R. v. Amer Date:, 2014 BCPC 66

Citation: R. v. Amer Date: 20140415 2014 BCPC 0066 File No: 223490-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MOHAMED AMER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: I. Keeley Counsel for the Defendant: J. Mehroin Place of Hearing: Vancouver , B.C. Dates of Hearing: January - December, 2013; January - February, 2014

Date of Judgment: April 15, 2014 A Corrigendum was released by the Court on May 1, 2014. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] Mohamed Amer (“Amer”) was charged with the attempted murder by stabbing of Terrence Skaley (“Skaley”) on February 22, 2012. [ 2 ] On February 22, 2012, at a Waves Coffee Shop, Skaley was watching television. Amer was seated beside him. Suddenly, Skaley was stabbed in the chest with a knife that Amer pulled out from his hoodie sleeve.

Amer was a total stranger to Skaley. [ 3 ] The knife was approximately six inches long. The point of the knife came within one millimeter of piercing the heart sac of Skaley. Had the point of the knife pierced the heart sac Skaley, in all likelihood, would have bled out and died. Fortunately, Skaley physically recovered from of this frightening encounter with Amer. [ 4 ] After Amer stabbed Skaley he remained in the coffee shop until police arrived. Amer was removed from the coffee shop as a police wagon was called to take him to the police station.

While outside of the coffee shop, Amer was overheard to make an unsolicited statement in the presence of the police stating, “The knife wasn’t long enough.” [ 5 ] At the police station, Amer was interviewed by the police. During the course of that interview, Amer told the police, in part, that: I didn’t kill him. If I did, I’d be in heaven. I don’t understand. Was the knife too small? Is that why he’s not dead? Why is he not dead? The old man is not dead. Why did I not do it right? I stabbed him in the heart. Yesterday they took me to the hospital cause I said I was going to do this. I’m not really sorry.

I wanted to kill him. I put it into the heart, it didn’t work. I can’t do nothing. I want to go to Saskatchewan. [ 6 ] On October 7, 2013, I found that the evidence called by the Crown in relation to the attempted murder charge would establish prima facie beyond a reasonable doubt that Amer was guilty of attempted murder. Prior to registering a guilty finding for attempt murder, I found that it was necessary to embark upon an inquiry to determine whether or not on a balance of probability Amer suffered from a mental disorder so as to be exempt from criminal responsibility.

BACKGROUND [ 7 ] I found the attack by Amer on Skaley to be chilling. From CCTV footage it appeared that Skaley was minding his own business when Amer sat down next to him in the television area of the coffee shop. Within one minute, Amer reached into a sleeve of his hoodie and pulled out a knife. He then stood up and placed himself over the front of Skaley thrusting the knife with significant force into the chest of Skaley. After the attack, Skaley stood up and walked into the main area of the coffee shop to get help. [ 8 ] Amer remained in the television area and sat back down.

He made no effort to assist Skaley, nor did he make any attempt to leave the coffee shop. An assistant manager became involved and he testified that he told Amer to stay where he was as the police were coming. In response, Amer asked if he could go outside to have a cigarette. He was told to simply remain until the police arrived. [ 9 ] Once the police arrived, Amer was taken outside of the coffee shop to await the arrival of a police wagon.

Police officers on scene testified that Amer made unsolicited comments about his attack on Skaley, including the comment that, “The knife wasn’t long enough.” [ 10 ] Police officers testified that in their experience dealing with people in the Downtown Eastside that Amer appeared to be suffering from some form of mental disorder. Police information also revealed that Amer had been admitted to St. Paul’s Hospital on two occasions within a day and a half of the Skaley attack.

Both admissions were as a result of police concerns that Amer was experiencing both suicidal and homicidal ideations. [ 11 ] Amer received medical attention in relation to both admissions. This medical attention included prescription medication. It would appear that Amer’s medical condition stabilized after the prescription medication had taken effect. Upon that basis Amer was discharged from St. Paul’s Hospital. [ 12 ] Police officers also testified that after the second discharge of Amer from St. Paul’s hospital that his physical appearance had changed.

