Ontario Superior Court of Justice

Court File No.: CR-23-30000508-0000
Date: 2025-03-26

Between:
His Majesty the King
and
Devret Clarke

Bryan Guertin and Shalimi Gunawardane, for the Crown
Craig Zeeh, for Mr. Clarke

Heard: February 10, 11, 12, 13, and 18, 2025

M.D. Forestell:
Reasons for judgment

Overview

[1] On December 30, 2022, at approximately 5:20 p.m., Devret Clarke shot and killed Gars-Ara Kourjakian in the underground parking garage of Mr. Kourjakian’s residence, as Mr. Kourjakian was about to help his four-year-old daughter out of the backseat of their car.

[2] Much of the evidence in this case was admitted by way of agreed statements of fact. The admitted facts prove the essential elements of the offence of first degree murder beyond a reasonable doubt. It is admitted that Mr. Clarke was a registered firearms owner who obtained firearms beginning in November of 2021. He took one of those firearms on December 30, 2022, and drove to the residential building where he knew Mr. Kourjakian to live.

[3] Mr. Clarke saw Mr. Kourjakian drive into the underground parking. He followed Mr. Kourjakian’s car. He drove up to Mr. Kourjakian and shot and killed him.

[4] Unless I find him to be not criminally responsible for the murder, on account of his mental disorder, Mr. Clarke must be found guilty of first degree murder, having committed a planned, deliberate and intentional killing.

[5] Mr. Clarke has been assessed by two forensic psychiatrists, both of whom concluded that Mr. Clarke has schizophrenia, a major mental illness characterized, in his case, predominantly by delusions and hallucinations. He was actively psychotic at the time that he killed Mr. Kourjakian. He experienced paranoid delusions and hallucinations. He believed that Mr. Kourjakian and others were tormenting and attacking him and his family.

Issues

[6] The issue in this case is whether Mr. Clarke is criminally responsible for the murder of Mr. Kourjakian.

[7] For an accused person to be found not criminally responsible (NCR), the party advancing the issue must establish on a balance of probabilities that the person had a mental disorder and that the mental disorder rendered the accused person either incapable of appreciating the nature and quality of the conduct in question or incapable of knowing that the conduct was wrong.[^1]

[8] Proof on a balance of probabilities means that the conclusion is more likely than not.[^2]

[9] The concept of ‘wrongfulness’ includes legal and moral wrongfulness.[^3]

[10] In this case, the Crown does not dispute that the evidence supports the following findings on a balance of probabilities:

• that Mr. Clarke had a mental disorder, schizophrenia, at the time that he killed Mr. Kourjakian; and
• that he was, at that time, experiencing symptoms of this psychotic illness.

[11] Mr. Clarke does not advance the argument that his mental illness rendered him incapable of appreciating the nature and quality of his acts. Nor does he argue that it rendered him incapable of knowing that his act was legally wrong.

[12] The issue in this case is whether Mr. Clarke has established on a balance of probabilities that his mental disorder rendered him incapable of knowing that his conduct was morally wrong.

[13] The capacity to know that an act is morally wrong has been held to mean the capacity to know that reasonable members of society would view his actions as morally wrong. This encompasses the capacity to assess the wrongfulness of his conduct against societal norms. To be found not criminally responsible, it is not enough that the accused person views his actions as morally justified according to his own moral code if he is capable of knowing that society would view those actions as morally wrong.[^4]

[14] Mr. Clarke submits that he did not know, and was not capable of knowing, that society would view his actions as morally wrong. The position of the Crown is that Mr. Clarke has failed to prove on a balance of probabilities that his mental illness rendered him incapable of knowing the moral wrongfulness of his actions.

[15] In these reasons, I begin by summarizing the evidence before returning to these legal principles and the application of the principles to the facts in this case. I have considered all of the evidence, including the agreed facts; the writings and recordings of Mr. Clarke; the testimony of Mr. Clarke; and the testimony of the two psychiatrists. I will refer only to portions of the evidence in these reasons.

Evidence

Background of Mr. Clarke

[16] The personal history of Mr. Clarke and the course of his illness was set out in detail in the testimony and reports of the two psychiatric witnesses in this case — Dr. Lisa Ramshaw, and Dr. Sumeeta Chatterjee.

[17] Mr. Clarke was born and grew up in Toronto. He was 39 years old at the time of trial and 37 years old at the time of the offence.

