COURT FILE NO.: 394/21
DATE: 20221129
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
Crown
- and -
Gregory Tkachyk
Defendant
T. Shuster, for the Crown
J. Berkes and C. Candea, for the Defendant
HEARD at St. Catharines, Ontario: September 19-29, 2022
The Honourable Justice J. R. Henderson
REASONS FOR JUDGMENT
INTRODUCTION
[1] The defendant, Gregory Tkachyk, is charged with the offence of first degree murder regarding the death of his wife, Joanne Hampson. On or about May 27, 2020, Ms. Hampson was brutally assaulted by the defendant with a heavy metal mallet. She died as a result of blunt force injuries, primarily to her face and head.
[2] Most of the facts surrounding the death of Ms. Hampson are not in dispute. The parties filed a lengthy agreed statement of facts at the commencement of the trial, for which counsel are to be commended. The court also received evidence in the form of video recordings, audio recordings, and medical records that were not disputed.
[3] Mr. Tkachyk admits that he caused the death of Ms. Hampson by repeatedly assaulting her with a mallet. The central issue in this trial is not the act that was committed by the defendant, but his state of mind at the time. At his arraignment, Mr. Tkachyk entered a plea of not guilty to this charge, and he submitted, through counsel, that he is exempt from criminal responsibility for his actions pursuant to s.16 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Criminal Code”).
[4] Section 16(1) reads as follows:
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.
[5] The defendant does not rely on the first branch of s.16(1); the defendant only relies on the second branch of s.16(1). That is, the defendant admits that he was capable of appreciating the nature and quality of his actions, but he submits that he was suffering from a mental disorder that rendered him incapable of knowing that his actions were wrong.
[6] The Crown acknowledges that Mr. Tkachyk, as of May 2020, was suffering from a mental disorder within the meaning of the Criminal Code. However, the Crown submits that the defendant cannot fulfill his onus to prove that s.16 applies in this case. The Crown submits that Mr. Tkachyk had a motive for killing his wife, that he intentionally chose to kill her, and that he knew that his actions were wrong in the circumstances according to the moral standards of society.
[7] In this decision, I will first make findings of fact with respect to the circumstances leading up to Ms. Hampson’s death, the events that caused her death, and the actus reus of the offence charged. Most of those facts are not controversial. I will then turn to a consideration of the not criminally responsible defence, which I will refer to as the “NCR” defence.
[8] If I find that the NCR defence does not apply, I will then determine whether the Crown has proved the elements of the offence charged or any included offence. At trial the Crown did not pursue a conviction for first degree murder; the Crown submits that I should find the defendant guilty of second degree murder. Counsel for the defendant submits that, if the NCR defence does not apply, I should find the defendant guilty of manslaughter.
THE CIRCUMSTANCES LEADING UP TO THE OFFENCE
[9] I make the following findings of fact based upon the agreed statement of facts, the medical records, the video recordings, and the audio recordings that were admitted into evidence at this trial.
[10] The defendant was 60 years old at the time of the offence. He worked as a firefighter in Toronto until 2019, at which time he retired due to health issues. In the mid-1990s he bought a house at 29 Densgrove Drive in St. Catharines and lived there until the date of these events.
[11] Ms. Hampson worked as a nurse in the St. Catharines area until her retirement from part-time employment in the spring of 2019. She has two adult daughters from her first marriage.
[12] Mr. Tkachyk and Ms. Hampson commenced a relationship in the mid-1990s. Ms. Hampson moved into the Densgrove Drive house (“the Tkachyk residence”) in 1997 and lived there with Mr. Tkachyk until the time of her death. They were married in 2014.
[13] At or shortly after his retirement Mr. Tkachyk began to show signs of mental and physical deterioration. His physical appearance changed drastically, he lost a significant amount of weight, he stopped being physically active, and he discontinued personal grooming.
[14] Moreover, Ms. Hampson and other family and friends noticed that Mr. Tkachyk’s demeanour was very flat and that he had a blank look on his face. Ms. Hampson noticed that he had difficulties with attention, initiating behaviour, memory, and organization. As a consequence, Ms. Hampson took Mr. Tkachyk to a variety of medical professionals.
[15] The first medical attendance for Mr. Tkachyk’s mental health issues occurred in May 2019, when Ms. Hampson took Mr. Tkachyk to the emergency department at St. Catharines General Hospital. He was admitted to the hospital and assessed under the Mental Health Act, R.S.O. 1990, c M.7. His discharge diagnosis was “Major Depressive Disorder with psychotic features.”
[16] Over the next year, Mr. Tkachyk saw other medical professionals, some of whom raised the possibility of other physical and/or mental conditions. However, all of those professionals generally agreed that Mr. Tkachyk was suffering from a Major Depressive Disorder with psychotic features.
[17] By the spring of 2020 Ms. Hampson became concerned about Mr. Tkachyk’s capacity to manage his financial affairs. He was receiving a monthly pension and had significant investments, but he was leaving correspondence about his investments and household expenses unopened for long periods of time. Some of the household bills were not being paid. Therefore, Ms. Hampson arranged for Dan Silver, a capacity assessor, to interview Mr. Tkachyk and assess his mental capacity for financial decision-making.
[18] On May 22, 2020, Mr. Silver interviewed Mr. Tkachyk at his home. Mr. Silver’s report was received into evidence, but his conclusion that the defendant was incapable of managing his financial affairs was never discussed with Mr. Tkachyk.
