COURT FILE NO.: CR-18-129
DATE: 2019/07/03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Andrew Falls, for the Crown Attorney
- and -
ADAM ALISHAW
Stephen Proudlove, counsel for Adam Alishaw
SUBMISSIONS HEARD: May 27 and 29, 2019
JUDGMENT
The Honourable Mr. Justice H. S. Arrell
INTRODUCTION:
[1] The accused killed his father on May 3, 2018. He is charged with second degree murder to which he has pleaded not guilty.
[2] The accused has elected trial by judge alone, and the Crown has consented.
[3] The sole issue before me is whether Mr. Alishaw has proven on a balance of probabilities that he was not criminally responsible at the time he killed his father because of a mental disorder that rendered him incapable of appreciating that the killing was wrong pursuant to s. 16(1) of the Criminal Code, R.S.C. 1985, c. C-46.
FACTS:
[4] An agreed statement of facts was read into the record and accepted as true and accurate by counsel on behalf of Mr. Alishaw.
[5] Those facts indicate the following.
[6] Adam Alishaw is 22 years of age, having been born on January 5, 1997.
[7] At the time of this occurrence, Adam Alishaw was residing with his father, Mohamed Alishaw, at 50 Roy Boulevard, Unit #3, Brantford, Ontario.
[8] Mohamed Alishaw was 52 years of age.
[9] Adam Alishaw had been living with his father for nine years. Adam Alishaw’s mother, Raheema Jamaludeen, lived in Kitchener.
[10] On Thursday, May 3, 2018, at approximately 2:15 am, a 911 call was placed by the defendant, Adam Alishaw. During the call, Adam Alishaw stated that he had killed a man.
[11] When officers arrived at 50 Roy Boulevard, they located Adam Alishaw waiting for them outside the building with a black garbage bag and two small grocery bags in his possession. The bags contained items belonging to Adam Alishaw.
[12] There was no indication that Adam Alishaw was attempting to leave the scene, and the police believe he was waiting for them to arrive.
[13] Adam Alishaw indicated to the officers that his father was in the building (Unit #3). He also advised PC Collier that the person inside was the “guy that played my father.” He further advised PC Campbell that the person inside was an “imposter.”
[14] Mohamed Alishaw’s body was discovered in a supine position resting on an air mattress covered with a blanket, in the garage portion of this business.
[15] Mohamed Alishaw was not responsive and had obvious trauma predominately to the left side of his face and head with indications of multiple blows from an object causing blunt force trauma.
[16] Also observed was a ball-peen hammer and a single-edge, serrated knife with a yellow handle near the top left corner of the air mattress.
[17] It is not disputed that Adam Alishaw inflicted all of the wounds found on the deceased’s body.
[18] Shortly after his arrest, Adam Alishaw became unresponsive and was taken to the Brantford General Hospital. Mr. Alishaw admitted to consuming an overdose of prescription medication after the killing based on what he subsequently told Dr. Ferencz.
[19] The evidence before me was that of the forensic investigative officer, and Dr. Ferencz, a forensic psychiatrist. As well, numerous photographs of the scene, the deceased, and the accused were filed along with the pathology report and DNA report of the Forensic Center in Toronto.
[20] It would appear that the deceased was asleep in his bed when he was violently killed by his son using the hammer. The photographs of the deceased show that this attack was violent and vicious. The deceased’s face is unrecognizable as a result of the multiple blows from the hammer.
[21] There is no evidence before me of any estrangement between the deceased and his son. Indeed, the evidence appears to be that the accused’s father was very supportive and helpful in assisting in trying to manage his son’s mental illness over the years.
[22] The accused’s parents separated when he was 11 months old. His mother basically raised him during his formative years. Upon becoming a teenager, the accused started to be a discipline problem. He was using drugs and doing poorly in school, where he was ultimately suspended without completing grade 10.
[23] The accused’s education is limited, having only completed 9 of 30 credits in high school. His cognitive ability is also somewhat limited, scoring in the 25th percentile.
[24] The accused has virtually no work history or employment skills. He was not working at the time of this offence.
[25] The accused has a long and serious history of mental health issues. His first in-patient hospitalization regarding his mental health was as early as March 2011, when he was 14 years of age.
[26] Hospitalizations were frequent and consistent, starting in 2016.
[27] The accused was first diagnosed formally with schizophrenia in February 2016, and his hospitalizations continued thereafter with increasing frequency and more troublesome symptoms.
