Defence seeks ruling of 'not criminally responsible' in officer stabbing case

Photo: File photo

A judge will determine if a Kelowna man who stabbed an RCMP officer should be found not criminally responsible due to a mental disorder.

After two weeks of trial, which started back in the fall, a judge will now determine if a man who stabbed a Kelowna RCMP officer in the face should be held criminally responsible, despite suffering from schizophrenia at the time.

Following an incident outside the Ellis Place supportive housing development just after midnight on March 27, 2022, Richard McCrae was charged with attempted murder, aggravated assault, attempting to disarm an officer, possession of a knife for a dangerous purpose and resisting arrest.

The incident occurred after Const. Jason Tymofichuk had been called to the housing development by staff, who were trying to get a woman to move her tent from the parking lot. McCrae had opposed the removal of the tent and staff called police.

While the officer testified McCrae was initially polite and respectful when he first arrived, McCrae kicked him and punched him to the ground as the officer began moving to the tent in question. McCrae then stabbed Const. Tymofichuk near the eye, leading to the officer firing his gun while he was on the ground, although no one was hit by the bullet.

A struggle for the officer's gun ensued between the two, before McCrae got off the officer and walked away. He then sliced his own throat with his knife. Officers tazed McCrae several times before they were able to get him down and in handcuffs.

'Body snatching'

McCrae's trial began last September, but after a week of trial that saw testimony from several witnesses and RCMP officers, including Const. Tymofichuk, the trial was delayed until this month.

McCrae testified in his own defence last week, while forensic psychiatrist Dr. Johann Brink also took the stand, opining that McCrae's schizophrenia had made him lose touch with reality when he stabbed Const. Tymofichuk, making him unable to distinguish right from wrong.

On the stand, McCrae said he was hearing “demonic voices” on the day of the incident and he believes the voices took him over like a “body snatching.”

He said he has no memory of attacking the officer, but “came to” while he was on top of Const. Tymofichuk, holding his wrists.

'Overwhelmed' by voices

During closing submissions Thursday, McCrae's defence counsel Donna Turko argued McCrae should be found not criminally responsible due to a mental disorder.

This defence is codified in the Canadian Criminal Code, and ensures an accused must be capable of making rational or autonomous choices to be found guilty of a crime. An accused can be found not criminally responsible if they were unable to appreciate the "nature and quality" of the act or they did not know that it was “wrong.”

“The defence relies upon expert evidence of forensic psychiatrist Dr. Brink, who invited this court to find that Mr. McCrae's mental disorder rendered him incapable of either appreciating the nature or quality of his act and incapable of knowing that the act was wrong due to his very active acute schizophrenia at the time of the altercation,” Turko told the court Thursday.

“Dr. Brink opined at the moment of stabbing, Mr. McCrae was overwhelmed by the voices and lost contact with reality such that he had no free will ... The will of the accused was overborne by his illness and lacked the executive function to distinguish right from wrong.”

When McCrae was first arrested and brought to Kelowna General Hospital, he told a doctor the officer had pulled a gun on him after seeing him playing with his knife, and he had stabbed the officer in self defence. But surveillance footage of the incident, along with testimony from witnesses, showed this wasn't an accurate depiction of the incident.

Turko argued that McCrae was still in a delusional state when he was at the hospital, something the KGH doctor agreed with at the time.

“Unless Mr. McCrae is a great actor and can make up all this stuff ... in the doctor's opinion, he's acutely psychotic while in the hospital. This is shortly after the incident, he's acutely psychotic with chronic delusions and paranoia. That's the diagnosis,” Turko said.

“It's overwhelming, from start to finish with Mr. McCrae, he's acutely schizophrenic ... then we turn to all the people who knew him who basically saw him in a state that was extremely different, extremely unable to reach him ... his brain was somewhere else, he was detached from reality in a sense.”

McCrae had been using methamphetamine on the day of the attack, but Dr. Brink said it was unlikely that the voices McCrae had been dealing with were a result of his drug use.

If McCrae is found not criminally responsible, the Review Board will then determine if he needs to be held in a psychiatric hospital. The Review Board holds annual hearings to assess an offender's mental health and determine if further detention is necessary.

'Did not have enough information'

In her own closing submissions, Crown prosecutor Miho Ogi-Harris agreed that McCrae was suffering from a mental disorder at the time of the attack.

“However, the Crown says that Mr. McCrae was not suffering from psychosis on a level that deprived him of knowing what he was doing and from knowing that his actions were wrong,” Ogi-Harris said.

While the defence's expert witness Dr. Brink opined that McCrae should be found not criminally responsible, Ogi-Harris said Dr. Brink only interviewed McCrae for three hours, two and a half years after the incident.

He also never reviewed McCrae's KGH records from the night of the incident, conceding that “it would have been helpful.

“The expert in this case did not have enough information to make a proper opinion in this case,” Ogi-Harris argued.

“His reasons for finding the accused [not criminally responsible] are simply insufficient. Not only are the facts upon which he relied not supported by all the evidence that was adduced at trial, but instead, the facts show that Mr. McCrae, while suffering from a mental disorder, did in fact have the capacity to know what he was doing and to know it was morally wrong to stab the police officer.”

Following closing submissions by the defence and Crown Thursday, Justice Steven Wilson reserved his judgment to a later date. McCrae remains in custody during the trial.