COURT FILE NO.: CR-1501/11

DATE: 2012 04 24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. Cornelius, for the Crown

• and -

SALIK SAJID

J. Penman, for the Defence

HEARD: April 10 to 18, 2012

REASONS FOR JUDGMENT

Wein J.

Overview

[1] On the morning of June 10th, 2009, Salik Sajid stabbed and killed his landlord, Mustaeen Siddiqi, for no apparent reason. He has been charged with first degree murder and has re-elected to be tried without a jury. The sole issue at trial is whether he should be exempt from criminal responsibility pursuant to the provisions of section 16(1) of the Criminal Code of Canada.

The Known Facts:

[2] The evidence called by the Crown from the police officers who investigated the killing was not disputed. There is uncontroverted evidence to support a conviction of first degree murder, apart from the not criminally responsible (“NCR”) issue.

[3] The post mortem report, entered on agreement, established that the victim died from stab wounds. He had three medically significant injuries, a lethal wound to the left side of his neck in the jugular vein, a stab wound to the right upper abdomen with lethal injuries to internal organs and veins, and a stab wound to the right chest into the right lung, which was medically significant but not lethal. Defensive injuries were present on the left arm. There were in addition a number of other sharp force injuries to the neck, face, ear and arm, as well as abrasions and contusions to the face, neck, shoulder, upper back, elbows, forearm, thigh and knee. Mr. Siddiqi died of the sharp force injuries to his neck and torso.

[4] Mr. Siddiqi was the landlord of the accused, who lived in the basement apartment of the Siddiqi residence, with his younger brother, father and mother. The primary evidence concerning the details of the killing is found in the videotaped statement given by Mr. Sajid immediately after his arrest, supplemented by his mother’s account, as she was present in the apartment and saw the latter part of the attack.

[5] Mr. Sajid explained that the victim had been downstairs fixing a window and standing on a chair and Mr. Sajid waited for him to finish and stabbed him with a knife when he stepped down. He said he had taken the knife from the kitchen a minute or two earlier.

[6] Mr. Sajid’s mother said that Mr. Siddiqi came to the apartment that morning to fix the window in the bedroom. Her husband and younger son had gone out. She woke her son Salik up and then after he washed he asked “why has he come again?” When Mr. Siddiqi asked repeatedly for Mr. Sajid to go and help him he refused, but his mother insisted until he went. Then she heard strange sounds and then saw the two of them near the door hanging onto each other. She tried to pull them apart but Mr. Sajid wouldn’t let go of Mr. Siddiqi. Her son just said, “I know who sent him”. When she asked what went wrong he said he couldn’t tell her anything. He said, “I know who has sent you, there is no fight between you and me.” She saw the blood so she ran upstairs to get help, and her son told her to “call the police and they will get the ambulance”. While waiting for the police, she stood next to her son. He was standing ‘as if carved out of stone’ and she was worried that he might harm himself as well, as she told the police.

[7] Mr. Sajid later told the police that he was surprised at how long the police took. He went and changed his clothes, washed his bloody hands, and put the second knife back in the kitchen. His report of the details of the attack varied in telling his story to the police and later to two psychiatrists.

[8] The officer who first arrived on the scene, Sergeant Scott, was directed to Mr. Siddiqi who was lying on the stairs from the garage down to the basement, still moaning. As he endeavoured to help Mr. Siddiqi, the door to the basement apartment opened and Mr. Sajid appeared. He was advised not to move. He cooperated immediately and laid down on the floor as directed. He was subsequently handcuffed without incident and searched.

[9] The accused’s mother advised the police at the scene that her son had done the stabbing and was still in the basement apartment. She said he was sick, upset because he was out of work, and she had concerns that he would harm himself. She said that she had heard her son ask Mr. Siddiqi “what are you doing here?” and “my enemies sent you” and then he attacked.

[10] The officer who arrested Mr. Sajid indicated that Mr. Sajid was cautioned and read his rights, and appeared to understand. When the officer heard the ambulance attendants who were working on the victim say he was “vital signs absent”, he advised Mr. Sajid that if the victim died he would be charged with murder. He reread the rights and caution, and again Mr. Sajid appeared to understand.

[11] The officer asked what happened, and Mr. Sajid said he was just a normal guy, that the victim had sexually assaulted him with his eyes. He said the victim would look at him in a certain way and he didn’t like it and the victim knew he didn’t like it but continued anyway.

[12] He indicated that he was not on medication, drugs or alcohol and when asked if he’d been diagnosed with Schizophrenia or bipolar disorder he said, “No, no, no, I’m just a normal guy” and repeated his explanation of the incident.

[13] He said that after he stabbed Mr. Siddiqi a couple of times the knife broke and the blade fell off and he threw the handle and then he punched and struggled with the victim, who got away and ran to the door. At this time Mr. Sajid said he went and got a second knife and went to continue the attack. By this time Mr. Siddiqi was holding the door shut which prevented him from turning the knob. He then felt remorseful and said he gave up and decided to wait for the police to arrest him. Throughout, Mr. Sajid was calm, cooperative, he did not struggle and ‘seemed to have his wits about him’.

[14] The officer who transported Mr. Sajid to the station re-read the secondary caution and clarified it after Mr. Sajid said he didn’t understand, and when Mr. Sajid was asked again if he understood he said he did. When he searched Mr. Sajid at the station, Mr. Sajid told him that his clothes were not the ones that he was wearing at the time of the incident.

