Ontario Court of Justice

Date: 2021 03 31 Court File No.: Newmarket 2103134

Between:

HER MAJESTY THE QUEEN

— AND —

CHIDUBEN ANTHONY OKEKE

Before: Justice David S. Rose

Heard on: March 29, 2021 Reasons for Judgment released on: March 31, 2021

Counsel: Mr. S. Doyle, counsel for the Crown Mr. M. Rieger, counsel for the accused Chiduben Okeke

Rose J.:

[1] Mr. Okeke is charged with Aggravated Assault on PC Andrew Varao and Failing to Comply with a Recognizance. Both charges arose out a brief, but violent incident on March 27, 2020. He pleaded not guilty to both charges. Both Crown and Defence ask that Mr. Okeke be found not criminally responsible of both charges under ss. 16 and 672.34 of the Criminal Code. Whether Mr. Okeke is not criminally responsible is the only issue before me. These are my reasons for accepting the joint recommendation and my finding that Mr. Okeke is not criminally responsible for both charges.

Facts leading up to March 27, 2020

[2] Mr. Okeke was arrested on March 26, 2020 because of a violent episode at his residence. Mr. Okeke has been angered by a roommate’s request to borrow $4.00, and this resulted in the roommate being thrown to the ground and kicked in the head and neck. Mr. Okeke was taken to York Regional Police Station 2 District and held for a show cause hearing. He had urinated on himself while in custody and was given a standard white biohazard suit.

[3] On March 27, 2020 Mr. Okeke appeared for a show cause hearing and was released on his own recognizance at about 2:50 pm. His release had a number of conditions, including no contact and boundary restrictions to protect the roommate, and a no weapons condition.

[4] 2 District Station is in the area of Yonge Street and Major McKenzie Drive, and Mr. Okeke left 2 District after his release still wearing the white biohazard suit and a pair of boots. He walked south to Hillcrest Mall, arriving at 3:40pm.

[5] A CCTV camera positioned above the parking lot of Hillcrest Mall captured the balance of the events. It is vividly clear. The day is bright, and the last of the winter snow is melting on the parking lot pavement. Mr. Okeke initially chases a vehicle in the parking lot and then turns around to see PC Varao seated in his police car with its window open. He does nothing menacing as he approaches the car. PC Varao was on his first shift back on duty from paternity leave. He was a new father.

[6] When he gets up to the window of PC Varao’s car Mr. Okeke punches PC Varao through the open window. Varao gets out of his car, and Mr. Okeke takes his boots off, and then approaches PC Varao in a fighter’s stand. From the video it appears that Mr. Okeke is much taller and physically bigger than PC Varao.

[7] At that point PC Varao has his extendable baton in his hand and strikes Mr. Okeke. It has no effect, because Mr. Okeke punches PC Varao in the head and knocks him to the ground. Varao tries to get up but can’t because Mr. Okeke kicks, him and then straddles him on the ground punching him in the head repeatedly. At this point Mr. Okeke disarms PC Varao and strikes him several times with his police baton.

[8] Mr. Okeke then withdraws a few feet and PC Varao gets back on this feet. Seconds later Mr. Okeke comes back at PC Varao and knocks him to the ground. At this point Mr. Okeke tries to get PC Varao’s use of force belt which contained his police pistol, loaded with 15 rounds, and two additional magazine clips each with 15 rounds. The two men struggle over the belt, but PC Varao retains control over the weapon.

[9] Mr. Okeke withdraws again, and PC Varao gets back on his feet. Mr. Okeke walks off. At 3:42 pm the first of several police cars arrive on scene and Mr. Okeke was arrested. The entire attack on PC Varao lasts less than 3 minutes.

[10] After Mr. Okeke was arrested he was interviewed at the police station by a detective on video. That interview started at 8pm, and lasted about 30 minutes. In that interview he said things consistent with mental illness, including:

• “I spoke with God, there’s no God. Police officers, there is a god [sic]. You are god [sic]. I don’t know what I’m saying.”
• “I punched him, and he came out of the car … he didn’t shoot me, he didn’t taser me, and I was told to continue doing that, to shoot him, not to shoot him.”
• “I vaguely remember – I joined the police department …”
• “I’ve got power and money from the police department…”
• “I don’t deserve to go out scot-free… I’m a sinner. I need to be cleansed…”
• “I was asked to go to the police vehicle, I was told to go to the police’s vehicle and literally punch him.”

