HIS MAJESTY THE KING - v. -, 2024 SKKB 8

KING’S BENCH FOR SASKATCHEWAN Citation: 2024 SKKB 8 Date: 2024 01 22 File No.: CRM-RG-00415-2022 Judicial Centre: Regina BETWEEN: HIS MAJESTY THE KING - and - RAEFE MAHADEO Counsel: Derek Davidson for the Crown Andrew Hitchcock for accused ___________________________________________________________________________ JUDGMENT DAWSON J.

January 22, 2024 ___________________________________________________________________________ INTRODUCTION [ 1 ] Raefe Mahadeo is charged that between January 1, 2022, and January 3, 2022, at Regina, Saskatchewan, he did unlawfully cause the death of Deborah Mae Mahadeo and did thereby commit second degree murder contrary to s. 235 of the Criminal Code , RSC 1985, c C-46 . [ 2 ] Deborah Mahadeo was Mr. Mahadeo’s mother. On January 4, 2022, Mr. Mahadeo made an emergency call that his mother was dead. Mr.

Mahadeo admitted that he stabbed his mother, telling police he believed he could free her spirit if he stabbed her. He said he thought that by stabbing her he was saving her. Police attended and found Deborah Mahadeo deceased. She had stab wounds. [ 3 ] Mr. Mahadeo acknowledges that he stabbed his mother and caused her death. Mr. Mahadeo has applied for an order under s. 16 of the Criminal Code declaring him not criminally respons ible for these acts by reason of mental disorder which rendered him incapable of appreciating the nature and quality of the act or of knowing it was wrong.

BACKGROUND FACTS [ 4 ] At the time of the offence, Mr. Mahadeo was residing in a home with his mother, the deceased. They had lived together all of Mr. Mahadeo’s life. They had been isolated over the previous months due to COVID-19 restrictions. [ 5 ] Crown and defence filed an Agreed Statement of Facts which has been entered as an exhibit in these proceedings. The facts therein are admissions under s. 655 of the Criminal Code . The Agreed Statement of Facts is repeated below:

1. On January 4, 2022, the Regina Police Service responded to an emergency call placed by Raefe Mahadeo from 1629 Toronto Street, Regina, Saskatchewan. 2. During the phone call, Raefe Mahadeo was heard saying “my mother is lying dead beneath me.” 3. Upon arrival, members of the Regina Police Service located Deborah Mahadeo, the mother of Raefe Mahadeo, on the floor of the entrance to the living room. Raefe was crouched over her head. There was a single wound to her chest that exited her back and there was dried blood on her shirt. A bladed metal object was lying beside her. 4.

Deborah Mahadeo was pronounced dead at the scene by Emergency Medical Services. 5. Raefe was arrested at the scene and transported to the Regina Police Service station. Blood was found on his clothing and belongings, as well as a cut on his right arm. 6. A warned statement was obtained from Raefe Mahadeo in which he admitted that he and his mother had been struggling financially and not getting along. He believed she was making him think he was crazy, and that he had been poisoned by metals and cleaning products from work.

He also disclosed that he believed that someone was “eavesdropping” his cell phone, and that his mother was a robot and had “tech” in her mouth. Eventually, there was a struggle where he tried to remove the tech from her mouth. He believed he could free her spirit if he stabbed her. He thought that she had been killed by a cult and that his actions in stabbing her was “saving” her. 7. Raefe and his mother had lived together for all of Raefe’s life. They had been at the Toronto Street address since at least the 1990s.

They had had a loving relationship, but the relationship began to deteriorate during the COVID lockdowns. Both Raefe and Deborah were isolated together in the home. In the weeks leading up to Deborah’s death, Raefe’s mental health deteriorated. He sought help at the Regina General Hospital Emergency Room on December 14, 2021. He attended again on Dec 26, 2021, and after examining him the attending physician felt that Raefe should be referred as an outpatient to a psychiatrist. He attended again on Jan 2, 2022, only two days before his mother’s killing. 8.

Raefe Mahadeo admits that he stabbed his mother one time in the chest. Raefe Mahadeo admitted to police that the bladed object found next to her body was the item he stabbed her with. He did not call for emergency services for one to two days because he believed she would come back to life. 9. The autopsy of Deborah Mahadeo concluded that she died as a result of multiple injuries including a stab wound to the chest which caused significant internal bleeding and pierced the right lung.

Dissection revealed hairline fractures in her nasal bones, and irregular fracturing of the right lateral maxillary margin of the right nasal aperture, and a hairline fracture in the jaw area. In addition, there were multiple abrasions at the front of the neck that could have caused asphyxia. Raefe Mahadeo’s Background [ 6 ] Mr. Mahadeo was born in 1987 and was 35 years of age at the time of the alleged offence. I was given little about Mr. Mahadeo’s history other than what was provided in Dr. Lohrasbe’s report and the Agreed Statement of Facts. [ 7 ] Mr. Mahadeo was born in Regina.

He was raised in Regina and for most of his life he lived in the same home with his mother and maternal grandmother, until his grandmother died in 2011. He was close to her, and her death hit him hard. He had been told by his mother that his grandmother had been hospitalized for Schizophrenia. [ 8 ] He advised that his mother suffered from epilepsy and was on Dilantin and Tegretol when she was pregnant with him. He described that he was agitated and hyperactive as a baby and toddler. He had few friends and did not fit in with his peers.

He recalls having extreme emotions, overwhelmingly negative and that he reacted excessively to typical childhood conflicts. He recalled one incident where he stabbed another boy with a pen when he was 15. Police were called and he had to go on medication. He attended a special school up until high school. He finished his grade 12. [ 9 ] By all accounts, he had a loving and supportive relationship with his mother Deborah Mahadeo. He described that he had a really good relationship with his mother. He said she was open, nice and nice to be around.