[19] On May 27, 2020, I find that Ms. Hampson left the Tkachyk residence at approximately 8:26 a.m. She drove her Honda Accord to Walmart where she had arranged for curbside pickup of a grocery order. Her groceries were loaded into the trunk of her Honda at approximately 9:00 a.m. and then she drove back to her residence. At 9:25 a.m. she parked her Honda in the driveway behind Mr. Tkachyk’s black Ford F150 truck. She popped open the trunk of the Honda, and she entered the side door of the residence carrying a Walmart bag containing eggs.
[20] I find that Ms. Hampson was confronted by the defendant shortly after she entered the residence through the side door.
[21] Mike Turnbull, one of Mr. Tkachyk’s friends and a former coworker, happened to drive past the Tkachyk residence at approximately 9:54 a.m. that morning. Mr. Turnbull was assisting his daughter who was moving into a house in that neighbourhood. Mr. Turnbull noticed that Ms. Hampson’s Honda was parked in the driveway with the trunk open. He sent a text to Ms. Hampson to let her know that her trunk was open, but he received no response.
[22] At approximately 12:31 p.m. Mr. Turnbull left his daughter’s house and again drove past the Tkachyk residence and noticed that the trunk of the Honda was still open. At that point, Mr. Turnbull stopped his vehicle, got out, and closed the trunk of the Honda. He then sent a text to Ms. Hampson to tell her that he had closed her trunk. Again, he received no response.
[23] The video recordings from a neighbouring residence confirm that Mr. Tkachyk’s black Ford F150 truck remained parked in the driveway at the Tkachyk residence with Ms. Hampson’s Honda parked behind it for the next two days.
[24] On May 29, 2020, a video recording captures the Honda Accord being driven out of the driveway of the Tkachyk residence at 8:50 a.m. and returning at 8:56 a.m. The driver of the Honda Accord is not visible in the recording.
[25] Later that day at 3:59 p.m., Mr. Turnbull received a voicemail message from Mr. Tkachyk who said, “Was that you that just drove by the house a little while ago? If you can, can you come over? Thanks.” After receiving that message, Mr. Turnbull drove to the Tkachyk residence arriving at 4:36 p.m.
[26] When Mr. Turnbull arrived, Mr. Tkachyk met him in the breezeway between the house and the garage, near the side door. Among other things Mr. Tkachyk said, “I’ve done something really bad.” Mr. Turnbull asked where Ms. Hampson was, using her nickname, Reggie. Mr. Tkachyk responded, “She’s in the basement. I killed her.” Mr. Turnbull opened the side door to the house and looked into the basement. He could see Ms. Hampson’s legs at the bottom of the stairs and he could see a dark stain on the floor where her head would be.
[27] Mr. Turnbull asked Mr. Tkachyk if he was sure she “didn’t fall down or something” and Mr. Tkachyk replied, “No, I did it.” Mr. Tkachyk told Mr. Turnbull that Ms. Hampson had been talking about putting him in an old age home and taking everything he had. Mr. Turnbull then called 911.
[28] The first police officers arrived on the scene at 4:49 p.m. Mr. Tkachyk was co-operative with police. In response to Officer Demerling’s questions he said, “I did kill her with a hammer.” He was arrested, read his rights, and taken into custody. Police officers then entered the house and documented the scene.
[29] The police officers found Ms. Hampson’s body lying on the basement floor at the bottom of the stairs. Vital signs were absent. There were obvious severe injuries to Ms. Hampson’s face and head, which was bloodied and disfigured. There was a pool of blood under her head and the blood flowed from that pool across the basement floor.
[30] Police officers observed blood in many areas of the house, including the side door entrance, the landing, the main floor hallway, the basement stairs, the floors, the walls, and the ceiling in the basement area. Ms. Hampson and her clothes were covered in blood.
[31] Police officers found a blood-covered heavy metal mallet that had been wrapped in a towel and placed in the oven of a stove in the basement. They also found blood-covered shoes, socks, a T-shirt, and shorts in a bin in the basement laundry room.
[32] Several other items were scattered about in the hallway and on the basement stairs, including sunglasses, some makeup, an insurance card, and Purell wipes. In the main floor hallway, officers found a wig, a Walmart bag containing eggs, keys, and dentures. Blood was observed on both the wig and the Walmart bag. The main floor bathroom sink contained evidence of blood that had been diluted with another liquid.
[33] A search of Ms. Hampson’s Honda Accord revealed that the trunk was still filled with groceries from Walmart.
[34] Dr. Tyler Hickey, a forensic pathologist, conducted a postmortem examination of the body on May 30, 2020. His examination disclosed extensive overlapping blunt force injuries. He noted the existence of 28 separate injuries to the head and face, including multiple fractures. There were also fractures of the structures in the neck, bilateral rib fractures, multiple abrasions and bruises on the arms, and a fracture to one forearm. Dr. Hickey felt that the amount of force used to cause these injuries would have been at the higher end. A neuropathological consult revealed several lacerations and contusions to the brain. I accept Dr. Hickey’s opinion that the cause of death was “blunt force head and chest trauma.”
[35] Melissa Kell, a biologist, examined certain items for DNA comparison. I accept her evidence that it was probable that the blood found on the left knee of Mr. Tkachyk, the blood found on the T-shirt that had been located in the laundry room bin, and the blood found on the metal mallet, was Ms. Hampson’s blood in a probability that was greater than one trillion to one.
