Court File and Parties

Court File No.: CR-23-50000757-0000
Date: 2025-01-31
Court: Ontario Superior Court of Justice

Between:
His Majesty the King
and
Dylan Sherief

Appearances:
J. Spare and P. Hamm, for the Crown
Sina Shabestary, for Mr. Sherief

Heard: January 30 and 31, 2025
Judge: M. Forestell

Judgment on Criminal Responsibility

Overview

[1] Dylan Sherief is charged with the second-degree murder of Nicola Maiorano.

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

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

[4] It is admitted that on December 6, 2022, Mr. Sherief and two friends approached Mr. Maiorano on Danforth Avenue and discussed buying drugs. They all went to a nearby playground. Mr. Sherief engaged with Mr. Maiorano while his two friends stood 10 to 20 feet away. Mr. Sherief suddenly, and without provocation, stabbed Mr. Maiorano in the neck. Mr. Sherief and his friends fled. Mr. Maiorano walked to an apartment building where he collapsed and died.

[5] Mr. Sherief was wearing blue medical gloves at the time of the stabbing. He disposed of the knife and the gloves after he fled.

[6] The elements of the offence of second-degree murder are proven by the agreed facts. Mr. Sherief caused the death of Mr. Maiorano. The agreed facts support the inference that Mr. Sherief intended to kill Mr. Maiorano or to cause him serious bodily harm that he knew was likely to kill him. I am satisfied that the elements of the offence are proven beyond a reasonable doubt.

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

Issues and Law

[8] A verdict of not criminally responsible on account of mental disorder requires Mr. Sherief 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 stabbing Mr. Maiorano); or,
(b) knowing that it was wrong.

[9] A mental disorder is defined as a disease of the mind. A major mental illness like schizoaffective disorder, bipolar type, is a mental disorder.

[10] The Supreme Court of Canada in R. v. Oommen, [1994] 2 S.C.R. 507, 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”.

[11] 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.

[12] In this case, it is not suggested that Mr. Sherief lacked the capacity to appreciate the nature and quality of his act or that he lacked the capacity to know the legal wrongfulness of the act. It is submitted that his mental disorder made him incapable of accessing rational choice at the time that he killed Mr. Maiorano and that he lacked the capacity to rationally determine the moral wrongfulness of his actions.

Evidence and Analysis

[13] Dr. Alina Iosif and Dr. Giovana Levin, both forensic psychiatrists, filed reports and gave evidence at the trial. They were qualified to provide expert opinion evidence in the area of forensic psychiatry.

[14] Both experts met with Mr. Sherief and reviewed extensive records relating to his history of mental illness. They spoke to family members and also reviewed disclosure and Mr. Sherief’s statements to the police relating to the killing.

[15] Both experts expressed the opinion that Mr. Sherief has a mental disorder, namely schizoaffective disorder, bipolar type. They were both of the opinion that, at the time of the offence, he was likely experiencing intense psychotic symptoms. They opined that the mental disorder likely rendered Mr. Sherief incapable of accessing rational choice at the time of the killing. It rendered him incapable of assessing the wrongfulness of his actions.

[16] Dr. Iosif and Dr. Levin both expressed the opinion that, from a psychiatric perspective, a defence of not criminally responsible was available to Mr. Sherief.

[17] I accept the evidence of Dr. Iosif and Dr. Levin.

[18] It is clear from the expert opinions that Mr. Sherief had a disease of the mind, namely Schizoaffective Disorder, Bipolar type, at the time of the offence.

[19] As set out in the report of Dr. Iosif, Schizoaffective Disorder is a major mental illness characterized by an uninterrupted period of illness during which, at some time, there is either a Major Depressive Episode, a Manic Episode or a Mixed Episode concurrent with delusions, hallucinations, disorganized speech or behaviour. During the same time period, there must have been delusions or hallucinations for at least two weeks in the absence of prominent mood symptoms.

[20] Mr. Sherief is also diagnosed with substance use disorder in remission in a controlled setting. Substance use was not viewed by either psychiatrist as the primary cause of his symptoms or his actions in committing the offence.

[21] Mr. Sherief is 32 years old. He was 29 years old at the time of the offence. He was raised in a stable and loving home. He completed high school and was admitted to university.

[22] The evidence before me is that Mr. Sherief began to become ill in 2016 at age 23 years while in first-year university. His diagnosis evolved over the years, with repeated admissions to hospital. In recent years, the diagnosis was Schizoaffective Disorder, Bipolar type.

[23] Mr. Sherief became paranoid and delusional while away at university. He believed that people were after him. By the following year, he had his first admission to the hospital. He had been hearing voices for months. He described the voices as very negative and intrusive. When released from the hospital he stopped taking the prescribed anti-psychotic medication.

[24] Over time, Mr. Sherief’s symptoms worsened. He experienced auditory and visual hallucinations. He was paranoid and believed his grandparents’ house, where he was living, was bugged. As early as 2017 Mr. Sherief described feeling a ‘voodoo presence’ while lying in bed. He told his family that he understood what it meant to be possessed and said that he felt that his medications stopped his mind from fighting the evil elements that were threatening to possess his mind.

[25] Mr. Sherief was admitted to hospital about seven times between the onset of his illness and the index offence. Most of his admissions were involuntary. Mr. Sherief’s family made every effort to get treatment for Mr. Sherief. They repeatedly brought him to the hospital. One of Mr. Sherief’s longest periods of stability was from late 2018 to the middle of 2019 when he was on a Community Treatment Order under the Mental Health Act, RSO 1990, c M.7 with his grandfather as substitute consent giver.