In the years before the pandemic, they spent almost all of their time together when he was not working. In recent years, his mother had sold cannabis out of their home. Customers came to the front door, and he knew there was some risk that they could be robbed. He said that they had experienced threats of violence from this activity. In the spring of 2020 when COVID shut down his work for five months, he stayed at home. He said that initially there was not much change in his relationship with his mother, but gradually she got upset more with him. He said he thought it was because of the shutdown.

The relationship was becoming increasingly stressed at the time of his father’s death on October 22, 202 1 . [ 10 ] Mr. Mahadeo has had previous documented episodes of mental illness. His first documented psychiatric assessment was in 2008, when he was 21 years of age. He was working at Burger King at the time. Mr. Mahadeo presented at an emergency room where he was unkempt, irritable, aggressive, and demanding. At the time he said his concern was that he had a sexually transmitted disease and that he was being controlled by other people.

He was so unwell that he was not in a position to give informed consent for hospitalisation. He was therefore admitted as an involuntary patient. He was diagnosed with an Acute Psychotic Episode and was hospitalized from September 28 to October 19, 2008, at which time he was discharged. [ 11 ] The next time that Mr. Mahadeo sought mental health medical help was after his father’s death on October 22, 2021. He attended to the hospital emergency room on December 14, 2021 and December 26, 2021, but unfortunately was not given any treatment nor was he admitted.

On December 26, 2021, his second attendance at the emergency room, the attending physician wrote “I suspect he would benefit from an outpatient referral to Psychiatry” but there is no confirmation that the physician made that referral. Mr. Mahadeo recalled to Dr. Lohrasbe that in the weeks after his father's death (October 22, 2021) there was an acceleration in the stresses between himself and his mother. He was suffering from distress, insomnia and an acceleration of fearful preoccupations. He said he knew he was unwell, but could not figure it out. He said he was just feeling there was a conspiracy against him.

He recalled he attended

the Regina General Hospital on several occasions but could not recall details. Around that time, he did recall having thoughts that he was being controlled by technology. He feared that technology was controlling him, and he wanted to free himself. He could not describe how he was being controlled, only that it felt ominous and unpleasant. He told Dr. Lohrasbe that he had read rumours online that fueled his concern about being controlled. To protect himself, he destroyed the battery on his phone and shut down its power, but he thought that these acts of resistance made him a target.

He believed that other people were also being infected by technology, sometimes by vaccines and sometimes by less obvious ways. He had thoughts of destroying cell phone towers. He told Dr. Lohrasbe that he thought he went to the hospital the day before his mother's death because he felt out of sorts with everything. He wanted an answer as to what was wrong with him, as the technology was still on his mind. He waited several hours to be seen, but then left without any help. [ 12 ] Mr.

Mahadeo attended to Regina General Hospital Emergency on January 2, 2022, reporting that he was having paranoid ideations over the previous days, thinking he was being stalked and tracked. Sadly, again no treatment was provided. He attended several hours later, on the same day, January 2, 2022, reporting to hospital staff that his head felt weird, and his head was hardening and softening. He was staring into space and not responsive to the nurse. Again, no admission and no treatment were given. [ 13 ] After the predicate offence, Mr. Mahadeo was again seen by medical personnel on January 5, 2022. Mr.

Mahadeo had an intake nursing assessment when he was admitted into custody on January 5, 2022, after the offence. While he was cooperative, he had poor eye contact and disorganized, excessive and quiet mumbling speech. He was able to slowly respond to questions. That is the extent of the medical information. [ 14 ] On January 24, 2022, correctional facility nursing staff indicated that Mr. Mahadeo had recent bizarre behaviour. He was brought to the medical clinic for a mental health check. He was observed crying and sobbing intermittently during the conversations. He was reporting he had a “technology infection”.

He reported hearing voices frequently, but could not elaborate to staff on what the voices said. He heard animal sounds and motor gear sounds. He had disorganized thinking and flights of ideas. The nursing staff also noted that he appeared to be having paranoid delusions and he indicated the world may be better off if he got killed. He was placed on suicide watch and prescribed antipsychotic medication.

He was observed in the following days where he continued to suggest he was responsible for the world's problems, although it was noted he was responding to anti-psychotic medications. [ 15 ] That is the extent of Mr. Mahadeo’s documented mental health attendances. ASSESSMENT UNDERTAKEN BY DR. LOHRASBE [ 16 ] Mr. Mahadeo was assessed by Dr. Shabehram Lohrasbe, a forensic psychiatrist. Dr. Lohrasbe is a medical practitioner who has been practicing psychiatry principally in the area of forensic or medicolegal psychiatry for 37 years. Dr. Lohrasbe’s Curriculum Vitae was filed as D1.

He has assessed thousands of individuals and testified extensively in Canadian courts. The defence and Crown acknowledged that Dr. Lohrasbe is an expert in the area of psychiatric medicine with special knowledge in medicolegal psychiatry. I qualify Dr. Lohrasbe as an expert in the area of psychiatric medicine with special knowledge in medicolegal psychiatry. [ 17 ] Dr. Lohrasbe’s psychiatric assessment in respect of Raefe Mahadeo was filed as Exhibit D2, with the consent of the Crown.

The psychiatric assessment focused on issues relevant to Raefe Mahadeo’s mental state at the time of the alleged offence, and provided Dr. Lohrasbe’s opinion in respect of Mr. Mahadeo’s defence related to s. 16 of the Criminal Code [ 18 ] Dr. Lohrasbe conducted two interviews with Mr. Mahadeo. Both were by video, one on March 29 and the second on July 17, 2023. He also had a telephone interview with Mr. Mahadeo’s half-sister Aesha Faux (they have the same father). [ 19 ] Dr. Lohrasbe reviewed all of the information made available to him through Mr. Mahadeo’s counsel. In advance of the assessment, Dr.