[28] Those symptoms appear to be delusions, hallucinations, voices, withdrawal, and violence. He received many forms of treatment, mostly by way of medication. The records consistently indicated he was not co-operative, and clearly, the types of treatment prescribed were not helping, or he was not following the treatment regime, or a combination of both.
[29] His last hospitalization was a three-week period in March 2018 at the Brantford General Hospital where he was admitted on a Form 1 with a diagnosis of chronic schizophrenia, polysubstance abuse, and anti-social behaviour. He was prescribed medication and indeed saw his psychiatrist in a follow-up on April 18, 2018, only two weeks prior to the index offence.
[30] The accused’s past medical records document ongoing and worsening symptoms over the years.
[31] The voices the accused described as hearing told him to do certain things, which he did. As an example: when one of these commands were to hurt himself, he broke his finger. He has also been commanded to break things and stand in the cold, which he did, are further examples of the voices he alleges command him. He further reported that his parents were involved with these voices.
[32] The accused has abused drugs from the early age of 13, and he drinks on occasion.
[33] It is significant that after the killing, the accused told the police, on two occasions, that the person he killed was not his father but an imposter. It is also significant, in the Court’s view, that the deceased was very supportive of his son, and there is no evidence of any animosity.
[34] The pictures and evidence of the accused shortly after his arrest show a person who was totally unresponsive, uncommunicative, eyes closed, and being held up and assisted by two officers.
[35] Dr. Ferencz is a very experienced and highly qualified forensic psychiatrist. Indeed, the Crown did not challenge his expertise in any way and relied on his evidence and report as the sole expert of psychiatric evidence in this case.
[36] The accused was first admitted under Dr. Ferencz’s care and assessment under s. 16(1) of the Criminal Code on July 26, 2018. He has remained at St. Joseph’s Hospital ever since. He was not returned to jail because Dr. Ferencz felt he would do very poorly there and be at risk.
[37] Dr. Ferencz’s report is thorough and comprehensive. He has reviewed a vast amount of material and conducted interviews with members of the accused’s family and, of course, with the accused himself. Dr. Ferencz has reviewed all of the past medical records. He has observed the accused under his care for the past 11 months.
[38] A psychological assessment report was prepared by Dr. Losier on August 2, 2018, which concluded that the accused had a disease of the mind sufficient to have affected his judgment at the time of the killing such that he did not have the mental capacity to understand the moral implications of his act and its consequences.
[39] Dr. Ferencz has given a similar opinion.
[40] In Dr. Ferencz’s testimony, he opined that the accused suffered from a severe psychiatric illness with ongoing delusions and hallucinations. He suffers from command hallucinations to harm himself and others, and he has not been successfully treated in the past.
[41] The Doctor also opined that there is little doubt that this psychiatric illness was present and active at the time of the index offence.
[42] On the night of the killing the accused related to Dr. Ferencz that the voices were severe and incessant, continuing to harass and threaten him. The voices said his father was involved, and he was the reason for the constant torment and the accused should kill him. After doing so, he recalls the voices saying, “ha-ha, we made you kill him.” Since the voices had not stopped, the accused then took an overdose of his psychiatric medication to take his own life and stop his suffering, but not because of any remorse according to Dr. Ferencz.
[43] The accused has shown no remorse to hospital staff regarding his actions and continues to maintain that the deceased was not his father and his father is not dead. The voices continue to date.
[44] The Doctor has opined that the accused understood his actions and that they would result in the victim’s death. The Doctor agrees Mr. Alishaw had a rudimentary understanding of the physical consequences of his actions; however, he was incapable of understanding or making a rational decision about the moral wrongfulness of his actions, from either a personal or societal perspective.
THE POSITION OF THE CROWN:
[45] The Crown submits that Mr. Alishaw has not proven on a balance of probabilities that he was not criminally responsible at the time he killed his father.
[46] The Crown agrees Mr. Alishaw suffered from a mental disorder at the relevant time. However, as was stated by Dr. Ferencz, he was aware that he was illegally killing someone when he bludgeoned his father. The Crown disagrees that Mr. Alishaw did not know what he was doing was morally wrong within the norms of society.
[47] The Crown points out that by the accused calling 911, telling dispatch he has killed someone, packing some belongings, and waiting for his arrest by the police, that he did not meet the criteria set out in s. 16(1) of the Criminal Code to be found not criminally responsible because he was not “suffering from a mental disorder that rendered him incapable of knowing…(that the killing of his father)…was wrong.”
THE POSITION OF THE DEFENCE:
[48] Counsel for Mr. Alishaw agrees with Dr. Ferencz and the Crown that the accused knew he was committing a legal wrong. However, he did not know that the killing was morally wrong and therefore falls within the second element of s. 16(1) of the Criminal Code.
