Court File and Parties

COURT FILE NO.: 23-50000406-0000 DATE: 20240611 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - TENZIN NORBU

Counsel: Shane Hobson and Brady Donohue, for the Crown Loui Dallas and Steven Lee, for Mr. Norbu

HEARD: June 10, 2024

M. Forestell J.

JUDGMENT ON CRIMINAL RESPONSIBILITY

Overview

[1] Tenzin Norbu is charged with the first-degree murder of Nyima Dolma.

[2] Mr. Norbu entered a plea of not guilty to the charge. The Attorney General and counsel for Mr. Norbu consented to the trial proceeding before me without a jury.

[3] A number of facts were admitted by Mr. Norbu.

[4] It is admitted that on June 17, 2022 Mr. Norbu and Ms. Dolma were passengers on a Toronto Transit Commission (“TTC”) bus. They were strangers to each other. Mr. Norbu asked Ms. Dolma if she was Tibetan. She replied “yes”. After her response, Mr. Norbu rummaged through the bag he carried and retrieved a jar of lighter fluid. He intentionally poured lighter fluid onto Ms. Dolma and ignited the lighter fluid.

[5] Ms. Dolma was engulfed in flames and ran from the bus. In spite of the efforts of some bystanders, first responders and eventually medical personnel, Ms. Dolma did not survive this attack.

[6] Ms. Dolma suffered burns to approximately 60% of her body and she suffered an inhalation injury. She died in the hospital 18 days after the attack.

[7] The elements of the offence of first-degree murder are proven by the agreed facts. Mr. Norbu caused the death of Ms. Dolma. The agreed facts would support the inference that Mr. Norbu intended to kill Ms. Dolma or to cause her serious bodily harm that he knew was likely to kill her. His actions in initiating a conversation and then retrieving the lighter fluid would support the inference of planning and deliberation.

[8] The only issue to be decided in this trial is whether Mr. Norbu has proven on a balance of probabilities that at the time that he killed Ms. Dolma he was not criminally responsible (“NCR”) on account of mental disorder. Mr. Norbu submits that I should make this finding and the finding is also supported the Crown.

Issues and Law

[9] A verdict of not criminally responsible on account of mental disorder requires Mr. Norbu to prove, on a balance of probabilities, that at the time of the offence:

(1) he had a mental disorder; and (2) that his mental disorder made him incapable of: (a) appreciating the nature and quality of the act (in this case, the act of setting fire to Ms. Dolma); or, (b) knowing that it was wrong.

[10] A mental disorder is defined as a disease of the mind. A major mental illness like schizophrenia is a mental disorder.

[11] The Supreme Court of Canada in R. v. Oommen, [1994] 2 S.C.R. 507, at p. 518, considered the meaning of the requirement that the accused be rendered “incapable of knowing that his acts were wrong” in order to be found NCR. The Court said, at page 518: “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 page 520 of Oommen, the Court explained that, wrong means “wrong having regard to the everyday standards of the ordinary person”.

[12] In R. v. Dobson, 2018 ONCA 589, the Court of Appeal explained the application of the test. At para. 24, the Court said:

…[A]n 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 wrongfulness of his conduct against societal norms lacks the capacity to know his act is wrong and is entitled to an NCR defence.

[13] In this case, it is not suggested that Mr. Norbu lacked the capacity to appreciate the nature and quality of his act but that his mental disorder made him incapable of appreciating that the act was wrong.

Evidence and Analysis

[14] Dr. Iosif a very highly qualified forensic psychiatrist gave evidence. Her report was filed as an exhibit.

[15] Dr. Iosif met with Mr. Norbu and reviewed extensive records relating to his history of mental illness. She reviewed the witness statements and video evidence relating to the killing of Ms. Dolma. Dr. Iosif’s report and her testimony were thorough and careful.

[16] Dr. Iosif expressed the opinion that Mr. Norbu has a mental disorder, namely schizophrenia, and that, at the time of the offence, he was likely experiencing active psychosis. In her opinion, the mental disorder likely rendered Mr. Norbu incapable of knowing that his actions were morally wrong. Her opinion was that, from a psychiatric perspective, a defence of not criminally responsible was available to Mr. Norbu.

[17] It is clear from the evidence before me that Mr. Norbu had a disease of the mind, namely schizophrenia, at the time of the offence.

[18] As set out in the report of Dr. Iosif, schizophrenia is a major mental illness that tends to have its onset in males in the second or third decade of life. It is a lifelong illness. An individual suffering from schizophrenia suffers from symptoms of psychosis. Psychosis is generally defined as the presence of delusions, hallucinations, grossly disorganized thought and behaviour or some combination of these.