[36] Based on these facts, I find that Mr. Tkachyk assaulted Ms. Hampson with a metal mallet shortly after she entered the side door of the residence upon returning from grocery shopping on May 27, 2020. The assault caused Ms. Hampson to drop her keys and the Walmart bag she had been carrying, and the initial blows dislocated her wig and dentures. The contents of her purse spilled onto the floor and the steps.
[37] I find that Ms. Hampson attempted to flee, but she was unable to get out of the house. Eventually, both parties ended up in the basement where Mr. Tkachyk continued to strike Ms. Hampson with the mallet. I find that this assault by Mr. Tkachyk caused the death of Ms. Hampson.
[38] Thus, I find that the Crown has proved the actus reus of the offence, including the causation element.
IS THE DEFENDANT NOT CRIMINALLY RESPONSIBLE?
A. General Legal Principles
[39] In a criminal trial the Crown normally bears the onus of proving beyond a reasonable doubt all of the elements of the offence. However, pursuant to s.16(3), the onus of proving that a defendant is not criminally responsible on account of a mental disorder under s.16(1) is on the party raising that issue. Therefore, in this case, the defendant bears the burden of proving that s.16(1) applies on a balance of probabilities: see R v. Chaulk, 1990 34 (SCC), [1990] 3 S.C.R. 1303 at para. 16.
[40] For ease of reference, I repeat the wording of s.16(1) of the Criminal Code as follows:
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.
[41] There are two branches of s.16(1). To engage the first branch, the defendant must show that, at the relevant time, he was suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of his act. To engage the second branch, he must show that he was suffering from a mental disorder that rendered him incapable of knowing that it was wrong.
[42] In order to engage either of the branches the defendant must first establish that he was suffering from a “mental disorder” at the time of the offence. A “mental disorder” is defined in s.2 of the Criminal Code as “a disease of the mind.” In the present case, this is not an issue as the Crown acknowledges that Mr. Tkachyk suffered from a mental disorder at the time.
[43] I repeat that the defendant in this case does not rely on the first branch of s.16(1). Mr. Tkachyk admits, through counsel, that he was capable of appreciating the nature and the quality of his actions. Mr. Tkachyk relies only on the second branch of s.16(1). That is, defence counsel submits that Mr. Tkachyk’s mental disorder rendered him incapable of knowing that his actions were wrong.
B. The Law Regarding the Second Branch of Section 16(1)
[44] The law regarding the second branch is complicated and has been the subject of some dispute in our courts. I will therefore conduct a brief review of the law regarding this part of s.16(1).
[45] In the Chaulk decision the Supreme Court of Canada defined the word “wrong” as it is used in the second branch to mean more than simply legally wrong. As Lamer C.J. explained at para. 107, “A person may well be aware that an act is contrary to law but, by reason of ‘natural imbecility’ or disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society.”
[46] Subsequently, in R. v. Ratti, 1991 112 (SCC), [1991] 1 S.C.R. 68, at para. 17, Lamer C.J. confirmed that the word “wrong” in the second branch of s.16(1) meant “morally wrong” and not “legally wrong.”
[47] The decision in Chaulk was applied and explained in R. v. Oommen, 1994 101 (SCC), [1994] 2 S.C.R. 507. The decision in Oommen is the leading Supreme Court of Canada case on the issue.
[48] In that case, Mr. Oommen suffered from a paranoid delusional psychosis that caused him to believe that the members of a local union were trying to kill him. Ms. Beaton, the deceased, needed a place to stay and Mr. Oommen let her live with him. One evening Mr. Oommen believed that his enemies had surrounded his apartment and that they had commissioned Ms. Beaton to kill him. This delusion led Mr. Oommen to kill Ms. Beaton.
[49] In the decision, confirming the Alberta Court of Appeal decision to order a new trial, McLachlin J. wrote the following:
At para. 21, “A review of the history of our insanity provision and the cases indicates that the inquiry focuses not on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act.”
At para. 26, “The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not.”
At para. 30, “[T]he real question is whether the accused should be exempted from criminal responsibility because a mental disorder at the time of the act deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act.”
[50] The Oommen decision remains the current standard for interpreting the second branch of s.16(1). However, there is some alleged inconsistency as to how the courts have interpreted the Oommen decision. I am therefore going to review some of the subsequent decisions, and attempt to discern some basic principles.
[51] In 2011, the Supreme Court of Canada in R. v. Bouchard-Lebrun, 2011 SCC 58, confirmed the approach taken by Lamer C.J. in Chaulk. While not citing Oommen directly, LeBel J. wrote at para. 49, “[C]riminal responsibility will not be imposed if the accused gives an excuse for his or her act that is accepted in our society … criminal responsibility is appropriate only where the actor is a discerning moral agent, capable of making choices between right and wrong”.
[52] Also in 2011, the Ontario Court of Appeal in R. v. Guidolin, 2011 ONCA 264, considered whether the evidence at trial provided a reasonable basis for a finding that the appellant was NCR. At issue was the report of a medical doctor who believed the appellant was unable to exercise the judgment of a normal person.
[53] Doherty J.A. wrote at para. 22, “If this is intended as a description of the meaning of the word "wrong" from Oommen, the doctor has misunderstood that case. The inability to exercise the judgment "of a normal person" is a long way removed from the incapacity to know that one's actions are wrong according to the normal standards applicable in the community.”