[18] He is the youngest of seven children. His parents separated when he was 12 years old, but both parents remained involved with Mr. Clarke and his siblings. Mr. Clarke completed high school with no serious issues. He briefly attended Centennial College. Mr. Clarke worked at many jobs after leaving school, including as a forklift driver. He was single at the time of the offence but had been involved in relationships with women in the past.

[19] Mr. Clarke had no criminal record and no history of anti-social conduct before the offence. He has no history of substance abuse. Mr. Clarke was raised in a religious Pentecostal home.

[20] Mr. Clarke’s father worked in mechanics at the Toronto Transit Commission. He died in 2019.

[21] In 2022, at the time of the offence, Mr. Clarke had legal custody of the two-year-old son of his niece. Mr. Clarke and his great-nephew resided with Mr. Clarke’s brother, Dury Clarke, and had lived with him for about 18 months. He moved in with his brother after leaving his apartment at 2350 Birchmount Road, the location of the killing.

Mr. Clarke’s History at 2350 Birchmount Road

[22] Mr. Clarke lived at 2350 Birchmount Road from July 1, 2016, until May 31, 2021. He initially rented his unit with a female co-tenant but by November of 2016, he was the sole tenant of the unit. Mr. Kourjakian and his family moved into 2350 Birchmount on December 1, 2018. They lived in unit 211, the unit directly above Mr. Clarke’s unit. They did not know Mr. Clarke before moving into the building.

[23] Mr. Clarke made many complaints to the management of the building during his tenancy. In the fall of 2019 and winter of 2020, he sent numerous letters and emails, complaining that neighbours were hitting his walls and floors late at night and early in the morning, making racist and derogatory comments about him, and spreading rumours about him. In addition to his complaints to the management, Mr. Clarke filed complaints with the Landlord and Tenant Board about harassment and excessive noise. In February and March of 2020, Mr. Clarke repeatedly called the police to complain about the people living above his unit. He alleged that they were yelling and screaming through the vents, spreading rumours about him, being racist and calling him names.

[24] On March 14, 2020, Mr. Clarke called police and told them that his neighbours were telepathic and communicating through his mind. He said that his neighbours in the unit above were yelling at him constantly through the floors and from the balcony. He reported to police that he was taking anti-depressant medication and that he had been hearing voices in his head. A few days later, on March 17, 2020, he again called police to report that there were “a lot of demonic things things’” happening. He said that the people in units #101 and #211 (the victim’s unit) were calling him a pedophile and saying they would kill him. He told the police that these people were telepathic.

Mr. Clarke’s Diagnosis and History of Psychiatric Illness before the Offence

[25] Mr. Clarke’s only psychiatric admission to hospital before this offence occurred on March 17, 2020. On that date, he attended the Emergency Department of the Scarborough Health Network, Birchmount Campus. He was admitted from March 17th to March 19th. The hospital records disclose that Mr. Clarke presented with new onset auditory hallucinations and a “robust system of delusions relating to people monitoring him or trying to hack his computer. He has been paranoid about his neighbours and has actually called 911 and made complaints to the Landlord and Tenant Board.” The records note that he reported telepathic communication with two children. He said that voices of his neighbours commanded him to wake up in the night and that the same people installed a device in his floor and ceiling that lowered his heart rate.

[26] The doctor at the hospital believed that Mr. Clarke was experiencing a first episode of psychosis. She prescribed Risperidone, an antipsychotic medication, and referred him to an outpatient programme. Mr. Clarke did not take the medication and did not follow up with any psychiatric care.

Mr. Clarke’s Writings and Recordings

[27] The police investigation after the offence disclosed extensive materials that Mr. Clarke had written and recorded concerning his perceived experiences at 2350 Birchmount and his complaints about specific residents of the building, including the victim and his family. Mr. Clarke described being subjected to what he called “voice to skull”, “V2K”, “directed energy weapons” and “gangstalking”.

[28] Mr. Clarke, in his writing and recordings, describes being harassed constantly. He identifies individual residents as responsible for the harassment and specifically blames Mr. Kourjakian. He alleges that his harassers erase thoughts from his brain, zap his testicles and are “messing with his bodily functions”. He writes extensively about “synthetic telepathy” and witchcraft.