[19] Mr. Norbu is also diagnosed with substance use disorder (alcohol and cannabis). Substance use, particularly cannabis use, exacerbated Mr. Norbu’s symptoms but it was not the primary cause of his symptoms. His psychosis continued even after his arrest and detention when he was no longer using any substances.

[20] While the diagnosis of schizophrenia was made only recently, the testimony of Dr. Iosif and the records that she reviewed support the conclusion that Mr. Norbu has experienced symptoms of this illness for many years.

[21] He remained undiagnosed for a variety of reasons. He received treatment for depression but was only intermittently compliant with the prescribed medication. This prevented an accurate assessment of whether the treatment was effective and whether depression was the correct diagnosis. Mr. Norbu also attempted treatment with traditional medicines which may have interfered with the medication he was prescribed.

[22] The records reviewed by Dr. Iosif document Mr. Norbu’s longstanding paranoid delusions. He believed that members of the Tibetan community hated him and spoke negatively about his sexual history and his mental illness. The records show a longstanding preoccupation with fire-setting. They also show that disorganized speech, thoughts and behaviour have been an issue for him for many years prior to 2022.

[23] Mr. Norbu’s actions on June 17, 2022 were rooted in his longstanding delusions and disorganization. He held a delusional belief at the time of the offence that Ms. Dolma was recording him or had seen a video of him. This was grounded in his delusions about the Tibetan community. He believed that Ms. Dolma spoke at length and disparagingly of him although all she said was ‘yes’ (in Tibetan). This was likely an auditory hallucination.

[24] Mr. Norbu exhibited disorganization of thought and behaviour in his conduct after the offence. He behaved bizarrely in his interviews with the police. He spoke incoherently. He laughed, cried and made high-pitched sounds.

[25] In the opinion of Dr. Iosif, the disorganization of Mr. Norbu’s thought process rendered Mr. Norbu incapable, at the time of the offence, of accessing rational choice. Mr. Norbu’s perceptions were distorted by his mental illness. He was not capable of distinguishing right from wrong.

Verdict

[26] I have concluded, based on the undisputed evidence of Dr. Iosif, that Mr. Norbu was not criminally responsible on account of mental disorder when he killed Ms. Dolma. I am satisfied on a balance of probabilities that Mr. Norbu was actively psychotic at the time of the offence. His psychosis rendered him incapable of accessing rational choice at the time that he killed Ms. Dolma. He was unable to distinguish right from wrong as a result of his psychotic symptoms.

[27] For these reasons I find Tenzin Norbu not criminally responsible on account of mental disorder.

Disposition

[28] Mr. Norbu will be remanded to the Ontario Review Board for an initial disposition hearing pursuant to s.672.47 of the Criminal Code, no later than 45 days from today.

[29] The Ontario Review Board will hold a hearing and make a disposition with respect to Mr. Norbu. The Ontario Review Board is a specialized tribunal, chaired by a retired judge of this court. Its members include judges, lawyers, psychiatrists, psychologists and members of the public.

[30] The hearings of the Ontario Review Board are open to the public.

[31] The disposition of the Ontario Review Board will be made after hearing evidence and particularly after hearing evidence related to the risk posed by Mr. Norbu. The Board must take into account, as its paramount consideration, the safety of the public. It must also consider the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused. It is the Ontario Review Board that will determine the hospital in which Mr. Norbu will be detained and what privileges, if any, he will have. Pursuant to s.672.54 of the Criminal Code, Mr. Norbu cannot be released unconditionally unless the Board concludes that he is no longer a significant threat to the safety of the public.

[32] On the consent of all parties, the victims in this matter read Victim Impact Statements in court at this trial. Generally, this is done before the Ontario Review Board at the disposition hearing. Because the parties wished to proceed in this manner, I allowed the departure from the usual process dictated by the Criminal Code and heard the Victim Impact Statements.

[33] The statements speak to the profound impact the death of Ms. Dolma has had on her family and on Mr. Jackson who witnessed her violent death. The impact may be considered by the Ontario Review Board under s.672.541 of the Criminal Code in deciding what disposition should be made for Mr. Norbu. However, the impact is not a relevant consideration for me on the issue of criminal responsibility, and I have not considered it in determining the issue before me. I want to be clear that although I have not referred to the Victim Impact Statements, this is not because I am in any way minimizing the impact of this tragic death. It is not because I am unmoved by the pain of the victims.

M. Forestell J. Released: June 11, 2024