R. v. Amer Date:, 2013 BCPC 288

Citation: R. v. Amer Date: 20131007 2013 BCPC 0288 File No: 223490-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MOHAMED AMER EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: I. Keeley Appearing on their own behalf: M. Amer Place of Hearing: Vancouver , B.C. Date of Hearing: October 7, 2013 Date of Judgment: October 7, 2013

[ 1 ] THE COURT: Mr. Amer stands charged that on or about February 22nd, 2012, at Vancouver, British Columbia, he did attempt to commit the murder of Terrance Skaley, by stabbing, contrary to s. 239(1) (

b) of the Criminal Code . [ 2 ] One of the first threshold questions that must be determined by this court as of today's hearing is whether I can proceed in light of what has taken place in this court. Mr. Amer made a personal appearance in relation to the charge he is facing. I have observed Mr. Amer in court and was concerned that he may have been impacted somewhat by medication. [ 3 ] Mr. Amer took the witness stand briefly, and then declined to answer any further questions by amicus, Mr. Henderson, or by Ms.

Keeley for the Crown, or even by the court, insisting that he wished to simply be returned to the hospital. [ 4 ] I as well covered with Mr. Amer his right to make full answer and defence throughout most of the morning proceedings and into the afternoon. I am aware as a result of information received that Mr. Amer had been provided with some medication because he was agitated yesterday.

I have observed from his conduct in court, his answers and his presentation that he appears to be observant of what was taking place, conversant with what was happening before him. [ 5 ] I know he wants to have matters proceed with haste. That is not how the court must operate, it must determine that it is a fair and transparent hearing -- [ 6 ] THE ACCUSED: Can I say something? [ 7 ] THE COURT: -- or a trial as the case may be as we go forward. I am satisfied I can proceed to make a decision today as a result of my observations of Mr.

Amer, the comments he has made to the court, hearing from Jack Bibby, who has been in consultation with medical authorities at the Forensic Psychiatric Institute. [ 8 ] THE ACCUSED: Too bad then, too bad, man, too bad. [ 9 ] THE COURT: So I am going to now proceed in relation to a determination of whether or not the case has been made out prima facie by the Crown. [ 10 ] THE ACCUSED: Postpone, postpone, postpone, that's one sooner or later going to get it at the end. [ 11 ] THE COURT: Shortly after 3:00 p.m. on February 22nd of 2012, Mr. Skaley . . . [ 12 ] MR.

HENDERSON: He's giving a decision now. [ 13 ] THE ACCUSED: He's what? [ 14 ] MR. HENDERSON: He's giving his decision. [ 15 ] THE ACCUSED: He's postponing. [ 16 ] MR. HENDERSON: No, he's making a decision right now. [ 17 ] THE ACCUSED: Oh, okay. [ 18 ] THE COURT: Mr. Skaley was at a Waves Coffee Shop on East Hastings in Vancouver having a coffee. A CCTV video captured the actions that took place between Mr. Skaley and a person I am satisfied beyond a reasonable doubt was Mr. Amer. [ 19 ] Mr. Amer came into the coffee shop to an elevated portion of the coffee shop and sat down next to Mr. Skaley.

They were the only two individuals in the upper portion of the coffee shop. As revealed by the CCTV depiction, after a short period of time Mr. Amer withdrew a knife from the sleeve of his hoodie, came over the top of Mr. Skaley and stabbed Mr. Skaley in the chest area, which on the medical evidence indicated that the knife point came within one millimeter of piercing the heart sac. The depiction also revealed that Mr. Amer pushed down on the knife on top of Mr. Skaley, and then Mr. Amer went back to his seat next to Mr. Skaley. [ 20 ] Mr.

Skaley got to his feet and walked to an area of the coffee shop where assistance was rendered. There was no effort by Mr. Amer to give flight. Indeed, if anything, he was cooperative with the staff, other than I find he wanted to go outside to have a cigarette, but otherwise remained for police authorities. [ 21 ] The police arrived within several minutes of the stabbing and rendered assistance to Mr. Skaley. Other police officers attended to Mr. Amer. He was arrested and removed from the coffee shop and taken outside. Various officers dealt with him at this point.

In particular Constable Bridges, who was dispatched to the coffee shop, performed the arrest at 3:18 in the afternoon. He testified that Mr. Amer appeared to be in shock, and that he appeared to display some mental health issues, though he had no idea what those might be about. [ 22 ] In the words of Constable Bridges unsolicited statements were made by Mr. Amer at that time, which included: "Why is he not dead? The old man is not dead. Why did he not die? I stabbed him in the heart.

Yesterday they took me to the hospital because I said I was going to do this." [ 23 ] Also unsolicited he stated: "I'm not really sorry, I wanted to kill him. I put it into the heart and it didn't even work. I can't do nothing. I want to go to Saskatchewan." [ 24 ] Also unsolicited he stated: "So I killed him. I didn't kill him. If I did I would be in heaven." [ 25 ] There was mention by Mr. Amer that he was "six years overtime," and that it was "too late, it did not work, what am I supposed to do?"