[29] In a folder entitled, “Tolerance of What I had to Hear and Deal With”, dated December 28, 2022, Mr. Clarke writes that the people in unit #211 were involved [in the harassment]. In the same document Mr. Clarke writes:

***MESSING WITH MY HEART RATE.
-AS THEY WOULD MENTION BEFORE IT HAPPENED, “WATCH THIS”, AND THEN MY HEART RATE WOULD SLOW OR START BEATING WIERDLY [sic].
-THEY HAVE ALSO DONE THIS TO MY NEPHEW WHO I WOULD HOLD, AND AS THEY SAID IT, HIS HEART RATE WOULD ALSO BEAT IRREGUAL [sic] TO THE POINT I WUOLD [sic] HEAR HIM BREATHE DIFFERENT WHILE SLEEPING.
***MY VIENS [sic] WOULD BE MESSED WITH.
-THEY HAVE BEEN MESSING WITH MY VIENS [sic] ON MY FEET, AND LETS.MAKING IT EXPAND AND EVEN POPPED ONCE.
***MY BRAIN VIENS [sic] MOVING
-THEY HAVE BEEN MESSING WITH MY BRAIN, WHILE I CAN PHYSICALLY FEEL THE VIENS MOVING WITHIN MY BRAIN, AS SIFTS THROUGH TO TAKE INFORMAION [sic] FROM ME.
-THEY ARE TYPICALLY DOING THIS TO ME WHILE I AM ASLEEP

[30] Mr. Clarke wrote of being a “Hebrew Israelite”. His writings and recordings have numerous biblical quotes.

[31] In his writing entitled, “War of Words”, there is a recurring theme of vengeance or payback. For example, he writes; “I would be confident in killing them, even by hand. I’m not afraid to state the truth. These devils deserve death I will have no choice but to kill them all. For the amount of disrespect that I have received already, this is far gone out of the police’s hands” and “the only way someone can get comfortable while being tormented is by killing those who are responsible and witness the perpetrators die before their face, just to secure back that privacy.”

[32] Mr. Clarke also refers to self-defence in his writings and recordings. In War of Words he writes, “If I do anything, it is all in defence, and to help the greater cause…”. In his recordings during the months leading up to the murder, Mr. Clarke records videos for his family that explain that if he goes to jail, it is for defending himself. He also made a recording that described people getting murder and self-defence mixed up and asserted that self-defence was justified. He compares his defence against telepathy to the war in the Ukraine.

[33] In one recording, Mr. Clarke discusses the attacks on him through witchcraft and telepathy and his right to defend himself, saying, “you can go about it legally, the right way, or you can do defense way regardless which way because the Most High is the judge of all. And he will judge you for your doings and actions and if you’re justified, hey you’re still, you can still make it into heaven.”

Purchase of Firearms

[34] Mr. Clarke obtained a restricted and non-restricted firearms Possession and Acquisition Licence in October of 2021. Mr. Clarke had two sponsors and he completed the mandatory Canadian Firearms Safety Course and the Canadian Restricted Firearms Safety Course.

[35] On November 23, 2021, Mr. Clarke applied to purchase three Luger handguns. The firearms were shipped in December of 2021. In his application to purchase the guns, Mr. Clarke said that they were being purchased for target practice. One of these handguns was used to shoot Mr. Kourjakian.

The Shooting – Video and Police Evidence

[36] The circumstances of the shooting of Mr. Kourjakian are undisputed. They are captured on video and set out in the Agreed Statement of Facts on this trial. On the evening of December 20, 2022, Mr. Kourjakian drove into the underground parking garage of his apartment building at 2350 Birchmount Road. His four-year-old daughter was in the back seat of his car. They were returning from a trip to Montreal to visit family.

[37] Mr. Clarke had driven to the building and arrived at the same time that Mr. Kourjakian arrived. He carried one of his handguns. Mr. Clarke turned into the driveway ahead of Mr. Kourjakian and waited in an outdoor parking area while Mr. Kourjakian drove into the underground parking garage. He then followed Mr. Kourjakian’s car into the underground parking garage. Mr. Kourjakian parked his car and got out to help his daughter from the back seat. While he did so, Mr. Clarke pulled up beside him in his vehicle and shot Mr. Kourjakian. Mr. Kourjakian was struck in the neck and died in minutes. Mr. Kourjakian’s daughter retrieved her father’s cellphone and called her mother. His daughter was located in the parking lot by other residents.

