R v Shylga, 2023 ABKB 583

Court of King’s Bench of Alberta Citation: R v Shylga, 2023 ABKB 583 Date: 20231017 Docket: 220784623Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Victor Shylga Accused _______________________________________________________ Reasons for Judgment of the Honourable Justice Eric F. Macklin _______________________________________________________ I. Introduction [ 1 ] Victor Shygla (Accused) is charged with first degree murder contrary to s 235(1) of the Criminal Code of Canada . On August 13, 2023, the Accused stabbed Sviatoslav Oliynichenko (Slava) in the neck, which caused his death.

The Accused admits that he caused Slava’s death but pleads that he is not criminally responsible as he was suffering from a mental disorder at the time of the offence that rendered him incapable of knowing that his actions were wrong.

II. Agreed Facts [2] On August 13, 2022, the Accused stabbed Slava in the neck, which caused Slava’s death. The stabbing occurred in thebasement of the Accused’s home in Edmonton. The Accused invited to his home Slava and Slava’s girlfriend, Ekaterina Zviagina(Ekaterina). They arrived at approximately 20:00. [3] After spending time in the back yard, all three went inside the home. Ekaterina went to the washroom. The Accused andSlava went to the basement where the Accused stabbed Slava in the neck. When Ekaterina went to the basement, she found Slavableeding profusely from wounds to his neck.

Ekaterina called 911 and a friend, Avi Sianov (Avi), who also called 911. [4] Members of the Edmonton Police Service (EPS) arrived at approximately 21:01, found the Accused, and placed him inhandcuffs. [5] Cst Johnson was the first EPS officer to have contact with the Accused.

He noted the Accused to have a “ratherexpressionless look on his face” and that the Accused was cooperative with police commands. [6] EPS officers went to the basement where they found Ekaterina with Slava, who was lying face down and motionless withsignificant wounds to his neck. [7] The autopsy on Slava’s body confirmed two knife wounds to the back of his neck: one perforated the right jugular vein andthe other partially penetrated the carotid artery and caused disarticulation of the C2 and C3 vertebrae in the neck.

There were alsomultiple blunt force injuries to the face and scalp and an acute traumatic brain injury. The cause of death was determined to be sharpforce injuries to the neck and blunt force injuries to the head. III. The Law [8] The Crown has an onus to establish two things beyond a reasonable doubt in most criminal prosecutions. First, the Crownmust prove the actus reus, that is, the wrongful act of the accused which comprises the physical component of the offence.

Secondly, theCrown must prove the mens rea, that is, the mental element or intent required for the commission of the criminal act. [9] Where a defence of not criminally responsible due to mental disorder is raised, it must first be determined whether the actusreus has been proved beyond a reasonable doubt by the Crown. If the Crown meets its burden of proof with respect to the actus reus, theaccused must prove on a balance of probabilities that a mental disorder exists.

If the accused does not prove a mental disorder exists, thecourt must then consider whether the Crown has proved beyond a reasonable doubt the mens rea for the offence charged.

In other words,the issue of capacity should be considered after the actus reus has been proved and prior to considering whether the Crown hasestablished the mens rea for the offence charged: R v Chaulk, (SCC), [1990] 3 SCR 1303; R v David, , [2002] OJ No 3455 (QL) (ONCA); R v McClenaghan, 2008 ABCA 7, leave to appeal denied [2008]SCCA No 226. [10] Since the Accused has acknowledged that he caused Slava’s death, the actus reus has been established beyond a reasonabledoubt. [11] The Accused pleads that he is not criminally responsible for Slava’s death because at the time he was suffering from a mentaldisorder that rendered him incapable of knowing that his actions were wrong.

The onus is on the Accused to establish this defence on abalance of probabilities.

a) Criminal Responsibility [12] The traditional fundamental principle of the common law is that an individual’s responsibility for criminal behaviour resultsonly from voluntary actions. This important principle is based on a recognition that it would be unfair to impose the consequences andstigma of criminal responsibility on an accused who did not voluntarily commit

an act that constitutes a criminal offence: R v Bouchard-Lebrun, 2011 SCC 58 at para 45. [13] A voluntary act must be the product of a person’s free will. Accordingly, one cannot be found criminally responsible for aninvoluntary act. From a moral perspective, criminal responsibility is attributed where the individual has exercised a “true choice” or hasacted with “free will.” [14] Like voluntariness, the requirement of a guilty mind is rooted in respect for individual autonomy and free will andacknowledges the importance of those values to a free and democratic society.

