ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20151217

BETWEEN:

HER MAJESTY THE QUEEN

– and –

UCHENNA ONACHIE

Frank Schembri, for the Crown

Charn Gill, for Uchenna Onochie

HEARD: December 16, 2015

MacDonnell, J.

[1] On December 16, 2015 Uchenna Onochie came before this court for trial on a charge that on the 17th of January 2015 he killed Aloy Onochie and thereby committed second degree murder contrary to s. 235(1) of the Criminal Code. At the outset of the proceedings, both Mr. Onochie and the Attorney General consented pursuant to s. 473 of the Code to the trial being conducted by a judge of this court sitting without a jury.

[2] There is no dispute with respect to the facts surrounding the death of Aloy Onochie. At the time of his death, he was 60 years of age and was residing with the defendant, his 18-year-old son, in a condominium apartment near the intersection of Finch Ave and Yonge Street in Toronto. It is admitted that he died as a result of multiple stab wounds that were inflicted by the defendant late on the evening of Saturday January 17. Immediately after the infliction of those injuries, the defendant fled from the apartment and ran to the Finch subway station in his bare feet, clad only in a t-shirt and pajama pants. He was covered in blood and he was brandishing a knife. When the police arrived, the defendant refused to drop the knife because, he said, “the devil is here”. Eventually, the police were able to persuade him to drop the knife and he was taken into custody.

[3] There is no suggestion that the defendant had any lawful justification or excuse for the assault on his father, nor is there any evidence of provocation. The joint position of the Crown and the defence, however, is that the defendant should not be found guilty of murder or of any other offence because he was not criminally responsible for his conduct.

[4] Section 16(1) of the Criminal Code provides, in part, that no person is criminally responsible for an act committed while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or of knowing that it was wrong. Section 16 further provides that everyone is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility until the contrary is proven on a balance of probabilities.

[5] To displace the presumption of criminal responsibility in this case, therefore, two things must be established:

(i) that at the time of the attack on his father, the defendant had a mental disorder; and

(ii) that the mental disorder (a) rendered the defendant incapable of appreciating the nature and quality of the acts that caused his father’s death, or (b) rendered him incapable of knowing that those acts were wrong.

[6] In support of their joint position that the defendant was not criminally responsible, the parties rely on the opinion evidence of Dr. Jeffrey Van Impe, a forensic psychiatrist at Waypoint Centre for Mental Health Care at Penetanguishene, Ontario. Dr. Van Impe initially became involved in this case in February 2015 when the defendant was at Waypoint for a court-ordered assessment of his fitness to stand trial. The defendant was subsequently returned to Waypoint, in May 2015, for a criminal responsibility assessment.

[7] For the purpose of preparing his opinion, Dr. Van Impe had access to all of the police information concerning the death of the defendant’s father, including the DVD recording of the lengthy interview of the defendant by homicide detectives the morning after the incident. He also reviewed the interviews that the police conducted with members of the defendant’s family, the institutional records from Maplehurst Correctional Centre and the results of psychological testing of the defendant at Waypoint. In addition, he had the benefit of having interviewed the defendant on five separate occasions.

[8] Over the course of those five interviews, Dr. Van Impe noted, the defendant’s account of the material events remained remarkably consistent. He told the doctor that he had moved into his father’s apartment in April or May 2014, eight or nine months before the incident. Shortly after moving in, he began to hear a voice in his head that he came to believe was the voice of God or of someone associated with God. He did not tell anyone about the voice. On January 16, the day before the incident, he thought he saw the devil in the apartment, and he began to think “the devil is out to get me”. At the time, he was experiencing some blurriness of vision. The following day, January 17, his father took him to an optometrist to have his eyes checked. When the optometrist advised the defendant that his eyes were normal, the defendant became convinced that he actually had seen the devil. He told his father this, and his father told him he should not be afraid. This caused the defendant to suspect that the devil was taking possession of his father, and he began to interpret seemingly normal behaviour on the part of his father as evidence that this was occurring.

