question are morally wrong as measured against societal standards, and therefore incapable of making the choice necessary to act in accordance with those standards.

[26] Relatively recently in R. v. Dobson, 2018 ONCA 589, 48 C.R. (7th) 410, at para. 24, our Court of Appeal shed further clarity on the concept of "wrongfulness" in a s. 16 inquiry:

In my view, Oommen, as interpreted in the judgments of this court, holds that an accused who has the capacity to know that society regards his actions as morally wrong and proceeds to commit those acts cannot be said to lack the capacity to know right from wrong. As a result, he is not NCR, even if he believed that he had no choice but to act, or that his acts were justified. However, an accused who, through the distorted lens of his mental illness, sees his conduct as justified, not only according to his own view, but also according to the norms of society, lacks the capacity to know that his act is wrong. That accused has an NCR defence. Similarly, an accused who, on account of mental disorder lacks the capacity to assess the wrongness of his conduct against societal norms lacks the capacity to know his act is wrong and is entitled to an NCR defence. [emphasis added]

The Evidence of Dr. Elizabeth Coleman

[27] Dr. Coleman is a staff forensic psychiatrist at the Ontario Shores Centre for Mental Health Sciences who conducted a psychiatric assessment of Mr. Tshiamala and authored a report.

[28] Upon hearing evidence of Dr. Coleman's education and qualifications, and upon reviewing her curriculum vitae, I permitted Dr. Coleman to give expert opinion evidence in the area of forensic psychiatry, specifically as it pertains to her assessment of Mr. Tshiamala. Dr. Coleman's report was filed as an exhibit.

[29] Based on the doctor's meetings with Mr. Tshiamala and her review of information supplied by family members and other sources, Dr. Coleman concluded that Mr. Tshiamala suffers from schizophrenia which the doctor characterizes as a "major mental illness." Dr. Coleman is of the opinion that at the time of the index offences, Mr. Tshiamala was experiencing psychotic symptoms which rendered him "unable to rationally perceive the nature and quality of his actions" and he was therefore "unable to make a rational choice regarding his actions."

[30] Dr. Coleman testified that Mr. Tshiamala self-reporting during their first meeting was consistent with his trial evidence, transcripts of which Dr. Coleman reviewed. Mr. Tshiamala advised Dr. Coleman that while he formed a relationship with God when he was 19 years old, and began hearing God's voice around that time, December 6, 2018 marked the first time God asked him to do something "out of the ordinary." Mr. Tshiamala told Dr. Coleman that he had a choice about whether or not to follow God's instructions, and believing God was testing his character, he chose to obey God.

[31] Mr. Tshiamala denied any previous mental health contacts or diagnosis and he declined to discuss substance use. According to Dr. Coleman's evidence and report, following their first meeting, Mr. Tshiamala refused to engage in any further form of assessment. During their interactions, Dr. Coleman noted that Mr. Tshiamala exhibited signs of thought disorder and he did not engage in a normal back and forth style of conversation. Instead, Mr. Tshiamala was preoccupied with ascertaining Dr. Coleman's religious beliefs. On this point, the doctor wrote this in her report:

Shortly after his admission, Mr. Tshiamala endorsed psychotic symptoms, in particular hallucinations of hearing God's voice and having had been instructed by God. He was extremely guarded in interactions with staff and kept to himself on the unit. He was preoccupied with his belief in God and wanting to understand other's views of, and about their belief in God. With time it became clear that his thought form was not goal directed and he was perseverating on religious delusions and spoke in a hostile manner when he felt his questions were not answered, often with pressured speech.

[32] Without any further information being supplied by Mr. Tshiamala, Dr. Coleman sought out other sources of information to gain an understanding of Mr. Tshiamala's family and health history. Mr. Tshiamala's brother reported noticing a change in Mr. Tshiamala in 2014 when he began to lose weight and, acting "abnormally" and started "doing things that are not normal."

[33] Dr. Coleman reviewed medical reports relating Mr. Tshiamala's hospital attendances in the months leading up to his arrest. On October 4, 2018, Dr. Stroganova authored a report following Mr. Tshiamala's admission on a Form 1 to the emergency room at Etobicoke General Hospital. Mr. Tshiamala had been exhibiting "bizarre behaviour" which doctors attributed to his intoxication from cocaine, the presence of which was confirmed in a urine drug screen. Mr. Tshiamala was diagnosed with a polysubstance use disorder and released.

[34] On October 9, 2018, Dr. Cryer authored a report after Mr. Tshiamala was found on the street screaming and yelling and was admitted to Brampton Civic Hospital. Dr. Cryer diagnosed substance induced psychosis.

[35] On December 17, 2018, Dr. Ohene-Darkoh authored a report after Mr. Tshiamala was again admitted to Brampton Civic Hospital having acted bizarrely in traffic. The diagnosis on this occasion was "polysubstance use disorder, unspecified psychosis, rule out drug induced psychosis now resolved."

[36] Dr. Coleman testified the evolution of diagnoses seen in Mr. Tshiamala's case - from drug intoxication to drug induced psychosis, to a major mental illness - is quite common. A mental disorder may not be abundantly clear in the first instance and its symptoms might be attributed to other factors, such drug use, when the patient initially comes into contact with the health care system.