Lohrasbe reviewed the indictment, police occurrence report, a transcript of the preliminary inquiry, which took place on November 14 and 15, 2022 (a copy of which was filed as Exhibit D3 herein), the audiovisual tape of the police interview with Mr. Mahadeo after the predicate offence, monitor notes of that interview, a verified transcription of that interview, a visual aid photo of the Mahadeo interview, Task Sheet January 2023, the autopsy report concerning Deborah Mahadeo and health records from Saskatchewan Health Authority for the period of 2008 to 2022 about Mr. Mahadeo. Dr.

Lohrasbe identified that the data provided to him was more than adequate for the purposes of the assessment. [ 20 ] Dr. Lohrasbe did note that one of the limitations of the assessment was that his interviews with Mr. Mahadeo were done remotely by video. Dr. Lohrasbe did note that Mr. Mahadeo did not have difficulty with speech or communication. Dr. Lohrasbe also noted that his first interview with Mr. Mahadeo was more than a year after the alleged offence, but that was mediated by the fact that Dr. Lohrasbe was able to observe the interview Mr. Mahadeo gave to police shortly after the incident. Dr.

Lohrasbe did not consider either of these limitations as significant. [ 21 ] Based on his review of the written material, including the preliminary inquiry transcript, the medical records, his interviews with Mr. Mahadeo, and interviews with Mr. Mahadeo’s half-sister, Dr. Lohrasbe prepared a report dated August 12, 2023, which outlines his medical diagnosis and opinion (D2). The following is a

summary of his evidence contained in his report. [ 22 ] Dr. Lohrasbe spoke with Mr. Mahadeo’s half-sister, Aesha Faux. She told Dr. Lohrasbe that she had met Raefe, her half-brother once. However, she had more contact with him recently, before and after the death of their father in October 2021. She had encouraged Mr. Mahadeo to come to Victoria, British Columbia to visit their father when he was ill. However, Mr. Mahadeo was reluctant to leave his mother alone and was concerned about her safety in their neighbourhood. Ms. Faux noted that Mr.

Mahadeo had become increasingly fearful around the time of their father’s death and was speaking about his suspicions in a way that reminded her of their father. Ms. Faux advised that Mr. Mahadeo’s father was paranoid and was eventually diagnosed with Schizophrenia and Schizoaffective Disorder. Ms. Faux indicated that her father's symptoms were severe and had led to many psychiatric hospitalizations. Dr. Lohrasbe indicated that it is of note that Mr. Mahadeo had made no mention of his father being diagnosed with Schizophrenia. Mr. Mahadeo had expressed to his sister his fear about his online presence.

He was concerned about being monitored or hacked and was becoming increasingly preoccupied with an online relationship with a woman. It eventually was discovered that the woman he thought he was in love with online, did not even exist. In the aftermath of his disappointment over this, Ms. Faux indicated that Mr. Mahadeo became paranoid and was fearful that people from his past were posing as this woman. Ms. Faux said that she did not have significant

contact with Debbie Mahadeo and other than Mr. Mahadeo's expressing his fears for his mother’s safety, he did not mention to Ms. Faux any concerns about his relationship with his mother. [ 23 ] Dr. Lohrasbe identified in his report that Mr. Mahadeo’s clinical presentation and mental state were similar during both interviews. He presented as unkempt. He was on antipsychotic medication, Olanzapine at the time of the interviews. Mr. Mahadeo listened carefully but was initially hesitant and tentative. [ 24 ] In Dr. Lohrasbe’s view Mr. Mahadeo came across as earnest and disclosive.

His speech was monotonous, the effect flattish and somewhat odd. He had a persistent sense of bafflement. His demeanour was morose throughout. He was weary and detached. He was at times distractible, but he made a good effort to respond to questions. His answers were almost always brief and concrete. He made no spontaneous elaborations. While he appeared to make a good effort, he often struggled to recall facts or describe his thoughts or emotions. He appeared unsure, tentative, and ambivalent. He came across as lost, sad, and despairing. Dr. Lohrasbe noted that Mr.

Mahadeo’s account of prior psychotic experiences was broadly consistent with what was documented in the medical records. Mr. Mahadeo told Dr. Lohrasbe that he stated that he did not know what was real from what was not in December 2021 and January 2022. Mr. Mahadeo said in retrospect, he knows now that he was confused and harboured ideas that he no longer holds. [ 25 ] Mr. Mahadeo told Dr. Lohrasbe that in the period leading up to the predicate offence he was paranoid, believing people were out to get him. He brought a rock inside the house as a defensive weapon.

He thought his mother was potentially being controlled. He said he and his mother argued and their relationship was becoming increasingly strained. He said he was bewildered by the changes in her – asking himself if she was suffering from “technology... or cancer ... Alzheimer’s?” He described technology, chakra points, black magic, birds, and strange conversations with his mother, including incidents of violence. Dr. Lohrasbe indicated that Mr.

Mahadeo could not now explain why he thought at the time these things (technology, chakra points, black magic, birds, strange conversations etc.) were all linked, but at the time thought it was all somehow connected. [ 26 ] Mr. Mahadeo indicated to police in his interview that he had abused an unknown drug around the time of the predicate offence. Mr. Mahadeo had not been a drug or alcohol user. He told Dr. Lohrasbe he took this drug, whatever it was, because he was trying to relax and fit in with newfound companions. He said he just had one puff but said it did not have any effect on him. [ 27 ] Mr.

Mahadeo had some recollection of the predicate offence that he described to Dr. Lohrasbe. Dr. Lohrasbe identified that Mr. Mahadeo was extremely distressed and remorseful when describing his recollections about the offence. He came across to Dr. Lohrasbe as struggling to come to terms with the reality of his actions. Mr. Mahadeo described a buildup of tension between himself and his mother. His described acts of violence were broadly consistent with his account to police. He recalls that he grabbed his mother and pushed her down, looking for the tech in her mouth that he thought was there.

He was unable to explain why he was convinced that technology was in her mouth. He tried to feel inside her mouth for technology. At that point, in his interview with Dr. Lohrasbe, Mr. Mahadeo became extremely distressed, saying through tears that he still did not know why he stabbed his mother. He thought his mother was being controlled through the television. He recalled he grabbed a scorpion knife, pointed it at his mother, and stabbed her, but could not recall the moment of stabbing. When asked what he did recall, Mr. Mahadeo who was emotional, stated that his mother died pretty quickly.

He vaguely recalled watching television after she was dead. He said he recalled that he tried to move her body but he felt too weak. He called 911 the next day, saying he knew he had to do it. He did recall being interviewed by police, but was unsure as to how much time passed between his arrest and the interview. [ 28 ] Mr. Mahadeo could not recall most of what he had said to police when being interviewed. Dr. Lohrasbe included many of Mr. Mahadeo’s comments to police in his report to put the comments in context. Mr.

Mahadeo’s comments about what he was thinking around the time of the predicate offence, both about his mother and about his other thoughts, identify the depth of his mental health issues at the time. Mr. Mahadeo had difficulty explaining the thoughts he had expressed to police to Dr. Lohrasbe and was often emotional when trying to do so. [ 29 ] In Dr. Lohrasbe’s opinion, Mr. Mahadeo’s primary diagnosis is Schizophrenia. In his opinion, Schizophrenia is the primary consideration regarding Mr. Mahadeo’s mental state at the time of the predicate offence.

The diagnostic criteria for Schizophrenia include delusions, hallucinations, disorganized speech, grossly disorganized or catatonic behaviour and negative symptoms such as diminished emotional expression or avolition. Dr. Lohrasbe indicated in his report that three broad sets of mental experiences mark psychosis: hallucinations, delusions and thought disorder. The most prominent of Mr. Mahadeo’s symptoms have been delusions, generally of a paranoid nature, but also with some grandiose themes. Dr.

Lohrasbe indicated that mental disorders are generally considered to be severe if the sufferer experiences psychosis, which denotes mental functioning that has crossed a threshold into clear abnormality. The sufferer’s experience of reality is at odds with those around him. Dr. Lohrasbe’s opinion was that Mr. Mahadeo’s clinical presentation was not only consistent with the DSM (Diagnostic and Statistical Manual of Mental Disorders) system criteria for Schizophrenia, but they were also consistent with an earlier system of diagnosis for Schizophrenia. Dr.

Lohrasbe indicated that it is relevant to the confidence of his diagnosis that Mr. Mahadeo has one first-degree and one second-degree relative with Schizophrenia. [ 30 ] Dr. Lohrasbe indicated that the role of substance use could not be entirely dismissed as Mr. Mahadeo had referred to using some type of drug by smoking it. However, in his opinion, given the totality of the information available, it is likely that substance abuse was only a secondary role in Mr. Mahadeo’s mental state at the time of the predicate offence. [ 31 ] In Dr. Lohrasbe’s opinion, Mr.

Mahadeo suffers from a major mental disorder, Schizophrenia and it is his opinion that the symptoms of his major mental disorder were the primary factors that precipitated him stabbing his mother. Dr. Lohrasbe noted that Mr. Mahadeo did not present with stable, coherent, consistent delusions, which can make the diagnostic process more challenging. However, Dr. Lohrasbe indicated that fragmented, confused, and changing pattern of delusional preoccupation is common in Schizophrenia. Dr. Lohrasbe indicated that many delusional ideas do not have fully formed narratives.

Unsettled delusions can fluctuate along several vectors or dimensions in the sufferer and are nevertheless consistent with the diagnosis. [ 32 ] Dr. Lohrasbe indicated that there was reliable information that Mr. Mahadeo and his mother were having significant conflict in what had otherwise been a peaceful and loving relationship. While isolation from the pandemic may have played a

part, Dr. Lohrasbe noted that Mr. Mahadeo experienced the acute onset of fast-evolving psychotic symptoms, with prominent paranoiddelusions. Those delusions incorporated his mother. Dr. Lohrasbe indicated that when psychosis is severe and sustained and the personis isolated from real-world feedback, it becomes increasingly likely that the erratic directions of psychotic symptoms will override theirmoral compass.

Psychotic experiences become the dominant reality for the sufferer and morality, based on normal attachments and real-life experiences, is progressively replaced by the distortions and unrealities of psychotic symptoms. [33] Dr. Lohrasbe noted that the available information indicated that Mr. Mahadeo was at least intermittently in apsychotic state at and around the time he killed his mother. The available information about his mental state around the time of thepredicate offence suggested that it is unlikely that he was incapable of knowing that his actions were morally wrong in the real world. InDr.

Lohrasbe’s opinion, Mr. Mahadeo was suffering from a disease of the mind, Schizophrenia, and was in a psychotic state at the timeof the predicate offence. In Dr. Lohrasbe’s opinion, the psychiatric assessment supported finding Mr. Mahadeo was not criminallyresponsible under the second arm of s. 16 of the Criminal Code, that is, that Mr. Mahadeo did not know that what he was doing waswrong.

POSITIONS OF THE PARTIES [34] Defence counsel and the Crown jointly submit that I find Raefe Mahadeo committed the physical acts whichcaused the death of Deborah Mahadeo, but that I find him not criminally responsible by reason of mental disorder. THE LAW [35] The Crown must prove beyond a reasonable doubt both the actus reas and mens rea of the offence of seconddegree murder. The actus reas is the physical component of the wrongful act. The mens rea is the mental intent of the accused tocommit the wrongful act. Here Mr.

