CITATION: R. v. Huruy, 2015 ONSC 7731
COURT FILE NO.: 7-252/14
DATE: 20151210
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
B E T W E E N:
HER MAJESTY THE QUEEN
D. Brandeis & E. Middlekamp, for the Crown
- and -
NABIL HURUY
R. Richardson & A. Mozaffari, for the defence
HEARD: August 17, 18, 19, December 7, 8 & 9, 2015
Nordheimer J. (orally):
[1] Nabil Huruy is charged with first degree murder. It is alleged that in the early morning hours of September 14, 2013, Mr. Huruy stabbed the victim, Dominic Parker, to death in the Rotana café that is located on Danforth Avenue in Toronto.
[2] I will begin with the question whether Mr. Huruy is guilty or not guilty of the offence with which he is charged prior to any consideration of the defence of not criminally responsible.
[3] On that question, I heard evidence from the owner of the café and from one of the females who were present at the time that the stabbing occurred. I also heard from the cab driver who drove Mr. Huruy away from the café after the stabbing and from some of the police officers who investigated the crime scene. In essence, the evidence establishes that Mr. Huruy went to the café; he ultimately sat down at a table with the victim and two females who were playing cards; after a period of time, Mr. Huruy suddenly and without warning jumped up and began stabbing the victim; the owner of the café came over and pulled Mr. Huruy off of the victim; Mr. Huruy got away from the owner and resumed his attack on the victim; the owner again pulled Mr. Huruy away after which Mr. Huruy ran out of the café, got into a cab and left the scene. Two knives were found at the scene of the stabbing, both of which had been brought to the café by Mr. Huruy. Two days later, Mr. Parker succumbed to the injuries he sustained in the attack.
[4] Based on that evidence, I am satisfied beyond a reasonable doubt that Mr. Huruy caused the death of Mr. Parker and that he did so unlawfully. I am also satisfied that Mr. Huruy had one of the necessary states of mind required for a finding of guilt for the offence of murder. Specifically, I am satisfied that, when Mr. Huruy stabbed Mr. Parker, he meant to cause Mr. Parker bodily harm that Mr. Huruy knew was likely to kill Mr. Parker, and was reckless whether Mr. Parker died or not. The number of stab wounds, the nature of the stab wounds, the location on the body where the stab wounds were inflicted and the type of weapon used to inflict those stab wounds, lead to no other reasonable conclusion.
[5] On that basis, therefore, I am satisfied that Mr. Huruy is guilty, at least, of second degree murder. The issue then is whether Mr. Huruy is guilty of first degree murder. In order to prove that offence, the prosecution must prove that the murder of Mr. Parker was both planned and deliberate. A murder committed on a sudden impulse and without prior consideration, even with an intention to kill, is not a planned murder.
[6] I am not satisfied, beyond a reasonable doubt, on the evidence that is before me, that Mr. Huruy’s murder of Mr. Parker was either planned or deliberate. There is very little evidence that would suggest that was the case. Indeed, the preponderance of the evidence demonstrates that Mr. Huruy attacked Mr. Parker on the sudden, without any apparent thought or reason. It very much appears as a spur of the moment act. It is admitted that Mr. Huruy and Mr. Parker did not know each other. Indeed, they had never met prior to this occasion. Consequently, the offence of first degree murder is not made out.
[7] With that provisional conclusion reached, I turn to the evidence that has been led in support of the defence contention that Mr. Huruy should be found not criminally responsible for his conduct. At the outset, I note that the Crown, quite fairly, accepts that the defence of not criminally responsible is made out on the facts of this case. That acknowledgement, of course, does not bind the court. I must reach my own conclusion as to whether the defence is established based on the evidence that I have heard.
[8] In order for Mr. Huruy to be found not criminally responsible, under the provisions of s. 16 of the Criminal Code, the defence must prove, on a balance of probabilities, that, at the time of his actions, Mr. Huruy suffered from a mental disorder to such an extent that it rendered him incapable either of appreciating the nature and quality of the conduct or of knowing that the conduct was wrong. Specifically, s. 16(1) reads:
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.