When Amer was arrested for attempted murder his eyebrows were shaved off and his hair on both sides of his head was also shaved off. [ 13 ] The Information in which Amer is charged with attempted murder was sworn on February 28, 2012. Amer was remanded in

custody following his arrest. He was assessed by a psychiatrist and was certified under the Mental Health Act . [ 14 ] Amer made several Court appearances in April, May and June 2012. On June 29, 2012, Amer appeared before me in person as Crown Counsel had brought an application under s. 672.12(3) (

b) of the Criminal Code seeking an assessment of Amer to determine if there were grounds to doubt that Amer was criminally responsible. Upon being brought into Court, Amer promptly fired his lawyer and told me that he went by the name “Michael Jackson”. [ 15 ] Amer insisted that he was able to represent himself and refused the opportunity to seek independent legal advice.

Amer’s resistance in being represented by counsel both at this stage of the proceedings, and at later stages, complicated the Court process. [ 16 ] I attempted to determine whether or not he understood Court proceedings and the role of the parties on June 29, 2012. His responses to the Court were disjointed and at times his conversation became bizarre. The following exchange would be representative of his bizarre ideation: THE COURT: What about this other life you had. What was that about? THE ACCUSED: Huh? THE COURT: You say you were born before, you had another life?

THE ACCUSED: I know nothing about the previous life, just the end of it. THE COURT: Just the end? THE ACCUSED: Yeah. Like Hotel California, he remembers the last part before he woke up from the -- from the life. THE COURT: From the life. Okay. THE ACCUSED: I don't remember how I lived the last life, but I remember what happened afterwards when I get out of my earth and went upstairs, I saw a man who through the media calls himself Lucifer and the devil. THE COURT: Yeah. THE ACCUSED: Now, he calls himself Lucifer, but he is my main opponent.

I do not know what you guys are here. (Transcript, June 29, 2012, Page 5, Lines 16-36) [ 17 ] Crown Counsel proposed to play CCTV footage of the attack by Amer on Skaley. Prior to the CCTV footage being played, Amer was concerned that there might be aliens depicted in the footage. When the CCTV footage was being played in Court, we got to a point where Amer is observed stabbing Skaley. Amer stated in open Court, “Ah, there it is.

He was supposed - - he was supposed to fucking die, the motherfucker?” [ 18 ] Based upon the CCTV footage, representations made by Crown Counsel, Amer’s physical presentation in Court and Amer’s statements made in Court, I found that s. 672.12(3) (

b) of the Criminal Code was engaged and Amer was remanded for an assessment. [ 19 ] I then commenced a long and convoluted Court process involving Amer. The Court process was complicated as Amer would not instruct legal counsel appointed by Legal Services on his behalf. Amicus counsel was appointed to assist the Court. The Court process was also frustrated as a result of disruptions by Amer. There were numerous occasions where it was necessary to excuse Amer from the courtroom pursuant to s. 650(2) of the Criminal Code . [ 20 ] The Court process was also complicated by Amer’s fragile mental state.

Fitness to stand trial became issues throughout Court proceedings. In particular, Amer slipped out of mental fitness in January of 2014. Legal counsel Ms. Mehroin was appointed to represent Amer pursuant to s. 672.24(1) of the Criminal Code . When Amer was found to be fit, he continued to retain Ms. Mehroin as his legal counsel until the conclusion of all proceedings. TESTS FOR A FINDING OF NOT CRIMINALLY RESPONSIBLE BY REASON OF MENTAL DISORDER (NCRMD) (

i) General Principles [ 21 ]

Section 16 of the Criminal Code deals with NCRMD. That

section reads as follows: Defence of mental disorder

(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. Marginal note:Presumption

(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. Marginal note:Burden of proof

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on theparty that raises the issue. [22] Crown counsel advanced the issue of NCRMD. Accordingly, the Crown would have to establish on a balance of probabilitiesthat, first, Amer has a mental disorder and second, either as a result of a mental disorder, that Amer was incapable of appreciating thenature and quality of the act of attempted murder [branch 1] or knowing that this act was wrong [branch 2]. [23] Mental disorder is defined by s. 2 of the Criminal Code as a “disease of the mind”.

The court in R. v. Rabey (SCC) confirmed that mental disorders is a legal term of art with both medical and policy components, meaning that while medicalevidence will usually necessary, it is not determinative. The policy component balances the exemption from responsibility with publicsafety. [24] There is no set list of afflictions that qualify as mental disorders. Dickson J., as he then was, in R. v.

Cooper, (SCC), [1980] 1 S.C.R. 1149, at 1159, outlined the scope of the term as follows: … One might say that in the legal sense “disease of the mind” embraces any illness, disorder or abnormal condition which impairs thehuman mind and its functioning, excluding, however, self-induced states caused by alcohol or drugs, as well as transitory mental statesuch as hysteria or concussion. [25] Section 16(1) of the Criminal Code is broken into two branches each with separate tests. Branch 1 employs the verb toappreciate while branch 2 uses the verb to know. The verbs are distinguished in R. v.

Barnier, (SCC), [1980] 1 SCR1124, at page 1137, as follows: … The verb “know” has a positive connotation requiring a bare awareness, the act of receiving information without more. The act ofappreciating, on the other hand, is a second stage in a mental process requiring the analysis of knowledge or experience in one manner oranother. [26] Appreciation likely involves knowledge but to know does not necessarily mean to appreciate. [27] The court in R. v. Landry, (SCC), [1991] 1 S.C.R. 99 dealt with the nature and quality of

an act in branch 1.Landry established that the nature and quality of

an act refers to the physical consequences of an action and not the morality of an action.In relation to the

interpretation of wrong found in branch 2, the court in R. v. Chaulk, (SCC), [1990] 3 SCR 1303established that wrong means “morally wrong” not just “legally wrong. (ii) The Tests [28] Once a mental disorder has been established, that mental disorder must be shown to be of such intensity that the accused isrendered incapable of either appreciating the nature and quality of his actions or of knowing that they are wrong. [29] The psychiatric testimony and psychiatric reports establish that Amer was suffering from a mental disorder on February 22,2012.

I draw from the psychiatric evidence that Amer was suffering from a schizo-affective disorder at the time he stabbed Skaley. [30] I find that it is branch 2 of the analysis which supports a finding of NCRMD. Amer’s purposeful action in stabbing Skaley asrevealed in the CCTV footage was powerful objective evidence demonstrating intent.

His statement to the police following the stabbingwould also support a finding that he clearly understood the deadly physical consequences of stabbing Skaley in the heart. [31] The psychiatric evidence coupled with the CCTV footage, statements made by Amer, his altered physical appearance and hisprior history of mental disorder all support my finding that Amer lacked the capacity to rationally decide whether the stabbing of Skaleywas morally right or wrong. [32] Amer’s obsession with aliens, vampires, the devil, and his own desire to go to heaven, support a finding that at the time Amerstabbed Skaley that he had effectively lost touch with objective reality.

It is this loss of reality that deprived Amer of the ability to makerational decisions. [33] Doctor Sammy Iskander was one of Amer’s treating psychiatrists. I found Doctor Iskander to be extremely reliable in providingopinion evidence and thoroughly knowledgeable in relation to the psychiatric history of Amer.

[ 34 ] Doctor Iskander was of the opinion that Amer was likely suffering from active symptoms of a serious mental disorder at the time of the stabbing of Skaley. He went on to explain the foundation of his beliefs in the following opinion evidence: THE COURT: So go ahead and tell me about the moral blameworthiness and his appreciation. A Sure. I mean, my understanding of Mr. Amer's, the circumstance of his offence is that he was suffering -- he suffers from a chronic mental disorder.

He was likely suffering from symptoms at that time where he believed that he would have gone to heaven had he succeeded in Mr. -- in murdering Mr. Skaley, so that he believed for some reason that -- that he had to kill Mr. Skaley. There's a number of different statements he makes, such as Mr. Skaley having eaten his soul, about how he needed to get his soul back.

He also makes a number of comments in hospital about a -- this widespread conspiracy against him in the world, that he discovered some truth of the world and ever since then people have been putting him in hospital because he's discovered this truth of the world. So it's my understanding or my opinion that at the time of the offence he was likely suffering from acute symptoms. Those symptoms were likely of a persecutory nature, where he believed that other people were targeting him or against him. He makes statements that suggest that he identified Mr.

