ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AINAR GANCTHEV
COUNSEL:
C. Coughlin, for the Crown
M. Moon and N. Klein, for the Defendant
HEARD: December 1, 4, and 18, 2020
REASONS FOR JUDGMENT
DENNISON J.
Introduction
1Tragically, Mr. Gancthev killed his father in the basement of the family home. The cause of death was blunt force trauma. Mr. Gancthev then put his father into the family car and drove down to Lakeshore Boulevard and set the car on fire in a vacant lot.
2Mr. Gancthev is charged with manslaughter. He admits that he inflicted the injuries that resulted in the unlawful death of his father. He argues that he is not criminally responsible owing to a mental disorder (“NCR”). At trial, the issue was whether Mr. Gancthev suffered from a significant mental illness that was operative at the time of the killing, and if so, whether Mr. Gancthev’s mental illness rendered him incapable of a) appreciating the nature and quality of his conduct or b) knowing that the conduct was morally wrong according to the standards of society.
3Dr. Komer testified that Mr. Gancthev was NCR. After considering his evidence, the Crown concedes that Mr. Gancthev is NCR. After considering all of the evidence, I too am satisfied that Mr. Gancthev is NCR for the death of his father. I will now review the evidence and my reasons for this finding.
Brief History of the Matter
4Police charged Mr. Gancthev with the second-degree murder of his father on June 24, 2018.
5The preliminary inquiry took place on September 16 to 19, 2019.
6On January 7, 2020, Justice Durno ordered an assessment to determine if Mr. Gancthev was NCR at the time of the offence pursuant to s. 16(1) of the Criminal Code. The results of the assessment were provided solely to Mr. Gancthev’s Counsel. On April 2, 2020, the assessment order was extended for a further 30 days.
7Dr. Komer completed the assessment report on May 14, 2020.
8On August 19, 2020, the Court issued an Order pursuant to s. 672.29 of the Criminal Code requiring Mr. Gancthev to remain at Waypoint Centre for Mental Health Care, pending his trial.
9The Crown laid a new indictment charging Mr. Gancthev with manslaughter. The parties re-elected to have the matter proceed as a judge alone trial. The parties also agreed that the trial would proceed via Zoom given the current Covid-19 situation in Peel Region.
10Prior to the commencement of the trial, out of an abundance of caution, I made certain inquiries of Mr. Gancthev to ensure that he understood the nature of how the trial was going to proceed. At the conclusion of my questions, neither Counsel indicated any concerns, and I was satisfied that the trial should proceed.
Evidence at Trial
11The Crown’s case was introduced by an Agreed Statement of Facts. The transcripts from the preliminary inquiry and the exhibits at the preliminary inquiry were made exhibits on this trial and provide important evidence that supplements the Agreed Statement of Fact.
12The Defence called Dr. Komer to give evidence. He testified via Zoom. His report dated May 14, 2020 was adopted and entered as an exhibit. The parties agreed that the Court could consider this report along with the viva voce evidence of Dr. Komer.
The Offence
13Mr. Gancthev lived at unit 45–333 Meadows Boulevard with his parents. Flor Marbal (his mother) and his father, Yura Gancthev who was 71 years old.
14On Saturday June 23, 2018, Mr. Gancthev and his father were watching World Cup soccer. The family planned to go out and get some food in the afternoon. At approximately 2:00 p.m. Mr. Gancthev abruptly left the house on foot. His father followed him outside. Mr. Gancthev told his father that he was going for a walk and would be back shortly.
15Shortly before midnight, Ms. Marbal received a call from Mr. Gancthev. He was in Ottawa at a gas station and asked his parents to come and get him. His mother told him he should come back the same way he got there. Mr. Gancthev stated that he “believed” he took a cab. He stated that he did not remember why he went to Ottawa. He sounded “lost and sad” and begged his parents to come and get him. While not happy with the situation, Mr. Gancthev’s parents agreed to pick him up. They left for Ottawa shortly after midnight.
16When Mr. Gancthev’s parents arrived, Mr. Gancthev thanked them for coming to get him. There was little discussion on the drive home. Once they arrived at home Yura Gancthev told his son in a very stern tone that “things are going to change. From now on you are going to have to start taking your medicine because we can’t continue like this.” Mr. Gancthev asked why, and his mother told him that was how it had to be.
17The following morning, Yura Gancthev drove his wife to work. She was to call when she was finished work and he would pick her up. Ms. Marbal texted her husband at approximately 4:00 or 4:30 p.m. but did not receive a response. She ultimately took the bus home.
18When she arrived at home neither Mr. Gancthev nor her husband were present. She went to the basement and noticed that her husband’s cell phone was there and there was some debris and a bottle of cleaner left out. She returned upstairs to take care of the dog. Ms. Marbal received a phone call a short time later from a criminal defence Counsel telling her Mr. Gancthev had been arrested.
19At the preliminary inquiry, Ms. Marbal believed that her husband and son were getting along well in the time period leading up to her husband’s death.
20Ms. Marbal also gave evidence about her son’s mental health. She stated that he often had sleep problems and his mental health would then deteriorate. She first recalled Mr. Gancthev being hospitalized when he was 17 to 18 years old. He had been hospitalized several times. Ms. Marbal stated that her son would often take his medication following hospitalization or confrontation with his parents, but he would eventually refuse to take his medication. His mental health would deteriorate after he stopped taking his medication. Ms. Marbal testified that Mr. Gancthev was scheduled to get another injection of medication in May 2018, but he refused to do so.