[9] On the evening of January 17, the defendant went to bed but he was having trouble sleeping. He was by now quite afraid about his father’s relationship with the devil. Somehow, he became convinced that the devil had turned his father into a snake. He ran into the bathroom and attempted unsuccessfully to lock the door. He piled some clothes on the floor against the door to prevent his father from slithering into the bathroom. He decided that he needed a knife to kill the snake. He left the bathroom and saw his father standing near the door to his bedroom. In his opinion, his father was behaving in a distinctly different manner than usual. The defendant called out, “the serpent is here, the serpent is here”. He ran to the kitchen, obtained a knife, came back and attacked his father, Notwithstanding the multiplicity of wounds, his father started to get up, and the defendant became afraid that he was going to turn into a serpent again and come after him, and so he ran from the apartment. He said that when the police arrived at the subway station and ordered him to drop the knife, he believed that they were being manipulated by the devil to distract him. He told Dr. Van Impe that he had never considered that he was killing his father: he was of the belief that he had killed a snake or the devil, who had disguised themselves as his father.

[10] Dr. Van Impe was alert to the possibility that the defendant, as a candidate for a not criminally responsible designation, might manufacture symptoms of mental disorder to avoid the consequences of a criminal conviction. He rejected that possibility in this case for two reasons. First, not only was the defendant’s description of his state of mind at the material time substantially consistent in all of the five interviews Dr. Van Impe conducted with him, it was consistent with the descriptions the defendant had given to other interviewers on other occasions. Dr. Van Impe believed that it would be very difficult to maintain that consistency if the description were a concoction. Second, the defendant was given psychological testing at Waypoint that was aimed at detecting signs of malingering, and no such signs were found.

[11] It is Dr. Van Impe’s medical opinion that the defendant was suffering from a mental disorder at the time of the killing of his father. A “mental disorder” is defined in s. 2 of the Criminal Code as “a disease of the mind”. A “disease of the mind” is a legal term, not a medical term, but it contains a substantial medical component: R. v. Dobson, 2015 ONSC 2865, at para. 68. It includes any illness, disorder or abnormal condition that impairs a person’s mind and its functioning. It does not include states that an accused has created, for example, by voluntarily drinking alcohol or taking drugs. It does not include temporary mental states, such as hysteria or concussion.

[12] Generally speaking, where criminal responsibility is in issue, a psychiatrist will describe an accused's mental condition and how that condition is considered from a medical perspective. Then, “[the] trial judge decides, as a matter of law, whether the condition the psychiatrist describes is ‘a mental disorder’. An affirmative finding on this issue leaves it to the trier of fact, whether a judge or jury, to decide whether, on the facts, the accused was suffering from a mental disorder at the time she or he committed the offence”: Dobson, at para. 72. Having said that, “Canadian courts have at least implicitly recognized that the major mental illnesses, the psychoses, are diseases of the mind and, thus, mental disorders…”: ibid, at paragraph 76. Dr. Van Impe’s opinion is that the mental disorder from which the defendant was suffering was a major mental illness, namely a psychotic disorder and schizophrenia with auditory hallucinations, visual hallucinations and profound persecutory delusions. Dr. Van Impe indicated, further, that since the events of January 17, the defendant “has continued to experience signs and symptoms indicative of an ongoing mental disorder.”

[13] Dr. Van Impe’s opinion moves the analysis of whether the defendant was suffering from a mental disorder in the legal sense a considerable distance forward. Having considered the relevant legal and policy factors that bear upon the issue, I am satisfied that as a matter of law the major mental illness that Dr. Van Impe believes was afflicting the defendant qualifies as a mental disorder for the purposes of s. 16 of the Criminal Code. Further, in light of all of the evidence in relation to the defendant’s behaviour leading up to, at the time of, and immediately after the incident, I am satisfied on a balance of probabilities that the defendant was in fact suffering from that mental disorder at the time of the incident.