[9] In that regard, I have two psychiatric reports - one from Dr. Ramshaw, undertaken at the request of the defence, and one from Dr. Wilkie, who undertook a court ordered assessment at the request of the Crown. These reports set out in considerable detail the history of Mr. Huruy and the specifics of his conduct over time that has given rise to this possible defence. In addition, both psychiatrists gave evidence. I should mention that no issue was taken with the expertise of either of these forensic psychiatrists. In addition to those two reports, I should mention that there is a third report, this one from Dr. Dickey, who conducted the first court ordered assessment at the request of the Crown. However, and for reasons that I need not get into, Dr. Dickey became unavailable as a witness. Consequently, the Crown retained Dr. Wilkie to conduct a second assessment. I mention this other report, though, because both Dr. Wilkie and Dr. Ramshaw refer to Dr. Dickey’s original report and, therefore, it continues to have some relevance to the issue that is before me. The report itself is not, however, before me as a stand-alone piece of evidence.
[10] Before turning to those reports, I should mention that the analysis and application of this defence, in this case, has been hampered by Mr. Huruy’s behaviour, including his unwillingness to participate in psychological testing by Dr. Ramshaw, and his unwillingness to participate at all in the assessment that was conducted most recently by Dr. Wilkie. This behaviour is also consistent with Mr. Huruy’s conduct in court, including his most recent conduct where he has refused to speak to counsel, or to the court for that matter.
[11] While no issue is expressly raised on the point, I believe it would be prudent for me to remark, at this juncture, on the issue of fitness insofar as it may be seen to arise from Mr. Huruy’s recent conduct. I do not view Mr. Huruy’s conduct alone as providing a sufficient evidentiary foundation to question Mr. Huruy’s fitness. Mr. Huruy was earlier assessed for fitness and was unequivocally found to be fit. He has not, in all of the appearances before me, demonstrated any lack of understanding regarding the process or the various roles of the persons involved in this process. While I accept the views, expressed by both psychiatrists, that Mr. Huruy’s mental disorder has likely progressed over time, especially given that he has not been treated in any way for that disorder, that fact, by itself, does not mean that Mr. Huruy is unfit. As was pointed out in R. v. Taylor (1992), 1992 7412 (ON CA), 77 C.C.C. (3d) 551 (Ont. C.A.) and reaffirmed recently in R. v. Jaser, 2015 ONSC 4729, [2015] O.J. No. 3910 (S.C.J.) the fact that an accused person may engage in misbehaviour or outbursts in court, or be unwilling to work collaboratively with counsel, or may even choose to engage in conduct that might be detrimental to his defence, does not render that person unfit. The fact remains that I do not have a sufficient basis to believe that Mr. Huruy does not continue to understand the process to a sufficient degree as to render him fit for trial.
[12] Returning then to the central issue, both psychiatric reports concluded that Mr. Huruy suffers from a major mental illness, most likely, schizophrenia. On that point, I have no hesitation in accepting the opinions of the psychiatrists. Those opinions find support in Mr. Huruy’s conduct at the time of the offence, and in the days leading up to the offence. I am also of the view, based on the psychiatric reports, and the conduct of Mr. Huruy since his incarceration, that he poses a serious and recurring danger to others. I am therefore satisfied that the mental illness under which Mr. Huruy was suffering, and continues to suffer, constitutes a “mental disorder” as that term is defined in the Criminal Code and is used in s. 16. The first branch of the test set out in s. 16 is met.
[13] The second branch of the test, which has two prongs, is the determination whether the accused person appreciated the nature and quality of his actions or whether the accused person knew that those actions were wrong.