The Discovery of Yura Gancthev and Mr. Gancthev’s Arrest
21Mr. Obradovic and Mr. Perkovic were at Lily’s Place on Saturday June 24, 2018, at approximately 5:00 or 5:30 p.m. The bar is located on the north side of Lakeshore Boulevard, east of Cawthra Road. Across the street is a wooded area that is owned by the government.
22Mr. Obradovic and Mr. Perkovic noticed white smoke coming from the wooded area. They observed a male between 28 and 34 years of age emerge from the bushes. He looked confused. The male was wearing white shorts, a red tennis shirt and sandals/flipflops. Mr. Perkovic followed the male and tried to get him to stop. He took photos of the male which he provided to the police.
23Police officers were dispatched to the fire. They observed a male who matched the description provided and arrested him for arson. It was Mr. Gancthev. Police drove him to the station. Police located a lighter in his pocket.
24While PC Kozak was seizing Mr. Gancthev’s clothing he noted that Mr. Gancthev had difficulty following his instructions regarding placing the clothing into the bags. He indicated that Mr. Gancthev had a “very blank stare”. Mr. Gancthev wasn’t blinking and looked at the officer as if he did not comprehend what was going on. The officer had to repeat instructions to Mr. Gancthev several times.
25PC Yong-You stated that Mr. Gancthev had a “deer in the headlights” look on his face when she administered his rights to counsel.
26A body was located face down in the back-passenger seat of the car in the wooded area. The car was engulfed in flames.
27Ms. Vachon is an expert in the area of fluid identification and DNA analysis and interpretation. Her evidence and report given at the preliminary inquiry were made exhibits at the trial. She conducted a DNA sample from the body discovered in the vehicle and Mr. Yura Gancthev’s toothbrush and confirmed that the body was Yura Gancthev.
28Ms. Vachon also determined Yura Gancthev could not be excluded as the source of blood found on Mr. Gancthev’s hand following his arrest. Mr. Yura Gancthev was excluded as a contributor to the mixed profile recovered from a swab of blood taken from Mr. Gancthev’s shorts upon arrest.
The Cause of the Fire
29Mr. Beneditti, an investigator for the Office of the Fire Marshal, investigated the cause of the fire for the vehicle. He determined that the fire travelled from the interior to the exterior of the vehicle. The origin of the fire was the rear passenger compartment, and the ignition source was “the intentional application of an open flame to combustibles (gas vapour)”. The fire was incendiary/arson/intentional.
30Dr. Hong-You of the Chemistry section of the Centre for Forensic Science examined a number of pieces of clothing and other items gathered during the investigation. Gasoline was noted on the black shoes recovered from Mr. Gancthev. Gas was also found on the fire damaged pants recovered from Mr. Yura Gancthev’s body and from the upholstery and underpadding recovered from the burned-out vehicle.
Cause of Death of Mr. Yura Gancthev
31Dr. Williams conducted a post-mortem examination on Yura Gancthev on June 28, 2018. His report was filed as an exhibit at the trial. Dr. Williams was able to determine that Yura Gancthev was deceased prior to the fire.
32Dr. William’s opined that Yura Gancthev’s death was caused by a number of blunt force injures to Yura Gancthev’s head and neck. The injuries included fractures of facial bones, facial bruising and patchy subarachnoid hemorrhage. The injuries to the neck included extensive fractures of the deep neck structures. There was also bleeding around the fractures and within the muscles of the neck.
33Dr. Williams stated that blunt force such as one or more strikes or blows to the neck with a blunt object or body part caused the neck injuries. Alternatively, compression of the neck such as manual strangulation may have caused the neck injury. Ligature strangulation was considered less likely to have caused the neck injuries because the force in ligature strangulation is usually more diffused around the circumference of the neck.
34Dr. Williams also stated that the mechanism of death may have included asphyxia resulting from impaired respiration through the collapsed larynx following blunt injury to the larynx. While sustained compression of neck blood vessels or the airway may also cause death, the lack of petechial hemorrhages weighed against sustained/fatal neck compression.
35In addition to Dr. Williams’ evidence, PC Hofstetter testified at the preliminary inquiry as a blood stain expert. His evidence and report were made exhibits at this trial.
36PC Hofstetter testified that he attended at the family home and found blood stains on the frame of the futon that was located in the basement as well as staining on other areas, including the south side of the futon and the wall near the television. It was his opinion that the blood source came from somewhere around the north edge of the futon. It was his opinion that an object wet with Yura Gancthev’s blood was swung in a vertical downward direction north of the southwest corner. PC Hofstetter could not quantify the number of blows that caused the staining, but it was at least once. He also testified that a person or object wet with Yura Gancthev’s blood made contact with the basement light switch.
37It was Ms. Vachon’s expert opinion that Yura Gancthev could not be excluded as a contributor of the blood stains collected by Detective Hofstetter. Mr. Yura Gancthev’s DNA could also not be excluded from the blood sample taken from an eye-glass lens recovered on the driveway of the family home.
Mr. Gancthev’s Background
38Mr. Gancthev was born in Venezuela. He immigrated to Canada when he was six years old but continued to return to Venezuela until he was 9 years old. Mr. Gancthev reported that his father physically disciplined Mr. Gancthev when he was a child. Mr. Gancthev also reported that his father was physically abusive towards his mother. His mother denied there was any physical violence but admitted that they yelled at each other when they argued.
39Mr. Gancthev had a history of truancy and some fighting in school. He was eventually expelled from school in grade 11. In his early twenties, Mr. Gancthev attended culinary school and obtained a diploma as a sous chef. Mr. Gancthev has worked at various restaurants in the kitchen but has had difficulty maintaining fulltime employment due to his mental health issues.