[14] I turn then to a consideration of the effects that the disorder had on the defendant. To rebut the presumption of criminal responsibility, it would not be sufficient to show merely that mental disorder played a role in his conduct. Nor would it be sufficient that the defendant did not appreciate the nature and quality of his acts or that he did not know that they were wrong. What must be established, rather, is either that the mental disorder left the defendant incapable of appreciating the nature and quality of his conduct, or that it made him incapable of knowing that his conduct was wrong.

[15] In Dr. Van Impe’s opinion, both of those bases for a finding that the defendant was not criminally responsible are present in this case. I am not bound to accept that opinion, of course: it is for the court to determine whether the criteria for a verdict of not criminally responsible have been proved, and that determination is to be made on the basis of the evidence as a whole. Expert testimony such as that provided by Dr. Van Impe is admissible but not determinative. His testimony is to be evaluated like the testimony of any other witness.

[16] The first branch of the test for criminal responsibility involves a consideration of the defendant’s ability to appreciate the nature and quality of his acts. To appreciate means more than to know. To know means to be aware of something. To appreciate requires not only knowledge but also understanding. The ‘nature and quality’ of an act refers to the physical character and consequences of the act. A person is incapable of appreciating the nature and quality of an act if he did not have the capacity to understand the character and consequences of what he was doing. The “consequences” to be considered are the natural physical consequences.

[17] With respect to that first branch of the test, the opinion of Dr. Van Impe is as follows:

I am of the opinion that, as a result of persecutory delusions in combination with visual hallucinations, Mr. Onochie had formed the opinion, at the time of the index offence, that his father had either actually become a serpent or had been infiltrated and possessed by the devil…

I certainly do not believe that Mr. Onochie was so psychotic and disorganized at the time that he did not believe he was attacking something with a knife and causing it great physical harm. In fact, Mr. Onochie insisted that he knew the only way to kill a snake was to cut its head off or slit its throat. Immediately before cutting his father’s throat, Mr. Onochie heard a voice recite a verse from Psalm 91. This verse made reference to trampling over serpents or poisonous snakes.

The word ‘appreciate’, based on my understanding, involves an estimation and understanding of the physical consequences of the act. At the time of the index offence, it is my opinion, Mr. Onochie did not appreciate that he was causing the death of his father by repeatedly cutting him with a knife and eventually slicing his throat. I do not believe that he appreciated the actual physical consequences of his actions. I do not believe that Mr. Onochie appreciated that his father could die as a result of his actions. Instead, it is my opinion, Mr. Onochie believed he was killing either an actual serpent who was representative of the devil or the devil himself who had possessed his father. I am of the opinion that Mr. Onochie, at the material time, believed that killing the serpent would be more likely to result in his father returning to his normal state and did not consider or appreciate that he was possibly never going to see his father alive again as a result of his actions. I am of the opinion that Mr. Onochie believed that he was rescuing his father from possession by the devil that had overtaken him.

It is my opinion, with reasonable medical certainty that, at the time of the alleged offence, Mr. Onochie was incapable of appreciating the nature and quality of the behaviour that resulted in the death of his father.

[emphasis added]

[18] I accept as accurate Dr. Van Impe’s description of what the defendant perceived and believed at the time he inflicted the fatal injuries on his father. Based on my reading of the reasons of the Supreme Court of Canada in R. v. Landry, 1991 114 (SCC), [1991]1 S.C.R. 99, I was initially inclined to the view that those perceptions and beliefs demonstrated the defendant’s appreciation of the character and physical consequences of his conduct and thus his appreciation of the nature and quality of it. In R. v. Landry, the accused suffered from a severe psychosis that led him to believe that he was God, that the victim was Satan, and that he had to kill the victim to fulfil his Divine mission. The Supreme Court held that this was not evidence that the accused did not appreciate the nature and quality of his homicidal acts.