[38] Mr. Clarke drove away quickly from the scene and returned to his residence.

[39] The police searched Mr. Clarke’s residence and car. They located gunshot residue in his car. They also seized the three handguns and ammunition. One of the guns was the gun that killed Mr. Kourjakian.

[40] Following his arrest, Mr. Clarke was taken to the police division. During the booking process he was asked if he had any mental health concerns and he replied, “some people may say so, but I don’t think so, I am being attacked and I feel like I am being framed in regards to telepathy, synthetic telepathy, through community stalking that’s the only reason I feel like I am in here, but I will wait for a lawyer to come, but I hear voices.”

Mr. Clarke’s Interviews with the Assessing Psychiatrists

[41] Mr. Clarke was interviewed before trial by Dr. Ramshaw and by Dr. Chatterjee as part of their assessment of his mental state. In the interviews, he described the attacks that he believed were being carried out on him as: voice to skull, V2K, synthetic telepathy, witchcraft, gangstalking, community stalking, and sorcery. He explained that his problems, in his view, all originated with 2350 Birchmount.

[42] According to Mr. Clarke, he first experienced hearing voices in 2019 but he described harassment beginning before that year. Mr. Clarke told the psychiatrists that he continued to experience what he described as attacks by telepathy even after he moved out of 2350 Birchmount. He continued to experience the ‘attacks’ and voices after the death of Mr. Kourjakian and his arrest.

[43] Mr. Clarke understood the criminal charge against him of first degree murder. In his interviews with the psychiatrists, he denied killing Mr. Kourjakian. He told Dr. Ramshaw that the victim of the shooting was part of the voices tormenting him and that there were now “less people involved”. He also told Dr. Ramshaw that he felt that he was a target and that his life was in danger. Dr. Ramshaw asked him about passages in his writing that referred to Mr. Kourjakian and being able to “stomp him out”. He claimed to have had no plan to do this.

[44] Although Mr. Clarke denied killing Mr. Kourjakian, Dr. Ramshaw asked him what would happen to him if he killed someone in self-defence. He stated: “It would be up to the judge or jury what would happen to you” and went on to say that he would “put everything to the Lord” and that he did not view it as wrong.

[45] Dr. Chatterjee asked Mr. Clarke about his issues with the residents of 2350 Birchmount. Mr. Clarke described being harassed and surveilled. He described residents ‘doing demonic things.’

[46] Dr. Chatterjee asked Mr. Clarke about his writings in the War of Words that appear to refer to harming people and to acknowledge that society might punish him if he defended himself against his enemies. He said, “I’m trying to mention in the state of one going through something, a war with someone, you need to protect yourself. Protect your life and defend you and your family.”

[47] Dr. Chatterjee asked Mr. Clarke if there could be moral justification for self-defence that causes others harm. He said, “you can be justified for certain things you are going through, if it is according to the law of the Most High.” At another point, Mr. Clarke said to Dr. Chatterjee, “Self-defence is not murder.”

[48] Prior to trial, Mr. Clarke did not describe to the psychiatrists his thoughts and actions at the time that he killed Mr. Kourjakian. When he testified at trial, Mr. Clarke admitted killing Mr. Kourjakian and explained his motivation for doing so. Both Dr. Ramshaw and Dr. Chatterjee listened to Mr. Clarke’s testimony and re-interviewed him before they testified.

[49] I will address the opinions of the psychiatrists and their mid-trial interviews after first reviewing Mr. Clarke’s testimony.

Mr. Clarke’s Testimony

[50] Mr. Clarke testified at length about voices in his head and his belief that they were the voices of residents of 2350 Birchmount. He spoke of “voice to skull” and “synthetic telepathy” and “directed energy weapons”. He gave lengthy and often unresponsive answers to questions. He returned frequently to the themes of synthetic telepathy and directed energy weapons.

[51] Mr. Clarke admitted that he had gone to 2350 Birchmount with his gun, intending to shoot Mr. Kourjakian. He described doing so.

[52] Mr. Clarke said that he targeted Mr. Kourjakian because he was the only person that Mr. Clarke was 100% sure was involved in ‘tormenting’ him. Mr. Clarke repeatedly described an incident when he was walking outside and hearing the voices and saw Mr. Kourjakian and his family on their balcony. The incident convinced him that Mr. Kourjakian and his family were involved.