[54] This brings me to the 2015 case of R. v. Dobson, 2015 ONSC 2865. In that case the accused was suffering from schizophrenia which caused him to have certain delusions. The accused and two women believed that their souls would go to a better place after their death. Therefore, they formulated a plan in which the two women would ingest pills and then the accused would choke them to death while they were unconscious. He would then kill himself. However, the two women woke up after taking the pills, and the accused then chose to kill them with an Exacto knife. He also attempted to kill himself.
[55] At trial, Watt J. rejected the accused’s NCR defence and found the accused guilty. In his reasons, Watt J., referenced the decisions in Chaulk and Oommen, and wrote, at para. 120, “Under the second branch of section 16(1), the term “wrong” refers to morally wrong, that is to say, contrary to the ordinary moral standards of reasonable men and women. What is “morally wrong” is not to be judged by the personal standards of the person charged but, rather, by his or her awareness that society regards the conduct as wrong” (citations omitted).
[56] Watt J. further stated at para. 125, “… a subjective belief by an accused that his or her conduct was justifiable will not exempt him or her from criminal responsibility even if his or her personal beliefs were driven by a mental disorder, as long as she or he retained the capacity to know that the conduct would be regarded as wrong in the circumstances by reasonable members of society” (citations omitted).
[57] In dismissing the appeal to the Ontario Court of Appeal from the trial decision in Dobson, cited at 2018 ONCA 589, Doherty J.A. wrote 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.”
[58] Doherty J.A. also found at paras. 22-23 that the trial decision in Dobson was consistent with previous Court of Appeal decisions, including R. v. Campione, 2015 ONCA 67, wherein Blair J.A. wrote at para. 41,
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.
[59] The final case I will review is R. v. Minassian, 2021 ONSC 1258. In that case, the accused had decided that he wanted to kill as many residents of Toronto as possible. He therefore rented a van and drove it onto a sidewalk on the west side of Yonge Street, running down as many pedestrians as possible and killing 10 people. He raised s.16(1) at his trial alleging that he suffered from Autism Spectrum Disorder.
[60] Molloy J., the trial judge, correctly found that the current test under the second branch of s.16(1) is the test set out in Oommen. However, Molloy J. disagreed with the interpretation of that test as expressed in the Dobson decision.
[61] At paras. 60-63 Molloy J. stated that the Court of Appeal in Dobson was wrong in rejecting the accused’s submission that a delusional state may deprive the accused of the capacity to make a rational choice and hence the capacity to know his act is wrong. At para. 83 Molloy J. wrote, “Contrary to the Crown’s submissions in Dobson, I believe Oommen does hold that the accused’s delusions can be the basis for holding that he is NCR.” These comments in the Minassian case have been followed in other cases, including R v. Chheng, 2021 ONCJ 248, at paras. 9-10.
[62] In my view, the current test with respect to the second branch of s.16(1) remains the test stated in Chaulk and Oommen. I find that none of the cases post-Oommen have changed the test, but those cases have merely interpreted the test in the context of the facts and the evidence in the case before the court.
[63] I find that the test involves a consideration of whether a defendant had the capacity to make a rational choice about the rightness or wrongness of his actions. None of the cases post-Oommen have removed this element from the test.
[64] Further, I find that the test for criminal responsibility continues to include a consideration of whether a defendant had the capacity to know that his actions were wrong according to the moral standards of reasonable members of society. That consideration was stated in the Chaulk decision and reaffirmed in Bouchard-Lebrun. I find that Oommen did not remove this consideration from the test.
[65] Therefore, I find that three general principles emerge from the case law regarding the second branch of s.16(1):
The inquiry under the second branch of s.16(1) does not focus on the defendant’s general capacity to know right from wrong in the abstract, but focuses on the defendant’s capacity to know his actions were wrong in the circumstances.
The defendant will not “know” that something is “wrong” within the meaning of s.16(1) if he lacks the capacity for rational perception and hence rational choice about the rightness or wrongness of his actions.
The word “wrong” in s.16(1) means morally wrong according to the moral standards of reasonable members of society.
[66] Furthermore, I find there is no general principle that emerges from the case law with respect to delusions. Despite the many references to delusions in the case law, I find that any delusion must be considered in the context of the case before the court. That is, a delusion may form the foundation for a finding that a defendant is NCR, but not all delusions will exempt the defendant from criminal responsibility. The issue is the defendant’s capacity, in light of any delusion, to know that his actions would have been morally condemned by reasonable members of society.
[67] As Lamer C.J. stated in Ratti at para. 21,
Even if the act was motivated by the delusion, the appellant will be convicted if he was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society.
C. The Evidence of the Defendant’s Mental Health
[68] The lay evidence of the deterioration of the defendant’s mental health is not in dispute. The testimony given at the preliminary hearing by Mike Turnbull, Ms. Hampson’s daughter Kristin Maillard, and the defendant’s brother Mark Tkachyk, was filed as evidence at this trial. Collectively these witnesses confirmed, and I accept, that the defendant began suffering a rapid decline in his physical and mental health in 2019 at about the time of his retirement. He lost a significant amount of weight and he stopped being physically active. I also accept that Mr. Tkachyk stopped practicing proper hygiene and grooming, and that his demeanour became flat and unemotional.
[69] I find that by the spring of 2019, Ms. Hampson was very concerned about the defendant’s well-being. Thereafter, she devoted a great deal of her time attempting to get help for him, including taking him to medical doctors and hiring a nutritionist and a personal support worker.