[37] Dr. Coleman noted that on April 6, 2019 or thereabouts, while still at Ontario Shores, Mr. Tshiamala started to refuse nourishment. He also started to become more irritable refusing to engage with any of the health team, including Dr. Coleman. Concern grew for Mr. Tshiamala's physical health due to lack of nutrition, however he resisted nursing efforts to evaluate his health. Mr. Tshiamala was described by staff members at Ontario Shores as being paranoid during his stay and of assuming a persecutory view of the entire unit. Due to Mr. Tshiamala's lack of engagement and hostility, he was moved and returned to the detention centre earlier than planned.

[38] Dr. Coleman's observations of Mr. Tshiamala becoming focused on ascertaining her religious beliefs is consistent with how he behaved in court. Several times during his cross-examination of Dr. Coleman, Mr. Tshiamala sought to confirm the doctor's religious beliefs. I disallowed those questions on the basis that Dr. Coleman's personal religious beliefs were not relevant to her psychiatric evaluation of Mr. Tshiamala.

[39] The doctor explained that in assessing someone who holds religious beliefs she attempts to place those beliefs in context by interviewing members of the person's religious community. In this case, information was obtained from Mr. Tshiamala's mother and brothers in an effort to get an understanding of whether they are followers of the same faith and if so, how Mr. Tshiamala's behaviour fits into their faith.

[40] Dr. Coleman determined that Mr. Tshiamala's instructions from God are beyond the shared religious norms of his family and she also noted that even according to Mr. Tshiamala, the instruction from God to kill his mother was out of the ordinary. However, Mr. Tshiamala remained unconvinced and argued that Dr. Coleman could not evaluate the legitimacy of his faith based on information from his family since his religious relationship is with God, and not his family.

[41] In the following paragraph of her report, Dr. Coleman summarizes her opinion as it relates to the s. 16 inquiry:

Thus, based on his self-report, as well as the collateral information reviewed it appears that Mr. Tshiamala was experiencing psychotic symptoms at the material time. He reports experiencing command auditory hallucinations of God's voice to kill his mother, felt compelled to be obedient to these instructions and thus, obtained a knife to carry out his command. He was further under the influences of delusions that his mother would not be harmed despite this, due to what he heard God say in his auditory hallucinations. Therefore, it is my opinion that at the material time Mr. Tshiamala was unable to rationally perceive the nature and quality of his actions due to the psychotic symptoms he was experiencing and accordingly was unable to make a rational choice regarding his actions. He was also unable to foresee and measure the physical consequences of his actions given the same.

[42] In the end, what Mr. Tshiamala considered to be his legitimate conversations with God, Dr. Coleman viewed as psychotic hallucinations and delusions. It was clear from her evidence that Dr. Coleman does not view deeply held religious beliefs as symptoms of mental illness, even if as an expression of those beliefs the person hears voices or has conversations with their God. Dr. Coleman's diagnosis was not based solely on Mr. Tshiamala's hearing God's voice but was based on a constellation of factors.

Conclusion Regarding Mr. Tshiamala's Criminal Responsibility

[43] On December 6, 2018, Mr. Tshiamala knew what he was doing in the sense that he knew he was holding a knife to his mother and confining her in a corner. In fact, Mr. Tshiamala had set out to take those very steps towards ending his mother's life. The focus of this inquiry therefore, is whether Mr. Tshiamala knew his acts were wrong. Again, I am satisfied Mr. Tshiamala remained aware that what he was doing was legally wrong but as we know, the concept of wrong in the s. 16 context includes moral wrongfulness.

[44] Mr. Tshiamala's lack of insight into the moral wrongfulness of his actions is evident in his answer to a question asked Amicus Curiae, Ms. Lund during the final stages of the NCR proceedings. Ms. Lund asked Mr. Tshiamala if he believed it was morally wrong to hurt his mother. Mr. Tshiamala replied that morals, right or wrong, are not self-willed but are rooted in God, and it is only God's word that matters.

[45] However I accept Dr. Coleman's opinion that what Mr. Tshiamala perceived as God's instructions on December 6, 2018 were in fact symptoms of a major mental disorder. I believe that symptoms of schizophrenia manifested themselves as religious delusions and hallucinations. In a sense, these delusions and hallucinations were Trojan horses which entered the mind of a man whose faith makes him receptive to divine messages.

[46] Though Mr. Tshiamala might have reported to Dr. Coleman that he chose to follow God's command on December 6th, I believe that Mr. Tshiamala's unyielding devotion to God rendered any choice illusory and that in reality, Mr. Tshiamala lacked the capacity to make a rational decision about whether or not to commit the index offences.

[47] The details of the offences, namely that while naked and in a seemingly altered state of mind, Mr. Tshiamala held a knife to his mother with an intent to kill her yet with assurance that she would not be harmed, strongly suggest that something had taken hold of Mr. Tshiamala's mind. Mr. Tshiamala's mother who lived with him at the time and knew him well, testified at trial that her son was not in a normal condition.

[48] Dr. Coleman's evidence answers the question of what had taken hold of Mr. Tshiamala's mind. I find that on December 6, 2018, Mr. Tshiamala was suffering from a major mental disorder which rendered him incapable of knowing that what he was doing was wrong.

[49] Mr. Tshiamala committed the acts that form the basis of the index offences, however the Crown has persuaded me on a balance of probabilities that at the time of those acts he was suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of s. 16(1) of the Criminal Code.

Released June 10, 2019

Justice I. Jaffe