40Mr. Gancthev started using cannabis when he was 12 or 13 years old. At points in his life he has used marijuana daily. He also has used cocaine recreationally and magic mushrooms.
41Mr. Gancthev has a criminal record. On August 8, 2009, he was convicted of assaulting a peace officer, mischief over $5,000.00 and failing to comply with an undertaking. He received a suspended sentence and probation for 12 months. On February 22, 2010, Mr. Gancthev was convicted of aggravated assault and sentenced to 8 months and 4 months under supervision in the community, as well as probation for 12 months. On March 19, 2019, he was convicted of two counts of assaulting a peace officer.
42Mr. Gancthev is not married, although he told Dr. Komer that he is in a long-term relationship with a childhood friend who now lives in France. He stated to Dr. Komer that they are married.
The Onset of Mental Illness
43Mr. Gancthev first began exhibiting mental health concerns when he was 18 years old.
44When Mr. Gancthev was 22 years old, he was admitted to Trillium Health Partners (“Trillium”) for about a month. Mr. Gancthev’s mother reported that at this time her son often talked about aliens and that she was an alien. She also reported that her son thought his father was a spy or the devil and that he was reading Mr. Gancthev’s mind.
45On March 12, 2013, Mr. Gancthev became involved in the Early Intervention Service for Early Psychosis in Peel for the Centre for Addiction and Mental Health (CAMH) in Toronto.
46From January 20 to 25, 2016, Mr. Gancthev was admitted to Trillium. Police took Mr. Gancthev to the hospital after he was found at a pizza restaurant without any pants, underclothes or shoes. He was exhibiting “extremely bizarre behaviour and was seen searching for something in his rectum”. Mr. Gancthev stated that the something invisible was pulling his pants down and trying to insert something into his rectum. At this time, Mr. Gancthev tested positive for cannabis. Mr. Gancthev’s mother said he was acting strange four days prior to this. His symptoms quickly resolved, which suggested that they were likely substance-induced. Mr. Gancthev was diagnosed with Cannabis-Induced Psychotic Disorder.
47On February 4, 2016, Mr. Gancthev was readmitted to Trillium. Mr. Gancthev was not eating or sleeping and told his parents he was God. Mr. Gancthev exhibited symptoms of psychosis upon admission, but repeatedly minimized or denied them. His urine screen was negative. Mr. Gancthev was not capable of making medical decisions, so his father acted as his substitute decision maker. Mr. Gancthev was discharged on February 22, 2016. He was diagnosed with “Bipolar disorder, recurrent, current episode manic, sever with psychotic features, currently in early remission”.
48On October 21, 2016, Mr. Gancthev was discharged from the FACT by Dr. Choi. He diagnosed Mr. Gancthev with Bipolar Affective Disorder currently euthymic. Mr. Gancthev was described as stable but continued to have limited insight into his mental illness.
49Mr. Gancthev was again admitted to Trillium from December 15 to 16, 2016. His parents stated that Mr. Gancthev’s mental state had deteriorated and he was displaying strange behaviour. They were fearful of Mr. Gancthev because he was verbally aggressive towards his parents and accused his father of being Satan or God. He stated that he stopped taking his medications two months ago and did not have a mental illness. He agreed to take medicine. He was discharged and was diagnosed with Bipolar 1 Disorder and possible Schizoaffective Disorder.
50Between December 2016 and March 2017, Mr. Gancthev was seen as an outpatient at Trillium intermittently and approximately every two to three weeks. He continued to deny he had a mental illness. Mr. Gancthev advised that he was considering playing tennis again and believed that within six months he would be competitive with professional tennis players.
51In June 2017, Mr. Gancthev called his mother after allegedly walking 19 hours from Mississauga to near Barrie. He stated he was going to Algonquin Park. He eventually called his parents and they picked him up. He was hospitalized from June 17 to July 11, 2017. Mr. Gancthev wrote nonsensical things on his bedroom wall and drank his own urine and killed a pet bird. He also had a bag full of knives. At the hospital, Mr. Gancthev was observed to be intense, irritable, angry and aggressive. He denied paranoia or auditory hallucinations. During his stay in hospital there were recurrent episodes of psychosis and mania. Dr. A. Shafro noted that Mr. Gancthev deteriorated in the context of medication nonadherence. Mr. Gancthev was incapable of consent to psychiatric treatment and his parents provided substitute consent. Mr. Gancthev denied that his behaviour was concerning.
52Between August and October 2017, Mr. Gancthev attended outpatient appointments at Trillium on a monthly basis. Mr. Gancthev reported that his mental health was good and that he did not have Bipolar Disorder and that he did not need medication. Dr. Senthelal noted that Mr. Gancthev had no insight into his illness and wanted to stop attending the clinic and stop taking his medication.
53On March 19, 2018, Mr. Gancthev’s father met with Ms. Gemmil of the Adult Mental Health of Trillium. He told Ms. Gemmil that after Mr. Gancthev was discharged, he cut back on his marijuana use and took his medication for some time but eventually stopped talking all of his medications, except for Serquel at bedtime. Mr. Gancthev’s father said Mr. Gancthev cried all the time and was only working one shift per week. He was not exercising and would stare off into space. Mr. Gancthev’s father was extremely concerned about Mr. Gancthev’s decompensation.