[53] Mr. Clarke knew that shooting Mr. Kourjakian would likely kill him. He shot him intending to kill him. He planned the killing by taking his gun to the building and then following Mr. Kourjakian’s car when he saw it turning into the driveway and underground parking garage.

[54] Mr. Clarke was questioned about the timing of his act of shooting Mr. Kourjakian. The voices had been active for over two years and Mr. Clarke was asked to explain why he chose to take action in December of 2022. Mr. Clarke testified that a new year was coming, and he could not let the attacks on him continue for another year. He said that close in time to the shooting there was an incident where he was holding his nephew and his nephew stopped breathing. At the same time the voices said, “watch this”. He said, “I would say the experiments got worse in the sense of, with my nephew, with the heart situation, most of the stuff was only happening to me. So, when I started seeing it — that’s when he was born, 2021 in August — that’s when more things happened outside of just — and so it increased.” He was asked if the incident with his nephew happened in 2021 and he said “correct”. However, at another point he said that the incident with his nephew occurred close in time to the shooting.

[55] It was clear from Mr. Clarke’s testimony that he believed that his actions were justified. He described himself as acting in self-defence to protect himself and his family, although he agreed that he was not facing an immediate physical threat from Mr. Kourjakian when he shot him.

[56] He was cross-examined about his comments to Dr. Chatterjee that around the time of the shooting of Mr. Kourjakian he did not feel that he was being physically attacked, but only verbally attacked in his mind and that he would find it justifiable to make videos and expose the telepathy but would not find it justifiable to retaliate physically. Mr. Clarke explained that he was not forthcoming in his interviews. He lied to the psychiatrist when he denied the killing and, as a result, he did not explain to them his reasons for the killing. He said, “No. no. In regards to Dr. Chatterjee and Ramshaw, I never told them I killed anybody. So, that wouldn’t be relevant and no point of that.”

[57] Mr. Clarke agreed that at the time that he killed Mr. Kourjakian, he felt angry. He agreed that anger and vengeance were part of his motivation for shooting Mr. Kourjakian.

[58] Mr. Clarke was asked if he realized that society thinks what he did was wrong and responded:

I could care less what society thinks, you know? I’m a man of my own, you know? I’m not looking friends and no favour. I’m a man of honesty to — and integrity as well, so I know what I believe and I stand firm, you know? …and if it was the real society that’s out there, who’s actually the ones going through it, they would agree with me more than anything…

[59] Mr. Clarke was taken to his document entitled, “only if I get caught read”. It was put to Mr. Clarke that he wrote the document because he did not believe that society as a whole would understand his actions. He said, “Not like that in the sense of the society, you know, only those within the society who are going through certain things, care for certain things…”. He was asked if he recognized that society might have an opinion on what he did. He responded:

I acknowledge that. Hopefully, they can see both sides and see and understand what another man is going through and before you paint the picture. Read both sides before you paint that picture, and you’ll get a better understanding and clarity of what happens. If I’m outside and I’m hearing this story, I’m bringing on my side automatically because again, I don’t know these people…And somebody in society would have the realness to understand that more than ‘oh you killed somebody, you killed somebody. But why did I kill him?...Why? What were the steps that were taken for me to kill him?... I didn’t care for society. Society didn’t care for me. I’m struggling and going through the pain and suffering of somebody tormenting me 24/7. The only ones within society I could relate to was those people going through it. My own people.

[60] The Crown asked Mr. Clarke: “But at the same time, you’d agree with me that you recognize that other people might not understand this?” Mr. Clarke said, ‘A hundred percent. Because they’re going to look at you as crazy. They’re going to label you, just like I went to the hospital, psychosis.”

[61] Mr. Clarke testified that he was a religious man and followed the teachings in the bible. He believed that it was wrong to kill except in circumstances such as self-defence or war.

Opinions of the Psychiatrists

[62] Dr. Ramshaw and Dr. Chatterjee were both qualified to give expert opinion evidence in the area of forensic psychiatry. The opinions of the two doctors were consistent. They both opined that Mr. Clarke was experiencing the symptoms of a psychotic illness, namely schizophrenia, at the time that he killed Mr. Kourjakian.