Mr. Sajid’s Background

[15] In his lengthy videotaped statement, Mr. Sajid described his background, including his youth in Pakistan, and the events after October of 2006 when he and his family came to Canada. The essential features of his background were confirmed in the subsequent testimony of his brother and mother and sister, who were called by the defence.

[16] Mr. Sajid was born in Karachi, Pakistan, and grew up as the first son in a relatively well-off family. He had an uneventful childhood: his mother described him as happy and jolly but “hyper”. He attained a high school education and went to college in Pakistan. The family placed high expectations on him.

[17] In Pakistan, he had a number of friends, although by the time he was 15 years of age he exhibited some social problems: he would be happy with a friend for a time and then he would say that they had become enemies and were going to harm him. His brother and mother agreed that he had had a friend named Danish, a neighbour. They had been friends since childhood, but he turned against Danish and would hide from him, telling his mother that they ‘couldn’t understand’ and that he had ‘become an enemy’. There was some indication that Danish did have unsavoury friends and/or political involvement or was dangerous. His family told him to forget about Danish but he would say he had to ‘get him on the right path’ and had to ‘save’ him.

[18] Mr. Sajid’s mother saw Danish in Karachi before she came back to Canada in 2009, and he asked for her son’s phone number. She didn’t give it to him because he “didn’t look okay to me”. The psychiatrists were advised by that Danish had died in Pakistan, possibly in suspicious circumstances, shortly before the death of Mr. Siddiqi.

[19] Mr. Sajid was not taken for any treatment of his problems while the family lived in Karachi, and according to his family had no relevant medical history, although an uncle had had schizophrenia.

[20] With his parents and younger brother, the family moved to Canada when Mr. Sajid was about 20. His older sister had emigrated earlier, and at first they stayed with his sister’s family. Mr. Sajid felt that he adapted well to Canada, because he was westernized before and spoke English as well as Urdu. His parents returned to Pakistan after about six months, and he and his brother remained at his sister’s home.

[21] In Canada, Mr. Sajid had to take upgrading courses to meet Canadian standards, and this caused him dissatisfaction. He was unable to get a job in his chosen field of accounting, or any other white collar job, and had to take part-time work at gas stations and fast food restaurants. He became depressed and more and more isolated. His mother described Mr. Sajid as being enthusiastic when they first arrived but later disappointed when he was unable to get a white collar job. His sister testified that he was fine and ambitious at first but when things didn’t go well he became distressed and hopeless. He was happy for a time when he got an internship at the Canadian Cancer Society but when he was not hired back, he became more strange and isolated.

[22] After a while he began to say that people were laughing at him and looking at him. He quit his jobs because he felt his enemies would hurt him and he would be in danger if he went out and that his family wouldn’t understand. At one point he said a car was chasing him with four white men in it. He would be mumbling and laughing, and would avoid his sister and would not talk to the family. Eventually he moved out with his brother.

[23] In April 2009 he and his brother rented the Siddiqi’s one bedroom basement apartment, planning to live again with his parents who were returning to Canada. At this stage, as his brother confirmed, he completely refused to get a job or even to go out of the apartment, saying he was in danger. His sister offered to get help for him, either by calling the police or by getting medical help, but he said he didn’t need help. By the time his parents arrived he was staying in his room laughing loudly to himself and mumbling. He had no friends and refused to go to a doctor.

[24] When his mother came back in May 2009 to the basement apartment, Mr. Sajid seemed really ‘strange’, ‘weird’, ‘she had never seen him like this’. He wouldn’t talk, eat, or pray with his father and asked to be left alone. He wouldn’t leave the house. She talked to him about going to the police, and asked him to go to a psychiatrist, but he didn’t want to. Until the date of the death of Mr. Siddiqi, he had no friends and sat alone in the living room talking to himself and laughing out loud.

Psychiatric Opinion Evidence

[25] Both psychiatrists who testified, Dr. Philip Klassen and Dr. Julian Gojer, are well known forensic psychiatrists whose qualifications were not disputed.

[26] Dr. Gojer interviewed Mr. Sajid on January 30, 2010 and February 13, 2011. He also relied on the videotaped witness statement of Mr. Sajid on June 10, 2009 and psychosocial and psychological assessments conducted by his assistant Dr. Kalia.

[27] Dr. Gojer concluded that Mr. Sajid was suffering from a psychotic illness at the time of the alleged offence, and continues to suffer from that illness. The illness is characterized by persecutory delusions, delusions of reference, delusions of surveillance, and some thought disorder. As was well confirmed by Mr. Sajid’s appearance throughout the court process, he also has some features of inappropriate affect, such as slight twitching and silent mumbling as well as inappropriate smiling or laughing. Dr. Gojer’s diagnosis was of paranoid schizophrenia or possibly delusional disorder, persecutory subtype. He noted that these categories of mental illness would fall within the definition of mental disorder as determined by courts in the past as being within section 16 of the Criminal Code.

[28] He also noted that Mr. Sajid would have been able to appreciate the nature and quality of his actions from a physical perspective, and was aware of the potential legal consequences, in the sense that he was aware that killing another individual was against Canadian law. However, he would have interpreted his actions as justified on the basis that he was trapped in a setting where he could not complain, that his life was in danger, and possibly that he was being sexually assaulted. Accordingly, although he would have had the capacity to understand the legal consequences, his mental illness and delusional thinking would have prevented him from understanding the moral consequences, because he would have been prevented by his illness from seeing alternatives to dealing with his predicament, such that he believed that what he was doing was morally right or at least justified. Dr. Gojer concluded that he has a defence of not criminally responsible on account of mental disorder pursuant to section 16(1) of the Criminal Code.