54On March 29, 2018, Mr. Gancthev attended at Trillium. Mr. Gancthev did not want to go back onto his medication because of the side effects. Mr. Gancthev’s father wanted his son back on the medication not just because his son appeared depressed, but he was preoccupied. Mr. Gancthev denied hearing voices. Dr. Senthelal was of the view that Mr. Gancthev was not psychiatrically stable and started him on medications. Dr. Senthelal diagnosed Mr. Gancthev with Bipolar Depressed.
55On April 5, 2018, Mr. Gancthev attended Trillium again. He did not want to take injection medication but agreed to take pills. On April 17, 2018, Mr. Gancthev attended Trillium. He was feeling much better and agreed to take an injectable medication.
56At Mr. Gancthev’s appointment on May 4, 2018, Mr. Gancthev’s parents voiced concerns that Mr. Gancthev was smoking marijuana again. Mr. Gancthev was doing well and stated that he did not feel that he had any issues related to substance abuse.
57Mr. Gancthev’s father attended Trillium on May 16, 2018, requesting a report of what medications Mr. Gancthev was taking. A nurse contacted Mr. Gancthev and he told her that he would not be attending to take his injection because he did not think he needed it and did not like the side effects. Mr. Gancthev agreed to meet with the nurse, Ms. Shaule. She discussed the importance of him taking his medicine. Mr. Gancthev agreed to take his oral medications and reattend in a few weeks to assess the effectiveness of the medications.
58On June 15, 2018, Mr. Gancthev told Ms. Shaule that he was feeling fine. He stated that he stopped taking all of his medications except for Abilify 2. Ms. Shaule told him to self-monitor and restart the medication if he observed any symptoms resurfacing. His parents were not pleased with Mr. Gancthev’s choice. The next appointment was scheduled for July 13, 2018, which did not occur because Mr. Gancthev was charged with killing his father.
Mental Health Issues During Detention
59Mr. Gancthev was admitted to Maplehurst on June 25, 2018. Mr. Gancthev was referred to mental health services because he exhibited concerning behaviours. Mr. Gancthev denied he had a mental illness but told correctional officers that he did not feel safe. He was very aggressive, and his affect was flat.
60Dr. Glancy assessed Mr. Gancthev on June 28, 2018. He noted that there was no psychosis. He questioned a Bipolar Affective Disorder. Mr. Gancthev was awaiting a misconduct because he punched a correctional officer in the nose.
61On July 1, 2018, Mr. Gancthev was involved in an altercation with his lawyer. Dr. Voruganti saw Mr. Gancthev of July 4, 2018. He was not exhibiting clear evidence of mania or depression and refused to take his medications. No overt psychotic systems were noted. Dr. Voruganti noted that Mr. Gancthev did not seem to be fully aware of Bipolar disorder or its concerns.
62By July 7, 2018, staff noted Mr. Gancthev as not cooperative, he was dishevelled, unkempt and had poor eye contact. On July 9, 2018, Dr. Voruganti reassessed Mr. Gancthev. Mr. Gancthev’s affect was flat. There was no evidence of thought disorder, delusions or hallucinations and no evidence of depression or elation.
63A note in a practitioner’s assessment dated July 13, 2018, stated, “daily cannabis”.
64Mr. Gancthev was assessed by a psychiatrist on July 14, 2018. The notes indicate that Mr. Gancthev had been off his medications for two months. Mr. Gancthev was indifferent and guarded. A psychotic disorder was questioned. The need to rule out personality disorder was noted.
65Mr. Gancthev would not engage with staff on July 15, 16, and 19, 2018. When Mr. Gancthev was assessed on July 20, 2018, he stated that he was okay. A psychiatric hold was continued. The notes indicated that Mr. Gancthev had not been engaging since assaulting staff and his lawyer.
66On July 24, 2018, Mr. Gancthev hit a correctional officer. Dr. Glancy assessed him on July 26, 2018 and completed a Form 1. Mr. Gancthev denied hallucinations and mental health concerns. Mr. Gancthev told Dr. Komer that he was paranoid in jail and was worried that the correctional officer would eat him.
67When Dr. Voruganti met with Mr. Gancthev on July 30, 2018, he presented as calm and cooperative. He agreed to take his medicine. On August 1, 2018, he would not engage in conversation.
68On August 7, 2018, Dr. Glancy reassessed Mr. Gancthev. He noted that he was not obviously psychotic. Mr. Gancthev was superficially cooperative and difficult to engage.
69While being escorted to video court on August 9, 2018, Mr. Gancthev head butted a correctional officer. Dr. Glancy assessed Mr. Gancthev that day. He denied psychotic symptoms. Dr. Glancy completed a Form 1. Dr. Glancy noted that there were no clear psychotic symptoms, but he questioned a Schizoaffective Disorder.
70In August and September 2018, Mr. Gancthev was assessed by various doctors. Mr. Gancthev denied hallucinating, but three different doctors noted that a psychosis was questioned. At other times, he would not participate in interviews with doctors and at times acted aggressive. He punched a door, wall and mirror and punched a doctor. He often had a blunted affect. Mr. Gancthev denied any psychotic symptoms.
71In October 2018, Mr. Gancthev was observed drinking from a toilet bowl. He told Dr. Glancy that he was not taking his medication but agreed to restart. When asked about the violence, Mr. Gancthev stated that he had not been feeling right. He was vague. He denied psychotic symptoms and remained guarded. Dr. McMaster believed that Mr. Gancthev had a primary Psychotic Disorder with poor insight and a chronic risk for violence. On October 21, 2018, Dr. Patel made a similar diagnosis of Psychosis Not Otherwise Specified and a chronic risk of violence. At that time, Mr. Gancthev denied any psychotic symptoms. Dr. McMaster also made the same assessment on October 26, 2018.