[70] When Ms. Hampson took Mr. Tkachyk to the emergency department at St. Catharines General Hospital in May 2019, he was admitted to the hospital for four days, and he was assessed under the Mental Health Act. During the psychiatric assessment Mr. Tkachyk told the doctors that he was not feeling himself, that his mood was low, and that he had lost weight. The doctors noted that Mr. Tkachyk appeared disheveled, that his affect was blunted, and that he did not maintain good eye contact. They also observed that Mr. Tkachyk seemed overly concerned about devices such as his furnace and refrigerator malfunctioning, and he thought that he heard noises coming from them.
[71] In late May 2019, Mr. Tkachyk was discharged from the hospital with a diagnosis of “Major Depressive Disorder with psychotic features” and he was given a prescription for medication. Thereafter, he did not improve, but rather declined.
[72] In December 2019, Ms. Hampson brought Mr. Tkachyk back to the emergency department. At that point he had lost approximately 60 pounds. Ms. Hampson told the doctors that Mr. Tkachyk’s memory was worse, that his function was declining, and that he had lost his appetite. Again, he was admitted to hospital and a more comprehensive assessment was conducted.
[73] In late December 2019, Mr. Tkachyk was discharged with a diagnosis of Major Depression with pseudodementia, a condition that is associated with depression. Again, he was given a prescription for medication. He was offered admission to the Acute Psychiatric Unit at the hospital, but he and Ms. Hampson declined that offer.
[74] Dr. Dawn Good, a Doctor of Psychology, was consulted initially in July 2019 and again in December 2019 to conduct neuropsychological testing. In summary, Dr. Good noted that the defendant had cognitive deficits, including difficulties with memory, executive function, attention, and conceptualization. She observed that he had a flat affect, low mood, withdrawal, fatigue, persistence, and paranoid ideations.
[75] Dr. Good concluded that the defendant had a Major Neurocognitive Disorder due to chronic substance abuse. She questioned whether his condition could be what she called Wernicke’s encephalopathy.
[76] I note that neither Dr. Good nor Dan Silver, the capacity assessor, testified at the trial, and neither were tendered as an expert witness. Their reports were filed at the trial, and their evidence was admitted not as opinion evidence, but as evidence of their observations of the defendant, and statements made by him, at relevant times.
[77] On May 22, 2020, only five days before the death of Ms. Hampson, Mr. Silver interviewed Mr. Tkachyk and observed that he showed evidence of paranoia as he was suspicious of Ms. Hampson going through his mail. Mr. Silver also felt that Mr. Tkachyk was indifferent or confused about some basic details of his investments and expenses. Further, it appeared to Mr. Silver that Mr. Tkachyk did not understand that his failure to pay his household bills could cause financial hardship for himself and Ms. Hampson. He also noted instances of confabulation as Mr. Tkachyk appeared to be making up things that he could not remember, such as whether he was receiving an old age pension.
[78] Mr. Silver observed that Mr. Tkachyk never became angry, and in fact did not seem to have the energy to become angry. He also noted that there was no indication from Ms. Hampson that she wanted to divorce Mr. Tkachyk or put him in a home.
[79] At this trial I also received the report of Dr. Bradford, a forensic psychiatrist who was retained by defence counsel after the offence had occurred. Again, Dr. Bradford did not testify at the trial and was not tendered as an expert. His report was filed for his observations and for statements made by the defendant. Also, his report was extensively used by Dr. Ferencz in forming his opinion.
[80] Dr. Bradford conducted five interviews of the defendant starting in August 2020. During those interviews Dr. Bradford questioned Mr. Tkachyk as to why he had killed Ms. Hampson. Mr. Tkachyk’s most consistent answer was that he feared that Ms. Hampson was going to put him in a home and take all his money. Dr. Bradford also observed evidence of confabulation from Mr. Tkachyk, and he noted that Mr. Tkachyk was suspicious of both Ms. Hampson and Mr. Silver.
[81] In summary, Dr. Bradford felt that the defendant suffered from a Major Depressive Disorder with psychosis, and a Major Neurocognitive Disorder. Regarding the neurocognitive disorder, Dr. Bradford reviewed a few possible causes, including chronic alcohol use, depletion of Vitamin B, Wernicke-Korsakoff syndrome, and the possibility that it arose out of the depression.
[82] I accept as fact all of the observations of the defendant as expressed by Dr. Bradford, Dr. Good, and Mr. Silver.
[83] I now turn to the opinion of Dr. Ferencz. Dr. Ferencz is the forensic psychiatrist who testified at trial on behalf of the defendant as an expert witness. In my view, his testimony is the key evidence on the s.16(1) issue.
[84] Dr. Ferencz was appointed by court order pursuant to s.672.12 of the Criminal Code to provide an opinion on the defendant’s mental health as at the date of the offence. Dr. Ferencz reviewed all of the prior medical records, the preliminary hearing transcripts, and the agreed statement of facts. Dr. Ferencz also arranged for further neuropsychological testing, and he interviewed the defendant on four or five occasions between February 2022 and June 2022.
[85] Dr. Ferencz’s opinion, as stated in his report, was that for approximately a year prior to the death of Ms. Hampson the defendant had been suffering from a serious neuropsychiatric condition, namely “Major Depressive Disorder with psychotic features and Major Neurocognitive Disorder”. Dr. Ferencz believed that this condition had not been clearly diagnosed, nor effectively treated.