[49] The defence points out that Mr. Alishaw has suffered from serious mental health issues for a number of years. None of these mental health issues have been effectively treated or managed. Indeed, the record indicated he was deteriorating, and his symptoms worsening, in the six months prior to the killing of his father.
[50] Counsel for Mr. Alishaw submits that despite the 911 call and comments to the dispatcher, Dr. Ferencz’s evidence is unchallenged that because of the accused’s delusional and diseased mind, he was incapable of making any moral decisions about his actions when he killed his father; and therefore, comes squarely within the second element of s. 16(1) of the Criminal Code and should be found not criminally responsible for the killing of his father.
THE LAW:
[51] A person is not responsible for a criminal act committed by them “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”: s. 16(1) of the Criminal Code.
[52] Our law presumes a person does not suffer from a mental disorder that exempts him from criminal responsibility until the contrary is proven by him on a balance of probabilities: see s. 16(2)(3) of the Criminal Code.
[53] Section 16(1) provides an either/or two prolonged test: see R v. Chaulk, [1990]3 S.C.R. 130.
[54] The Ontario Court of Appeal stated the law quite clearly in R v. Dobson, 2018 ONCA 589, at para. 24:
In my view, Oommen, as interpreted in the judgments of this court, holds that an accused who has the capacity to know that society regards his actions as morally wrong and proceeds to commit those acts cannot be said to lack the capacity to know right from wrong. As a result, he is not NCR, even if he believed that he had no choice but to act, or that his acts were justified. However, an accused who, through the distorted lens of his mental illness, sees his conduct as justified, not only according to his own view, but also according to the norms of society, lacks the capacity to know that his act is wrong. That accused has an NCR defence. Similarly, an accused who, on account of mental disorder, lacks the capacity to assess the wrongness of his conduct against societal norms lacks the capacity to know his act is wrong and is entitled to an NCR defence. [Emphasis added].
ANALYSIS:
[55] There is no disagreement as to the facts. Mr. Alishaw bludgeoned his father to death with a hammer in an exceedingly violent and horrific way while he slept.
[56] There was no animosity between father and son. Indeed, they had been living together for nine years. Mr. Alishaw’s father, Mohamed, had been supporting his son while they lived together.
[57] Mr. Alishaw has suffered from mental health issues for a long period of time, exacerbated by the abuse of drugs and alcohol. He was finally diagnosed with schizophrenia in early 2016 and was hospitalized numerous times subsequent to that diagnosis.
[58] Dr. Ferencz did a mental health assessment of Mr. Alishaw in the summer of 2018 at the Forensic Assessment Unit of St. Joseph’s Psychiatric Hospital in Hamilton, at the request of the defence. Mr. Alishaw has remained at this institution to date because as Dr. Ferencz stated, “he would not do well in jail,” and it would be unsafe for him.
[59] The Crown did not have Mr. Alishaw assessed.
[60] Dr. Ferencz is a well-known and highly qualified forensic psychiatrist at St. Joseph’s Hospital in Hamilton. He has an extensive and impressive C.V. His report to this Court was extensive, thorough, and comprehensive. He had extensive background information on Mr. Alishaw, in 19 different categories, from all of his previous health records to extensive interviews with Mr. Alishaw’s family and, of course, Mr. Alishaw himself. The Crown conceded Dr. Ferencz’s extensive expertise. He was thoroughly cross-examined by the Crown, and his evidence was unchallenged in any way.
[61] I found Dr. Ferencz to be a thoroughly impressive, knowledgeable, and credible witness whose evidence I accept.
[62] Dr. Ferencz testified that the accused suffers from a chronic psychiatric disorder of schizophrenia, and the symptoms have been poorly controlled despite treatment. As well, the accused has a significant history of substance abuse.
[63] The Doctor further opined that the accused understood that his physical acts with the hammer would kill that person, who he did not believe was his father, but believed that his actions were the only way to rid himself of the constant torment and threats to his safety. As he said, the accused’s illness caused the offence and that the illness is not an attempt by the accused to avoid responsibility. He further concludes, after careful consideration, that Mr. Alishaw is not malingering.
[64] Further, the Doctor was of the view that Mr. Alishaw’s perceptions and beliefs at the time of the killing were so distorted by his delusional mind to the point that, despite the rudimentary understanding of the physical consequences of his actions, he was unable, because of his severe mental disorder, to know that this act was morally wrong. “He was an extraordinarily sick individual at the time” he killed his father.