[14] In terms of the first prong of the second branch of the test, both psychiatric reports concluded that Mr. Huruy appreciated the nature and quality of his actions. Again, I accept those opinions. Based on Mr. Huruy’s self-report, it is clear that he knew what he was doing when he attacked the victim. That is, he knew he was using a knife to inflict an attack on the victim and that the attack in which he was engaged would do harm to the victim. This is not a case where Mr. Huruy imagined that his actions were something other than what they actually were. Consequently, the first prong of the second branch of the test for the defence of not criminally responsible is not made out.
[15] I turn then to the second prong of the second branch of the test: did Mr. Huruy know that his actions were wrong? Both psychiatric reports concluded that Mr. Huruy likely knew that his actions were legally wrong. However, that is not the test under the second prong. The test under the second prong is whether the accused person knew that his/her actions were morally wrong. Again, both psychiatric reports concluded that Mr. Huruy did not understand that his actions were morally wrong. It is in this single respect that the two psychiatric reports differed from the report delivered by Dr. Dikey.
[16] That said, three points should be made regarding Dr. Dickey’s report and conclusion. First, and foremost, and as I have already said, Dr. Dickey’s report is not before me as evidence in and of itself. It is before me only because both psychiatrists made reference to it and relied on some of its contents for their own purposes. As a result, Dr. Dickey’s report does not constitute contrary evidence. Second, Dr. Dickey’s opinion on the issue of moral wrongfulness was far from absolute. Rather, he was somewhat equivocal in his opinion but ultimately concluded that the evidence available to him simply did not manage to overcome the threshold presumption of responsibility. Third, there was additional information available to Dr. Ramshaw and Dr. Wilkie that was not available to Dr. Dickey, including the ongoing evidence regarding Mr. Huruy’s deteriorating mental state.
[17] Returning then to the issue of what is meant by the term “morally wrong”, the distinction between legally wrong and morally wrong is set out in the decision of the Supreme Court of Canada in R. v. Chaulk, 1990 34 (SCC), [1990] 3 S.C.R. 1303, where Lamer C.J.C. said, at para. 97 (QL):
Viewed from this perspective, it is plain to me that the term “wrong” as used in s. 16(2) must mean more than simply “legally wrong”. In considering the capacity of a person to know whether an act is one that he ought or ought not to do, the inquiry cannot terminate with the discovery that the accused knew that the act was contrary to the formal law. A person may well be aware that an act is contrary to law but, by reason of “natural imbecility” or disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society. This would be the case, for example, if the person suffered from a disease of the mind to such a degree as to know that it is legally wrong to kill but, as described by Dickson J. in Schwartz, kills “in the belief that it is in response to a divine order and therefore not morally wrong”.
[18] The test for the meaning of the term “wrong” in s. 16(2) was further discussed by the Supreme Court of Canada in R. v. Oommen, 1994 101 (SCC), [1994] 2 S.C.R. 507 where McLachlin J. said, at para. 26(QL):
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.
[19] Dr. Ramshaw says that Mr. Huruy did not understand that his actions were morally wrong at the time. It is important to stress that the question of whether someone knows that their actions are morally wrong is evaluated at the time that the act is committed. It is not a question at large, or of attitude generally. It is time specific.
[20] Dr. Ramshaw’s opinion on this point is driven by various factors including the actions of Mr. Huruy prior to the offence; Mr. Huruy’s reported fears at the time including his fear that he was being followed and watched; his belief that he was being targeted for harm or death by unspecified persons; the fact that he armed himself with knives for protection from these perceived threats; and the events surrounding the offence, including the complete lack of any animus towards, or provocation by, the victim. Dr. Ramshaw further points to statements from Mr. Huruy that demonstrate that Mr. Huruy thought that it was right for him to kill in the delusional circumstances as he perceived them. As Mr. Huruy once said “it was my life or his life”.