[86] As a result of this psychiatric disorder, Dr. Ferencz believed that Mr. Tkachyk suffered with persistent symptoms of depression, cognitive impairment, and paranoid psychosis. Dr. Ferencz also wrote in his report that the defendant’s behaviour during, and in the immediate aftermath of the offence, indicated a level of confusion and disorganization.
[87] At trial Dr. Ferencz clarified his opinion. He testified that, at the time of the offence, the defendant was suffering from a Major Depressive Disorder with psychotic features, and cognitive impairment. He felt that it was difficult to determine if the cognitive impairment was because of the psychiatric disorder or because of a separate condition. However, he noted that the neuropsychological testing done in 2022, unlike the testing in 2019 and 2020, showed only mild cognitive impairment. Dr. Ferencz believed that the defendant’s cognitive functioning had improved significantly from the time he had been seen by Dr. Good and Dr. Bradford, likely because he had been receiving treatment.
[88] Regarding the first branch of s.16(1), Dr. Ferencz testified that in his opinion, at the time of the offence, Mr. Tkachyk did appreciate the nature and quality of his actions as he understood he was using a deadly weapon, that he was assaulting Ms. Hampson, and that he knew it would likely result in serious injury or death.
[89] On the second branch, Dr. Ferencz testified that in his opinion, at the time of the offence, Mr. Tkachyk’s ability to perceive his circumstances in a rational manner was grossly impaired. Dr. Ferencz believed that, because of his mental disorder, Mr. Tkachyk did not have the capacity for rational perception and therefore the capacity to make a rational decision about the wrongfulness of his actions. Therefore, it was Dr. Ferencz’s opinion that Mr. Tkachyk met the test for NCR pursuant to the second branch of s.16(1).
D. Analysis of Whether the Defendant is Not Criminally Responsible
[90] The parties agree, and I accept, that the defendant was suffering from a mental disorder at the relevant time. Specifically, I find that the defendant’s mental disorder was a Major Depressive Disorder with psychotic features. I also find that, at the time of the offence, the defendant suffered from some cognitive deficits, including reduced executive function, reduced attention, reduced organizational skills, and paranoia, particularly toward his wife. I find that the cognitive deficits likely arose out of the Major Depressive Disorder, not out of a separate physical cause, but for the purposes of this decision the origin of the cognitive deficits is not important.
[91] Regarding the second branch of s.16(1), defence counsel submits that I should find that Mr. Tkachyk suffered from a delusion at the time of the offence, and that the delusion rendered him incapable of knowing that his actions were morally wrong. The Crown submits that Mr. Tkachyk’s state of mind should not be described as delusional.
[92] In my view, this debate about whether the defendant’s state of mind should be labelled as a delusion is a collateral issue, not a primary issue, in this s.16 analysis. The word delusion is a vague word and could mean different things depending upon the circumstances. As I discussed earlier, any alleged delusion must be defined and applied in the context of the case before the court. I find that it is essential in a s.16 analysis to define with precision the state of mind of the defendant, regardless of the label.
[93] In the present case, there is no evidence that the defendant ever entered a delusional state such that he was completely removed from reality. That is, the defendant was never like the defendant in the Oommen decision who believed that he was in immediate danger as he was surrounded by people who were about to kill him. Further, there is no evidence of visual or auditory hallucinations that might be a hallmark of a significant delusion. There was a reference in this case to an instance of the defendant hearing sounds from a furnace or a refrigerator, but that occurred in the spring of 2019, and there was no evidence of a repetition of that alleged auditory hallucination.
[94] However, Mr. Tkachyk clearly believed that his wife was going to put him in a seniors’ home and take all his money. On a balance of probabilities, I find that this was a false belief. Defence counsel asks me to label this false belief as a delusion; I accept that it could fall within the broad meaning of the word delusion as this false belief was an incorrect interpretation of the factual situation. That being said, I find that it is more accurate and more precise to refer to Mr. Tkachyk’s state of mind as a false belief, not a delusion.
[95] I have also taken into consideration the fact that the defendant’s diagnosis includes a reference to psychotic features, and that Dr. Ferencz used the word delusion to describe those psychotic features. Again, it is essential to define those psychotic features.
[96] At trial Dr. Ferencz confirmed that the psychotic features he saw were the defendant’s paranoia about his wife, as observed by Mr. Silver, and his suspicion that his wife was going to put him in a home and take all of his money, as observed by Dr. Bradford and in part by Dr. Ferencz. There were no other delusions or examples of psychotic features. Toward the end of his cross-examination Dr. Ferencz summarized his opinion on this point by stating, “I believe that his motive was delusional in nature. It was not based in reality.” [Emphasis added]
[97] Therefore, I find that the only psychotic feature of Mr. Tkachyk’s mental disorder was his false belief that his wife was going to put him in a home and take all of his money. This false belief was certainly fueled in part by the defendant’s paranoia and suspicion; however, except for the false belief about his wife’s intentions, there was no other delusion or psychosis at the relevant time.
[98] I next turn to the strength of Dr. Ferencz’s expert opinion on the second branch. In my view, there are several flaws in Dr. Ferencz’s expert opinion, and I find that his overall opinion is weak. I say that not wishing to unduly criticize Dr. Ferencz as he is a well-respected psychiatrist. However, he is a psychiatrist, not a jurist, and the law in this area is complex and evolving.