Physical Injuries to PC Varao

[11] Although PC Varao was on his feet, ambulatory and assisting with the arrest of Mr. Okeke he was taken by ambulance to Sunnybrook Hospital, which is a regional trauma center. He was diagnosed there with a skull fracture, small frontal subarachnoid hemorrhage, lacerations and fractures of the right roof orbital and right occipital hematoma. PC Varao was released from Sunnybrook on March 29, 2020. More will be said shortly about the effects this had on PC Varao. PC Varao returned to work on modified duties for a brief period in the fall of 2020.

Victim Impact Statements

[12] At this hearing I heard several victim impact statements. Two were filed. Notably PC Varao read his. It was also filed as an exhibit. PC Varao continues to suffer from the physical and psychological effects of the attack. He has permanent scarring, hip, shoulder and neck issues, and has two damaged teeth. More than the physical scarring is the emotional toll this left on him. He suffers from the emotional damage which tends to follow serious head injuries. He suffers from insomnia, and is easily frustrated, annoyed or angry. He finds mental focus difficult and has diminished mental acuity. In his victim impact statement PC Varao speaks in terms of the incident having destroyed him. He now questions his faith in the justice system which he has sworn to uphold. Mr. Okeke’s attack on PC Varao has left Mr. Varao with physical, emotional and existential scarring.

[13] Cst. Varao’s family also spoke of the effect that the attack had on them. His wife and mother both provided statements. It is clear that Cst. Varao’s wife shares in her husband’s pain. She is civilian a member of the YRP working in the dispatch center, but was not on duty the day of the assault. Nonetheless, her work at the YRP dispatch center gave her all of the unsettling details of the event. Cst. Varao’s mother, a health care worker, wondered aloud in her victim input statement why a person so obviously mentally ill could be released into the community without adequate support. It is a valid question.

[14] Several of Cst. Varao’s colleagues in uniform at YRP spoke of the trauma and guilt involved in having a close colleague attacked so viciously. There is no need to repeat them word for word. They all spoke of the frustration in having a fellow member in uniform being attacked without any provocation. I was struck by PC Shymko’s description of his colleague as having “…demonstrated an intense amount of bravery, professionalism, grit and restraint”. I agree. As PC DeLorenzi put it, the unpredictability in policing is “..exciting and frightening”. I think that captures the pace in which March 27, 2020 turned from a nice sunny day to a sudden terrifying attack.

Mr. Okeke

[15] Mr. Okeke was examined by two forensic psychiatrists. The first was Dr. Giovana De Amorim Levin. Dr. Levin’s report of August 24, 2020 outlines Mr. Okeke’s documented history of mental illness.

[16] Mr. Okeke was born in Nigeria and appears to have had a stable home life. He has one uncle with a history of major mental illness. When he was 16 years old he moved to Canada to started studies at the University of Windsor, graduating with a degree in Computer Science in 2018. He began work at Cineplex as a programmer but lasted only 4 months. By this time he was experiencing paranoid symptoms including voices of people mocking him. He then returned to Nigeria where he was diagnosed with psychosis and prescribed psychotropic medication. He then returned to Canada. By then his paranoid symptoms returned. He heard voices, and started to act out violently.

[17] In March of 2019 Mr. Okeke was in Windsor and an incident resulted in him being charged with Assault x3, Assault with a weapon, Mischief and Break and Enter. He was released to bail and admitted to the emergency department of a hospital only hours later. He was admitted as an apprehension under the Mental Health Act because of symptoms of psychosis. At that point he needed restraints to be kept from assaulting staff. The staff diagnosed him as paranoid. He believed that he had been sexually assaulted.

[18] Mr. Okeke was later seen by a psychiatrist in Windsor and admitted as an inpatient. The diagnosis at the time was substance induced psychosis but schizophrenia needed to be ruled out. He was again prescribed antipsychotic medication which was then changed to Risperidone. He was discharged from Windsor Regional Hospital on April 3, 2019.

[19] Mr. Okeke worked with community mental health workers in Windsor for some weeks while his condition stabilized, but by June of 2019 he was again admitted to the Emergency Department of Windsor Hospital because he had developed acute Dystonia. This is a side effect of antipsychotic medications. Dystonia is an episode when the patient develops strong involuntary muscle movements. He was discharged when his symptoms improved. After that his psychotic symptoms became more prominent.