[63] Schizophrenia is characterized by the presence of delusions and hallucinations. Symptoms may also include disorganized speech and behaviour and negative symptoms. For Mr. Clarke the most prominent symptoms are paranoid delusions and somatic and auditory hallucinations. During the assessment interviews, he spoke to both doctors at length about the voices he heard and the physical sensations he experienced. Both doctors concluded, based on Mr. Clarke’s self-report; his writings and recordings; and records obtained from the police and from the hospital, that Mr. Clarke’s delusions and hallucinations began around 2019 and continue to the present. Both concluded that he was actively psychotic at the time he killed Mr. Kourjakian.

[64] Both Dr. Ramshaw and Dr. Chatterjee concluded, prior to hearing Mr. Clarke’s testimony, that it was more likely than not that at the time of the shooting Mr. Clarke was capable of appreciating the nature and quality of his acts and capable of knowing that his acts were legally wrong, but that he was incapable of knowing his actions were morally wrong. Because of the intensity of his symptoms and his perception that he was being persecuted, the psychiatrists concluded that it was more likely than not that he felt morally justified in killing Mr. Kourjakian because of a delusionally based need to defend himself.

[65] Dr. Ramshaw and Dr. Chatterjee listened to Mr. Clarke’s testimony and they each interviewed him briefly after he testified. Both testified that their opinions remained the same.

[66] Dr. Chatterjee explained that from a clinical perspective, an individual is incapable of appreciating moral wrongfulness when their delusions propel or compel them to act in a way that they feel is essential to protect themselves or their loved ones or for the greater good of others. She testified that Mr. Clarke acted in a way that he felt was essential to protect his physical integrity and to protect his loved ones.

[67] When questioned about Mr. Clarke’s understanding that society would view his actions as wrong, Dr. Chatterjee testified that her understanding of Mr. Clarke’s belief was that some part of society had labeled him as psychotic and would not believe his reasons for killing the victim. However, anyone who understood and believed in his experiences would consider his actions justifiable.

[68] Dr. Ramshaw similarly testified that Mr. Clarke believed that society would view his actions as justifiable if they understood his rationale. Both psychiatrists testified that Mr. Clarke was not malingering or exaggerating his symptoms.

Legal Principles and Analysis

[69] As I set out earlier in these reasons, for Mr. Clarke to be found not criminally responsible, he must prove on a balance of probabilities that at the time of the act or omission, he had a mental disorder, and that the mental disorder rendered him either incapable of appreciating the nature and quality of the act or omission or incapable of knowing that the act or omission was wrong.

[70] There is no dispute that Mr. Clarke, at the time of the offence, had a mental disorder. I am satisfied that the evidence in this case clearly supports the conclusion that Mr. Clarke had a mental disorder, namely schizophrenia, at the time that he committed the offence. Both psychiatrists reached this conclusion and there is a substantial body of evidence to support the diagnosis. The precise timing of the onset of Mr. Clarke’s mental illness is not clear but it significantly predates the offence, likely beginning in 2019. It has continued and worsened over the years. Mr. Clarke continues to experience the symptoms of his illness, having refused any treatment.

[71] Mr. Clarke does not assert, nor does the evidence support a finding that his mental disorder rendered him incapable of appreciating the nature and quality of his act. The capacity to appreciate the nature and quality of the act means simply that the person must have the capacity to know what they are doing and the capacity to estimate and understand the physical consequences that would flow from their actions.[^5] The evidence is clear that Mr. Clarke knew that he was shooting Mr. Kourjakian and that this was likely to cause his death.

[72] Mr. Clarke argues that his mental illness rendered him incapable of knowing that his act was wrong. Wrongfulness has been held to mean legal wrongfulness and moral wrongfulness.[^6] I am satisfied that Mr. Clarke was capable of knowing the legal wrongfulness of his actions. Supporting this conclusion is the evidence of the steps taken by Mr. Clarke to avoid detection and the document he wrote for his family in anticipation of possibly being arrested and charged. As I will explain further in considering Mr. Clarke’s capacity to know the moral wrongfulness of his actions, Mr. Clarke spoke, wrote, and testified about self-defence. However, his understanding of self-defence was not based on a legal concept but a moral one. Mr. Clarke testified that he did not believe that he was in imminent physical danger when he shot Mr. Kourjakian. He was not entitled to the legal defence of self-defence. Mr. Clarke had a basic understanding that his actions were illegal.

[73] The issue in this case is Mr. Clarke’s capacity to know that his actions were morally wrong.