[99] The first problem with Dr. Ferencz’s opinion is that he did not apply the complete test for the second branch of s.16(1). In his report, and during most of his testimony, he expressed the opinion that Mr. Tkachyk was NCR because he did not have the capacity for rational perception and therefore the capacity to make a rational choice about the wrongfulness of his act. I accept that the capacity to make a rational choice is part of the test, but it is not the complete test, as I have outlined in these reasons.
[100] In cross-examination Dr. Ferencz was asked his opinion as to whether the defendant knew that what he was doing was morally wrong according to the standards of society. Dr. Ferencz responded, “That wasn’t a specific test that I applied.” Thus, in my view, Dr. Ferencz acknowledged that he did not consider the complete test in his report and to that point in his testimony. This undermines the foundation of Dr. Ferencz’s opinion.
[101] The second problem with Dr. Ferencz’s opinion is that, although he offered an opinion in cross-examination as to whether the defendant knew that his actions were morally wrong according to the standards of society, he did so in a rather haphazard way.
[102] During the course of cross-examination, Dr. Ferencz confirmed that he had not applied the more complete test, but now that he was being asked about it he said, “If you are asking me whether I think that he understood that it was morally wrong in the eyes of society, I suspect that he was disorganized at the time, that he did not, but it would be with a lesser degree of certainty, although still on a balance of probabilities.”
[103] I have some difficulty with this answer. I find that this extension of his opinion was given with much less care and thought than his initial opinion. Dr. Ferencz assessed the defendant at St. Joseph’s Healthcare for about four months, conducted several interviews, and arranged for extensive testing in order to arrive at the opinion contained in his report and in his direct examination. His opinion on the more complete test, with reference to the moral standards of society, seems to be a throwaway statement given by the doctor after he recognized that perhaps he had made a mistake.
[104] The third problem is that Dr. Ferencz obtained very little information from the defendant about his thought process in choosing to kill his wife. The problem here is that Dr. Ferencz’s opinion that the defendant did not have the capacity to make a rational choice is directly related to his finding that the defendant’s motive was delusional. However, even if Mr. Tkachyk’s motive was delusional, it is still necessary to consider whether the defendant had the capacity, in light of his false belief, to know that it was morally wrong for him to choose to kill his wife. That issue was not fully explored.
[105] In my view, if one is assessing the ability of a person to make a rational choice, one would want to know that person’s thought process for making his choices. Again, I find that this problem undermines the strength of Dr. Ferencz’s opinion.
[106] Finally, Dr. Ferencz was asked whether Mr. Tkachyk’s statement to Mr. Turnbull that he knew he did “something really bad” indicated that he was aware of his wrongful act. Dr. Ferencz responded by saying that the defendant was not acting in any rational or reasonable manner. Specifically, he did not leave the house for two days and he did not attempt to cover up the offence. Dr. Ferencz felt that he was perplexed and that he was acting irrationally at the time.
[107] In my view, this was an oblique response to the question. A decision to kill someone can never be characterized as a rational or reasonable choice. Most, if not all, murderers are acting irrationally, but not all murderers are exempt from criminal responsibility by reason of s.16(1). Thus, there must be something more than the defendant’s irrational behaviour for a court to find that the defendant is not criminally responsible for his actions.
[108] For all of these reasons, I find that Dr. Ferencz’s opinion evidence regarding the second branch of s.16(1) is weak. I accept his evidence regarding the diagnosis and the psychotic features, but I give little weight to his opinion on the second branch.
[109] I next considered the other evidence of the defendant’s state of mind at the relevant time.
[110] I have some evidence from Mr. Silver of Mr. Tkachyk’s state of mind as of approximately five days prior to the offence. Mr. Silver observed that the defendant showed signs of paranoia and suspicion about Ms. Hampson. Mr. Silver also observed that the defendant had decreased cognitive function as he did not seem to understand the problems that might be caused if he did not pay his bills. There were also some confabulations as it appeared that the defendant was fabricating in order to fill in the blanks in his memory.
[111] I also have Dr. Bradford’s evidence that Mr. Tkachyk said that he killed his wife because he believed that she was going to put him in a home and take all of his money. Although I have no information as to why Mr. Tkachyk believed that killing his wife was the best choice, I find that after the fact Mr. Tkachyk was certainly able to identify the reason for his actions.
[112] I also confirm that I accept Dr. Ferencz’s evidence that the defendant’s motive for the offence, as described by Dr. Bradford, was a false belief that Dr. Ferencz described as delusional.
[113] Further, from the medical and professional records, I find that Mr. Tkachyk was aware of certain basic facts as of the date of the offence. That is, Mr. Tkachyk knew he was married, he knew he was having some medical troubles, he knew that there were questions about paying the household bills, and he knew that he was seeing professionals for the purpose of being assessed.
[114] Accordingly, the information that I have with respect to the defendant’s state of mind at the time of the offence is that he was suffering from a Major Depressive Disorder with reduced cognitive function, paranoia, and the false belief that his wife was going to do something to him that he did not like. There is no evidence, beyond Dr. Ferencz’s brief answer in cross-examination that the defendant did not know, at the time of the offence, that it would be morally wrong for him to kill his wife in response to that belief.
[115] On the other hand, I have some useful pieces of evidence about the defendant’s state of mind shortly after the offence. First, he hid the mallet, the murder weapon, in an oven, approximately 10 minutes after he killed Ms. Hampson. He told Dr. Ferencz that he wrapped the mallet and put it in the oven “so I wouldn’t have to look at it”. In my view, this is a very telling piece of evidence. Only 10 minutes after the offence he either knew he had done something wrong with the mallet and he did not want to be reminded about it, or he engaged in a feeble attempt to cover up his offence. Either way, I find that within 10 minutes of committing the offence the defendant perceived that he had done something morally and/or legally wrong.