[20] Mr. Okeke again went to Nigeria and returned to Canada in the beginning of 2020. He got a job with an insurance company but lost it as the Covid pandemic hit. By then he was living at home in Markham with 5 roommates.

[21] On March 21, 2020 Mr. Okeke was seen at Markham Stouffville Hospital and discharged on March 23. He was in a highly psychotic state and asked to be shot by the police.

[22] On March 24 Mr. Okeke was hearing voices and had an encounter with the police consistent with “suicide by cop”. He had to be escorted out of a Loblaws store because of inappropriate comments to staff. The next day Mr. Okeke called the police himself because he thought he had a stolen phone from two escorts and wanted it returned.

[23] By March 26 Mr. Okeke had the encounter with his roommate over $4.00. His roommates told the police that Mr. Okeke had been accusing Windsor police of raping him. They also said that he had psychotic symptoms while he was living in the house. After his arrest he said he was having a special communication from God. God was controlling his head and if his head moved down it meant he was to correct his perceptions. If his head moved sideways he was wrong. This is known as somatic passivity, which is a symptom of schizophrenia.

[24] When he was released from custody on the afternoon of the attack he continued to experience somatic delusions. He was experiencing psychotic interpretations of bodily sensations. He believed he was the messiah, and that God was speaking directly to him. He believed he was getting shot at but that the bullets just weren’t getting through. He also believed that a car had exploded but did not hurt him. In his delusion he was told to attack PC Varao, believing that he was carrying out Gods command.

[25] At the time Dr. Levin examined Mr. Okeke he had been taking two anti-psychotic medications, Olanapine and Risperidone twice per day. His psychotic symptoms were under control. Dr. Levin’s opinion is that Mr. Okeke suffers from schizophrenia with paranoid and somatic delusions, auditory hallucinations, and thought disorder. Dr. Levin ruled out malingering because Mr. Okeke had been a high functioning individual, and the extensive history of psychosis leading to violence. Dr. Levin opined that Mr. Okeke was clearly suffering from a mental disorder at the time of the offence:

In terms of knowing that it was wrong, Mr. Okeke’s mind was operating based on a psychotic process, based on delusions and hallucinations which were directing his actions. In my opinion, due to his delusional interpretation of the environment (somatic and paranoid), and the fact that he was experiencing command hallucinations from God, he genuinely believed that his actions were justified in the circumstances. Basically he lacked the capacity to rationally determine the moral wrongfulness of his actions due to his psychotically-based perception of reality. Due to the intensity and nature of his psychotic process, in my opinion, he was not able to apply his intellectual ability to distinguish right from wrong or to rationally make a choice about whether to commit the acts.

[26] The Crown obtained its own assessment of Mr. Okeke at Waypoint in Penetanguishene. Dr. Komer’s February 11, 2021 report of Mr. Okeke comes to a similar conclusion to Dr. Levin. Dr. Komer’s report covers similar ground as Dr. Levin’s but has some additional details. For instance Dr. Komer’s report discussed Mr. Okeke’s treatment in Nigeria in 2018. The psychiatrist examining him assessed him as having psychotic disorder but was also dependent on cannabinoids. Mr. Okeke was started on Risperdal but did not attend for the follow up assessment.

[27] Dr. Komer’s report has additional information about Mr. Okeke’s treatment before the index offence. When he was assessed at Markham Stouffville Hospital on March 17, 2020, just 10 days before the assault on PC Varao, he was seen by Dr. W. Tang. At that point he complained of being victimized sexually. He said that he wanted to hurt Dr. Tang because she had had slept with his friends. He called her Jasmine. Dr. Tang pointed to her hospital name tag which showed her name as Alexandra, which caused Mr. Okeke to be suspicious.

[28] Dr. Komer concludes:

In summary, Mr. Okeke is a 23-year-old gentleman who has, in my opinion, a major mental illness, likely Schizophrenia. It has been clearly documented that he has experienced recurrent episodes of psychosis involving hallucinations, delusions and disorganized speech and behaviour and has had a decline in his functioning. Although a recurrent substance related psychosis is a differential diagnosis and Mr. Okeke has previously experienced cannabis related psychoses, he has had negative urine drug screens at times he has experienced psychotic episodes while reporting active drug use including prior to his alleged offenses. Mr. Okeke has had a substance use disorder. His self-report of his use of substances has not been consistent. It appears that when Mr. Okeke is actively psychotic, his self-report of some of his life experiences and problems including substance use is unreliable. He is currently not presenting with any active psychosis.