Criminal liability also depends on the capacity to choose –the ability to reason right from wrong: R v Ruzic, 2001 SCC 24 at para 45. The presumption that arises from this basis for attributingcriminal responsibility is that each individual can ordinarily distinguish right from wrong. [15]

Section 16 of the Criminal Code recognizes that there may be exceptional circumstances that justify departing from thegeneral principle that an accused is deemed to be autonomous and rational. It provides: 16

(1) No person is criminally responsible for

an act committed or an omission made while suffering from a mental disorder thatrendered 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. [ 16 ]

Section 16 addresses the situation where a mental disorder from which an accused is suffering renders that person incapable of appreciating the nature and quality of the act or of knowing that it was wrong. That is, it applies to a person who is not capable of morally voluntary conduct as his or her actions are not the product of free will. In such cases, s 16 exempts an accused from criminal liability. [ 17 ] A finding of a mental disorder leading to a verdict of not criminally responsible does not result in an acquittal of the accused.

Rather, it triggers an administrative process to determine whether the accused poses a significant threat to the safety of the public. If so, necessary actions are taken to control that threat and to provide the accused with appropriate care. A verdict of not criminally responsible on account of mental disorder gives effect to society’s interest in ensuring that morally innocent offenders are treated rather than punished, while protecting the public as fully as possible: Bouchard-Lebrun at paras 46 to 52 .

b) Section 16 Requirements [ 18 ] To successfully establish a defence of mental disorder, an accused must establish on a balance of probabilities that: (

a) he was suffering from a mental disorder in the legal sense at the time of the alleged events; and (

b) due to his mental condition, he was either incapable of appreciating the nature and quality of the act or knowing that it was wrong . IV. Evidence

a) The Accused’s Background [ 19 ] Information concerning the Accused’s background was given in evidence by his sister, Lidiya Shylga (Lidiya), by the Accused in a statement given to the police on August 14, 2022, and through interviews with medical experts by the Accused and his family. [ 20 ] The Accused was 39 years old on the date of the offence. He had been living with his ex-girlfriend, Iana Havina (Iana).

Although the relationship had ended some time prior to August 2022, Iana continued to reside in the Accused’s home until August 12, 2022, but she was not in the home at the time of the incident. [ 21 ] The Accused was born in Mariupol, Ukraine. Lidiya, his only sibling, is three years older. When the Accused was 17, he and Lidiya moved to Israel with their parents joining them about three months later. Lidiya described their home as a loving one with no violence or abuse.

They were a normal, happy family and she described the Accused as a normal, happy child. [ 22 ] Due to language issues in Israel, the Accused had to leave college. He joined the military for three years. Lidiya testified that when the Accused returned, he was a different and more mature person. After the Accused left the Army, he attended college where he studied security systems and began installing them as a business contractor. [ 23 ] In 2013, the Accused moved to Canada.

He worked for a short time as a truck driver in Toronto before relocating to Edmonton where he established a construction and home inspection company. [ 24 ] The Accused uses cannabis every couple of months on average and does not drink alcohol regularly and rarely to excess. [ 25 ] The Accused has no criminal record, no prior involvement with mental health services, and no history of head injuries or seizures. He did recall one period while he was living in Israel when he was “more than depressed” for a period of three weeks after his relationship with a girlfriend ended.

b) The Night of August 13, 2022 [ 26 ] Information relating to the events of August 13, 2022 that resulted in Slava’s death is taken from the Agreed Facts, the statement of the Accused to the police, and the evidence of Ekaterina. There was a minor discrepancy in the evidence given by Ekaterina at trial and her statement to police on August 13, 2022. However, and importantly, the statements she related were made in Russian, which Ekaterina indicated was not always easy to translate into English.

I believe the discrepancies to be insignificant and that Ekaterina did her best to translate the statements she heard as accurately as possible. [ 27 ] The Accused had been one member of a group of friends which included Slava, Ekaterina, Avi, and Avi’s wife Jenny Sianov (Jenny). Iana had also been a member of the group prior to her separation from the Accused. [ 28 ] On August 13, 2022, Slava and Ekaterina were invited by the Accused to the Accused’s home for a visit. They arrived at about 20:00.

Ekaterina stated that it was unusual that Avi and Jenny had not been invited and it was the first time that just the three of them got together. [ 29 ] The three stayed outside on the patio to talk. The men each had one or two beers. Neither of them was intoxicated and no drugs were consumed.

[ 30 ] After 30 or 40 minutes, they decided to go into the house and downstairs to the basement to play darts. Ekaterina went to the washroom. The Accused and Slava went downstairs. [ 31 ] As Ekaterina started down the stairs, she heard a discussion between the two men which sounded as though they were discussing Iana. Prior to that night, the Accused had expressed concern to Ekaterina that Iana had been involved in a relationship with Slava.