[21] Dr. Wilkie’s opinions largely mirror those of Dr. Ramshaw, although she fairly acknowledges the limitation on her opinions driven by the fact that Mr. Huruy would not participate in her assessment. Rather, Dr. Wilkie had to rely on various background materials along with Dr. Ramshaw’s report and the earlier report done by Dr. Dickey. Dr. Wilkie did meet with Mr. Huruy but, as I have noted, Mr. Huruy would not communicate with her or participate in any psychological testing. Nevertheless, Dr. Wilkie had Dr. Ramshaw’s report regarding her interviews with Mr. Huruy; she had Dr. Dickey’s report for the same type of information and she had access to all of the records from various institutions that also detailed various statements that Mr. Huruy has made, over time, regarding the event.
[22] Dr. Wilkie also concludes that the defence of not criminally responsible is available given the psychotic symptoms that Mr. Huruy displayed at, prior to, and since, the event. Dr. Wilkie’s opinion is that these symptoms made Mr. Huruy unable to appreciate the moral wrongfulness of his actions. In reaching that opinion, Dr. Wilkie refers essentially to the same elements that Dr. Ramshaw did, notably, the statements made by Mr. Huruy regarding his need to protect himself arising from his perception that he was being targeted by unnamed persons or by the Government at large. It is Dr. Wilkie’s opinion that the symptom burden arising from Mr. Huruy’s psychosis was at such a level, at the time of the offence, as to make it impossible for Mr. Huruy to make rational decisions regarding his actions. This analysis, of course, reverts back to the test as enunciated by McLachlin J. in Oommen that I quoted above.
[23] In evaluating those two opinions, and to assist in understanding the degree of the psychosis that Mr. Huruy was experiencing at the time, it is important, among other things, to know of three events that immediately preceded the offence. Both psychiatrists refer to these events, among others, to demonstrate that Mr. Huruy was experiencing significant psychotic symptoms in the lead-up to the stabbing.
[24] Three days before the incident, Mr. Huruy was found on the roof of a school with bags of clothing that he had taken from a donation box at a nearby mosque. Mr. Huruy told the police that he had been on the roof playing soccer. He was also speaking about God. Mr. Huruy appeared to the officers to be emotionally disturbed. He was issued a trespass notice.
[25] Later that same afternoon, there was a report to the police about a man standing on an overpass above Highway #401. Mr. Huruy was found by an officer from the O.P.P. standing in a grassy area near an overpass over Highway #401. He had a large metal ring around his neck. Mr. Huruy told the officer that the ring was part of him. Mr. Huruy also said that he had a special attraction to the highway because of the fact that it is known as the Highway of Heroes. Mr. Huruy was acting sufficiently strangely that he was ultimately taken by paramedics to a hospital for examination. However, he was discharged from the hospital after a very brief stay.
[26] In the evening of the very next day, that is two days before the stabbing, Mr. Huruy walked into a house. When he was confronted by the homeowner, he apologized and left. The police arrived, found Mr. Huruy nearby, and arrested him for break and enter. The officers reported that Mr. Huruy was acting in an unusually happy manner. Mr. Huruy was released on a promise to appear.
[27] In addition to those events, Mr. Huruy’s conduct immediately prior to the attack also gives rise to concerns. By everyone’s observations, he was acting in an odd manner, including wearing a latex glove on one of his hands. The owner of the café where the stabbing occurred, and who had had prior dealings with Mr. Huruy, thought that Mr. Huruy was acting in a strange way, and inconsistent with his behaviour on prior occasions when Mr. Huruy had visited the café. Then, of course, there are the specifics of the event itself where Mr. Huruy stabbed the victim, who he did not know, and after he had been seated with the victim and two females, who he also did not know, attempting to play cards. There was no obvious provocation for the assault, that is, the victim did not say anything or do anything that should have caused Mr. Huruy to attack. And yet, in his own mind, it is clear that Mr. Huruy viewed the victim as a threat.
[28] Further, having attacked the victim once, and having been pulled away by the owner of the café, Mr. Huruy got free and renewed the assault. Mr. Huruy then left the café, got into a cab, and went on a meandering ride through the city for more than an hour, during the course of which he also exhibited odd behaviour including, at one point, having the cab stop while he yelled some names out the window.