Mahadeo raises the defence of not criminally responsible in relation to the mens rea component ofthe offence. [36] The defence of not criminally responsible by reason of mental disorder is grounded in s. 16 of the CriminalCode. It provides as follows: 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 theparty that raises the issue. [37] In R v Bouchard-Lebrun,2011 SCC 58, [2011] 3 SCR 575 [Bouchard-Lebrun], LeBel J., writing for the SupremeCourt of Canada, summarized the basic principles which underlie the mental disorder regime: [44] The defence of not criminally responsible on account of mental disorder, which Parliament codified in s. 16 Cr. C. [Criminal Code],addresses concerns that are very legitimate in a democratic society.

Insofar as the principles governing this defence are properly applied,a verdict of not criminally responsible on account of mental disorder protects the integrity of our country's criminal justice system andthe collective interest in ensuring respect for its fundamental principles. A review of the fundamental principles of criminal law thatunderlie the defence of mental disorder confirms the importance of this defence in Canadian criminal law. [45] According to a traditional fundamental principle of the common law, criminal responsibility can result only from the commission ofa voluntary act.

This important principle is based on a recognition that it would be unfair in a democratic society to impose theconsequences and stigma of criminal responsibility on an accused who did not voluntarily commit

an act that constitutes a criminaloffence. [46] For

an act to be considered voluntary in the criminal law, it must be the product of the accused person's free will. As Taschereau J.stated in R. v. King, (SCC), [1962] S.C.R. 746, "there can be no actus reus unless it is the result of a willing mind atliberty to make a definite choice or decision, or in other words, there must be a willpower to do

an act whether the accused knew or notthat it was prohibited by law" (p. 749). This means that no one can be found criminally responsible for an involuntary act (see DicksonJ.'s dissenting reasons in Rabey v. The Queen, (SCC), [1980] 2 S.C.R. 513, which were endorsed on this point in R. v.Parks, (SCC), [1992] 2 S.C.R. 871). [47] An individual's will is expressed through conscious control exerted by the individual over his or her body (Perka v. The Queen, (SCC), [1984] 2 S.C.R. 232, at p. 249).

The control may be physical, in which case voluntariness relates to the musclemovements of a person exerting physical control over his or her body. The exercise of a person's will may also involve moral controlover actions the person wants to take, in which case a voluntary act is a carefully thought out act that is performed freely by an individualwith at least a minimum level of intelligence (see H. Parent, Responsabilité pénale et troubles mentaux: Histoire de la folie en droitpénal français, anglais et canadien (1999), at pp. 266-71).

Will is also a product of reason. [48] The moral dimension of the voluntary act, which this Court recognized in Perka, thus reflects the idea that the criminal law viewsindividuals as autonomous and rational beings. Indeed, this idea can be seen as the cornerstone of the principles governing the attributionof criminal responsibility (L. Alexander, K. K. Ferzan and S. J. Morse, Crime and Culpability: A Theory of Criminal Law (2009), at p.155). When considered from this perspective, human behaviour will trigger criminal responsibility only if it results from a "true choice"or from the person's "free will".

This principle signals the importance of autonomy and reason in the system of criminal responsibility. Asthe Court noted in R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687: The treatment of criminal offenders as rational, autonomous and choosing agents is a fundamental organizing principle of our criminal

law. Its importance is reflected not only in the requirement that

an act must be voluntary, but also in the condition that a wrongful actmust be intentional to ground a conviction. ... Like voluntariness, the requirement of a guilty mind is rooted in respect for individualautonomy and free will and acknowledges the importance of those values to a free and democratic society. … Criminal liability alsodepends on the capacity to choose -- the ability to reason right from wrong. [Emphasis added; citation omitted; para. 45.] [49] This essential basis for attributing criminal responsibility thus gives rise to a presumption that each individual can distinguish rightfrom wrong.

The criminal law relies on a presumption that every person is an autonomous and rational being whose acts and omissionscan attract liability. This presumption is not absolute, however: it can be rebutted by proving that the accused did not at the material timehave the level of autonomy or rationality required to attract criminal liability.

Thus, criminal responsibility will not be imposed if theaccused gives an excuse for his or her act that is accepted in our society, in which there is "a fundamental conviction that criminalresponsibility is appropriate only where the actor is a discerning moral agent, capable of making choices between right and wrong" (R. v.Chaulk, (SCC), [1990] 3 S.C.R. 1303, at p. 1397).

In Ruzic, the Court recognized the existence of a principle offundamental justice that "only voluntary conduct -- behaviour that is the product of a free will and controlled body, unhindered byexternal constraints -- should attract the penalty and stigma of criminal liability" (para. 47). [50] Insanity is an exception to the general criminal law principle that an accused is deemed to be autonomous and rational. A personsuffering from a mental disorder within the meaning of s. 16 Cr. C. is not considered to be capable of appreciating the nature of his or heracts or understanding that they are inherently wrong.

This is why Lamer C.J. stated in Chaulk that the insanity provisions of theCriminal Code "operate, at the most fundamental level, as an exemption from criminal liability which is predicated on an incapacity forcriminal intent" (p. 1321 (emphasis deleted)). [Emphasis in original] [38] As stated in R v Ozipko, 2016 SKQB 203 [Ozipko] an “insane” person is one who is incapable of morallyvoluntary conduct because the person’s actions are not actually the product of his or her free will.