72On November 29, 2018, Mr. Gancthev was admitted to Waypoint for an assessment of his fitness to stand trial for the charges related to assaulting the correctional officers on June 28, July 24, and August 9, 2018. Dr. Dickey found that there was no evidence of overt psychosis. Mr. Gancthev denied a past psychiatric history. Dr. Dickey believed that Mr. Gancthev showed residual illness, likely Schizophrenia and he was fit to stand trial.
73In January 2019, Mr. Gancthev reported that he was taking his medicine and denied any psychotic symptoms. Various doctors noted that Mr. Gancthev was calm, and his thoughts were organized.
74On February 23, 2019, medical notes about Mr. Gancthev stated, “rule out Psychotic Disorder and rule out Organic Brain Disorder”.
75Dr. McMaster met with Mr. Gancthev on March 8, 2019. He asked why Mr. Gancthev harmed Dr. Voruganti. Mr. Gancthev, state that Dr. Voruganti “tried to do harm to a child, I know 100%”. He stated that Dr. Voruganti tried to do an offering. He tried to kill the baby. Dr. McMaster noted delusional beliefs and diagnosed Mr. Gancthev with Psychosis and increased his medicine to address the ongoing delusions. At another meeting in March 2019, Mr. Gancthev told Dr. McMaster that he made a medicine to help people.
76In April and May 2019, it appeared that Mr. Gancthev may be deteriorating. He reported that he had a daughter who is 67 years old. On another occasion when he returned from visiting his mother he was crying and said it was “hard to see my daughter.” He said he did not feel right.
77In the summer months, Mr. Gancthev appeared to be doing well. No obvious psychosis was noted, and he appeared calm.
78On January 7, 2020, Mr. Gancthev was transferred to Waypoint for an assessment.
Evidence of Dr. Komer
79Dr. Komer is a forensic psychiatrist. He gave expert evidence with respect to Mr. Gancthev’s state of mind at the time of the offence.
80Dr. Komer met with Mr. Gancthev 15 to 20 times to prepare the assessment. He agreed that it was unusual to have a Court ordered assessment that was only to be provided to the Defence. He testified that this did not alter the manner in which he carried out his assessment.
81In creating his report, Dr. Komer relied on his interviews with Mr. Gancthev, information from Waypoint staff who dealt with Mr. Gancthev, records from Waypoint, the Centre for Addiction and Mental Health, Maplehurst Correctional complex, Trillium Health Partners, a report completed by Dr. Julian Gojer, a Psychosocial Assessment completed by Mary Kraftscik, a Psychology Report completed by Dr. Wright and laboratory investigations while Mr. Gancthev was at Waypoint. Dr. Komer also had the Crown synopsis and several witness summaries and officers’ notes. He did not have the transcripts from the preliminary inquiry at the time of making his report.
82Dr. Komer stated that Mr. Gancthev was a difficult patient to assess. At times he was not cooperative and not reliable. He was guarded and evasive and questions often had to be repeated to clarify his responses. There were times when Mr. Gancthev did not want to meet with Dr. Komer. Over time, Mr. Gancthev’s reporting of his symptoms and experiences become more elaborate. Mr. Gancthev acknowledged being dishonest with respect to the information he provided regarding what happened at the time of the incident. Mr. Gancthev’s affect was often blunted, subdued, and depressed.
83It is Dr. Komer’s opinion that after considering all the information he gathered, that Mr. Gancthev suffers from a mental illness and was NCR at the time that he killed his father. Mr. Gancthev did not appreciate his actions. In Mr. Gancthev’s mind he was killing an alien, not a human being. Mr. Gancthev also did not understand the wrongfulness of his actions. He believed that a person in his position, i.e., a person being controlled by an alien, was acting properly by killing the alien.
84Mr. Gancthev told Dr. Komer that he believed that both his parents were aliens. He did not know who he could trust because they were not his parents but aliens. His father stunted his thinking and spiked his medication. Mr. Gancthev believed that his father has been an alien since Mr. Gancthev came to Canada when he was 6 years old. His father told him he was an alien when Mr. Gancthev was 25 years old. Mr. Gancthev first realized that his father was an alien when he was 10 and his father took him to a place where he would be lobotomized. Luckily, a friend came by and saved Mr. Gancthev from being hooked up to the machine.
85In coming to the opinion that Mr. Gancthev is NCR, Dr. Komer addressed the concern of malingering mental illness that was raised by Dr. Wright in his assessment. Dr. Komer did not believe Mr. Gancthev was malingering, because of his mental illness has been documented by numerous psychiatrists over the years. These reports also indicated that Mr. Gancthev is difficult to assess and typically minimizes, denies and/or does not report his symptoms. Mr. Gancthev tries not to portray himself as mentally ill but asserts that he does not have a mental illness and that he does not require medication. Dr. Komer noted that rather than attribute his symptoms to mental illness, Mr. Gancthev claims his beliefs are real even, though they can be refuted. For example, Mr. Gancthev claims to have a wife, when in fact that person is married to another and lives in France. Mr. Gancthev also denied that his assaultive behaviour against correctional officers, his previous lawyer, and Dr. Voruganti had to do with his mental illness, until much later in their discussions. It was Dr. Komer’s opinion that there “was a connection between his psychotic experiences and his actions.” Dr. Komer also noted Mr. Gancthev’s parents were appointed as substitute decision makers for Mr. Gancthev which further supports a finding that Mr. Gancthev is not malingering.
86In coming to his opinion that Mr. Gancthev is not malingering, Dr. Komer also considered that Mr. Gancthev has a lengthy history of acting in response to his psychotic beliefs. Examples included running out of his house without clothes on and looking for something in his rectum that others put in there, killing a bird, taking a cab to Ottawa to join the army, drinking his own urine and writing letters to his “wife”. Mr. Gancthev’s psychotic episodes were corroborated by others including his parents.
87While psychiatrists on other occasions noted that Mr. Gancthev did not present with psychosis, they nonetheless diagnosed him with a psychotic illness.
88It was Dr. Komer’s opinion that at the time of his report, Mr. Gancthev’s mental illness was quite active. Dr. Komer is of the opinion that Mr. Gancthev suffers from Schizoaffective Disorder. A person will experience hallucinations but there may be depression or mania when the person experiences the hallucination. Even when stable, the person may experience hallucinations. Mr. Gancthev at times was depressed, as also noted by his parents. On other occasions he thought he was God or a tennis pro, so he was having grandiose thoughts. Dr. Komer agreed that it is difficult to determine a precise diagnosis because the mood and behaviour of the patient changes. Substance use may also impact a patient’s mood.
89Dr. Komer was of the opinion that at the time of the offence, Mr. Gancthev suffered from a mental disorder which rendered him incapable of appreciating the nature and quality of his actions or of knowing their wrongfulness. As Dr. Komer stated in his report,
He lacked rational perception and hence rational choice of the wrongfulness of his actions. Mr. Gancthev was under the delusional belief that his life was in danger from his father who he believed was an alien. In response to delusions and hallucinations, he committed the act believing he was saving himself and against a being that he believed was not human and was a danger to him. In my opinion, Mr. Gancthev’s lack of remorse for his actions, is a reflection of his ongoing delusional beliefs pertaining to his father and the danger to his life from his father he perceived as a result.
90Dr. Komer recognized that Mr. Gancthev told different versions of events regarding what happened prior to the incident. In Dr. Komer’s report, he outlines the discussions he had with Mr. Gancthev about killing his father. When Mr. Gancthev was first at Waypoint, he told Dr. Komer that he got into an argument with his father and that he struck him back three or four times for no reason. Mr. Gancthev stated that his father told him, “I made you and I can end you.” Mr. Gancthev said he struck his father and then went upstairs. When he came back downstairs, he found his father was not breathing. He said he did not intend to kill his father. When he was asked if he had any other intent, Mr. Gancthev said he was “really messed up.” He said, “it happened”. When Dr. Komer asked further questions, Mr. Gancthev said he did not want to discuss it further at that time.
91When Dr. Komer asked if anything happened the day prior to the incident, Mr. Gancthev said that “everything seemed very sketchy”. Mr. Gancthev talked about arguing with his father about going to Ottawa. He clarified that this occurred on the way back from Ottawa. Mr. Gancthev eventually said that he did not have an altercation with his father. Dr. Komer asked Mr. Gancthev if his father hit him first, Mr. Gancthev said, “he was sleeping on the sofa. I thought he was going to kill me. I thought I was going to die”. He estimated that he hit his father four to five times. When asked what Mr. Gancthev’s intention was, he said “for it all to stop”.
92When Dr. Komer questioned Mr. Gancthev about why he told him initially that he acted in self defence, Mr. Gancthev stated that he fixed that and told him what happened. He explained that initially he did not feel it was the right timeframe and he was nervous about what would happen.
93Mr. Gancthev stated that when he woke up that morning, he made an ice coffee. He had difficulty getting out of bed and was “immobile. He believed his father caused this and that his father wanted him to die. Mr. Gancthev said he thought of killing his father that morning. He stated, “I thought if I didn’t do it, I was going to die myself.” He heard the soccer commentator tell him this was his last chance to do it and hit him while he is asleep. Mr. Gancthev explained that his father was burning light into his eyes and when he had previously gone out, his father used his powers to mind-stunt him. He thought his father was trying to kill him. At the time of the incident, Mr. Gancthev thought his father was an alien. He stated, “I knew he was an alien.” He said he knew this because his father talked about an alien mothership and when they were at Montana’s his father said the ribs were from humans. Mr. Gancthev saw circles in the sky and thought there were aliens around his house. He said his father was stunting his thinking and was able to do so because he was an alien. Mr. Gancthev said his father spiked his meals. Mr. Gancthev said he killed his father for his wellbeing. When asked if he believed he was killing an alien or a human being, Mr. Gancthev said “he was an alien”. He stated that there was another version of his father when he was younger, but this other version lived in space. Dr. Komer asked Mr. Gancthev if he would kill his father again if he had the chance and he replied, “For my wellbeing, yes I would.”
94Dr. Komer agreed that Mr. Gancthev had a history of being unreliable and untruthful. Dr. Komer stated that there was a pattern where Mr. Gancthev was unreliable in reporting his symptoms. For example, at Maplehurst he reported no symptoms, yet he was diagnosed with a mental illness. He repeatedly tries to portray himself as not having a mental illness, which is in fact a common symptom of his mental illness. It is Dr. Komer’s opinion that it took some time to get the information from Mr. Gancthev. What Mr. Gancthev initially told Dr. Komer was not true.
95Dr. Komer also agreed that there was an inconsistency with respect to whether Mr. Gancthev thought of killing his father that morning or earlier. Mr. Gancthev stated that when he was younger there was a situation with a machine and his father being an alien. When Dr. Komer further questioned Mr. Gancthev, he agreed that he had these thoughts before.
