R. v. Rashid, 2023 BCSC 438

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Rashid, 2023 BCSC 438 Date: 20230125 Docket: 31529-2 Registry: Vancouver Rex v. Yasin Jemal Rashid Before: The Honourable Mr. Justice N. Smith Oral Reasons for Judgment Counsel for the Crown: M.E. DonnellyCounsel for the Accused: A.C. Nelson J.L. DawkinsPlace and Dates of Trial: Vancouver, B.C. June 1, 2021 April 11, 2022 November 16-18, 21-24 & 30, 2022 December 1, 6, 8, 12-13, 2022Place and Date of Judgment: Vancouver, B.C. January 25, 2023 [1] THE COURT: Yasin Rashid fatally stabbed Kyle Gabriel on September 10, 2019.

He now seeks a finding that he was notcriminally responsible by reason of mental disorder (NCRMD). Subject to that question, the Crown has otherwise proved the essentialelements of the offence of second degree murder. [2]

Section 16 of the Criminal Code, R.S.C. 1985, c. C-46, provides that a person is not criminally responsible for

an act committedwhile suffering from a mental disorder that made them either incapable of appreciating the nature and quality of the act or incapable ofknowing that it was wrong. [3] There is little doubt that Mr. Rashid was suffering from a mental disorder on the day Mr. Gabriel was killed, and Mr. Rashiddoes not suggest that disorder made him incapable of appreciating the nature and quality of his actions. The issue is whether it made himincapable of knowing it was wrong.

Section 16 requires Mr. Rashid to prove that incapacity on the balance of probabilities. [4] The question of criminal responsibility may be raised at the conclusion of a trial where the essential elements of the offence havebeen proved beyond a reasonable doubt but a conviction has not yet been entered: R. v. Swain, (SCC), [1991] 1 S.C.R.933, at paras. 70, 71 and 184. That is the procedure that was followed here. [5] This case first came on for trial on June 1, 2021. The evidence at that time consisted entirely of admissions setting out thecircumstances surrounding Mr.

Gabriel's death, including the interactions between him and Mr. Rashid, and the forensic evidenceimplicating Mr. Rashid. On the basis of that evidence, I found that the Crown had proved the essential elements of the offence. Defencecounsel advised that the issue of criminal responsibility would be raised, and the trial was adjourned for that purpose. It resumed onNovember 16, 2022. [6] On the date of the offence, Mr. Rashid and Mr. Gabriel were both residents of Watson House, a residential facility operated byVancouver Coastal Health in the West End of Vancouver.

It houses up to eight young adults with psychiatric diagnoses and is intendedto help them transition from in-patient psychiatric care to more independent living. [7] At about 8:00 p.m., another resident, Kimby Santos, saw Mr. Rashid and Mr. Gabriel in Mr. Gabriel's bedroom on the third floorof the house. They were seated on Mr. Gabriel's bed, and it appeared to Ms. Santos that they were praying together. She did not seeanyone else on the third floor at the time. Five or 10 minutes later, Rebecca Chapman, a mental health worker employed at the house,heard loud screams and shouts from upstairs. Mr.

Rashid came running down the stairs into the kitchen, then fled out the back door. Ms.Chapman described him as looking shocked and wide-eyed. At the resumed trial, she described him as looking like a “rabbit in theheadlights”. [8] Mr. Gabriel then came down the same stairs shouting, "Oh, my God," and holding on to the side of his neck which was bleeding

profusely. He collapsed on the kitchen floor. Ms. Chapman called 9-1-1. When paramedics arrived, Mr. Gabriel was in cardiac arrest as a result of blood loss. He was taken to hospital but did not regain consciousness. Resuscitative efforts were discontinued and he was pronounced dead at 10:46 p.m. Post-mortem examination revealed numerous stab wounds in the neck and torso, with death attributed to hemorrhage and associated internal injuries caused by a deep stab wound to the chest. [ 9 ] Police who arrived at Watson House followed a trail of blood up the stairs from the kitchen to Mr.

Gabriel's room where they found a bloodied knife on the floor. This knife had apparently been taken, at some point, from a knife block in the kitchen. [ 10 ] On the evening of September 11, 2019—a little more than 24 hours after the stabbing—Mr. Rashid returned to the street outside Watson House and tried to lift the police tape surrounding the house, saying he wanted to go to sleep. When confronted by a police constable stationed there, Mr. Rashid became agitated and ignored commands.

He resisted efforts to take him into custody and his arrest ultimately required several police officers using bean-bag shotguns and a police dog. [ 11 ] DNA analysis subsequently confirmed that the blood on the knife found in Mr. Gabriel's room, as well as blood that had stained various surfaces in the house, was Mr. Gabriel's. Mr. Gabriel's blood was also identified on the jacket Mr. Rashid was wearing at the time of his arrest. Mr. Rashid's DNA was found on the handle of the knife and on a glass that was in Mr.

Gabriel's bedroom. [ 12 ] I found that all of the circumstantial evidence supported a finding beyond a reasonable doubt that Mr. Rashid was the person who stabbed Mr. Gabriel and caused his death. Defence counsel concedes that was the only reasonable inference to be drawn from the evidence. [ 13 ] The evidence at the resumed trial included some further admissions, testimony of witnesses who dealt with Mr. Rashid in the months, days and hours leading up to the offence, and two expert psychiatric witnesses. [ 14 ] The evidence related to Mr.

Rashid's mental health begins on March 22, 2018, when he was brought to the emergency department at St. Paul's Hospital in Vancouver and then admitted to hospital on an involuntary basis under the Mental Health Act , R.S.B.C. 1996, c. 288 . He was having persecutory delusions, believing that he was being followed by people who were trying to kill him, and auditory hallucinations that he was hearing the voice of God. Drug testing was positive for cocaine, amphetamines and marijuana. [ 15 ] This was Mr.

Rashid's first known involvement with mental health professions, but he had immigrated to Canada from Ethiopia and no previous medical history was available from there. There was also no collateral information or history about his early life available from family members. Such information can be important for purposes of psychiatric assessment, but remained absent through trial. [ 16 ] At hospital, Mr. Rashid was treated with Risperidone, an anti-psychotic medication. This was later replaced by Paliperidone, an anti-psychotic medication that can be administered by monthly injection.

He remained in hospital for almost two months, and his condition had improved by the time he was discharged on May 17, 2018. However, his discharge was on the basis of “extended leave”, meaning that he was still subject to involuntary treatment under the Mental Health Act and could be re-hospitalized at the discretion of the treating psychiatrist. The discharge diagnosis was schizophrenia. [ 17 ] After his release from hospital, Mr.

Rashid came under the care of the Early Psychosis Intervention (EPI) team, a multidisciplinary mental health team that specialized in supporting individuals between the ages of 19 and 30 who have had their first episode of psychosis. Kathleen Pennykid, a psychiatric social worker, was his case manager, and Dr. Nicole Tsang was the treating psychiatrist. [ 18 ] Mr. Rashid was initially transferred from hospital to a transitional residential facility called Duke House, but moved to Watson House on August 7, 2018.

He expressed reluctance to move there because he believed its location in the West End would bring him closer to the men who were after him, including one he referred to as “the Chief”. He reported low mood and disrupted sleep, but his condition improved after Dr. Tsang increased the dosage of his medication. [ 19 ] During her dealings with him, Ms. Pennykid found Mr. Rashid to have very little insight into his illness. He did not believe there had been a reason for his hospitalization and did not think medications did any good. "Most of the time when we saw symptoms, he didn't see them as symptoms," Ms.

Pennykid said. "He thought they were completely rational." He routinely missed appointments with the treatment team, although he would often have a Watson House staff member to call to say he would not attend. [ 20 ] Ms. Pennykid testified that the primary symptoms sometimes noted was paranoia. The treatment team generally had difficulty separating what appeared to be paranoid delusions from concerns based on real past events. Dr. Tsang eventually concluded that there was likely a kernel of truth in Mr. Rashid's concerns. [ 21 ] Dr. Tsang diagnosed an “unspecified psychotic disorder”. Like Ms.

Pennykid, she testified that Mr. Rashid did not have good insight into his illness and generally did not believe he needed treatment. However, she said he was generally stable throughout the time she was seeing him. [ 22 ] Mr. Rashid became increasingly reluctant to continue with his monthly injections of anti-psychotic medication. After his last injection on June 28, 2019, Dr. Tsang agreed to discontinue them. Dr.

Tsang testified that, in the absence of the next injection that would otherwise have been in late July, the level of the drug in his system would have slowly decreased. [ 23 ] In discontinuing the medication, Dr. Tsang believed there were sufficient supports in place through Watson House and the EPI team that any return of symptoms could be recognized in time and medications resumed. She last saw Mr. Rashid on August 16, 2019. [ 24 ] Genovessa MacDonald was a mental health worker at Watson House. She and Ms.

Chapman worked five days a week on rotating daytime and early evening shifts, often overlapping for a few hours. Ms. MacDonald said that during his time at Watson House, Mr. Rashid would sometimes be irritable and could become frustrated with staff or other residents.

[ 25 ] Ms. Chapman said that Mr. Rashid mostly kept to himself and did not engage much in the group activities at Watson House. He would respond to questions that the staff asked but spent most of his time out of the house. Both workers noted that there was a language barrier when dealing with Mr. Rashid, as English was not his first language and he was difficult to understand. [ 26 ] Mr. Gabriel moved into Watson House in July 2019. Ms. MacDonald characterized his relationship with Mr. Rashid as friendly, but not close. At one point, there appeared to be disagreement about whether Mr.

Gabriel had paid for a hat he had purchased from Mr. Rashid. On at least one other occasion, Mr. Rashid became upset when Mr. Gabriel would not share food with him. [ 27 ] Humberto Mendez lived in a building across the street from Watson House and met Mr. Rashid in November 2018. They became friends and, for the next few months, would see each other every two or three days. During their acquaintance, Mr. Mendez knew Mr. Rashid to frequently smoke crystal methamphetamine. He kept his pipe and wrapping paper (but not the drugs) in a drawer in Mr. Mendez's apartment. He would also smoke marijuana outside of Mr.

Mendez's building. [ 28 ] In the weeks preceding the death of Mr. Gabriel, Mr. Mendez began to see Mr. Rashid less frequently and noticed changes in his behaviour and appearance. He became less friendly, less polite, and less talkative. He began to dress more casually, cut his hair and lost weight. [ 29 ] At around the end of August 2019, Mr. Mendez said Mr. Rashid told him that he had smashed his cellular phone because someone had “put something on it to spy on him.” After Mr. Mendez lent him another phone, he said Mr. Rashid accused him of planting something on it. Mr.

Rashid spoke about a symbol on the phone, but Mr. Mendez did not understand what he was talking about. On a later occasion, Mr. Rashid asked Mr. Mendez if he was recording his conversations. Mr. Mendez joked that Mr. Rashid was not important enough for anyone to record his conversations. Because Mr. Mendez was by then not seeing Mr. Rashid as frequently, he could give no evidence about his drug use during that period. [ 30 ] In retrospect, the changes noted by Mr. Mendez appear to coincide with the diminishing level of medication in Mr. Rashid's system that Dr. Tsang described. [ 31 ] On September 9, 2019, Mr.

Rashid went to the apartment that Mr. Mendez shared with his partner and asked if he could stay the night. Mr. Mendez does not recall exactly what Mr. Rashid said, but believes it was something to the effect that he did not feel well, or did not feel safe, or thought something bad was going to happen. He complained of a headache. [ 32 ] Mr. Rashid spent most of the evening in the apartment's bedroom with the lights off, wearing headphones, sunglasses and a “hoodie” over his head. When Mr. Mendez's partner wished to go to bed, Mr. Rashid moved to the balcony. [ 33 ] In the early morning hours, Mr. Rashid told Mr.

Mendez about hearing voices. It is not clear whether he was talking about voices he was hearing at the time or that he had heard overnight, but when Mr. Mendez questioned him, Mr. Rashid said he could not talk about the voices because it would give them more power. [ 34 ] At around 6:00 a.m., Mr. Rashid said he wanted to go home, but Mr. Mendez suggested they go for coffee. After they left the apartment, they sat outside and Mr. Rashid said something to the effect of, "Why am I not normal?,” “Why is this happening again?" or "Why can't I have my life back?" Mr. Rashid also said that Mr.

Mendez and his partner were the only people who cared for him and, "I would never hurt you." Mr. Mendez suggested they go to hospital, but Mr. Rashid said he was fine. [ 35 ] As they were about to go for coffee, Mr. Rashid said that he had to go home to get a jacket, although he was already wearing one he had borrowed from Mr. Mendez. They agreed to meet at the coffee shop, but Mr. Rashid never arrived there and Mr. Mendez tried but failed to contact him. [ 36 ] Ms. MacDonald saw Mr. Rashid in Watson House at 10:15 a.m., when he came downstairs from his bedroom.

She testified that he seemed tired but otherwise normal. She reminded him of an appointment that he had to see the EPI team. She reminded him again about the appointment that afternoon, but he said he would not be going. Such cancellations were not unusual for him, but Ms. MacDonald told him he needed to speak to Ms. Pennykid about it. [ 37 ] When she spoke to Mr. Rashid by telephone, Ms. Pennykid became concerned. He was whispering, which was unusual for him.

He said that he believed information about him was being shared online, that he saw a friend staring at him in an accusatory manner, and that he thought someone was trying to harm him. [ 38 ] At Ms. Pennykid's request, Ms. MacDonald spoke further to Mr. Rashid. He told her he had smoked crystal methamphetamine the night before, and he thought the person he had smoked it with had been filming or taking photos of him. Ms. MacDonald asked Mr. Rashid if he intended to hurt himself or anyone else, and he said he did not. [ 39 ] Mr. Rashid's statement to Ms.

MacDonald about using crystal methamphetamine the night before is not consistent with the evidence of Mr. Mendez, who had been with him at the time. But, based on that statement, Ms. MacDonald thought he was probably coming down from the drug's effects. When she suggested that he get some sleep, Mr. Rashid said he could not sleep in his room. He first said something Ms. MacDonald understood as a reference to seeing things in his room, but he clarified that to say he became uneasy when his room was too dark. He did not report any specific hallucinations. [ 40 ] After hearing about that conversation from Ms.

MacDonald, Ms. Pennykid said staff needed to keep an eye on Mr. Rashid and gave further instructions about what steps to take if his condition deteriorated further. [ 41 ] Later that afternoon. Mr. Rashid told a new resident of the house, Meweal Welegaray, that he had not slept for about two days. A few minutes later, Mr. Welegaray noticed that Mr. Rashid seemed to be mumbling to himself, but Mr. Rashid became angry when Mr. Welegaray asked him what he had said. [ 42 ] At about the same time Ms. Chapman saw Mr. Rashid for the first time that day. She thought he looked “unwell” and seemed

lethargic. Unable to contact Ms. Pennykid, Ms. Chapman contacted the Access and Treatment Centre at Vancouver General Hospital and was advised there was no concern as long as Mr. Rashid was coherent and communicating. She told Mr. Rashid to try to relax, to go to his room, and let the methamphetamine withdrawal run its course. [ 43 ] At 7:20 p.m., Ms. Chapman saw Mr. Rashid and Mr. Gabriel in the kitchen of Watson House. Mr. Gabriel made coffee and offered some to Mr. Rashid. Ms. Chapman said Mr. Rashid was slow to respond, and Mr. Gabriel had to repeat the offer a couple of times before Mr.

Rashid gave a responsive answer. She then saw them walk out the front door and assumed they were going to smoke cigarettes. [ 44 ] Ms. Chapman then left the house on an errand, which she testified she would not have done if she had any concerns. She returned shortly before she heard the noise from upstairs, saw Mr. Rashid come down the stairs and leave the house, and saw Mr. Gabriel come downstairs bleeding. [ 45 ] It is necessary here to briefly mention the use that can be made of statements witnesses attribute to Mr. Rashid.

Such statements are hearsay and not evidence of the truth of facts stated, but in some circumstances may be evidence of a person's state of mind at the time. In R. v. Rogers , 2017 BCSC 1410 , at para. 91 , Justice Myers adopted the following from R. v. Fell , [2003] O.J. No. 1145 (Ont. S.C.J.) : 434 Statements of a preposterous nature may be admissible as original evidence to prove the mental state of a person, and specifically that the person is not criminally responsible.

Statements by an accused, for example, that he is the victim of persecution, or that he hears voices issuing commands to him constitute original evidence that he suffers from delusions or is hallucinating. The evidence is not offered as proof of any fact asserted in them, and so is not hearsay.

It is important in this case to note that what is contemplated by this paradigm are statements that may reveal the mental condition of an accused at the time when those statements are made, which in turn may be circumstantial evidence of the mental condition of that accused at an earlier or later time, namely the time when the offence occurred.

Of course, a statement of an accused that he experienced delusions or hallucinations at some time in the past is hearsay, and inadmissible, because it is then led as proof of the assertion contained in it that the accused experienced these symptoms at an earlier time. … [ 46 ] Where Mr. Rashid has made statements indicating paranoia, such as the belief stated to Mr. Mendez that he was being spied on through his cellphone, I have considered those as “preposterous” statements that is evidence of his state of mind at the time. Other statements to witnesses about his contemporaneous state of mind, such as telling Ms.

MacDonald that he did not want to hurt himself or anyone else, are admissible as evidence of his state of mind but, for reasons set out in the psychiatric evidence to follow, may not be entitled to much weight. Statements about his specific activities, such as his statement to Ms. MacDonald that he had used drugs the night before the murder, are not admissible to prove the truth of those facts. [ 47 ]

Section 16 of the Criminal Code reads: 16

(1) 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.

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue. [ 48 ] For purposes of s. 16 , “mental disorder” does not include a condition that results exclusively from self-induced intoxication: R. v. Bouchard-Lebrun , 2011 SCC 58 , at para. 85 . [ 49 ] In R. v. Klein , 2021 BCSC 743 , at para. 10 , Associate Chief Justice Holmes adopted the concise

summary of the effect of s. 16 set out in R. v. Dobson , 2015 ONSC 2865 : [64] Section 16(2) of the Criminal Code enacts a presumption of criminal responsibility. Everyone is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility. The presumption is not that persons do not suffer from a mental disorder simpliciter but, rather, that they do not suffer from a mental disorder of sufficient magnitude or gravity that they are exempt from criminal responsibility on that account.

Stated positively, the presumption is that everyone is criminally responsible for their conduct. [65] Section 16(2) goes beyond a mere statement of the presumption. The subsection makes it clear that the presumption it creates is rebuttable. And it states the standard of proof to be met in rebuttal: the balance of probabilities. Section 16(3) assigns the burden of proof to the party who seeks to rebut the presumption

section 16 creates. [66] Section 16(1) defines the scope of the exemption from criminal responsibility provided by mental disorder. The exemption has two components: the first is a condition , mental disorder. The second is an incapacity associated with that condition. On its own, a mental disorder does not exempt anyone from criminal responsibility. A mental disorder only exempts from criminal responsibility if it renders a person incapable of appreciating the nature and quality of

an act or omission, or incapable of knowing that the act or omission was wrong. {Emphasis in original.] [ 50 ] The Crown and defence agree that Mr. Rashid was suffering from a mental disorder at the time of the offence, but regardless of their positions, the court must be satisfied that the requirements of s. 16(1) are met: R. v. D.L.B. , 2022 BCCA 15 , at para. 43 . [ 51 ] Two forensic psychiatrists gave opinion evidence. Dr. Shabehram Lohrasbe was called by Mr. Rashid, while Dr. Sam Iskander was called by the Crown. Both reviewed records from before and after the offence and both interviewed Mr. Rashid—Dr. Lohrasbe on

February 23, 2022; and Dr. Iskander on October 9, 2022. [52] There was a great deal on which the two psychiatrists agreed. Both were hampered by gaps in information. Both found Mr.Rashid's self-reporting of history and symptoms to be inconsistent and unreliable. In both interviews, Mr. Rashid denied any recollectionof the offence and gave no information about his thoughts and feelings about Mr. Gabriel. [53] Dr. Lohrasbe testified that his psychiatric assessment was complicated by the greatest number of confounding factors that he hasever dealt with.

Those factors included the language barrier, possible cultural differences, a lack of developmental history, the impact ofimmigration and acculturation, unusual and variable clinical presentation, unreliable reporting of history and symptoms, and the possiblecontribution of substance abuse to psychotic symptoms. Dr. Iskander said he faced similar limitations. [54] However, based on the medical records and evidence from other witnesses, both psychiatrists believe Mr. Rashid to have beenmentally disordered with psychotic symptoms prior to the offence, with some waxing and waning of symptoms. Dr.

Lohrasbe said it isnot unusual for the intensity of psychotic symptoms to wax and wane, and those changes can sometimes occur quite rapidly. The term“psychosis” refers to a disconnection from reality, but describes symptoms rather than a specific diagnosed condition. [55] Dr. Lohrasbe said that paranoia was the “centrepiece” of Mr. Rashid's psychosis and is a psychotic symptom associated withviolence. He said Mr. Rashid was capable of focussing paranoia on friends, such as Mr. Mendez, and also apparently believed the threatto be associated with Watson House.

He said all of that is sufficient to “strongly suggest” paranoid psychotic symptoms were the primaryfactor in the offence, but acknowledged that there was “an insurmountable gap” about whether, when or how Mr. Rashid's paranoiafocussed specifically on Mr. Gabriel. [56] Dr. Iskander testified that impairment or psychosis in a specific domain does not automatically indicate global impairment or acomplete inability to act rationally in all circumstances. In evidence similar to that given by Dr. Lohrasbe, he said it is important tounderstand how the psychiatric symptoms may have informed the act at issue. Here, Dr.

Iskander faced the same gap in information thatconfronted Dr. Lohrasbe. [57] Dr. Iskander did not believe that the psychotic symptoms were caused by substance abuse, although drug use over time was likelya contributing factor. He said the description of Mr. Rashid's agitated and aggressive appearance and conduct at the time of his arrestwas markedly different from how he was described on the day of the offence and is consistent with the use of crystal methamphetamineafter the homicide. [58] All of the evidence, including the evidence of Dr. Lohrasbe and Dr. Iskander, supports a finding that Mr.

Rashid was sufferingfrom a mental disorder in the period leading up to the offence. That evidence includes the paranoid state of mind exhibited in thestatements made to Mr. Mendez in the weeks preceding the offence, and statements to Ms. Pennykid and Ms. MacDonald on the day inquestion, as well as the behaviour observed by Mr. Mendez the night before the offence. It is also significant that previously notedpsychotic symptoms re-emerged within a few weeks after the discontinuance of anti-psychotic medication. [59] Although long-term drug use may have played some role in Mr.

Rashid's condition, there is no evidence that his symptoms werecaused exclusively by self-induced intoxication. Indeed, there is no admissible evidence that Mr. Rashid used any drugs at all in the 24hours or so preceding the offence. [60] I therefore find that Mr.

Rashid was suffering from a mental disorder at the time of the offence, but the central question relates tothe specific relationship between that disorder and the offence. [61] The presumption and burden of proof set out in s. 16 means that an accused seeking to rebut the presumption of criminalresponsibility must show that it was more likely than not that a mental disorder rendered them either incapable of appreciating the natureand quality of their act or incapable of knowing it was wrong. Here, Mr. Rashid relies only on the second branch of the test—incapacityto know the action was wrong. [62] Dr.

Lohrasbe acknowledged that to be a legal question for the court that does not directly correlate with psychiatric diagnosis.However, from a psychiatric perspective, Dr. Lohrasbe could go no further than saying incapacity was “possible” and that Mr. Rashidwas “in the ballpark” of people who met the legal test. He said it was very unlikely that Mr. Rashid maintained a normal moral compassat the time of the offence, but said he could not comment on the degree of that distortion. [63] Dr.

Iskander also said it is the job of the court, not the psychiatrist, to answer the question of criminal responsibility, but when aperson is able to describe their perception of the circumstances of the offence, the psychiatrist can provide an opinion about whether thatis consistent with mental disorder. In the absence of any such information directly or indirectly from Mr. Rashid, Dr. Iskander said thatthere was insufficient psychiatric evidence on which to form any opinion on whether Mr.

Rashid was capable of knowing his actionswere wrong. [64] The question is not on the accused's general capacity to know right from wrong, but on the ability to know that a particular actwas wrong in the circumstances. The accused must possess the intellectual ability to know right from wrong in an abstract sense, butmust also possess the ability to apply that knowledge in a rational way to the alleged criminal act. The question is whether mentaldisorder at the time of the act deprived him of the capacity for rational perception, and hence, a rational choice about the rightness orwrongness of the act: R. v.

Oommen, (SCC), [1994] 2 S.C.R. 507, at paras. 21 and 30. [65] In this context, “wrong” refers not just to legal wrongfulness, but moral wrongfulness according to the ordinary moral standardsof reasonable members of society: R. v. Chaulk, (SCC), [1990] 3 S.C.R. 1303, at para. 97. [66] In R. v.

Dobson, 2018 ONCA 589, leave to appeal to SCC ref’d, 38531 (27 June 2019), the Court said at para. 24: [24] In my view, Oommen, as interpreted in the judgments of this court, holds that an accused who has the capacity to know thatsociety 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, anaccused who, through the distorted lens of his mental illness, sees his conduct as justified, not only according to his own view, but alsoaccording to the norms of society, lacks the capacity to know that his act is wrong. That accused has an NCR defence.

Similarly, anaccused who, on account of mental disorder, lacks the capacity to assess the wrongness of his conduct against societal norms lacks thecapacity to know his act is wrong and is entitled to an NCR defence. [67] The crux of the inquiry is therefore whether the accused lacks the capacity to decide whether the act is right or wrong and thecapacity to make a rational choice about whether to do it. Such incapacity may result from delusions that make the accused perceive anact that is wrong as right or justifiable: R. v.

Schoenborn, 2010 BCSC 220, at para. 34. [68] To use the example referred to in Chaulk at para. 97, a person suffering from a mental disorder may know that it is legallywrong to kill, but believe it was not morally wrong in a specific case because they were acting in response to a divine order. [69] Even if

an act was motivated by a delusion, the accused will be convicted if he was capable of knowing in spite of that delusionthat the act in the particular circumstances would have been morally condemned by reasonable members of society: R. v. Ratti, (SCC), [1991] 1 S.C.R. 68, at para. 20. [70] From those and other cases, it is clear that, in order for the court to find the accused was incapable of knowing

an act was wrong,there must be some evidence from which the court can draw inferences about the accused's state of mind and beliefs at the time and inthe circumstances of that act. It is difficult to draw such inferences solely from the accused's conduct and statements in the hourspreceding the offence if the mental disorder is known to be one where symptoms wax and wane. [71] In R. v. O.V., 2013 BCSC 52, the accused fatally stabbed his estranged spouse.

The trial judge was satisfied that the accused wassuffering from a delusional disorder, but said there was no evidence to support the assertion he was incapable of knowing the action waswrong. In dismissing an appeal at 2015 BCCA 449, the Court of Appeal referred at para. 28 to an evidentiary gap similar to what existshere: [28] This evidence is also notable: the appellant was unable to recall his state of mind at the time of the stabbing.

Therefore, neitherpsychiatrist could reach any firm conclusion about the appellant’s capacity to appreciate the nature and quality of his actions or to knowhis actions were wrong. In addition, and important to the issue of intent, neither expert could say whether the delusional disorder wouldeven have had any meaningful effect on the appellant’s state of mind when he stabbed the deceased. [72] In most criminal proceedings, the accused is not required to testify or to provide any evidence at all because the Crown has theburden of proving all elements of the offence beyond a reasonable doubt.

That does not necessarily apply to a consideration of whetheran accused was NCRMD because the burden of proof is on the accused, albeit on the lower standard of balance of probabilities. Thecourt must be able to draw an inference about what or was not likely going on in the accused's mind at the time of the offence. Theaccused may be the only person from whom evidence to support that inference is available. In R. v.

K.W., 2002 BCCA 131, the Court ofAppeal said at paragraph 54: [54] It was suggested, though not much developed in argument, that to require the appellant to testify would somehow infringe hisrights under the Charter of Rights and Freedoms. I do not accept that submission. In some cases, such as R. v.

Oommen, (1994) (SCC), 91 C.C.C. (3d) 8, (S.C.C.), a case referred to by the trial judge, it may be that there would be no requirement for anaccused to testify on an NCRMD issue because there would be evidence from what was said and done by the accused person around thetime of the events capable of affording a factual foundation upon which experts could be entitled to arrive at opinions as to the mentalstatus at the relevant time of the accused person. However, in other cases it might be necessary for an accused to take the stand to testifyas to what he did or believed. … [73] Mr. Rashid did not testify.

There is therefore no direct evidence about his attitude toward Mr. Gabriel or what was in his mind atthe time of the stabbing. He did not offer any such information to the psychiatrists to allow them to assist the court with a firm opinion.Even if he had said something to the psychiatrists, that evidence would have been entitled to little weight if not confirmed by Mr.Rashid's own testimony: R. v. Abbey, (SCC), [1982] 2 S.C.R. 24. [74] There is no indirect evidence capable of filling that gap. There is no evidence from any other witness about anything Mr.

Rashidmight have said or done at the actual time or immediately before he stabbed Mr. Gabriel. Such evidence, if it existed, might have offeredsome insight into Mr. Rashid's thinking at the critical time. [75] There is evidence that he was at least intermittently psychotic in the hours leading up to the offence and that he was capable ofparanoid delusions, but there is no evidence of such delusions being specifically focussed on Mr. Gabriel in the way they were at onepoint focussed on Mr. Mendez. [76] There is some evidence of paranoia being focussed generally on Watson House but, as Dr.

Iskander points out, that does notexplain why Mr. Gabriel was singled out. Mr. Rashid's shocked appearance and his flight from the scene, although certainly notconclusive, does not appear consistent with a lack of understanding of wrongfulness. [77] The evidence is that, shortly before the offence, Mr. Rashid and Mr. Gabriel were interacting in a normal, friendly, or at leastnon-hostile manner. Something obviously changed Mr. Rashid's attitude, but there is simply no evidence about what that was. [78] Dr. Lohrasbe said it was unlikely that Mr.

Rashid maintained a normal moral compass, but was forthright in acknowledging thathe could not comment on the extent of the abnormality. An imperfect moral compass is not necessarily the same as an absent one. [79] I agree with Dr. Lohrasbe that it is possible, based on general knowledge of what can result from a similar psychotic state, thatMr. Rashid's psychosis rendered him incapable of knowing that it was wrong to stab Mr. Gabriel at the time he did it. But Dr. Lohrasbewas also clear that he could go no further than stating that as a possibility.

[ 80 ] If the Crown had the burden of proving criminal responsibility beyond a reasonable doubt, as it must prove all other elements of the offence, that possibility might be sufficient to raise a reasonable doubt, but that is not the test Mr. Rashid must meet.

Section 16 is structured as it is in order to avoid placing the impossibly onerous burden of proving criminal responsibility on the Crown: Chaulk at para. 54 . [ 81 ] Mr. Rashid must show that he was more likely than not to have been incapable of knowing his action was wrong. I cannot find that to be the case because there is a critical gap in the evidence created by the lack of direct or indirect evidence of what was actually going through his mind in the critical moments when he stabbed Mr. Gabriel.

While he had a mental disorder that could have deprived him of the necessary capacity, it would be pure speculation to elevate that possibility to proof on a balance of probabilities. [ 82 ] I therefore must find that, although Mr. Rashid was suffering from a mental disorder, he has failed to rebut the presumption of criminal responsibility, and I am therefore bound to find him guilty of second degree murder. “N. Smith J.”