Anthony De Marco
Toronto Criminal Lawyer

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R. V. K.L.D.S


(1) First Degree Murder
(2) Aggravated Assault

The client, K.L.D.S., lived in a basement rooming house with various other persons. A party took place for one of the persons in the rooming house who planned to leave the country to attend his sister’s wedding. The party continued into the evening during which the client and his roommates smoked crack cocaine. The client is a crack cocaine addict.

Some time after midnight, a physical confrontation occurred in the common area of the rooming house at which time the client stabbed two men, S.J. and L.L. Thereafter, everyone left the rooming house. S.J. collapsed in an intersection nearby and eventually died of his injuries, a stab wound at the base of the right side of his neck which punctured an artery. L.L. recovered from his injuries, a stab wound at the front upper side of his left shoulder near his neck.

The client located police in the area at which time he surrendered himself. The client was originally charged with second degree murder for the killing of S.J. and aggravated assault for the stabbing of L.L. The second degree murder charge was eventually elevated to a charge of first degree murder for various reasons including the fact that the client and the deceased had been involved in a previous physical confrontation a couple of days prior to the stabbings.

The defence completed a thorough investigation of the client’s history and discovered that in addition to being addicted to crack cocaine, the client suffers from a mental disorder, possibly schizophrenia. At the time of the stabbings, the client was experiencing auditory hallucinations and acted with the belief that S.J. and L.L. had been conspiring to kill him and were about to kill him. The client’s primary defence at trial was an application pursuant to Section 16 of the Criminal Code of Canada for an order finding him not criminally responsible (NCR) for the offences with which he was charged on account of a mental disorder that rendered him incapable of appreciating that his actions were morally wrong.

The defence recognized at an early stage that the client’s NCR application would be difficult to establish since it would be based primarily upon the client’s self-reported symptomatology of psychosis. The application would also be complicated by the fact that the client is a cocaine addict and by the fact that the client had consumed crack cocaine before the stabbings. As a result, there was a danger that the court would find that the client, at the time of the stabbings, was suffering from a drug induced psychosis or was in a toxic psychotic state that is not a mental disorder upon which the defence of not criminally responsible could be based.

Also, forensic psychologists and forensic psychiatrists who would be asked to assess the client both for the defence and for the Crown would have difficulty in administering psychological tests to the client since he speaks only Portuguese. Psychological tests, such as the tests used to help determine whether or not a patient is feigning the symptomatology of psychosis, are typically only standardized on English-speaking populations. These psychological tests all come with a caution or a warning that interpreters should not be used to administer the tests.

In light of all of the aforementioned considerations, the defence decided that it would be best for the client to proceed to trial before a Judge sitting without a jury. In a murder case, this requires the consent of the Attorney General of Ontario. This consent was obtained by the defence agreeing to streamline the Crown’s case against the client.

With the cooperation of the Big Case Management unit of Legal Aid Ontario, the defence retained 5 expert witnesses on behalf of the client, in particular, 2 psychiatrists, 2 psychologists and a social worker. These experts worked together to produce 2 comprehensive psychiatric assessment reports regarding the client. The Crown’s expert witnesses, a psychiatrist and a psychologist, also produced 2 psychiatric assessment reports regarding the client.

On May 2, 2012, just prior to the completion of the defence case, the Crown conceded the defence NCR application. The trial Judge found the client not criminally responsible for the killing of S.J. and the stabbing of L.L. The client was remanded to the supervision of the Ontario Review Board for a disposition hearing. The client will remain in custody in a hospital facility until the Ontario Review Board determines that it is appropriate for him to be released. The Ontario Review Board will hold a hearing on a yearly basis in this regard.

This proceeding was obviously a fantastic success for the client who avoided the penalty for first degree murder which is life in prison without the eligibility for parole for a minimum of 25 years. In addition, if the client had been found guilty, he would have been subject to a non-appealable removal order on account of serious criminality requiring his deportation to his native Brazil pursuant to the provisions of the Immigration and Refugee Protection Act.