[29] All of this conduct plays out against a backdrop of ongoing concerns by members of Mr. Huruy’s family regarding his mental state including his increasing paranoia. In the months preceding the stabbing, Mr. Hurury’s sister reports that Mr. Huruy was frequently talking about people who were after him. Mr. Huruy became increasingly aggressive. On one occasion, Mr. Huruy insisted that the curtains in their shared home be closed and that the door not be opened. Mr. Huruy became increasingly anti-social and became more and more absorbed with religious beliefs. Those concerns are echoed by a co-worker of Mr. Huruy, who reported that Mr. Huruy would become aggressive and enraged over trivial matters. He also preferred to work in areas where he was isolated from others and demonstrated a growing sense of paranoia.
[30] In the end result, I have the opinions of two psychiatrists that Mr. Huruy did not have the capacity to rationally decide whether his actions at the time were right or wrong and thus could not make a rational choice about whether to take those actions or not. I also have the surrounding facts, including that the actions of Mr. Huruy that follow on a pattern of strange behaviour in the days immediately prior to the stabbing. Mr. Huruy was paranoid, had armed himself with two knives, and was the subject of delusions, including hearing voices. He believed that there were people, apparently on behalf of the Government, who were intent on causing him harm, if not death. Mr. Huruy concluded that the victim was one of those persons who harboured threatening views towards him. That conclusion was drawn, at least in part, from Mr. Huruy’s belief that the playing cards, that were on the table at the time, were sending messages to him that the victim had malevolent intentions towards him.
[31] In my view, the facts of this case bear a marked similarity to the facts that were before the court in Oommen. They also fall within the central question posited by McLachlin J. in that case where she said, at para. 30(QL):
Thus the question is not whether, assuming the delusions to be true, a reasonable person would have seen a threat to life and a need for death-threatening force. 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 the act.
[32] I am satisfied that Mr. Huruy did not, at the time, have a rational perception of the world around him nor did he have the capacity to make rational choices arising from the psychosis under which he was suffering. I am therefore satisfied that Mr. Huruy did not know that what he was doing was morally wrong when he attacked the victim. In reaching that conclusion, I repeat that the standard of proof for this defence is the lower standard of proof on a balance of probabilities. It does not require that the defence be proven beyond a reasonable doubt.
[33] I am therefore satisfied that the second prong of the second branch of the test under s. 16 is met and that Mr. Huruy should be found not criminally responsible for his conduct.
[34] I will make one final observation. The loss of a person’s life at the hands of another person is an event that is always difficult to understand or to accept. However, in some instances, the trial, and subsequent conviction, of the person responsible for that loss of life does serve to provide the family and friends of the victim with at least some explanation for their loss and some measure of closure respecting it. Here the family and friends of Dominic Parker are left to know that they lost their loved one for no reason, other than he was simply in the wrong place at the wrong time. It is a fate that could have befallen any other person who was in that café at that time, or, indeed, it could have befallen any other person who happened to encounter Mr. Huruy, while he was in his delusional state, and thus become a perceived threat to him. That reality will be of little comfort to the family and friends of Dominic Parker but it is the reality that we currently live under when severe mental illness is not diagnosed and treated before such a tragedy strikes.
[35] Given my conclusion, I am not asked, nor do I propose, to hold a disposition hearing. Instead, Mr. Huruy shall continue to be detained until a hearing is held by the Ontario Review Board and it decides upon an appropriate disposition.
[36] I do, however, at this time make an order under the provisions of the Criminal Code requiring Mr. Huruy to provide a DNA sample for the purposes of the DNA databank.
NORDHEIMER J.
Released: December 10, 2015
CITATION: R. v. Huruy, 2015 ONSC 7731
COURT FILE NO.: 7-252/14
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
NABIL HURUY
REASONS FOR DECISION
NORDHEIMER J.
RELEASED: