IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[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:

[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.

[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:

[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.

[21]        Section 16 of the Criminal Code deals with NCRMD. That section reads as follows:

[22]        Crown counsel advanced the issue of NCRMD. Accordingly, the Crown would have to establish on a balance of probabilities that, first, Amer has a mental disorder and second, either as a result of a mental disorder, that Amer was incapable of appreciating the nature 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 1980 CanLII 44 (SCC) confirmed that mental disorders is a legal term of art with both medical and policy components, meaning that while  medical evidence will usually necessary, it is not determinative. The policy component balances the exemption from responsibility with public safety.

[24]        There is no set list of afflictions that qualify as mental disorders.  Dickson J., as he then was, in R. v. Cooper, 1979 CanLII 63 (SCC), [1980] 1 S.C.R. 1149, at 1159, outlined the scope of the term as follows:

[25]        Section 16(1) of the Criminal Code is broken into two branches each with separate tests. Branch 1 employs the verb to appreciate while branch 2 uses the verb to know. The verbs are distinguished in R. v. Barnier, 1980 CanLII 184 (SCC), [1980] 1 SCR 1124, at page 1137, as follows:

[26]        Appreciation likely involves knowledge but to know does not necessarily mean to appreciate.

[27]        The court in R. v. Landry, 1991 CanLII 114 (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, 1990 CanLII 34 (SCC), [1990] 3 SCR 1303 established that wrong means “morally wrong” not just “legally wrong.

[28]        Once a mental disorder has been established, that mental disorder must be shown to be of such intensity that the accused is rendered 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 as revealed in the CCTV footage was powerful objective evidence demonstrating intent. His statement to the police following the stabbing would 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 his prior history of mental disorder all support my finding that Amer lacked the capacity to rationally decide whether the stabbing of Skaley was 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 Amer stabbed Skaley that he had effectively lost touch with objective reality. It is this loss of reality that deprived Amer of the ability to make rational decisions.

[33]        Doctor Sammy Iskander was one of Amer’s treating psychiatrists. I found Doctor Iskander to be extremely reliable in providing opinion 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:

[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.