96Dr. Komer also recognized that Mr. Gancthev had also told other psychiatrists that his mother and father were aliens. This is a belief he has had for several years.
97With respect to whether Mr. Gancthev knew what he did was wrong, Dr. Komer explained that he did not. Mr. Gancthev believes that if other people were in his situation, they would do what he did. Dr. Komer was asked in cross-examination what in the interview was relevant in considering whether Mr. Gancthev appreciated the wrongfulness of his actions. Dr. Komer stated that Mr. Gancthev believed he was protecting himself and saving his life and that he was doing something good by killing his father.
98In cross-examination, Dr. Komer was asked how steps taken to avoid detection were considered in his assessment. Dr. Komer explained that there were some aspects to that. He agreed that he had not considered the bottle of cleaner that Ms. Marbal found when she came home that was out of place because he did not have that information at the time of his assessment.
99Dr. Komer did consider the fact that the car was set on fire and that this took place in a secluded area. Dr. Komer googled the area. He agreed that it was possible that Mr. Gancthev set the car on fire there so that he would not be readily detected by the public or police. But he noted that in reality the car and body would be found so it would not be a good way of hiding his actions. He also stated that it was possible that Mr. Gancthev did not want the fire to be put out easily which is why he chose a secluded area.
100Mr. Gancthev stated that he set the car on fire because he “just wanted it to stop”. When Dr. Komer asked him how setting the car on fire would cause things to stop. He replied, “it’s all just a blur.” When asked again, he stated, “it’s just what happened. I don’t know how to explain it.” When asked how he felt when he set the fire, Mr. Gancthev said he was paranoid about what was going on and “wanted all that to stop.” When asked what “that” referred to, Mr. Gancthev said the thought stunting and the way he was being treated. When asked again why he put his father in the car, he stated that he was really paranoid about what was going on and stated, “if I didn’t kill him, he would kill me.” After being asked several more questions about setting the car on fire, Mr. Gancthev stated “it’s just how I felt”. He then said, “those aliens suffer a lot from burns.” When Dr. Komer asked how that was related to Mr. Gancthev setting the car on fire he stated, “I just didn’t want him to come back”. When Dr. Komer asked him further about setting the car on fire, Mr. Gancthev stated “I don’t know, that’s how it happened.” Mr. Gancthev then said that fire does not help aliens. He also said that he set the fire to make sure he was dead.
101Dr. Komer also did not know that Mr. Gancthev told police, when they stopped him, that he was coming from a convenient store, when he prepared his report and agreed that it was possible that Mr. Gancthev said this to hide his actions because he knew they were wrong. In re-examination, Dr. Komer stated that the officer’s evidence that Mr. Gancthev had “deer in the headlights” look and could not readily respond to instructions is consistent with those having Schizoaffective Disorder as their affect is blunted and they may not engage in their environment.
102Dr. Komer agreed that Mr. Gancthev often does not tell the truth. Mr. Gancthev does not readily report things. He is someone who does not initially tell people what he is thinking or doing even though the lies do nothing to assist him or can be readily contradicted. However, when an overall assessment of Mr. Gancthev said over time was considered, it remained Dr. Komer’s opinion that Mr. Gancthev is NCR at the time of the incident. The additional factors that were presented to Dr. Komer in cross-examination did not alter his opinion.
Analysis
103Section 16 of the Criminal Code provides as follows:
(1) 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.
104Our law presumes that individuals are autonomous rational persons and that if an accused commits a criminal offence, they are criminally responsible for their actions. However, our law also recognizes that it would be unfair to impose criminal consequences on accused persons who commit an offence while mentally unsound where the accused does not appreciate the nature and quality of the actions or know that it is wrong.
105A person who commits an offence but is found “not to be criminally responsible by reason of a mental disorder” is not acquitted of the offence but is transferred to the jurisdiction of the Ontario Review Board (“ORB”). The ORB is statutorily imposed to inquire into the risk posed by the person and to determine whether and when the person can be released back into the community. This approach “gives effect to society’s interest in ensuring that morally innocent offenders are treated rather than punished, while protecting the public as fully as possible”: R. v. Bouchard-Lebrun, 2011 SCC 58, at para. 52.
106To be exempt from criminal responsibility due to a mental illness, the party who raises the issue must establish on the balance of probabilities that the accused suffered from a mental disorder at the time of the offence. In addition, the mental disorder must have rendered the accused incapable of either appreciating the nature and quality of an act or omission or incapable of knowing that the act or omission was wrong. In this case, Mr. Gancthev raised this issue so the onus rests on him.
107After having the opportunity to cross-examine Dr. Komer, the Crown is now satisfied that Mr. Gancthev is NCR for the offence. This is a reasonable concession based on the evidence.
108I too am satisfied that Mr. Gancthev has demonstrated that he is NCR. While Dr. Komer was the only expert before me, I am cognizant of the fact that the absence of opposing evidence does not mean as a matter of law that I must find Mr. Gancthev not criminally responsible. As with any witness, I am entitled to accept, some, none, or all of Dr. Komer’s evidence. In addition, in assessing his opinion, I am entitled to examine the factual foundations of the opinion and to give the opinion less weight where it is not based on facts proved at trial or where I disagree with the factual assumption on which the opinion is based. Ultimately, whether Mr. Gancthev is not criminally responsible is a legal question that I must decide: R. v. Molodowic, 2000 CSC 16, 2000 SCC 16, at para. 7.