[74] As I have already outlined, Dr. Ramshaw and Dr. Chatterjee concluded that Mr. Clarke’s illness deprived him of the capacity to know that his act of killing Mr. Kourjakian was morally wrong. I am not bound to accept that conclusion.

[75] As the trier of fact, I may accept some, all, or none of any witness’s evidence, including the evidence of an expert. However, there must be a rational foundation in the evidence for a trier of fact to reasonably reject the opinion of an expert.[^7] Such a rational foundation may exist if I make different factual findings than those relied upon by the experts. I may also reject the opinions if the conclusions of the experts rely on an interpretation of the legal test for moral wrongfulness which I reject. I must apply the law as I understand and interpret it.[^8]

[76] In R. v. Oommen, the Supreme Court of Canada considered the meaning of “wrongfulness” in the context of section 16 of the Code and explained, 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. The inability to make a rational choice may result from a variety of mental disfunctions; … these include at a minimum the states to which the psychiatrists testified in this case — delusions which make the accused perceive an act which is wrong as right or justifiable, and a disordered condition of the mind which deprives the accused of the ability to rationally evaluate what he is doing.

[77] Delusions or other psychotic symptoms do not always, or necessarily, deprive a person of the capacity to know the moral wrongfulness of their acts. In R. v. Dobson, Doherty J.A. wrote as follows:

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.

[78] The ‘norms of society’ are the ordinary moral standards of reasonable members of society. It is not enough for an accused person to believe that they are morally justified in committing the act. ‘Moral wrong' is not to be judged by the personal standards of the offender, but by their awareness that society regards the act as wrong. The accused person cannot substitute their own moral code for that of society and have the benefit of an NCR defence. They will be entitled to an NCR finding only if they are incapable of understanding that the act is wrong according to the ordinary moral standards of reasonable members of society.[^11]

[79] To reach a verdict in this case, I must determine whether, on a balance of probabilities, Mr. Clarke lacked the capacity to know that his actions were wrong according to the norms of society.

[80] In determining this question, I must make factual findings about Mr. Clarke’s thoughts, beliefs, and motivations.

[81] Mr. Clarke spoke, wrote, and testified that he was angry at the people who he believed were tormenting him. He spoke, wrote and testified about vengeance for the suffering that he had endured. He described the ‘disrespect’ that he felt was being shown. Mr. Clarke described much of what he was suffering as ‘verbal attacks’ rather than physical. He was able, in his writing and in his interviews with Dr. Chatterjee, to articulate that verbal assaults would not justify a physical response.

[82] Mr. Clarke also described physical attacks on him and on his nephew. These physical attacks, particularly on his nephew, were not discussed with the psychiatrists before trial. Mr. Clarke referenced the attacks on his nephew in his testimony and in his post-testimony interviews with the doctors. He wrote about the attacks on his nephew prior to the murder. When he was questioned about his failure to tell the assessing psychiatrists about the incidents involving his nephew as motivating him to kill Mr. Kourjakian, Mr. Clarke explained that at the time of the assessment, he was denying the killing and there was therefore no reason to refer to his motive for the killing.

[83] Dr. Chatterjee and Dr. Ramshaw concluded that Mr. Clarke was unable to know the wrongfulness of his actions even without the testimony of Mr. Clarke that he feared for the life and safety of his nephew. Dr. Chatterjee testified that Mr. Clarke’s actions were triggered by psychological and physical torment that was persistent, all-encompassing and all-consuming.

[84] Dr. Chatterjee acknowledged that Mr. Clarke was motivated by anger and vengeance as well as self-defence, and pointed out that the two motivations can co-exist and that both were delusionally based.

[85] Having considered all of the evidence, I find that Mr. Clarke was motivated by several things: by a belief that he and his family were in danger from a number of people including the victim, Mr. Kourjakian; by an inability to cope with the ongoing physical and psychological torment of the hallucinations that he believed were real and controlled by the victim; and, by anger at the torment he suffered and the threat to his family.

[86] I find that he did not believe that there was an imminent threat to his life and safety or that of his family at the moment that he killed Mr. Kourjakian, but he believed that killing Mr. Kourjakian was the only way to relieve the torment and to preserve his own safety and that of his family.