Ekaterina believed that they may have been discussing this as she was coming down the stairs. [ 32 ] As Ekaterina waited on the stairs, she heard Slava say the following: “What are you doing?” “Stop, I am not here on my own.” “I swear on my life nothing happened.” [ 33 ] After a few seconds, Ekaterina heard strange physical sounds coming from the room where the two men were talking. She entered the room and found the Accused standing over Slava, who was lying on the floor bleeding from the neck. [ 34 ] Ekaterina retrieved her phone and was about to call 911. The Accused said to her: “Slava’s done.

He’s not here anymore.” The Accused took Ekaterina’s phone away, held her wrists, and told her that she did not remember that Slava had been putting tranquilizers in her food or drink and that Iana had been poisoned by Slava. He then let go of her wrists, gave her the phone back, and told her to call emergency. [ 35 ] Ekaterina called Avi, briefly told him what had occurred, and asked him to call emergency. He did so as did she. [ 36 ] Police and an ambulance arrived.

c) The Arrest [ 37 ] Several officers were dispatched to the Accused’s home immediately after the 911 calls were made by Ekaterina and Avi. Cst Benjamin Feely arrived at around 21:00. As he approached the house, the Accused, who was smoking a cigarette, walked out and said something like “I did it. It was me.” Cst Feely noted the Accused to be calm, normal, cooperative, and not intoxicated. Cst Feely described the Accused as showing no emotion and his facial expressions as flat, which he thought was unusual. [ 38 ] The Accused was arrested and placed in handcuffs.

d) The Accused’s Behaviour Before the Event i. Evidence of the Accused’s Family [ 39 ] Lidiya testified that while still in Israel, she and her parents spoke with Dr. Lenka Zedkova, a forensic psychiatrist, who conducted an assessment of whether the Accused was suffering from a mental disorder at the time of this offence. [ 40 ] Between the time when the Accused moved to Canada and the beginning of July 2022, he spoke with Lidiya about once every week. Beginning in the latter half of July 2022, the Accused began calling Lidiya much more regularly, often once or more per day.

The Accused expressed concerns about the deteriorating health conditions of Lidiya and their mother, and suspicions regarding the actions of others. [ 41 ] The Accused repeatedly advised Lidiya to see a doctor and get medical testing to determine whether she was being poisoned.

The Accused told Lidiya that he thought Lidiya was being poisoned by her ex-husband, that her ex-husband had given drugged coffee to her 20-year-old son, and that many people in Canada poisoned other people. [ 42 ] While Lidiya said that she was unaware of what may be happening in Canada, she knew that the Accused’s concerns about poisoning could not be true, and that her ex-husband had neither poisoned her nor given drugged coffee to her son whom she knew did not drink coffee. [ 43 ] Despite Lidiya’s denials of these allegations and advising the Accused that she was not getting tested, the Accused persisted in his accusations.

The Accused strongly suggesting that Lidiya get tested for barbiturates and accused her of not caring for her own health. The Accused became angry at Lidiya’s refusals. Lidiya had never before known the Accused to be angry but rather, always wanting to help people. [ 44 ] During this period, Lidiya and the Accused also exchanged text messages. The language used by the Accused in the text messages and on the phone was not the language or language structure that Lidiya was used to hearing from him.

The Accused spoke to Lidiya in ways that he had never before spoken to her and he had never before pressured her into doing something. Rather, he had always supported her. Lidiya thought the Accused was foolish and described him as “psychotic” and “angry.” [ 45 ] The family advised Dr. Zedkova that the Accused reported to them that he had developed severe headaches in the spring of 2022 and could not remember three months of his life. In July 2022, the Accused began calling the family every day, sometimes several times a day, and seemed nervous or angry.

The Accused told the family that somebody was giving them drugs and was urging Lidiya to get tested for drugs. The Accused did not want his family members to let any “new people” into their home and advised them to throw away sugar, salt, or coffee if someone new visited. [ 46 ] The family concluded that the Accused was “saying nonsense” and did not pay much attention to what the Accused was

telling them. While the Accused never mentioned that somebody was harming or poisoning him, he did remark that many people in Canada were being poisoned. After the offence, the family found out from the Accused’s friends that the Accused was worried about being poisoned and had presented his concerns to the police and in the hospital. ii. Evidence of Iana Havin [ 47 ] Iana and the Accused had been together for around seven years. They separated in April 2022 but continued to reside together until August 12, 2022.

Iana described the Accused as a “very good person” who was always happy to help friends, generally a quiet person, and not very emotional. While they did argue occasionally, Iana described their relationship as normal for most of the time they were together. There was never any violence or abuse in their relationship. [ 48 ] On one occasion, shortly after they broke up in April 2022, the Accused suggested to Iana that she had been cheating on him with Slava, which she denied to the Accused and again in her testimony at trial.

This conversation was the only time that the Accused mentioned Slava as the one with whom he believed Iana cheated. Iana saw the Accused’s behaviour change around this time and she became more and more concerned. [ 49 ] In a handwritten letter to Iana around the end of May 2022, the Accused told her that he could see that something was not right with both her and him. He also said: “...you are in danger. People who take this drug become like zombies... Anything can be suggested to a person with the help of this, and then they forget.” “... he slipped it into our salt and we both ate it.

Then he put it in other things. And you won’t be able to do without it, that you should do everything he says. He’s done this before, he’s a criminal. And he’ll destroy your mind as soon as he gets what he wants.” “Stop taking it, throw away everything you have at work, especially tea in bags that you made. You can be helped, do you hear me? You have to save yourself. It will be tough to quit, especially in the first two weeks. But I can do it, and you can too. Under no circumstances take any sedatives right now. Just tell me everything, and you will get out of this.

I’ve always loved you, you have to save yourself, do you hear me?” [ 50 ] Iana was shocked to receive this letter. She did not understand what “danger” the Accused was talking about and did not know who the Accused was referring to as “he.” [ 51 ] During this time, the Accused began eating sunflower seeds incessantly and talking to himself in expressive ways. Iana saw this by viewing footage from security cameras located in the living room and front hallway of the Accused’s home. She also noticed the Accused talking to himself when he was outside in the yard and in other places in the home.

If Iana was speaking with the Accused in front of the security cameras in the house, the Accused would tell Iana not to speak in front of the security cameras as he believed people were listening. Sometimes the Accused would pass notes to Iana. [ 52 ] Iana noticed the Accused changing the salt in the house. He stopped eating at home. He would not eat Iana’s cooking and would only eat prepackaged food that he had purchased. At one point, Iana noticed that the Accused had attached a security camera to the top of a protein powder container on top of the fridge.

He told her it was for their protection. [ 53 ] Iana noticed that when the Accused returned from a 2022 Canada Day weekend away, he was acting “weird, strange, nervous.” Later in July 2022, they went to a gathering of friends at someone’s home. When they returned to their own home, the Accused was very nervous and “not himself.” Iana was scared and believed that the Accused had “lost his mind.” Iana described the Accused as looking like an “insane” person.

The Accused told Iana that they had to go to the police as they were in danger, that Slava was trying to drug people around him, that Iana was one of Slava’s victims, and that Iana would not remember this because of the influence of the drugs. [ 54 ] Iana left and went back to their friends’ home. She returned after a few hours to find the Accused asleep. She barricaded herself in her room so that the Accused could not enter. The following day, the Accused appeared more normal. [ 55 ] On the morning of August 11, 2022, Iana found a handwritten letter from the Accused.

It said, in part, the following: “...He just instilled all that is in you. You will break free from this, and everything will be okay with you. And your family will be fine too.” “He wants to deceive you for a lifetime and use you for his ‘business’. And as for what he gave you, I think that’s a lie too!” “I won’t let you make this mistake, sacrifice yourself, and live a life ‘in bondage’ to a psycho.” “... We will get you out of this...” “I love you, and I will continue to love you, and I won’t let you give up.

You will get out of this and will live a free life!” [ 56 ] After reading the letter, Iana told the Accused that he must see a doctor as he “lives in a different world.” [ 57 ] On the morning of August 12, 2020, the Accused gave Iana another letter which said, in part, the following: “Well played, an excellent attempt.” “Let him come up for me himself... Tell him it didn’t work, that I’m a threat to you, and you have insurance on my life.”

“Write me a response. I need to know you’re with me. Hinting won’t fool him either, so write. And I’ll tell you again, he lied, and you can get out of this...” [ 58 ] Iana was very afraid and did not want to return to the Accused’s home. She packed what she could, went to work, and did not return to the Accused’s home. [ 59 ] During a search of the Accused’s home following his arrest, police found another handwritten letter to Iana which Iana had not seen. It read, in part, as follows: “Iana, I am not going to accuse you of anything.

I almost moved away from action, there is still a mess in my head, but everything seems to be OK. I remembered everything.” “Save yourself, do you hear me!!!!! Don’t believe him. You must stop playing by his rules. Go to Police right now!!! And then go to doctors. Nothing of this would have happened, if you told me that when I was not under the influence of that shit. He will kill you; do you hear me!!!! Go to Police immediately!!! I love you. Save yourself, you will never do anything to anyone if you just stop listening to him and warn everyone. He manipulates you with the help of drugs.

Only Police and doctors will be able to help you, but not him!!! Immediately! Thank you for saving me, now save yourself!” [ 60 ] The last contact Iana had with the Accused was a text message she received from him on August 13 at 21:00 which said “now you can get out of this. Live free.” iii. Evidence of Friends of the Accused [ 61 ] Dominic Vusik (Dominic) described himself as a good friend of the Accused. He described the Accused as a calm and helpful person. The Accused seemed to be having a hard time because of the break-up with Iana and seemed nervous and upset.

At one point, the Accused told Dominic that Iana had changed and was acting “weird.” [ 62 ] Alisa Bouchouev (Alisa) described herself as a close friend of the Accused. She always found the Accused to be helpful, caring, and in good spirits. After the breakup with Iana, the Accused seemed more reclusive and not very social. While the Accused was never a big drinker, he stopped drinking completely during that time. A few weeks before the event, the Accused told Alisa that she did not look well and that she should get tested for drugs. Alisa thought this was a very odd or unusual statement.

Alisa described the Accused as closed off and not his usual self. [ 63 ] Oleg Bondarenko (Oleg) also described himself as a good friend of the Accused. At some time in June or July 2022, the Accused told Oleg of his belief that Iana may have been cheating on him and that Iana had taken “psychotropic” drugs given to her by Slava. The Accused thought it was Slava because Slava had previously told the Accused that he sold drugs. [ 64 ] Oleg was concerned about the Accused’s strange behaviour. Oleg had seen the August 11, 2022 letter to Iana that Iana had forwarded to Oleg’s wife.

Oleg was also concerned about Iana’s safety due to the Accused’s strange behaviour. The Accused had also told Oleg of his belief that someone had poisoned him and that tablets can be used to control people’s behaviour. The Accused believed that both he and Iana had consumed these tablets and that Iana was poisoned. iv. Statements by the Accused to Police [ 65 ] The following is a sampling of some of the statements made by the Accused to police following his arrest.

They have been edited to the extent necessary for context and brevity: • I think me and my girlfriend were poisoned by some kind of tranquilizers for a long time. He would sexually harass her with tranquilizers...Iana was told it was done by some criminal organization from Ukraine. People getting addicted to these drugs so hard they cannot stop and they just do what they are told. Slava ... Just sexually harassed and killed ... But it was his business. He was give it to people, getting them addicted, and making them pay money for the rest of their life.

How crazy it sounds or how hard to believe in this, but it’s what’s happened... • I tried to go for drug tests three or four times. I went to the police. I saw how with his eyes he was killing and sexually harassing... and not just her life in danger but old friends as well... • Slava actually put these drugs in our salt... ‘cause he was in our house. Or may be... Drinks or whatever, but he completely changed and these drugs... it’s tranquilizers... • Slava said he was dangerous for all, not just Iana and me. For all people... • This organization just making people addicted all around the world.

If they give this medication... I believe, barbiturate, people cannot stop anymore. And they will need to pay money for the rest of their life. So this is like a huge business... Slava was part of this business and this is how this organization is growing. • Yesterday [Slava] told me what he has done. • So someone has access to my security system and to my camera... So someone was actually following us... • I killed him. I didn’t want to do that, but it’s all true and he’s done to Iana and the others. • [Slava] is a dangerous man...

And I just tried to protect [Iana]... • I started to buy sandwiches [pre-wrapped] so no one would put nothing inside... Or I just bought steak and cooked it right away

without even salt... I started to feel worse because of the withdrawal syndrome. • I... is a murderer and I... sometimes you need to kill the danger to protect others. • I didn’t plan to kill him. I just planned to check if it’s true... Then I was shocked that he told me, I was shocked. • I didn’t wanna do that to him, but he has done terrible things. • He, he would kill more people, including us. • I didn’t plan to kill no one. I just wanted to check what’s going on.

And yes I had a knife with me to be prepared because if, if it’s true and it was, it was true, he’s dangerous. • Slava targeted Iana because she was working at an expensive watch store so Slava would have access to rich people. • Well what I think he’s put in our food, like salt or wherever... So we both didn’t understand what we are doing. Then he started to bring her a smoothie to work and took her ...

From the store to the storage and sexually harassed her there... • He first of all put it in our food so we both start to be strange and don’t understand what’s going on.... she tried to stop to take it but, but she couldn’t. • Iana needs help, she’s too on those drugs. v. Searches on the Accused’s Phone [ 66 ] The Accused’s cell phone was seized and the search engine examined.

It disclosed that the following searches were made in 2022: • May 28: behaviour of a person under benzodepine • July 20: switching from barbiturates to benzodepines • July 23: avoidance of barbiturates • July 23: duration of treatment for barbiturate • July 23: barbiturate withdrawal syndrome • July 26: cocaine addiction; treatment for cocaine addiction • July 26: drugs to stimulate vomiting and related searches • July 28: signs of taking benzodepines • July 29: benzodiazepines-Wikipedia • July 31: signs of benzodepine use • July 31: signs of barbiturate use • August 1: skin rash from barbiturates • August 7: can I carry a knife Canada. vi.

Statements by the Accused to Dr. Lenka Zedkova [ 67 ] The following is a sampling of the statements made by the Accused to Dr. Zedkova during his interviews. They have been edited to the extent necessary for context and brevity: • He described complex beliefs with a persecutory theme. • He and his former girlfriend Iana Havina were attacked and poisoned by a criminal organization who is using tranquilizers to “manipulate people”. • Slava had told him about a criminal organization based in Ukraine, established by a man who has a background in pharmacology.

The organization was paying Slava to poison people with benzodiazepines and barbiturates (at times mixed with other substances, such as cocaine), to make them addicted and susceptible to manipulation, to the point of becoming “slaves”. • Slava revealed to him that he “killed a lot of people” with the drugs and that nobody could catch him.

He did not know if Slava was physically killing people or the killing meant causing a brain damage and making people “crazy”. • Slava revealed to him that he moved to Edmonton to befriend him and Iana in order to poison them. • Slava revealed to him that he was being targeted/poisoned as the organization would get $1 million from his life and mortgage insurance if he was killed.

• Iana was “programmed by Slava” to poison him by putting drugs in his food and drinks...

The plan was for her to kill him without her understanding...Iana also gave Slava access to their security cameras and a new alarm system... • He realized that both he and Iana changed as they were being poisoned. • Slava was open about his acts, “laughing in his face”, confident that he would not be caught. • Iana fell victim to the criminal organization and “sacrificed herself” to save her family. • He was scared for his life for several weeks prior to the offence. • Slava was spying on him and Iana by having access to his security cameras. He feared that...

Slava would come and kill him, not only for his insurance but also due to the knowledge he had about Slava’s activities. • Regarding motive he stated: “I had to do it, it was self defence, I had to protect Iana, myself, and Kate. His weapon was powder. He was poisoning us. I had to stop him because he would kill us in the end.” vii. Statements by the Accused to Dr. Liam Ennis [ 68 ] The following is a sampling of the statements made by the Accused to Dr. Ennis in his interviews. Those similar to ones made Dr. Zedkova are not repeated.

The statements have been edited to the extent necessary for context and brevity: • Slava was putting tranquilizers in our food and drink. They made him “like a zombie.” “I didn’t have any power to work. I couldn’t even wake up. I couldn’t think. I couldn’t concentrate.” • Slava told him directly that he was sent by criminals to drug and manipulate people. “He was enjoying to tell what he was doing.

He was using it to manipulate people.” • He was communicating with [Iana] through written notes because Slava and his associates had access to their security cameras. • In April 2022, he took samples of [Iana]’s hair and some food to a private laboratory and requested that they be tested for evidence of poisoning. • In June 2022, he attended a police station and reported that he believed he was being poisoned. He subsequently went to the Misericordia Hospital for testing. He was tested for drugs and poison and the tests came back negative.

He did this twice. • When he confronted Slava with the accusations, “he smiled” and admitted it. “I just couldn’t control myself... There was no other option to stop him. I have to save Iana. I have to protect myself. If I didn’t, he would kill everyone or take them to slavery.” • He and [Iana] are still in danger from the criminal organization that Slava was affiliated with. He sent a letter to the Israeli Embassy to explain the situation involving the threat posed to himself and his family by this criminal organization. viii.

Hospital Notes [ 69 ] The following is a sampling of entries in the hospital notes made during the Accused’s stay for assessment: • April 11 2023: denies any mental health concerns when asked. Long pauses and appears suspicious of writer. • May 11, 2023: had four requests: 1. Get out of here; 2. Protection; 3. A different name; 4. Make sure his family is safe and friends Kate and Iana... Suspicious and paranoid behaviour, mental health deteriorating... “You know what it is, it was self defence.” • May 18, 2023: patient deteriorating.

e) Expert Evidence [ 70 ] The Court heard from two expert medical witnesses: Dr. Lenka Zedkova, a Forensic Psychiatrist at Alberta Hospital in Edmonton; and Dr. Liam Ennis, a Forensic Psychologist with the Forensic Behavioural Science Group in Edmonton. In reaching their respective opinions, they both relied extensively on the information and evidence received from many sources, including some of those referred to earlier, together with intensive clinical psychiatric and psychosocial assessments. The Accused was interviewed extensively. Dr. Zedkova and Dr.

Ennis respectively provided psychiatric and psychological assessment reports which were entered as exhibits in this trial. [ 71 ] In considering the mental state of the Accused and whether he suffered from a disease of the mind at the time of the offence, the two experts performed their analysis and reached their conclusions independently of the findings and opinions of the other. Both were referred to additional evidence adduced at trial and confirmed that it either supported their findings or was not inconsistent with them. [ 72 ] Dr.

Zedkova concludes that at the time of the offence, the Accused was suffering from a mental disorder as contemplated by s 16 of the Criminal Code . Dr. Zedkova opines that, at the time of the offence, the Accused was experiencing persecutory delusions. He did suffer, and continues to suffer, from “delusional disorder, persecutory type.” Dr. Zedkova defines a delusional disorder by the presence of delusions, often non-bizarre (derived from plausible life experiences), and relatively preserved functioning.

A persecutory type of delusional disorder is characterized by a firm, though unsupported, belief that one is being harmed by others, followed, poisoned, or other negative actions. That belief is held despite evidence to the contrary.

[73] Dr. Ennis also concludes that at the time of the offence, the Accused was experiencing symptoms of a major mental disorderas that term is contemplated by s 16 of the Criminal Code. Dr. Ennis opines that the Accused was experiencing psychotic symptoms atthe time he killed Slava and that he suffered and continues to suffer from “delusional disorder, persecutory type.” Dr.

Ennis describes thisdisorder as “characterized by the presence of fixed, unsupported belief that one is being conspired against, cheated, spied on, followed,poisoned, maligned, harassed, or obstructed in the pursuit of long-term goals.” [74] Both experts testified that the diagnosis of “delusional disorder” is rare but they were firm and consistent in their views thatthe diagnosis applied to the Accused at the time of the offence and continues to apply. V. Analysis

a) The Accused’s Mental State [75]

Section 2 of the Criminal Code defines a mental disorder as “a disease of the mind.” A disease of the mind includes “anyillness, disorder or abnormal condition which impairs the human mind and its functioning”: Cooper v The Queen, (SCC), [1980] 1 SCR 1149. [76] A disease of the mind is a legal concept with a medical dimension. The question of what mental conditions are included in theterm "disease of the mind" is a question of law. The trial judge must determine whether the condition from which an accused claims tohave suffered satisfies the legal test for disease of the mind.

This involves an assessment of the particular evidence in the case rather thana general principle of law. Whether the accused actually suffered from a disease of the mind is a question of fact to be determined by thetrier of fact: R v Stone, (SCC), [1999] 2 SCR 290 at para 197, cited in Bouchard-Lebrun at para 63. [77] A disease of the mind includes any illness, disorder, or abnormal condition that impairs a person’s mind and its functioning. Itdoes not include self-induced states caused by alcohol or drugs, or transitory mental states such as hysteria or concussion: Cooper at1159.

An alternative approach to the determination of whether an individual suffers from a disease of the mind is to consider a holisticapproach to whether the conduct resulted from an internal cause or whether the individual poses a continuing danger: Stone at para 213;Bouchard-Lebrun at paras 70-73; R v Peterson, 2023 ABKB 176 at paras 22 – 25.

Conclusion on the Mental State of Victor Shylga [78] At the time that the offence was committed, the Accused was suffering from a “delusional disorder, persecutory type.” TheAccused did, and continues to, suffer from a major mental disorder as contemplated by s 16 of the Criminal Code. [79] There is no evidence to suggest that the Accused’s mental state was caused by the use of any alcohol or drugs. Rather, theevidence reinforces that the Accused’s mental state was internally caused.

The Accused continues to suffer from a mental disorder and atthis time there remains a possibility of recurring danger to others mandating the need to ensure public safety.

b) The Effects of the Accused’s Mental Disorder [80] The requirement that an accused knows that the act was wrong will exempt them from criminal responsibility if, at the time ofthe act, a mental disorder rendered them incapable of knowing that their act was morally wrong. An accused may know that the act ofkilling another person is wrong, but because of mental disorder, may not be capable of knowing that killing a particular person inparticular circumstances is wrong: Chaulk; R v Oommen, (SCC), [1994] 2 SCR 507 at 516; R v Longridge, 2018ABQB 145 at paras 111 – 114. [81] Dr.

Zedkova referred to the Accused’s comments to Ekaterina that “Slava’s done. He’s not here anymore” as suggesting thathe appreciated the nature and quality of his act. The Accused also told Ekaterina that he was carrying a knife at all times for protection.Dr. Zedkova finds it believable that the Accused’s own protection was part of his motive. [82] The fact that the Accused took steps to determine whether he could lawfully carry a knife in Canada also confirms that he wasconcerned about safety and the possible need for him to act in self-defence. [83] Dr.

Zedkova opines that the Accused did not know the moral wrongfulness of his actions, despite his general knowledge thatkilling a person is wrong. The Accused believed that killing Slava was the right thing to do to protect himself and others. In her reportDr. Zedkova states: “It appears that, although he appreciated the nature and quality of his act, Mr. Shylga’s psychotic ideation preventedhim from knowing the moral wrongfulness of his act.” That is, the Accused did not appreciate that his actions were morally wrong.

Dr.Zedkova formed her opinion after analyzing all the information, and particularly the Accused’s descriptions of what he believed Slavahad been doing and the “need to kill the danger to protect others.” [84] Dr. Ennis also opines that the Accused’s psychotic symptoms prevented him from appreciating the moral wrongfulness of hisactions. Dr. Ennis recognizes that the Accused understood the nature and quality of his actions in plunging a knife into Slava’s neck andthat doing so could result in death. However, the Accused believed he was acting in self-defence and that his actions were justified in amoral sense.

That is, the Accused did not believe his actions were morally wrong. [85] Dr. Ennis opines that the Accused’s search for the laws relating to the carrying of a knife in Canada exhibited his concernabout safety and self-defence. [86] In his report Dr. Ennis states: “within the context of his delusional belief system, one in which he, his former partner, andhumanity faced an imminent existential threat, Mr. Shylga’s violent actions towards Mr. Oliynichenko were not only justified but

necessary.” [ 87 ] The Accused continues to hold this belief and continues to suffer from acute paranoia. Conclusion on the Effects of the Accused’s Mental Disorder [ 88 ] The Accused did appreciate the nature and quality of his acts when he stabbed Slava. However, the Accused did not know or appreciate that his actions were morally wrong. The Accused was acting under a delusion that he, Iana, and others were being threatened at the time.

That is, at the time of the offence, the Accused was not capable of knowing that stabbing and killing Slava was wrong in the circumstances that he believed existed at the time. [ 89 ] I find on a balance of probabilities that at the time the Accused stabbed and killed Slava, he did not know that his actions were morally wrong.

c) Possibility of Malingering [ 90 ] Dr. Zedkova did not consider the possibility that the Accused might be malingering or faking his symptoms for secondary gain. There were no indicators to suggest possible malingering and she did not see any attempt by the Accused to try to convince her that he was suffering from a mental disorder. He was simply not invested in such a diagnosis. The Accused denied, and continues to deny, that he was suffering from any mental disorder. [ 91 ] Dr. Ennis also discounted any possibility of malingering by the Accused.

There was an abundance of information from various sources as to the Accused’s behaviour in the months leading up to the event. This information, together with the Accused’s exhibited symptoms shortly before and after the incident, were all consistent with a mental disorder. The fact that the Accused went to the police to report his beliefs and to the hospital for testing further demonstrates and supports a paranoid ideation in the weeks and months leading up to the event. The Accused was making efforts to deal with his concerns. The Accused still suffers from a mental disorder, though he continues to deny it.

Finally, there was no attempt by the Accused to influence Dr. Ennis to facilitate a particular outcome.

d) Possibility of Jealousy as a Motive [ 92 ] The Accused did believe that Iana was having sex with Slava. Both experts discounted this as a motive or a factor in the Accused’s actions. The Accused did not exhibit any prominent jealousy infused delusion. Rather, he believed that Iana was being drugged and manipulated by Slava and it was this and related delusions that caused his delusionary disorder and resulting actions. VI.

Conclusion [ 93 ] It has been established beyond a reasonable doubt that on August 13, 2022 Victor Shylga caused the death of Sviatoslav Oliynichenko by stabbing him in the neck. [ 94 ] I find on a balance of probabilities that at the time he caused the death of Sviatoslav Oliynichenko, Victor Shylga was suffering from a mental disorder that rendered him incapable of knowing that his actions were wrong.

He is exempt from criminal responsibility by virtue of s 16(1) of the Criminal Code . [ 95 ] Therefore, and in accordance with s 672.34 of the Criminal Code , I find that Victor Shylga committed the acts that resulted in the death Sviatoslav Oliynichenko but he is not criminally responsible for his death on account of mental disorder. I will not hold a disposition hearing under s 672.45 and direct that the Review Board hold a disposition hearing not later than 45 days from today pursuant to s 672.47(1). An extension will be considered under s 672.47(2) if exceptional circumstances exist.

An original or copy of the transcript of all court proceedings and exhibits shall be sent to the Review Board without delay in accordance with s 672.45 (1.1). [ 96 ] Finally, I direct that Victor Shylga be detained at the Alberta Hospital Edmonton until the Review Board makes a disposition. Heard on the 2 nd day of October, 2023 to the 17 th day of October, 2023. Dated at the City of Edmonton, Alberta this 17 th day of October, 2023. Eric F. Macklin J.C.K.B.A. Appearances:

Aisling Ryan and Domina Hussain for the Crown Rory Ziv for the Accused