[19] Upon reflection, however, I am persuaded that the case at bar is different from Landry in significant respects. In this case, the defendant believed he was killing a serpent and that by killing the serpent his father was going to be restored to his normal state. That state of mind, it seems to me, reflects a complete misapprehension of the nature and quality of what he was actually doing, which was bringing his father’s life to an end.

[20] I find support for this position in R. v. Kirkby (1985), 1985 3646 (ON CA), 21 C.C.C. (3d) 31 (Ont.C.A.). At pp. 56-7, Justice Martin stated:

It must now be taken to be settled that disease of the mind rendering the accused incapable of appreciating the nature and quality of an act or omission which exempts from criminal responsibility under the first arm of s. 16(2) refers to incapacity to appreciate the physical nature of the act and its physical consequences…

I wish, however, to guard myself from being thought to hold that in every case where an accused knows, for example, that he is shooting a human being and that the shooting will cause death that the accused is capable of appreciating the nature and quality of the act. Some delusions may cause the act of killing to assume in the accused's mind an entirely different character. For example, if an accused suffers from a delusion that he is an absolute monarch executing a subject for high treason, the act of killing in his mind has assumed a character different from murder. In such a case the accused would be exempt from liability under the second arm of s. 16(2) because he would believe he was acting legally, but, in my view, he would also be exempt under the first arm. It might be that a person suffering from paranoid schizophrenia who, under the delusion that his neighbour is killing him and his family with "thought waves", buys a gun and kills the neighbour is exempt from liability under the first arm of s. 16(2). The killing in the accused's mind is transformed by the delusion from murder to a killing in self defence or to protect his family.

[emphasis added]

See also R. v. Swain (1986), 1986 2532 (ON CA), 24 C.C.C. (3d) 385 at pp. 403-4 (Ont. C.A.); reversed on other grounds, 1991 104 (SCC), [1991] 1 S.C.R. 933

[21] It is unnecessary, however, to make a determination as to whether, because of his delusions, the defendant was incapable of appreciating the nature and quality of his acts because the evidence is overwhelming that his psychotic disorder rendered him incapable of knowing that his conduct was wrong.

[22] “Wrong”, for the purposes of s. 16, means morally wrong, that is, something that a person should not do according to the accepted standards of our society. In order to know that the conduct in question is wrong, the person must have more than a general capacity to know right from wrong. It is not sufficient that the person has the ability in general terms to distinguish between acts that are right and acts that are wrong according to the standards of society. A person may well be aware that an act is usually contrary to societal standards and therefore wrong but, by reason of mental disorder, may be incapable of knowing that the act is wrong in the particular circumstances in which the person finds himself.

[23] The question on this second branch is not concerned with actual knowledge but with capacity for knowledge. If, notwithstanding a mental disorder, an accused has the capacity to know that his conduct is morally wrong he is not exempt from criminal responsibility even if he does not actually know the conduct is morally wrong.

[24] Dr. Van Impe was well aware that for the purposes of s. 16, “wrong” means morally wrong. With that in mind, his opinion was that “due to prominent persecutory delusions and visual hallucinations,[the defendant] was not capable of knowing that his actions, directed toward his father, were wrong at the time of the offence.” He stated:

Mr. Onochie, at the time of the offence, believed he was acting well within his moral rights...

[25] In the course of his viva voce testimony, Dr. Van Impe confirmed that it was his opinion that the defendant not only did not actually know that his conduct was wrong according to the accepted standards of society but that because of his mental disorder he was incapable of knowing that it was wrong.

[26] As I have said, I am not required to accept Dr. Van Impe’s opinion. However, he has set out a very thorough and persuasive basis for it and after a consideration of all of the evidence I accept and rely on it.

[27] It may be noted that the ultimate disposition of the Landry case is instructive...

[28] For the foregoing reasons, I am satisfied on a balance of probabilities that at the time the defendant killed his father he was suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of his acts or of knowing that they were wrong.

MacDonnell, J.

Delivered Orally and Released: December 17, 2015