[29] The testing indicated that Mr. Sajid was not malingering, in other words that he was not faking his mental illness.

[30] Dr. Gojer’s report provides an extensive summary of Mr. Sajid’s statement, and then a somewhat different report to Dr. Gojer concerning the offence. In that interview, Mr. Sajid indicated that Mr. Siddiqi would come down to the basement apartment and touch Mr. Sajid on the shoulder or neck or arm. Eventually, the landlord began to make overtly sexual gestures such as massaging his back or rubbing him just above the buttocks. He felt sexually violated and glared at the landlord hoping the landlord would see the anger in his eyes and not repeat it but felt weak and intimidated. Eventually he came to feel that his friend Danish had connected with Mr. Siddiqi, and that Danish was blackmailing him or was going to do him harm. The landlord continued with more overt assaults and at some point told him that he liked him and loved him. He also said the landlord tried to grab his genitals on about five occasions.

[31] Dr. Gojer concluded that Mr. Sajid was simply lying about the physical sexual assaults, likely in an effort to present what he mistakenly thought might be a legal justification, of defence to a sexual assault.

[32] Dr. Klassen reviewed the same information as Dr. Gojer, also including Dr. Gojer’s report and clinical test results. He met with Mr. Sajid on three separate occasions over a one week period in early 2011. After reviewing Mr. Sajid’s personal history and extensively reviewing the history of the allegations, as well as Dr. Gojer’s report and the psychologist testing, he summarized his interviews with Mr. Sajid.

[33] In these interviews, Mr. Sajid expanded his account of the sexual nature of the assaults by Mr. Siddiqi: he said that he had been physically sexually assaulted by Mr. Siddiqi and had attempted suicide during this timeframe. Mr. Sajid related his feelings that he was being followed or watched by persons connected with Danish, but Mr. Sajid denied other psychotic systems including hearing voices or seeing visual hallucinations.

[34] With respect to the death of Mr. Siddiqi, Mr. Sajid indicated that there was no premeditation apart from obtaining the knife. He said that he perceived Mr. Siddiqi as evil and as being connected to Danish: “60% of his concerns with respect to Mr. Siddiqi were related to his being ‘my enemy’ ”. He thought he would have killed Mr. Siddiqi even if he had simply sexually assaulted Mr. Sajid and it had nothing to do with Danish. He felt that Mr. Siddiqi had called people in Pakistan telling them about sexually assaulting Mr. Sajid, and that this was shortly after Danish died in a motor vehicle accident in Pakistan.

[35] At the time of the attack on Mr. Siddiqi, Mr. Sajid stated he felt pressure and fear: he didn’t want to do it but felt he had to be brave. He indicated that he consumed a beer to prepare himself, although there was no confirmatory evidence that he had been drinking or that a beer can had been found. He said that when Mr. Siddiqi returned to the apartment after leaving briefly to get something, his feelings came rushing back.

[36] On this occasion Mr. Sajid described the attack with the knife as more of a defence to a sexual assault. When he went into the room Mr. Siddiqi took his hand and rubbed his thigh and so he told Mr. Siddiqi enough is enough and showed him the knife, but Mr. Siddiqi didn’t take this seriously. He hugged Mr. Sajid and grabbed and squeezed his buttocks so he punched him, struck him on the head, but then Mr. Siddiqi choked Mr. Sajid and he couldn’t breathe so he “just reacted, stabbing Mr. Siddiqi automatically … I didn’t plan to do it”. Mr. Siddiqi then looked angry and Mr. Sajid decided Mr. Siddiqi was evil and had to put him down so he stabbed him in the neck with the full knife and he kept stabbing him. They both went out of the room and his mother pulled Mr. Sajid off Mr. Siddiqi. Mr. Sajid ran to get another knife but when he got back Mr. Siddiqi went out the door and he was relieved so he said “why did you mess with me, this is all your fault”. Because he felt he had to say something to the police, and he “told the officer whatever came to my mind”, but hid what really happened. He said he hadn’t shown Mr. Siddiqi the knife a week beforehand as he told the police, he said it wasn’t true that he had premeditated the attack.

[37] With respect to the underlying principle driver of aggression, he told Dr. Klassen that it was sexual abuse as well as the “Danish circle”. He was upset because he didn’t think he should go to jail when the actions were not his fault. He knew it was important that he be found NCR, although he would like to tell a jury what happened and to be released. Mr. Sajid also acknowledged that “the enemy thing might be wrong” but he believed the notions of persecutions related to Danish were true and concluded that he was not really a crazy person. In jail, Mr. Sajid reportedly again felt suicidal although it was also felt by the jail that he tried to manipulate the system.

[38] Dr. Klassen’s diagnosis of Mr. Sajid was that as he became paranoid, he became vulnerable to a substance induced psychosis, but did not have a substance abuse disorder. He also did not think that he had personality disorder although he had narcissistic personality traits.

[39] It is Dr. Klassen’s opinion that Mr. Sajid suffers from a major mental illness. Like Dr. Gojer, he was not completely certain about the exact diagnosis, but believed the principle candidate diagnoses include paranoid schizophrenia and delusion disorder persecutory type, as Dr. Gojer found. He reviewed the details of the diagnosis.

[40] With respect to his assessment of criminal responsibility, he found that the case was “somewhat complicated”.

[41] In particular, with respect to the persecution, he felt that the situation with Danish may have had a kernel of truth and been the basis for the persecution complex, which exhibited itself in his becoming considerably isolated leading up to the incident. With respect to the allegations of actual sexual assault, it was noted that there was no corroboration of it and that his report of the assault had evolved and was at times contradictory, with respect to the extent of the sexual assaults and whether there was premeditation or not. Both Dr. Gojer and Dr. Klassen rejected the notion that there had been actual sexual assaults, finding that these aspects were likely made up later in an effort to find an excuse or justification. Some of the other reports, such as that relating to intoxication, seem to be based on an attempt to find a defence. It was not until the interviews with Dr. Klassen that self defence and alcohol issues were added to Mr Sajid’s account.

[42] Dr. Klassen was of the opinion that at the time of the incident Mr. Sajid was aware of the nature and quality of his acts, and that he appears to have been aware of the legal wrongfulness of his actions. Concerning the difficult ultimate question of whether or not he understood the moral wrongfulness of his actions, Dr. Klassen felt that if there had been actual physical abuse without delusions, then he would have had an understanding of moral wrongfulness. However, since there is no evidence of any actual sexual abuse or harassment by Mr. Siddiqi, it is more likely that his persecutory delusions resulted in a motivation for the offence. He concluded that likely he developed the sexual harassment allegations to assist in a defence, because he doesn’t really believe that the persecutory feelings are a delusion and a mental illness. Therefore in conclusion Dr. Klassen stated:

It is my opinion that his gentlemen experienced compromise with respect to “rational perception”, and “rational choice”, vis-à-vis the moral wrongfulness of his actions. Accordingly, a defense of not criminally responsible due to a mental disorder could be available to him.

Relevant Case Law

[43] The present version of section 16 of the Criminal Code came into force in 1992. Section 16(1), headed “Defence of Mental Disorder” states:

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.

[44] The nidus of this case lies in the term “knowing that it was wrong”. There is no issue that Mr. Sajid was suffering from a mental disorder, and that notwithstanding that disorder he was nonetheless capable of appreciating the nature and quality of his act of stabbing his landlord. The question is whether he was rendered incapable of knowing that it was wrong.

[45] This aspect of the section has been interpreted by the Supreme Court of Canada in R. v. Oommen, 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507, 91 C.C.C. (3d) 8.

[46] Oommen suffered from a mental disorder causing paranoid delusions, specifically that his friend had become one of a group of conspirators, and that she had instructions to kill him. Mr. Oommen shot his friend as she slept on the floor, convinced by his delusion that he had to kill her to prevent her from killing him. As is the case with Mr. Sajid, he was clearly capable of understanding the nature and quality of his act. As well, in general, he was capable of knowing that what he did was wrong according to society’s moral standards.

[47] The question as posed by the court was:

What is meant by the phrase “knowing that [the act] was wrong” in section 16(1)? Does it refer only to abstract knowledge that the act of killing would be viewed as wrong by society? Or does it extend to the inability to rationally apply knowledge of right and wrong and hence to conclude that the act in question is one which one ought not to do? (para. 20)

[48] The court continued:

A review of the history of our insanity provision and the cases indicates that the inquiry focuses not on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act.

The wording of s. 16(1) suggests this result. It proclaims that the focus is not a general capacity to understand that the act, say of killing, is wrong, but rather the act "committed" or omission "made", i.e. the particular act or omission at issue in the criminal proceedings. (para. 20-21)

[49] In this, the court affirmed the principle as had been stated with respect to the earlier legislation, in R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, 62 C.C.C. (3d) 193, that the focus must be on capacity to know that the act committed was wrong and not merely on a general capacity to distinguish right from wrong.

[50] It is also clear, from a long line of authorities dating back to M’Naghten’s Case, that the question is whether the accused was able to appreciate the wrongfulness of the particular act he was doing at the particular time. The legally relevant time is the time when the act was committed. So:

A person may have adequate intelligence to know that the commission of a certain act, for example murder, is wrong but at the time of the commission of the act in question he may be so obsessed with delusions or subject to impulses which are the product of insanity that he is incapable of bringing his mind to bear on what he is doing and the considerations which to normal people would make the act right or wrong. See G. Arthur Martin, Q.C. (later Martin, J.A.) in “Insanity as a Defence” (1965-66), 8 Crim. L.Q. 240 at 246.

[51] Also there is no requirement that the exemption from criminal responsibility applies only if a specific defence such as self-defence is also made out. It must be recognized that section 16 is not merely a vehicle for bringing particular defences before the court; it is an independent condition of criminal responsibility.

[52] While the exemption from criminal responsibility does not apply in simple cases of failure to exercise the will to refrain from doing wrong, irresistible impulse may be adduced as the symptom of the disease of the mind which can be taken into account in determining whether the mental disorder applied to the extent of knowing that the act was wrong. See for example R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24 at 38-39.

Positions of Counsel

[53] In this case, counsel agreed that there is cogent and overwhelming evidence that Mr. Sajid suffers from major mental illness. Both of the highly regarded psychiatrists who testified confirmed the diagnosis of paranoid schizophrenia or possible delusional disorder. As noted previously, Mr. Sajid’s affect in court tended to confirm the external indicia of his illness. He was at times twitchy and appeared to mouth words silently or quietly to himself, or to some invisible being next to him, sometimes smiling or laughing inappropriately. While seeming to be paying some attention to his own world, he was at the same time consistently aware of what was going on in the court proceedings. While he did not testify, he appeared to be paying attention to the evidence and submissions, and was uniformly responsive when spoken to by counsel or by the court. He was polite and cooperative, for example, in moving his position in the dock so he could be seen by the court while counsel was speaking.

[54] Both doctors indicated that Mr. Sajid had no difficulty in understanding the nature and quality of his act, as was clear from the comments he made at the time of the incident and in his subsequent statement to the police. He had been planning to kill Mr. Siddiqi albeit he was trying to resist. He knew that stabbing in the neck would be more likely to accomplish that end, and he was surprised at the limited amount of blood and the fact that Mr. Siddiqi did not die immediately.

[55] As well, the psychiatrists agreed that Mr. Sajid understood the legal wrongfulness of his actions. He knew that it was against the law, although he didn’t know what consequences might be meted out under Canadian law. These points are well established through videotaped statement and the psychiatric evidence, and the Crown concedes them.

[56] The key issue, then, is whether or not at the time of the offence Mr. Sajid was aware of its moral wrongfulness. As in many of the cases referred to, this is the difficult central issue. It can never be known with precision what was in a person’s mind at the precise time of the offence. The defence argues strenuously that the evidence shows a massive break in moral awareness by a previously moral person, an explosion related to his mental illness that shows there must be a gap in the moral reasoning. This view is confirmed by Dr. Gojer’s diagnosis and conclusions, and supported as well by Dr. Klassen’s conclusions that it is a distinct possibility. Dr. Klassen eventually concluded that the self-righteous and remorseless response to the killing makes a lack of awareness of moral wrongfulness the only real plausible explanation of the events. Even in reviewing passages from the statements which were indicative of some awareness of potential moral wrongfulness, Dr. Klassen, while acknowledging that the decision is ultimately one for the court, concluded that the mental illness at that moment overcame Mr. Sajid’s capacity to know the act was wrong in a moral sense.

[57] On behalf of the Crown, Mr. Cornelius has thoughtfully argued that while there must be a good reason to reject expert evidence, there is a factual basis upon which an alternative verdict or conclusion can be reached in law which is different from the medical views. The Crown points out that there is limited evidence that Mr. Sajid was acting on his delusion. Even if he was acting on his delusion it is argued that there is no clear nexus between the delusion and the victim. Finally, the Crown argues that an issue remains whether or not Mr. Sajid understood, at the moment of the killing, that his conduct was morally wrong. The Crown points out that there are many indicia suggesting that he was capable of moral reasoning at the time.

[58] With respect to these submissions, it is my view that it can properly be concluded that Mr. Sajid was acting on his delusion. There is absolutely no evidence of any other motive. While it is true that Mr. Sajid lied to the police initially about Mr. Siddiqi sexual assaulting with his eyes, or at least tells his parents during the interview that he lied to the police, because he had to tell the police something, Dr. Klassen explains that Mr. Sajid is unaware of his illness, even now, and so feels he has to make up a justification. There is some evidence to support the conclusion that Mr. Siddiqi was part of the delusion, as he had told his mother about enemies, and had told his mother “ask him”, suggesting that Mr. Siddiqi was part of the delusion about being watched by enemies connected to Danish. The psychiatrists also indicate that it is possible that Mr. Sajid did interpret some looks as being sexually inappropriate.

[59] Both doctors were closely cross-examined by the Crown concerning the suggestion of a parallel intent not linked to a delusion, and while admitting the possibility at least theoretically, neither doctor accepted it as likely. Given the clear context of an overarching mental illness with delusionary aspects, they felt that it does not make sense to conclude that this out-of-character action by a previously pro-social person was unconnected to the delusion.

[60] With respect to the Crown’s argument that there is no nexus shown between the delusion and the victim, again the alternate theory of the Crown that the action might have been based on a lashing out over frustration with his situation was said to be possible, but Dr. Klassen acknowledges that a nexus to the delusion is the most likely explanation. Dr. Gojer also pointed out that Mr. Sajid told him that the victim was part of the ‘Danish’ conspiracy. It is true that Mr. Sajid was clearly trying to construct a theory that was in his legal interest, but nonetheless, I accept the evidence that there was a nexus to the illness, as being the most likely explanation.

[61] The Crown’s argument with respect to the final point is the most difficult aspect of the assessment. Even accepting that there is a nexus to an operational delusion, it is clear that there must be some evidence on a balance of probabilities that at the relevant time Mr. Sajid lacked the capacity to know that his actions were morally wrong. There is affirmative evidence of Mr. Sajid’s ability to appreciate that he was acting in a morally wrong manner. His efforts at after the fact reconstruction and justifications to some extent demonstrate that, at least after the fact, he knew his actions were morally wrong. Even immediately after the event, he took pity on Mr. Siddiqi, and that response obviously can be interpreted as an indicator of his awareness, seconds after the fatal stabbing, that his actions were morally wrong.

[62] The Crown referred to a number of authorities where persons with mental disorders causing delusions had nonetheless not proven that they lacked an ability to appreciate the moral wrong of their actions.

[63] All of these, coincidentally, arose in situations where the underlying offence was less serious than murder, such that a lower sentence would be received if the accused were found legal responsible.

[64] In R. v. Guidolin, 2011 ONCA 264, [2011] O.J. No. 1649 (C .A.) the Court of Appeal recently reviewed a decision involving a robber at a bank machine. The accused had an extensive criminal record and was initially found unfit to stand trial. When found fit after treatment, he advanced a plea of not criminally responsible on account of mental disorder. The trial judge accepted the claim. However, on appeal, the accused reversed his position and argued that the NCR verdict was unreasonable. The Court of Appeal found that while there was ample evidence of a long standing and serious mental disorder that was causative of the criminal behaviour, there was nothing in the psychiatric report that supported the claim that the accused did not know that his conduct was wrong. The report simply stated that the accused had the capacity to recognize the wrongfulness of his conduct but simply did not care.

[65] The report appeared to be contradictory. The doctor in the report indicated that the accused was “substantially morally indifferent”, but also suggested he was “unable to exercise the judgment of a normal person”. The court held that the latter phrase was not equivalent to the meaning of ‘wrong’ from Oommen. Finally, it suggested that the accused seemed to say he had auditory hallucinations which drove him to commit robbery, although his account was difficult to interpret. Because the report did not affirmatively assert that the appellant had acted under the influence of the hallucination, the court held there had been no basis for the NCR finding on a balance of probability and accordingly set aside the finding and entered a conviction.

[66] The Court of Appeal in R. v. Woodward, 2009 ONCA 911, [2009] O.J. No. 5484 reviewed a case where the accused clearly had a serious mental illness, and whose conduct was driven at least in part by his delusions. Dr. Gojer in that case agreed that the accused was capable of appreciating the nature and quality of his acts and that he knew his acts were legally wrong but found he was incapable of knowing that his actions were morally wrong. In reviewing the Oommen test, which instructs that the court must determine whether the accused is incapable of understanding that his acts were wrong according to the ordinary moral standards of reasonable members of the community, the Court found that the report did not adequately address the specific question. The Court found that the psychiatric opinion appeared to be results driven and did not provide a basis for the NCR finding.

[67] The court held that the view that the accused did not know that what he was doing was morally wrong was insufficient:

The appellant’s personal belief about the morality of his actions is a different issue than his capacity to know how others in the community would assess the morality of his acts. It is difficult to see how an individual like the appellant who knew his actions were legally wrong would be incapable of understanding that the same acts would be regarded as morally wrong by the community. Dr. Gojer provides no insight into this problem.

[68] Importantly however, in Woodward, the accused did not ever suggest that he did what he did because he believed he was justified in doing the acts.

[69] Similarly, in R. v. J.M.W., [1998] B.C.J. No. 457 (BCCA), a case involving the hijacking of a school bus driver and students, by two young offenders, the trial judge found that while both accused had a mental illness, schizophrenia, they had known that the hijacking was wrong both legally and morally. The Court of Appeal held that the accused had the capacity to understand society’s values but nevertheless decided that they would carry out their plan. Notwithstanding their illness, they were able to make a rational choice between what they knew was legally and morally wrong and what their delusions told them was justifiable. The conclusion that they still had the ability to assess their acts rationally was supported by the medical evidence and by their conduct. It is clear that moral wrong is not to be judged by the personal standards of the offender but by his awareness that society regards the act as wrong.

[70] In cases such as R. v. Ratti, 1991 S.C.R. 68, it was clearly stated that even where the act in question is motivated by a delusion which results from a disease of the mind, an accused person will still be convicted:

...if he was capable of knowing in spite of such delusion that the act in the particular circumstances would have been morally condemned by reasonable members of society.

[71] The court reviewed the suggestion, stemming from Oommen, that a finding of NCR was appropriate where the accused is ‘unable to personalize’ or to apply to his own actions the question of right or wrong. In Oommen the Court indicated:

Rather, the real question is whether the accused should be exempted from criminal responsibility because a mental disorder at the time of the act deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of this act.

[72] The court clarified that this does not mean that a person whose delusion resulted in them choosing to set themselves apart from the moral code of society could escape criminal responsibility. A person who follows a personal and deviant code of right and wrong would not necessarily be found NCR. Where however the person accepts society’s views on right or wrong but is unable because of his delusion to perceive that his act of killing was wrong in the particular circumstances, the defence will be available.

[73] A person who understands society’s views as to what is right and wrong in particular circumstances, but either does not care or because of a delusion chooses to act nevertheless in contravention of society’s views is not to be excused from criminal responsibility. So in J.M.W., where the evidence did not establish that the accused were so driven by their delusions that they did not have the capacity rationally to choose which course to follow, the rejection of an NCR defence was held to be correct.

[74] Earlier, in R. v. Ratti, (supra), the Supreme Court of Canada had held that it is not sufficient to decide that an accused’s act was a result of a delusion. Even if the act is motivated by the delusion, the person will be convicted if he was capable of knowing in spite of such delusion that the act in the particular circumstances would have been morally condemned by reasonable members of society.

[75] The Crown argues that in this case, the various statements made by Mr. Sajid demonstrate that he did have some moral capacity at the relevant time such that he knew the act would be condemned by society. In particular:

1. He told the Detective that he “didn’t want to do it till the last verge … as much as possible I wanted to avoid it, as much as possible.” When asked if it was overpowering, or that he had the sense that he had to stab him he said,

the sense was not to do it … sometimes the thing that you’re tolerating … sometimes happens again, you just like, boom, like explosion, right? … you lose your mind, you lose your mind and then you just do that wanna do something bad.

2. When discussing the pressure he felt from Mr. Siddiqi he said,

When I was confused, mad and pissed and didn’t know what to do, and would give me the same thing, I’m like, I’m going to kill him … I knew I had to kill him. So I wanted to kill him and that’s why I took the knife and that’s why I did it ‘cause I want to kill him.” When asked about whether he was thinking of the consequences he said, “Yeah … I lost my mind … I had nothing in my mind like a normal person know that I can’t do it and this is Canada you cannot get away with anything … so here … but I just lost my mind completely … and so this is what the thing is. So I wanted to kill him that’s why I did it and when I stabbed him I stabbed him like five and six times.

3. When asked if he knew to stab Mr. Siddiqi in the neck, that he would die, Mr. Sajid said,

He’s going to die, but he won’t die … he won’t die … mainly I had mercy for him because I had the second knife and when he went outside the door he didn’t ran away … I had to stab him like six and five times, and according to my calculation he was supposed to be dead.

4. Then because Mr. Siddiqi struggled and his mom came out and asked him what he was doing, he said he took the second knife but didn’t try again.

5. When asked if he knew he was going to kill Mr. Siddiqi today he said,

Yeah yeah I did, I knew, I knew that because I told you … I am telling you that I wanted to kill him ‘cause ‘cause I lost my mind and I had no consequences thing like that I mean I wasn’t myself I can say that.

6. Then when asked if he knew what he was going to do was wrong he said “exactly” but, “that is not the thing if I made up my mind …” He said he discussed it being a big shock,

I got violent. But violent in the sense like I, I said in my mind I’m going to kill him, I’m was so angry. I was so angry I was so angry I said I burst you know when you burst in your mind. Explosion. Boom. That thing. So you’re not thinking anything or anything else no result no consequences or anything. Nothing. You just got to do it and you get violent, right. … because at that time there was explosion, explosion that made me do this. Not even think if I want to kill him or not, but I wanted to do something to him that would of course kill him for sure, that I knew in my mind.

7. He also acknowledged that he had been thinking about killing Mr. Siddiqi for two weeks because ‘he didn’t have an option he couldn’t go to the police and couldn’t talk to him.’ He said this was because of the way Mr. Siddiqi was looking at him (although he later told his parents that that was untrue). When he decided not to stab Mr. Siddiqi further and his mother said “look what you did to him” he threw the knife and said “okay, I’ll let you go … I forgive you … I was also a little bit guilty conscious at that time.” And his guilt “started to come in a little bit.” However, he acknowledged that he got the knife initially in order to kill not to just scare him.

8. He said he wouldn’t have killed him the day before it was just a momentary thing, although he had been thinking about it from before. He said,

If you put yourself in a situation of a normal person you might understand it. A normal person I mean who’s not a killer … normal people would not do anything.

But he admitted ‘yes he wanted to kill him’ and was ‘thinking of killing him’. During the interview he indicated that he felt badly because he didn’t want to do it, ‘seriously he never wanted to do it’, he wasn’t “a gangster that just wanted to kill someone” but “one thing is for sure I’m a normal person” and through his [Mr.Siddiqi’s] eyes and facial expression it drove him pretty bad to pretty mad.

9. He also acknowledged that he changed his clothes after. He wore pants with pockets to conceal the knife and that’s why he wore those. Because he had to wait he changed his pants and cleaned his glasses, washed his hands, washed the knife and put it back.

10. In talking to his parents he asked them to excuse him.

[76] The Crown argued that all of these comments and factors indicate some capacity to understand right and wrong and also argues that premeditation may in some circumstances be seen as an aspect of capacity, although it may be neutral in this case.

[77] Questions about how these factors bore on the issue of the accused’s capacity to know that the acts were wrong were answered by each psychiatrist.

[78] Dr. Gojer’s opinion was unequivocal. He felt that the post event explanations and indicia of moral judgement did not take away from the “explosive” nature of Mr Sajid’s actions. He stated:

It, it's all, it's all part of a major mental illness. This is a very irrational young man who's also telling the officer at some points in the conversation that he feels like laughing about the whole thing. When we are trying to apply rationality to this behaviour, in a person whose original belief about the victim was very irrational, totally irrational and in that passage on page 135, that's where he - even raising this issue with the officer that, "They will forgive me, yes I did something wrong," and these are the explanations that we have, he says, "But that was a specific circumstances, which I act that, right." So that is why when I combine not just his conversations with the officer, but the overall delusional system it connects and says yes, the delusion itself leads to irrational thinking, being unable to weigh the pros and cons of his actions. And when he says, "It was like an explosion in my mind," to me that explains that this man was unable to at that precise moment do any of the weighing of the rights and wrongs, he's not even thinking of the consequences. There's no attempt to run away, there's no attempt to harm this man other than in the presence of his mother. So I give a lot of value when he says to the officer, "It was like an explosion," and he perceives the explosion as occurring from the constant prodding, the intimidation that he says went on over and over. So that precise moment I don't believe that this man in any way would have been able to weigh the pros and cons of his actions, and his actions were solely determined by the delusions that he had.

[79] He clarified that the after-the-fact comments suggesting an awareness of moral wrong do not affect the lack of moral capacity at the time:

I'm talking about the precise moment, the, the events that occurred after discussions with the police officer. Some of it touches on the moral wrongfulness as he's making here. But as I said, I look at the whole picture and I'm not just focusing on one aspect. So I do take into consideration when he says to the officer, "I felt I was being intimidated, I believed I was being harassed, it was like an explosion, I wasn't thinking of the consequences." And then I asked myself are these behaviours just the actions of a very angry young male or are they part of a major mental illness like a psychosis where there are delusions that are driving that? And to me the answer is yes, these behaviours at that precise moment are driven by the delusions which are irrational to begin with by definition and they are intimately involved with the alleged victim. So when I connect the overall theme and the comments made to the police officer that's the way I arrive at my conclusion that at that precise moment would he have been able to weigh the pros and cons of his actions? The answer is no. Would he have felt sorry after that has happened? Yes, and that's just conversation with the police officer.

[80] Dr. Klassen summarised that he “supported the notion” that Mr. Sajid didn’t have the moral capacity because:

(a) this gentleman does not appear to have had a demonstrable significant antecedent moral defect; (b) the vigor, persistence and self-righteousness displayed in the killing of this gentleman are consistent with a significant moral defect; (c) to the best of our ability to discern it, his psychotic illness is on point with respect to what drives violence, most commonly, in mentally ill people and provides the - I would submit to you the only plausible explanation for this offence unless there's something I don't know; (d) it's not uncommon for mental illness symptoms, while progressive overall, to fluctuate and for individuals to experience periods of great symptom intensity which have a real impact on their moral reasoning by virtue of the consuming nature of the delusional thinking; and (e) there does appear to have been a downward trajectory in this gentleman's well-being. That is to say, the information from family suggests that he was getting worse and that his behaviour and his mood were being informed by his delusions. That is to say, if this gentleman was to say I was delusional and paranoid, but there was no appreciable change in any of his other behaviours, then you would quite rightly say to me, well, why do you think it so compromised this man with respect to the killing, in terms of his ability to appreciate the moral wrongfulness? And I'd probably say, good point. But in this case, this - the account that we have is that it did materially affect his mood: angry; fearful; isolative, and his behaviour: in his room; not at work; not eating with family. So that also helps, I think, to bring us to the point where we would say the delusions are affecting his behaviour. They're affecting - the thinking is, is changing his behaviour. It's changing his mood. So if you put the (a) through (e) together, to me, I believe that he experienced significant compromise of his moral reasoning, of his ability to appreciate the moral wrongfulness of his actions. In fact, still does, right? I mean, I mean, unless he's lying to me, which he could be. He said, I'm the victim here.

[81] So, although Dr. Klassen found it “a little less clear than it sometimes is” those points supported the notion of a failure to appreciate that the acts were morally wrong. He did however agree that passages where the accused expressed regret because of the loss to the deceased’s family were indicative of a functional moral capacity. In the end, though, after careful consideration, he felt these points did not change his opinion. While recognizing that evidence of capacity to understand conventional morality a few hours after the killing are open to interpretation, he found they were not on point with respect to the paranoia operative at the time of the killing. Dr. Klassen also was troubled by the premeditated nature of the killing, but found that that report varied in different accounts.

[82] Dr. Klassen concluded:

I think that the best fit to help explain these massive disparities of a well-functioning individual with a, basically, sound character, a period of withdrawal and an incredibly serious event, along with, sort of, his current presentation, then I think the best fit is that it's mental illness driven, and the power of that mental illness to overcome what was described as, basically, sound character must have been very significant and would have had a real material impact on his capacity for moral reasoning and moral judgment.

Conclusions

[83] This case is not as clear as some. Mr. Sajid is cunning , and there are indicia that he has made efforts to provide incorrect information to justify his actions, and had in the past the ability to hide the severity of his illness from close family members for a period of time. The fact that he took and hid a knife on his person before the attack demonstrates some level of pre-planning that diminishes the strength of the argument that he did not have the capacity at the time of the event to know that it was morally wrong. He is clearly a danger to society either way.

[84] In the result, however the factors that might suggest that Mr. Sajid was possibly able to know the moral wrongfulness of his act in killing Mr. Siddiqi at the precise time the struggle occurred are explained by the expert evidence assessing his mental state at the time. To a large extent the indicia of knowledge of moral wrong come from after-the-fact comments he made . These do not contradict that there was an explosion in his mind that occurred at the time of the killing. They are of less significance in the assessment of knowledge of wrong than the overall reality that he was clearly suffering from a major mental illness, the act was entirely unmotivated and out of character, his victim was part of his persecutory delusion, and that his illness in all likelihood prevented him from knowing that his actions were morally wrong at that moment.

[85] In conclusion, I find that Mr. Sajid committed the act of first degree murder as charged, but on a balance of probabilities, I also find that Mr. Sajid was not criminally responsible for killing Mr. Siddiqi, on account of mental disorder.

[86] The matter will proceed to a disposition hearing pursuant to Section 672.45 of Part XX.1 of the Criminal Code.

Wein J.

Released: April 24, 2012

COURT FILE NO.: CR-1501/11

DATE: 2012 04 24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

SALIK SAJID

REASONS FOR JUDGMENT

WEIN J.

Released: April 24, 2012