The Supreme Court concluded that itwas inconsistent with the principles of fundamental justice for a person within the meaning of s. 16 to be found criminally responsible(Bouchard-Lebrun, para 51). [39] In cases where the mental state of the accused at the time that the act was committed is in question, because ofan alleged mental disorder, special rules apply to determine the verdict. The British Columbia Supreme Court, in R v Brown, 2006 BCSC1731, set out the approach that the court should take where an individual is charged with murder and mental health issues arise.

At para.2, the court said the following: [2] ... In a case such as this, the trier of fact first considers whether the Crown has proven the actus reus, then whether the defence hasmet the onus of proving on the balance of probabilities that the defence of NCRMD [Not Criminally Responsible Due to MentalDisorder] applies, and finally, if that defence does not apply, whether the Crown has proven the necessary mens rea beyond a reasonabledoubt. (See: R. v. David, (ON CA), [2002] O.J. No. 3455 (Court of Appeal for Ontario) at paragraph 48-54; R. v.Fell, [2003] O.J. No. 1145 (Ont.

S.C.J.) at p. 110 of 112). [40] The trier of fact must consider the defence of mental disorder if satisfied that the accused committed the subjectmatter of the charge, but before deciding whether he or she possessed the mental element required for the particular offence. In R vMcClenaghan, 2008 ABCA 7, 437 AR 247 [McClenaghan] the court set out the process to be undertaken in relation to such a defence: [148] The first logical step is to decide whether the actus reus is proven by the Crown beyond a reasonable doubt.

If the Crown fails toprove that the defendant committed the act, the defendant is entitled to be acquitted irrespective of his mental state at the time.

Thesecond stage is to consider if mental disorder is proven, and then the last is the fall-back position (often associated with a rolled up'charge) as to possible doubt on the mens rea. [149] The trial judge found there was a mental disorder within the meaning of s. 16 of the Criminal Code and that it was possible for thejury to be satisfied on a balance of probabilities that the defendant at the relevant time suffered from that mental disorder to such a degreethat he was incapable of appreciating the nature and quality of his conduct.

Rightly, she did not instruct the jury on the alternative ofincapacity to know that the conduct was wrong as viewed by objective standards. There was also no error in her not giving the jury theoption of an outright acquittal based on non-mental disorder automatism. ... [151] In other words, Parliament has clearly signalled that the issue of mental disorder, if capable of being raised, is to be decided whenthe actus reus is proven, not the count charged.

Following Parliament's guidance on this issue conforms with the policy which is set outin Winko [Winko v British Columbia, (SCC), [1999] 2 SCR 625], supra and other cases. It reduces the risk of half-wayhouse' conclusions as condemned in Parent [R v Parent, 2001 SCC 30, [2001] 1 SCR 761], supra.

It avoids the problem of trial judgesand juries having to unnecessarily try to sort out greater or lesser states of intent when, in the end result, there will not be criminalresponsibility whatever the intent and when, as here, the only reason not to find intent is the very evidence that is said to give rise to adoubt about intent, namely incapacity due to mental disorder. NCRMD [Not Criminal Responsible on Account of Mental Disorder]legally obviates even the most blatant of planning, deliberation and intention so there is no need to mix the matters up: R. v.

Molodowic,2000 CSC 16 , [2000] 1 S.C.R. 420, [2000] S.C.J. No. 17 (QL). [41] The procedure outlined in McClenaghan was also followed by the British Columbia Court of Appeal in R vMcCotter, 2012 BCCA 54 at para 62, 287 CCC (3d) 423, and in Saskatchewan in R v Lesann, 2014 SKQB 332, 455 Sask R 1, andOzipko. [42] In a criminal case, the Crown always bears the burden of proof beyond a reasonable doubt.

However, when thedefence of not criminally responsible is raised by the defence, the defence must establish, on a balance of probabilities, that the accusedwas suffering from a mental disorder so as to exempt the accused from criminal responsibility. Justice Ferguson, in R v Godin, 2014NBQB 60, 417 NBR (2d) 319, said at para. 8:

[8] Although in a criminal trial the burden of proof beyond a reasonable doubt is upon the Crown, and is said to never shift, Section16(2) of the Criminal Code decrees that everyone is presumed not to suffer from a mental disorder that might otherwise exempt themfrom criminal responsibility unless it is proven on a balance of probabilities that the person suffered from mental disorder. See, inrelation to the burden of proof: Section 16(3) of the Criminal Code.

In this instance, the defence of: "not criminally responsible" wasraised by the defence and so it carries the burden of proof: "on a balance of probabilities", that is, to establish that it is more likely thannot that Mr. Godin did not have the necessary: "knowledge of wrongfulness." [43] Subsection 16(1) of the Criminal Code sets out the substantive test for the mental disorder defence. Subsection16(2) establishes a presumption against the application of the mental disorder defence, that must be rebutted on the balance ofprobabilities.

That is, every person is presumed not to suffer from a mental disorder until the contrary is proven on a balance ofprobabilities (ss. 16(2)). Subsection 16(3) provides that the burden of proof is on the party that raises the defence. As stated, the accusedhere raised the defence of not criminally responsible (although the Crown joins him in that submission) and so the accused carries theburden of proof on a balance of probabilities to establish that Mr. Mahadeo was suffering a disease of the mind and that it is more likelythan not that Mr.

Mahadeo was incapable of appreciating the nature and quality of the act or did not have the necessary knowledge ofwrongfulness. [44] As noted, there are two branches to the s. 16 test. The party who is asserting the defence must establish bothrequirements, on the balance of probabilities. [45] First, the accused must have suffered from a disease of the mind at the time of the alleged offence. Second, thedisease of the mind must have rendered the accused incapable of: (

i) appreciating the nature and quality of the act or omission, or (ii)knowing that the act or omission was wrong. [46] The second stage of the test is disjunctive. An accused who did not appreciate the nature and quality of his orher actions or who did not know that such actions were wrong is entitled to a verdict of not criminally responsible. The second stage ofthe defence concerns the effects of the mental disorder.