At the time of Mr. Okeke’s alleged offenses, it is my opinion that he was suffering from a mental disorder. He was experiencing command auditory hallucinations and delusional beliefs which, in my opinion, rendered him incapable of knowing the wrongfulness of his actions. Mr. Okeke lacked rational perception and hence rational choice of the wrongfulness of his actions. He was of the belief that his actions were being directed by voices including God’s and he was to follow commands he was receiving. Mr. Okeke was confused and lacked insight into psychotic experiences at the time although knew he needed help. He has acted inappropriately in response to psychotic experiences including assaultive behaviour in March 2019 and the day prior to the March 27, 2020 incident and when he urinated himself and drank toilet water in police cells prior to being released on the day of the incident. In my opinion, Mr. Okeke appreciated the nature and quality of his actions. He knew the physical consequences of his actions, but was unable to control them because of his psychotic experiences at the time. In my opinion, a finding of not criminally responsible on account of mental disorder is supported.

[29] Lastly, Mr. Okeke filed a letter of apology to PC Varao, which describes in heartfelt terms how apologetic he is.

Law and Findings

[30] Under the Criminal Code no person is criminally responsible for an act if they are suffering from a mental disorder which renders them incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong, see s. 16(1) of the Code. All accused persons are presumed not to suffer from such a mental disorder and burden of proof lies on party that raises the issue. The test is a legal one, not medical, and must be met on a balance of probabilities. It is important to bear in mind that the trier of the NCR issue must not consider the consequences of the NCR verdict, see R. v. Goudreau 2019 ONCA 964.

[31] The two expert reports into Mr. Okeke’s psychiatric condition at the time of the assault on PC Varao on March 27, 2020 are both detailed, lengthy and authoritative. They both come to the same conclusion, which is that Mr. Okeke was in a state of psychosis, suffering from command hallucinations which directed him to assault PC Varao. Both reports opine that Mr. Okeke was not criminally responsible for both charges to which he has pleaded not guilty before me. The Crown joins with the defence in seeking an NCR finding. I have no difficulty in finding under the all the circumstances that Mr. Okeke committed the actus reus of each offence. He clearly was in breach of his release order when he took PC Varao’s baton and assaulted him with it. He clearly committed an aggravated assault at that time. It is also clear that he was not criminally responsible in that moment, and he will be found Not Criminally Responsible for both charges under s. 672.34 of the Code. The evidence supporting that finding is well beyond meeting the test of balance of probabilities.

[32] The Crown seeks a DNA order. Given the facts received at this hearing, I am satisfied that it is in the best interests of the administration of justice that Mr. Okeke’s DNA be transmitted to the National DNA Databank. There will be an order under s. 487.051 (3)(a).

[33] I would not leave this ruling without commenting on the impact this has had on the various victims. On March 27, 2020 one of the officers who is entrusted with community safety was himself a victim of a vicious attack. This has had a serious impact on PC Varao, his family, and his colleagues. I hope that with time they will understand the limitations of this ruling, and that when a person is found NCR, there is no assignment of responsibility. I heard many concerns from the victims about the failure to adequately supervise mentally ill persons in the community. I share them. What is clear to me from my years as a judge is that there is a gap in supervision for those who are released on bail with mental illness and have no established institutionalized support. There is no equivalent of a probation officer to supervise such persons. That may well have made a difference on March 27, 2020.

[34] Lastly, I hope that with time PC Varao will find a way to see that the valor of his conduct is indeed a vindication of his life goals, and I hope that he will continue to pursue them. Had Mr. Okeke succeeded in taking PC Varao’s loaded pistol and ammunition clips this case could easily have been a much, much worse tragedy. It strikes me that the community owes a great deal of gratitude to PC Varao.

[35] I am grateful for the preparation throughout these proceedings by both Mr. Doyle and Mr. Rieger. Their assistance was extremely helpful.

Released: March 31, 2021 Signed: Justice Rose