Mr. Gancthev suffered from a mental Illness at the time of the death of his father
109The Crown agrees that Mr. Gancthev suffered from a mental illness that was active at the time of this offence. I agree as well. Mr. Gancthev had a history of mental illness well before this event. When Mr. Gancthev goes off his medicine, he appears to decompensate and his symptoms become more prevalent, including his psychosis as demonstrated by his behaviour in the past. At the time Mr. Gancthev caused the death of his father, Mr. Gancthev had been off his medicine for some time. He was supposed to get an in injection in May but refused to do so. This fact combined with Mr. Gancthev’s description of what occurred and Dr. Komer’s opinion supports the finding that Mr. Gancthev suffered from a mental illness that was active at the time of the offence.
Mr. Gancthev did not appreciate that his actions were wrong
110The Court must also be satisfied that Mr. Gancthev did not appreciate the nature and quality of his actions or was incapable of knowing that his actions were wrong.
111The meaning of “wrong” was discussed by the Court of Appeal most recently in R. v. Dobson, 2018 ONCA 589 at paras. 23 to 24 as follows:
A recent description of the “wrongfulness” inquiry under s. 16(1) from this court is found in Campione, at paras. 39-41:
The ultimate issue for the jurors to determine was whether – in spite of her delusions and any honest belief in the justifiability of her actions – the appellant had the capacity to know that those actions were contrary to society’s moral standards. The centrepiece of the inquiry is her capacity to know and to make that choice; it is not the level of honesty or unreasonableness with which she may have held her beliefs. Concentrating on the latter unduly complicates the inquiry for the very reason the appellant raises in support of her argument; it leads to the application of reasonableness considerations to the appellant’s delusions and subjective belief.
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. [Emphasis added.]
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.
112I also accept Dr. Komer’s evidence that Mr. Gancthev did not appreciate that his actions were wrong.
113I found Dr. Komer’s evidence thoughtful and balanced. In coming to his opinion, Dr. Komer reviewed extensive files, interviewed Mr. Gancthev and obtained information from other persons on the medical team. Dr. Komer recognized and accepted that Mr. Gancthev was a difficult patient to diagnose given his tendency to not tell the truth when first confronted with questions. He accepted that there were other possible explanations for Mr. Gancthev’s actions such as why he burned the car after he killed his father or why he told police he was coming from a convenience store. However, when Dr. Komer considered these possibilities with all the information he had, these alternative possibilities did not alter his opinion. Another example of the careful consideration Dr. Komer gave to this matter is his opinion as to why he did not share Dr. Wright’s concern that Mr. Gancthev was malingering as discussed earlier in these reasons.
114In accepting Dr. Komer’s evidence, I have also considered that his evidence was not seriously challenged on cross-examination. His opinion was not diluted or qualified by cross-examination. Dr. Komer maintained his opinion throughout his evidence. I cannot find any good reason why his opinion, that Mr. Gancthev is NCR, should be rejected: See R. v. Town Cinema Theatres, 1985 CanLII 75 (SCC), [1985] 1 S.C.R. 494.
115In concluding that Mr. Gancthev saw his conduct as justified not just according to his own view, but according to the norms of society, Dr. Komer considered the numerous observations of Mr. Gancthev’s delusional beliefs related to his father. Mr. Gancthev believed that his father was trying to hurt and kill him and that his father was in fact an alien, not his real father.
116Dr. Komer asked Mr. Gancthev if he would kill his father again if given the chance. He stated, “for my well being, yes I would.” Mr. Gancthev said that his father is not messing with him and that he [Mr. Gancthev] did it for his well being.
117I agree with Counsel for Mr. Gancthev, this case is similar to R. v. Oommen, 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507. In that case, the appellant believed that his life was in imminent danger and he shot and killed a young woman who was sleeping in his apartment. The appellant suffered from a mental illness and at the time he believed that the victim was part of the conspiracy that was out to kill him. In finding the appellant NCR, the Supreme Court of Canada held that,
The evidence was capable of supporting an affirmative answer to the question of whether the accused was deprived of the capacity to know his act was wrong. First, there was evidence that the accused honestly felt that he was under imminent danger of being killed by Ms. Beaton if he did not kill her first, and that for this reason, believed that the act of killing her was justified. This delusion would have deprived the accused of the ability to know that his act was wrong; in his eyes, it was right. Second (and this may be to say the same thing), there was evidence capable of supporting the conclusion that the accused's mental state was so disordered that he was unable to rationally consider whether his act was right or wrong in the way a normal person would.
118The present case is similar. Mr. Gancthev thought he was in imminent danger of being killed by his father, who he believed was actually an alien and believed that his act of killing the alien was justified.
119Ultimately, I am satisfied based on the evidence in this trial, including Dr. Komer’s expert opinion, that Mr. Gancthev has demonstrated on the balance of probabilities that at the time of this offence, Mr. Gancthev was operating under a disease of the mind that rendered him incapable of understanding the moral wrongfulness of his actions.
120Mr. Gancthev is not criminally responsible for the manslaughter of his father.
121Both parties requested that the matter be referred to the Ontario Review Board for disposition as opposed to the Court making a disposition. I am satisfied that this is appropriate given the circumstances in this case. Therefore, this matter will be referred to the Ontario Review Board to make the disposition: see s. 672.45 and s 672.47 of the Code.
122A copy of my reasons, as well as a copy of the indictment and all the exhibits filed on this trial are to be sent to the Ontario Review Board forthwith.
123Mr. Gancthev’s detention remains in effect pursuant to s. 672.46 of the Code until the Ontario Review Board makes a disposition, unless Counsel wish to make submissions otherwise.
Dennison J.
Released: January 25, 2021