In Bouchard-Lebrun, Lebel J. made the following comments in relation to thetwo-step test: [56] An accused who wishes to successfully raise the defence of mental disorder must therefore meet the requirements of a two-stagestatutory test. The first stage involves characterizing the mental state of the accused. The key issue to be decided at trial at this stage iswhether the accused was suffering from a mental disorder in the legal sense at the time of the alleged events. The second stage of thedefence provided for in s. 16 Cr. C. [Criminal Code] concerns the effects of the mental disorder.

At this stage, it must be determinedwhether, owing to his or her mental condition, the accused was incapable of "knowing that [the act or omission] was wrong" (s. 16(1) Cr.C.). [47] The second arm of s. 16 extends to those who lacked the capacity to rationally decide whether the act was rightor wrong and were incapable of making a rational choice about whether to commit the act or not. [48] A results-driven approach, including one that is based on the view that the accused would be better served bytreatment in a mental hospital than by a term in prison, has no place in the s. 16 analysis (R v Woodward, 2009 ONCA 911 at para 9. [49] An accused who is found not criminally responsible under s. 16 is not guilty of the alleged offence (R v I.E.M.(2003), (ON CA), 173 CCC (3d) 515 (Ont CA)).

However, the accused is not entitled to an acquittal. In accordancewith s. 672.34 of the Criminal Code, the trial judge will render a verdict of not criminally responsible on account of mental disorder (R vChaulk, (SCC), [1990] 3 SCR 1303). The effect of this verdict is described in ss. 672.35 and 672.36.

ANALYSIS [50] As indicated, defence counsel and the Crown jointly submit that I find Raefe Mahadeo committed the physicalacts which caused the death of Deborah Mahadeo but find him not criminally responsible by reason of mental disorder. [51] Both Crown and defence agree the actus reas of these offences exists on the facts. Mr. Mahadeo admits to theactus reas component, i.e.: that he stabbed Deborah Mahadeo in the chest. Raefe Mahadeo admitted to police that the bladed objectfound next to her body was the item he stabbed her with.

The autopsy of Deborah Mahadeo concluded that she died as a result ofmultiple injuries, including a stab wound to the chest, which caused significant internal bleeding and pierced the right lung. I find theactus reas of this offence has been established beyond a reasonable doubt. [52] With that, I turn to the mens rea component and the s. 16 defence. [53]

Section 16 has two components which can best be addressed by answering these questions. (

a) Does Mr. Mahadeo suffer from a mental disorder / disease of the mind? Did Mr. Mahadeo suffer from a mentaldisorder/disease of the mind at the time of the alleged offences? (

b) Did the disease of the mind render him incapable of appreciating the nature and quality of the act or knowing that it waswrong? (

a) Disease of the Mind [54]

Section 2 of the Criminal Code defines “mental disorder” as a “disease of the mind”. The legal definition of“disease of the mind” is very broad. It embraces “any illness, disorder or abnormal condition which impairs the human mind and itsfunctioning” excluding self-induced states caused by alcohol or drugs or transitory mental states such as hysteria or concussion (see R vCooper, (SCC), [1980] 1 SCR 1149).

[ 55 ] This concept − disease of the mind − is a legal concept with a medical component. While medical opinions are important, they are not determinative. Rather, this is a question of fact to be determined by the trial judge. [ 56 ] Dr. Lohrasbe had no difficulty concluding that Mr. Mahadeo suffered from a disease of the mind at the operative time. Dr. Lohrasbe’s opinion was that Mr.

Mahadeo was suffering from a major mental disorder, Schizophrenia, and that the symptoms of his major mental disorder were present at the time of the predicate offence, and that he was in a psychotic state and those were the primary factors that precipitated the killing of his mother. Dr. Lohrasbe noted that the most prominent of Mr. Mahadeo’s Schizophrenic symptoms were delusions, primarily of a paranoid nature, but also with some grandiose themes. While Mr. Mahadeo did not present with stable, coherent and consistent delusions during his interviews with Dr.

Lohrasbe, police interviews, or during his attendance at hospital, which can make the diagnosis challenging, Dr. Lohrasbe noted that such fragmented, confused and changing pattern of delusional preoccupation is common in the disease. Dr. Lohrasbe noted that paranoid delusions can and are often “seeded” by real-life conflict, which by all accounts Mr. Mahadeo was experiencing with his mother. Dr. Lohrasbe opined that grafted onto this conflict was the acute onset of fast-evolving psychotic symptoms, with prominent paranoid delusions which soon incorporated his mother. [ 57 ] Both Crown and defence concur with Dr.

Lohrasbe’s medical conclusion and agree that Mr. Mahadeo was suffering from a disease of the mind at the time of the alleged offences. I am satisfied, from Dr. Lohrasbe’s evidence, supplemented by Mr. Mahadeo’s pre and post offence conduct, notably his interactions with the police, the medical reports in the period just prior to and subsequent to the offence, and the evidence from the preliminary inquiry and Agreed Statement of Facts, that he was suffering from a disease of the mind, Schizophrenia, that he was psychotic, and, indeed, suffered from a severe psychotic episode at the time of the alleged offence.

I am satisfied on a balance of probabilities that Mr. Mahadeo suffered from a mental disorder at the time of the alleged offences as defined in s. 16 of the Criminal Code . (

b) Did the disease of the mind render him incapable of appreciating the nature and quality of the act or knowing that it was wrong? [ 58 ] The second stage of the test delves into whether Mr. Mahadeo was capable of appreciating the nature and quality of his actions, or the wrongfulness of his actions. [ 59 ] Mr. Mahadeo did not testify and there is only one medical opinion. Nonetheless, Dr. Lohrasbe’s opinion has been placed jointly before this Court by both Crown and defence. [ 60 ] To be capable of appreciating the nature and quality of his acts, Mr.