[65] The Doctor was clear in his opinion that Mr. Alishaw was so overtaken by his mental delusions that he could not appreciate what society would think of the morality of his actions. His disease of the mind defeated his ability, leaving him incapable of knowing what he did was morally wrong. As the Doctor further stated, “…I feel that he was pushed to the limit by these auditory hallucinations and they had so taken over his consciousness that he was not able to understand at that point that what he was doing was morally wrong.” He further opined, “...I don’t think at that time he would have had the capacity to be able to direct his mind to such an abstract notion as the general moral standard of society in any specific regard.”
[66] It is clear from s. 16(1) of the Criminal Code and three decades of case law, that there is a distinction between a person’s actions that might be legally wrong, and what might be morally wrong: see Chaulk and Dobson.
[67] I am satisfied, as is the Crown, that Mr. Alishaw suffered from a mental disorder, namely schizophrenia, at the time he killed his father.
[68] The issue before me is to determine whether Mr. Alishaw knew that the physical act of killing his father was morally wrong.
[69] The morality of the act is not determined by Mr. Alishaw’s subjective viewpoint. Rather the morality must be determined on the basis of whether Mr. Alishaw was capable of being aware that the killing was something he should not do according to the accepted standards of society.
[70] In R. v. Oommen, 1994 101 (SCC), [1994] 2 S.C.R. 507, the accused possessed the general capacity to distinguish right from wrong when he shot the sleeping victim and then called the police. However, the Supreme Court found his delusions deprived him of the capacity to know that the killing was wrong and indeed felt because of his delusions that the killing was necessary and justified. The Court concluded that the trial judge erred in finding that because the accused had a general capacity to know right from wrong, he was not relieved of criminal responsibility under s. 16(1).
[71] The Court held that an accused is exempted from criminal liability where, at the time of the act, a mental disorder deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act.
[72] In R. v. Szostak, 2012 ONCA 503, 111 O.R. (3d) 241, at para. 58, quoting R. v. Chaulk, Rosenberg J.A. stated:
The insanity defence should not be made unavailable simply on the basis that an accused knows that a particular act is contrary to law and that he knows, generally, that he should not commit an act that is a crime. It is possible that a person may be aware that it is ordinarily wrong to commit a crime but, by reason of a disease of the mind, believes that it would be “right” according to the ordinary morals of society to commit the crime in a particular context. In this situation would be entitled to be acquitted by reason of insanity.
[73] Rosenberg J.A., at para. 57, also quotes with approval the words of McLachlin, J. (as she then was) in R. v. Oommen. “…he was deprived of the capacity for rational perception and hence rational choice about the rightness or wrongness of his acts.”
[74] In R. v. Campione, 2015 ONCA 67, 329 O.A.C. 245, the Court of Appeal, at para. 41, stated:
In short, a subjective, but honest belief in the justifiability of the acts – however unreasonable that belief may be – is not sufficient, alone, to ground an NCR defence, because an individual accused’s personal sense of justifiability is not sufficient. The inquiry goes further. The accused person’s mental disorder must also render him or her incapable of knowing that the acts in question are morally wrong as measured against societal standards, and therefore incapable of making the choice necessary to act in accordance with those standards.
[75] The evidence of Dr. Ferencz, which I accept, was very clear. Mr. Alishaw, even though he called 911 and told dispatch he killed someone, had no capacity, because of his grossly delusional and psychotic mind, to make a rational decision or assess that what he was doing in killing his father was morally wrong. As well, he had no ability, because of his diseased mind, to appreciate what society would think of his actions. As the Doctor said, “…his ability to make a …rational determination about morality would be grossly impaired. In other words, he was incapable due to his illness of knowing these things.”
[76] I conclude from the evidence before me that Mr. Alishaw, at the time he killed his father, did not know that what he was doing was wrong pursuant to s. 16(1) of the Criminal Code as interpreted by decades of case law as stated in Chaulk, Oommen, Dobson, and Campione.
CONCLUSION:
[77] Mr. Alishaw is found not criminally responsible of second degree murder pursuant to s. 16(1) of the Criminal Code.
[78] Mr. Alishaw, pursuant to the Criminal Code, is remanded to St. Joseph’s Healthcare West 5th Campus to a secure unit for a disposition hearing to be held by the Review Board as established pursuant to s. 672.38(1) of the Criminal Code.
Arrell, J.
Released: July 3, 2019
COURT FILE NO.: CR-18-129
DATE: 2019/07/03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
ADAM ALISHAW
JUDGMENT
HSA
Released: July 3, 2019