[87] I accept that Mr. Clarke, at the time of the murder, believed that the victim and others were able to change his heart rate and breathing and the heart rate and breathing of his nephew. I have considered that Mr. Clarke did not report this to the psychiatrists in the assessments, but I accept that this was because he was not admitting the killing at that time. In a document written two days before the murder, Mr. Clarke wrote that “they” had changed the heart rate and breathing of his nephews. Mr. Clarke’s documentation of this belief, close in time to the murder, is strong evidence that he held that belief at the time and that it motivated his actions.

[88] I find that Mr. Clarke believed, at the time of the offence, that the attacks on him were real. He also believed that many members of society would not believe that things he was experiencing were real. He believed that they would label him as crazy or psychotic. He had attempted to seek help from the police, the legal system and the hospital. The members of society from whom he sought help did not believe that his experiences were real. However, I find that Mr. Clarke believed that a reasonable member of society who had all the information about his experiences and believed that his experiences were real, would see that his actions were justified.

[89] I have considered Mr. Clarke’s evidence that he ’did not care’ what society thought and that he knew many would view his act as wrong. Considered in isolation, these statements would lead to the inference that Mr. Clarke knew that his acts were wrong according to societal norms. However, considered in the context of all of his evidence, these statements are consistent with his view that anyone who knew the truth of his experiences would view his act as justified. In making this factual finding, I rely on Mr. Clarke’s testimony and his writings and recordings before the murder. In his testimony, Mr. Clarke said that he did not think that he would be believed by those in society who had not had his experiences or did not know about the reality of the attacks. He wrote and recorded many documents, videos, and audios to inform others about his experiences before the offence.

[90] I find that Mr. Clarke is and was a religious man who adhered to a moral code that did not differ from the moral code of society. He believed that killing was wrong unless justified by self-defence or in times of war. He believed that his actions were justified according that moral code. He was capable of knowing the norms of society or the moral code of society and believed them to align with his own with respect to his actions in killing Mr. Kourjakian.

[91] I have considered and applied the test set out by the Supreme Court of Canada in Oommen and the by Court of Appeal for Ontario in Dobson. Unlike the circumstances considered in Dobson, the reason Mr. Clarke believed that many in society would view his acts as wrongful was not that Mr. Clarke’s moral code was different than the moral code of society, but because Mr. Clarke believed that most members of society did not accept the reality of his delusions and hallucinations. Also distinguishing this case from Dobson is the clear and undisputed evidence that Mr. Clarke’s actions were driven by his psychosis. In Dobson, Justice Watt concluded that Mr. Dobson was not actively psychotic at the time of the offence.

[92] Applying the legal test to the facts in this case, I am satisfied on a balance of probabilities that Mr. Clarke, at the time of the offence, had a mental disorder that rendered him incapable of knowing that his act was wrong. Through the distorted lens of his mental illness, he viewed his conduct as justified according to his own moral code and according to the norms of society.

Conclusion

[93] I find Mr. Clarke to be Not Criminally Responsible on account of mental disorder.

M.D. Forestell

Released: March 26, 2025

Cited Authorities

Legislation

• Criminal Code, RSC 1985, c C-46, s. 16

Case Law

• R. v. Layton, 2009 SCC 36, para 28
• R. v. Chaulk, [1990] 3 S.C.R. 1303, pp. 1354-1355
• R. v. Dobson, 2018 ONCA 589, para 24, leave to appeal refused [2019] S.C.C.A. No. 70
• Kjeldsen v. R., [1981] 2 S.C.R. 617, para 9
• R. v. Molodowic, 2000 SCC 16
• R. v. Dobson, 2015 ONSC 2865
• R. v. Oommen, [1994] 2 S.C.R. 507

[^1]: Criminal Code, RSC 1985, c C-46, s. 16 [^2]: R. v. Layton, 2009 SCC 36, para 28 [^3]: R. v. Chaulk, [1990] 3 S.C.R. 1303, pp. 1354-1355 [^4]: R. v. Dobson, 2018 ONCA 589, para 24, leave to appeal refused [2019] S.C.C.A. No. 70 [^5]: Kjeldsen v. R., [1981] 2 S.C.R. 617, para 9 [^6]: R. v. Chaulk, [1990] 3 S.C.R. 1303, pp. 1354-1355 [^7]: R. v. Molodowic, 2000 SCC 16 [^8]: R. v. Dobson, 2015 ONSC 2865 [^11]: R. v. Dobson, 2018 ONCA 589, para 24, leave to appeal refused [2019] S.C.C.A. No. 70; R. v. Chaulk, [1990] 3 S.C.R. 1303