[ 26 ] There was also a statement made by Mr. Amer with respect to him being "sectioned," as he put it, the day before at St. Paul's Hospital. I heard evidence with respect to two occasions that Mr. Amer was taken to the hospital and discharged within 24 hours of the stabbing of Mr. Skaley. [ 27 ] I find that at the roadside Mr. Amer was dealt with in a humane and respectful manner.

He provided various statements to the police and later to guard authorities who had custody of him and through that chain of custody in the voir dires that were conducted, I was satisfied that the statements that he made against interest were admissible and were introduced into evidence. [ 28 ] There was also an extensive interview at the police station conducted by the police, which further implicated Mr. Amer with respect to the stabbing. [ 29 ] Constable Kevin Stephens was also one of the attending officers at Waves. He overheard an unsolicited statement given by Mr. Amer in part of which Mr.

Amer stated: "The knife wasn't long enough." [ 30 ] Mr. Amer was invited at the close of the Crown's case to testify. He gave some brief evidence, of which little weight can attach to it. I agree with amicus that it must still be weighed, however, because he did say that he did not intend to do it with respect to the specific intent to murder. However, any evidence given by Mr. Amer was not subject to any cross-examination, and he of his own volition exercised his right to silence by refusing to testify any further.

On several occasions he attempted to leave the witness box against the court request that he remain in the witness box. He cooperated to a certain extent with the court, and it became clear Mr. Amer had lost any appetite to testify and he was excused from the witness box. [ 31 ] At two o'clock, I was advised by Jack Bibby, Forensic Court Worker, that Mr. Amer had received some medication. As I have already ruled I find that the administration of that medication did not impact on his ability to appreciate what was taking place in this courtroom. I notice he is nodding his head in agreement. [ 32 ] If anything, Mr.

Amer simply wants to get this done. However, that is not my task, rather it is to determine whether or not Crown has established proof with respect to the specific intent to commit murder. Position of the Parties [ 33 ] Ms. Keeley takes the position that there cannot be any issue with respect to the actus reus and that the CCTV video was clearly powerful evidence as to what took place at the Waves Coffee Shop. That the thrust of the knife was purposeful and the added action of the accused in stabbing over the victim and pressing it into the chest.

The medical evidence that the knife missed piercing the heart sac by one millimeter. That the statements of the accused post offence would also support the Crown theory that a prima facie case of specific intent and the actus reus have been met in relation to attempted murder. [ 34 ] I heard from amicus, who indicated that the court must be mindful that this was a single stab wound and not a variety of stab wounds, that are often the case in many stabbing cases. That it was a single thrust and then a push on the knife, but nothing further. That there was no attempt of flight by Mr. Amer.

That he waited for the police. That Mr. Amer did testify today with respect to his intention, though that evidence has got to be balanced by the fact that it was not subject to cross-examination. [ 35 ] Authorities were brought to the court’s attention to provide some guidance with respect to matters of this sort, in particular with respect to the intent as to whether it amounts to an attempt murder or one of the lesser offences as defined in Ancio by Mr. Justice McIntyre, including the various assault offences that are available.

Analysis [ 36 ] To establish attempt murder it is incumbent on the Crown to satisfy the court of proof beyond a reasonable doubt of the specific intent to kill. No lesser mens rea will suffice, and in particular a conviction under s. 239 of the Criminal Code may not be based on any lesser intent.

It is also the case that we do not live in an area of law where every aspect of the case must be examined for some sort of intellectual conclusion, but use our cumulative common sense with respect to what takes place and make findings of fact. [ 37 ] In this particular case I find the evidence to be reliable in relation to the CCTV video that I observed. I accept that evidence. That does establish that Mr. Amer was seated next to Mr. Skaley, that he removed the knife that had been concealed in the sleeve of his hoodie, that he came over top of Mr.

Skaley and thrust the knife into his chest area. [ 38 ] I am also satisfied from the medical evidence that I have heard that this knife thrust came within one millimeter of piercing the heart sac and that the evidence does establish beyond a reasonable doubt that had that knife pierced the heart sac in all likelihood death would have ensued by a rapid bleed out of the victim. [ 39 ] I have admitted into evidence statements given by Mr. Amer. I find that when he was dealt with throughout by the police or guard authorities or other persons in authority he was dealt with respect and humanity.

I am particularly persuaded by statements he made at the roadside when he was being dealt with by the police and I find that evidence to be acceptable, reliable evidence as to what took place. [ 40 ] Would you stand, please, sir. [ 41 ] I am satisfied on the evidence before me that the case presented by the Crown does establish beyond a reasonable doubt that prima facie the Crown has proven both the subjective and objective element of attempt murder, in relation to Count 1 of the indictment before this court.

However, before there is to be a registration of a guilty finding for attempt murder a determination must be made in relation to the extent of your criminal responsibility. (REASONS CONCLUDED)