Skaley at that point in time as being an individual who had persecuted him. He made comments before that he needed to kill the devil. That in combination with his attempt to kill Mr. Skaley leads me to believe that he likely thought or interpreted Mr. Skaley to be the devil or an agent of the devil himself, and that he attacked Mr.

Skaley within the context of those beliefs and by virtue of the belief that he was either protecting himself from a world conspiracy, or killing the devil, or attempting to get into heaven, he believed by virtue of his delusional beliefs that he was morally justified in terms of enacting that behaviour. (Transcript, February 27, 2014, Page 34, Lines 8-47) [ 35 ] Doctor Iskander also addressed statements made by Amer leading up to the stabbing and immediately following the stabbing because it was his opinion that while mental disorders do not always manifest in acute symptoms, those symptoms do not simply turn on and off. [ 36 ] Doctor Iskander was of the opinion that Amer exhibited acute symptoms, such as paranoia and delusions, immediately prior to and following the stabbing.

Accordingly, Doctor Iskander was of the opinion that Amer was likely suffering from acute symptoms at the time of the stabbing. [ 37 ] Doctor Iskander was also of the opinion that due to the nature of Amer’s delusions that in all likelihood he was convinced that he had to kill Skaley in order to protect himself from persecution or a conspiracy, or he was justified in doing so in order to kill the devil or to get into heaven. [ 38 ] Doctor Marcel Hediger was one of Amer’s treating psychiatrists.

Doctor Hediger had testified in the fall of 2013 that he was unable to form an opinion as to whether or not Amer was NCRMD. However, in February of 2014, after further observations of Amer, Doctor Hediger testified that Amer exhibited acute symptoms of mental disorder and violence despite being prescribed maximum medication to alleviate symptoms of mental disorder. [ 39 ] Both Doctor Hediger and Doctor Iskander were of the opinion that Amer’s statements in which he rationalizes why he stabbed Skaley were, in reality, irrational explanations.

His changing explanations were simply one feature of an individual who was both a poor historian and prone to manipulative behaviour. [ 40 ] I accept the opinions of both Doctor Hediger and Doctor Iskander. [ 41 ] I accept in particular the opinion of Doctor Iskander that while Amer was quite capable of appreciating the nature and quality of his actions, his mental disorder was of such intensity and his reality so altered at the time of the stabbing that he was incapable of knowing whether his actions were right or wrong and therefore deprived of the ability to make a rational decision as to what to do. [ 42 ] As I indicated in the background of this ruling, the stabbing of Skaley depicted in the CCTV footage was chilling.

The fact that Amer believed that the knife was not long enough and that was why he was not in heaven yet was disturbing. [ 43 ] I find the psychiatric evidence, the CCTV footage from the coffee shop, statements made by Amer, his altered physical appearance after the stabbing, and his prior psychiatric history establishes that Amer committed the act of attempted murder by stabbing Skaley but is not criminally responsible on account of mental disorder. [ 44 ] I found Amer to be a most difficult person to deal with throughout Court proceedings. On numerous occasions he would disrupt the Court proceedings.

On numerous occasions he would try to manipulate the Court to make rulings that he wanted. [ 45 ] I deem it appropriate that the Review Board of British Columbia shall render a disposition with respect to Amer. [ 46 ] I am of the opinion that Amer has an extremely fragile mental state and that the extent of his mental disorder would require long-term and sustainable psychiatric intervention. Unfortunately, I am not optimistic that there is any realistic possibility of a reintegration into society outside of a hospital setting.

I conclude that Amer poses a significant threat to the safety of the public and I would have grave reservations should he be released at some future date back into a public setting.

_____________________________ The Honourable Judge G. Rideout Provincial Court of British Columbia CORRIGENDUM - Released May 1, 2014 In my Reasons for Judgment dated April 15, 2014, the following change has been made: [1] On page 7, paragraph 27, the third sentence, “found in branch 2” should be added after the words, “In relation to theinterpretation of wrong found in branch 2, …The sentence should now read as follows: … In relation to the

interpretation of wrong found in branch 2, the court in R. v. Chaulk, (SCC), [1990] 3 SCR 1303established that wrong means “morally wrong” not just “legally wrong”. The Honourable Judge G. Rideout Provincial Court of British Columbia