Mahadeo must have had the capacity to know what he was doing, ( i.e. : stabbing his mother with a knife) and the capacity to understand the physical consequences that flow from that act ( i.e. : that stabbing someone could cause death or injury). [ 61 ] An alternative basis for the s. 16 defence is whether the accused’s mental disorder made him incapable of knowing that his act was wrong. As discussed above, “wrong” means more than simply contrary to law. In the context of s. 16 it means Mr.

Mahadeo lacked the capacity to rationally decide whether the act was morally wrong by the ordinary standards of reasonable men and women. [ 62 ] Dr. Lohrasbe opined that Mr. Mahadeo lacked the capacity to rationally decide whether the act of stabbing his mother was morally wrong. Building on his opinion, which I have referred to earlier, that Mr. Mahadeo was suffering from Schizophrenia at the time of the predicate offence and that Mr. Mahadeo was psychotic at the time of the predicate offence, Dr.

Lohrasbe states in his report (Exhibit D2) at page 23: When psychosis is severe and sustained, and the patient is isolated from real-world feedback, it becomes increasingly likely that the erratic directions of psychotic symptoms will override his moral compass. Psychotic experiences, with their urgency and demands for attention and action, became the dominant reality for the sufferer and morality based on ‘normal’ attachments and real-life experiences is progressively replaced by the distortions and unrealities of psychotic symptoms. Available information indicates that Mr.

Mahadeo was at least intermittently in a psychotic mindset at and around the time he killed his mother. All available information of his mental state at and around the time of the predicate offense suggests that it is unlikely that he was capable of knowing that his actions were morally wrong in the real world. Hence, this psychiatric assessment would support a legal consideration for finding Mr. Mahadeo not criminally responsible under the second arm of S. 16 . (‘knowing that it was wrong’). [ 63 ] Dr. Lohrasbe was cautious about matching his clinical findings to the legal test in s. 16 .

He commented on the fact that Mr. Mahadeo’s delusions were disorganized and shifted but seeded by real-life conflict. Nevertheless, in Dr. Lohrasbe’s opinion, based on the evidence and interviews with Mr. Mahadeo and others, Mr. Mahadeo was psychotic at and around the time he killed his mother and in that mental state he was incapable of knowing that his actions were morally wrong. [ 64 ] The following facts and evidence, in addition to Dr. Lohrasbe’s opinion, are significant to whether Mr. Mahadeo was capable of rationally determining if what he did was right or wrong: (

a) Mr. Mahadeo had a loving and supportive relationship with his mother prior to this incident. In the months leading up to the incident, a time during which they were isolated because of COVID restrictions, they were in conflict. (

b) Mr. Mahadeo’s mental health began to deteriorate in the weeks leading up to the incident. He sought mental health/psychiatric medical help on four occasions by attending to the Regina General Hospital on December 14, 2021, December 26, 2021, and twice on January 2, 2022. He received no medical or psychiatric help on any of those occasions. (

c) Mr. Mahadeo believed he had been poisoned by metals and cleaning products from his workplace.

(

d) Mr. Mahadeo, in the weeks leading up to the predicate offense, believed that technology was in his arm as a result of a COVID-19 vaccination and he cut his arm and burnt it with a knife, alcohol and lighter fluid to get rid of the technology. (

e) Mr. Mahadeo was suffering from insomnia in the period prior to the event. (

f) Mr. Mahadeo believed that someone was listening to his cell phone and controlling him through his cell phone. He destroyed the battery of his phone and shut it down and he believed these acts of resistance made him a target. (

g) He believed that his mother was a robot and had “tech” in her. Mr. Mahadeo struggled with his mother in an attempt to remove the tech from her mouth. He believed he could free her spirit if he stabbed her. (

h) He felt around in his mother’s mouth during the offence, trying to feel for the technology in her mouth. (

i) Mr. Mahadeo thought that his mother had been killed by a cult and that his actions in stabbing her were “saving” her. (

j) He believed that birds that came to his home were connected to his soul. (

k) Mr. Mahadeo did not call for emergency help for one to two days because he believed that his mother would come back to life. [ 65 ] I am satisfied on a balance of probabilities, based on the psychiatric assessment and evidence filed, that Mr. Mahadeo is not criminally responsible under the second arm of s. 16 . of the Criminal Code because he was incapable of knowing that stabbing his mother was wrong.

CONCLUSION [ 66 ] I am satisfied from the evidence that Raefe Mahadeo caused the death of Deborah Mahadeo. [ 67 ] I am also satisfied from the evidence that, on a balance of probabilities, at the time of the offence Raefe Mahadeo was suffering from Schizophrenia, and in a psychotic episode, and that this is a disease of the mind or mental disorder within the meaning of the Criminal Code . The evidence also satisfies me that, on a balance of probabilities, Mr.

Mahadeo was suffering from a mental disorder which deprived him of the capacity to make a rational choice about whether his actions were right or wrong. [ 68 ] Accordingly, I find that Mr. Mahadeo committed the act causing the death of Deborah Mahadeo, but I find that Raefe Mahadeo is not criminally responsible on account of mental disorder in accordance with s. 672.34 of the Criminal Code . [ 69 ] Upon return of a verdict of not criminally responsible, the trial court may hold a disposition hearing on its own motion.

Where the court does not make a disposition under s. 672.45, the disposition hearing will be held by the review board (s. 672.47). Here, both defence and Crown have asked the court not to hold a disposition hearing, but rather to allow the disposition hearing to be held by the review board. I decline to hold a disposition hearing. The disposition will be held by the review board. J C.L. Dawson