[26] Unfortunately, Mr. Sherief has always lacked insight into his mental illness. He believed, and continues to believe, that he does not have a mental illness but that there are supernatural forces causing his symptoms. Mr. Sherief has always been non-compliant with medication upon discharge from the hospital. As a result, although he improved with treatment, he repeatedly deteriorated upon discharge from the hospital when he became non-compliant.

[27] Mr. Sherief’s last hospital admission was in October of 2022. He was noted to be agitated, violent and aggressive. He had grandiose and persecutory delusions. He was treated with Abilify and Epival with little effect. Clozapine was added and produced an improvement in his delusions. He was discharged from the hospital on November 9, 2022, about one month before the index offence.

[28] After being discharged, Mr. Sherief returned to his grandparents’ home. They monitored him closely but after one week, while his grandmother was asleep, Mr. Sherief left the house and went to live with his friend. He did not take his medication with him.

[29] Mr. Sherief reported to Dr. Iosif and Dr. Levin that after he went to live with his friend, there was an intensification of the “supernatural experiences” that he had previously experienced. He heard voices and saw visions. He felt hands coming out of curtains and touching him. He felt tormented by these experiences.

[30] Mr. Sherief reported that he told his friend, Mr. Comeau, about his experiences and about his belief that another person, John Borgia, had put a curse on him through a witch doctor. Mr. Sherief reported that Mr. Comeau tried to help him by contacting the witch doctor.

[31] In the days before the index offence, Mr. Sherief began to experience command hallucinations telling him to kill someone. The voices said that they would steal his soul if he did not kill someone. The voices gave him deadlines to kill someone.

[32] Mr. Sherief said that when he began to experience these command hallucinations, he told Mr. Comeau about them. Mr. Comeau then bought him a knife and helped him to find a victim. Mr. Sherief reported that sometime prior to the index offence, he and Mr. Comeau brought an unhoused man home to their apartment for Mr. Sherief to kill. However, Mr. Sherief could not bring himself to kill the man. Mr. Sherief reported that the voices gave him reprieves, or extensions, when he was unable to kill someone as the voices had directed.

[33] On the night of December 5, 2022, Mr. Sherief experienced command hallucinations telling him that he had to kill someone by midnight. He told Mr. Comeau and his girlfriend, Ashley Alexis, about the commands. According to Mr. Sherief, Mr. Comeau and Ms. Alexis said that they would help him. The three set out from Mr. Comeau’s apartment with Mr. Sherief carrying the knife that had been purchased for him by Mr. Comeau. They saw Mr. Maiorano walking unsteadily on Danforth Avenue and approached him.

[34] Mr. Sherief and Mr. Maiorano went a distance away from Mr. Comeau and Ms. Alexis. Mr. Sherief reported that he hesitated and did not feel he could bring himself to kill the man. However, he suddenly took the knife and stabbed Mr. Maiorano. He explained that he was forced to do so to end the “supernatural torture.” He told the psychiatrists it was “him or me”.

[35] Both Dr. Iosif and Dr. Levin testified that at the time that Mr. Sherief killed Mr. Maiorano, his symptoms had likely intensified to the point that he became incapable of assessing the moral wrongfulness of his actions. Mr. Sherief had resisted the command hallucinations until the intensification of his symptoms broke down his ability to do so.

[36] Both psychiatrists were questioned about the role played by Mr. Comeau in the offence. Dr. Iosif noted that the two men spent a great deal of time together in the two years prior to the index offence. They acted together in 2022 when they impersonated ‘border police’ and stopped and interrogated motorists. Mr. Sherief believed that American Homeland Security had directed them to “check on people”. It is unclear why Mr. Comeau would participate in the action. Dr. Iosif raised the possibility of a Shared Psychotic Delusion. She also suggested the possibility that, for unclear reasons, Mr. Comeau manipulated Mr. Sherief by using Mr. Sherief’s obvious vulnerabilities.

[37] Dr. Iosif did not suggest that the conduct of Mr. Comeau was a primary driver of the actions of Mr. Sherief in committing the index offence. The primary driver of Mr. Sherief’s actions according to both Dr. Iosif and Dr. Levin, was the intensification of Mr. Sherief’s psychotic symptoms. Therefore, while Mr. Sherief’s relationship to Mr. Comeau may be of interest to his treatment team, it is not a factor in the decision that I must make.

[38] I have considered the evidence of Dr. Iosif and Dr. Levin. I am satisfied, based on the opinions of Dr. Iosif and Dr. Levin, that Mr. Sherief’s symptoms likely rendered Mr. Sherief incapable, at the time of the offence, of accessing rational choice. Mr. Sherief’s perceptions were distorted by his mental illness. He believed that he had to kill someone, or he would be tortured or killed. I am satisfied, on a balance of probabilities, that as a result of his mental disorder, Mr. Sherief was not capable at the time of the stabbing of Mr. Maiorano of assessing the moral wrongfulness of his actions.

Verdict

[39] For these reasons, I find Dylan Sherief not criminally responsible on account of mental disorder for the second degree murder of Nicola Maiorano.

Disposition

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

[41] The Ontario Review Board will hold a hearing and make a disposition with respect to Mr. Sherief. 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.

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

[43] The disposition of the Ontario Review Board will be made after hearing evidence and including evidence related to the risk posed by Mr. Sherief. 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. Sherief will be detained and what privileges, if any, he will have. Pursuant to the Criminal Code, RSC 1985, c C-46, s. 672.54, Mr. Sherief cannot be released unconditionally unless the Board concludes that he is no longer a significant threat to the safety of the public.

M. Forestell

Released: January 31, 2025