[116] Similarly, I find that, after committing the offence, Mr. Tkachyk removed his bloody clothes and put them a laundry room bin, and he also tried to clean himself up in the bathroom sink. These acts do not necessarily mean that Mr. Tkachyk knew he had done something wrong, but I find that they suggest that he had a certain level of awareness about what had occurred.
[117] Finally, there is the evidence of the defendant calling Mr. Turnbull two days after the offence to ask for assistance. One of the first things he said to Mr. Turnbull was “I’ve done something really bad”. From the entire conversation Mr. Tkachyk had with Mr. Turnbull I infer that he knew at that time that he had killed his wife and that it was morally wrong to do so.
[118] In summary, I find that there is little evidence to support a conclusion that Mr. Tkachyk did not have the capacity to make a rational choice at the time of the offence. Further, there is little evidence that Mr. Tkachyk did not have the capacity to know that what he was doing was wrong according to the moral standards of society. However, there is good evidence that 10 minutes after he committed the offence Mr. Tkachyk knew that he had done something morally or legally wrong, and two days after the offence he clearly stated that he knew he had done something morally wrong.
[119] For these reasons, I find that the defendant has not proved on a balance of probabilities that s.16(1) applies to him. Therefore, I find that Mr. Tkachyk is not exempt from criminal responsibility for his actions.
DID THE DEFENDANT COMMIT THE OFFENCE OF MURDER?
[120] I have already determined that the Crown has proved the actus reus of the offence, and has proved the causation element of the offence. Thus, I find that the Crown has proved culpable homicide within the meaning of the Criminal Code.
[121] The next question is whether the Crown has proved the intention element for murder. Section 229 of the Criminal Code states that culpable homicide is murder where the person who causes the death of a human being, (i) means to cause the death, or (ii) means to cause bodily harm that he knows is likely to cause the death, and is reckless whether death ensues or not.
[122] In the present case there is no direct evidence of the defendant’s intention, and therefore I must consider whether I can infer an intention to commit murder from the established circumstantial evidence.
[123] I am bound by the decision in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, in which the Supreme Court of Canada addressed the appropriate way to consider whether the Crown has proved its case beyond a reasonable doubt where one or more elements of the offence depends exclusively or largely on circumstantial evidence. The court held that a trial judge can only find that the Crown has proved the contentious elements beyond a reasonable doubt if an inference of guilt is the only reasonable or rational inference that can be drawn from the circumstantial evidence. See Villaroman at paras. 30 and 41.
[124] I also rely on the case of R. v. Seymour, 1996 201 (SCC), [1996] 2 S.C.R. 252at paras. 19-23, in which the Supreme Court of Canada affirmed that a common sense inference may be drawn to the effect that a sober and sane person intends the natural and probable consequences of his or her actions. That is, if a person acts in a manner that produces certain and predictable consequences, it may be reasonable to infer that the person intended those consequences.
[125] This common sense inference is not a presumption, but it is a reasonable inference that may be drawn after a consideration of all of the evidence, including any factors that may affect the defendant’s state of mind and thus his ability to foresee the consequences of his actions. See Seymour at para. 23 and R. v. Giannotti, [1956] O.J. No. 539 at paras. 39-40.
[126] Therefore, I must assess the circumstantial evidence in this case in light of the defendant’s mental health issues. As I have discussed, these mental health issues led to, or influenced, the defendant’s motive for the offence. Even though the defendant’s motive was based on a false belief, I find that Mr. Tkachyk wanted to kill or harm Ms. Hampson in order to stop her from putting him in a home.
[127] I am well aware that motive is not an essential element of the offence, but motive can be relevant to determining the intention of the defendant. See R. v. Skeete, 2017 ONCA 926 at paras. 77-78. I find that in this case the defendant’s motive, although fueled by his mental health issues, is some evidence that he could foresee the consequences of his actions and that he intended to kill Ms. Hampson.
[128] As to the other circumstantial evidence, I rely on the following:
- The defendant used a weapon that was deadly by its nature,
- The defendant struck multiple blows causing at least 28 separate injuries to the head and face of Ms. Hampson,
- The amount of force used by the defendant was at the higher end,
- The injuries suffered by Ms. Hampson were multiple and severe,
- The areas of Ms. Hampson’s body that were targeted, namely the head and face, were vulnerable parts of her body.
[129] In my view, all of this evidence is overwhelmingly supportive of the Crown’s case. The only reasonable inference from all this evidence is that the defendant intended to kill Ms. Hampson or cause her bodily harm that he knew was likely to cause her death. Therefore, I find that the Crown has proved beyond reasonable doubt the intention element for murder.
CONCLUSION
[130] For all of these reasons, I find that the defendant is not exempt from criminal responsibility pursuant to s.16 of the Criminal Code. I find the defendant guilty of the offence of second degree murder.
J. R. Henderson, J.
Released: November 29, 2022
COURT FILE NO.: 394/21
DATE: 20221129
ONTARIO
SUPERIOR COURT OF JUSTICE
His Majesty the King
– and –
Gregory Tkachyk
REASONS FOR JUDGMENT
J. R. Henderson, J.
Released: November 29, 2022