In a lengthy judgment read aloud to a Kelowna Supreme Court, Richard McCrae was found criminally responsible for the , but not guilty of attempted murder.
McCrae, who has struggled with auditory hallucinations, schizophrenia and bouts of psychosis for much of his adult life, had admitted to the stabbing of Const. Jason Tymofichuk. Monday's judgment (July 28) was to decide if he was criminally responsible, along with a decision on each of McCrae's five charges: attempted murder, aggravated assault of a police officer, attempt to disarm a police officer, possession of a weapon for a dangerous purpose and resisting arrest.
On March 26, 2022, Const. Tymofichuk was called to the Kelowna Gospel Mission Shelter on Bay Avenue to assist with removing a tent in front of the shelter, which was against the rules. A woman was also inside the tent, and when shelter staff went outside to ask for it to be removed, McCrae became protective of the woman and roared loudly, which prompted the police call.
After attending the scene and having a brief, cordial chat with McCrae, Const. Tymofichuk then told McCrae that we was going to look into the tent, to make sure the woman who was sheltering inside was okay.
Const. Tymofichuk then took a step towards the tent, which prompted McCrae to kick him in the stomach and deliver a hard blow to the side of his face. Const. Tymofichuk then realized that he was stabbed in the eye socket by a carving knife that McCrae had in his pocket.
McCrae then jumped on top of the police officer and delivered additional blows to his face. In response, Const. Tymofichuk fired his pistol, as he believed McCrae intended to kill him.
No one was injured by the shot, but McCrae then became focused on taking the gun from Const. Tymofichuk, and could be heard saying, "Please give me your gun."
The much larger McCrae (6-foot-2, 200 pounds to Tymofichuk's 5-foot-7) then lifted Tymofichuk off the ground, slamming him back on the pavement, while both were locked onto Tymofichuk's pistol.
A bystander, who was leaving the shelter and recognized McCrae, yelled out at him to stop, which caused McCrae to briefly relax his grasp of Const. Tymofichuk.
Tymofichuk, whose vision was starting to blur from his wound, got to his feet and, once steady, pointed his gun and told McCrae to drop the knife. Instead, McCrae used the knife to slit his own throat, creating a deep wound. Tymofichuk then attempted to use his taser on McCrae, but it was ineffective, and McCrae began to walk away.
Supporting officers arrived moments later and used tasers to bring McCrae to the ground, where he was apprehended.
Both Tymofichuk and McCrae were immediately taken to the hospital for care. Const. Tymofichuk had been stabbed just above his eyeball, requiring emergent and extensive medical care to save his eye and preserve his vision. The incident left Tymofichuk with post-traumatic stress disorder, anxiety, and depression and no feeling on the right side of his face.
Justice Steven Wilson outlined his reasons for criminal responsibility, which centred around two witnesses, forensic psychiatrist Dr. Johann Brink and Dr. Kevin Duncan.
In closing submissions on May 8, Dr. Brink told the court that McCrae did not remember the incident and "likely" did not have control of his actions during the attack. Brink's expert opinion was that McCrae was experiencing acute psychosis at the time of the assault and was therefore unable to determine right from wrong.
However, Dr. Brink acknowledged to the court that what he heard from McCrae regarding his recollection of the incident was true, but thought that malingering with his symptoms was possible.
The Crown called a rebuttal witness, Dr. Kevin Duncan, who was called to testify to what McCrae told him at the Kelowna General Hospital after the incident.
Duncan, at the time, was a second-year resident on rotation and was routinely assigned to take intake interviews. McCrae told Duncan that, at the time of the incident, he had a knife in his hand and was playing with it, and when the police officer saw the knife, he knew there would be an altercation and used his knife "defensively."
McCrae told Duncan he was using methamphetamine that day, but denied taking other substances.
The Crown acknowledged that the accused suffered from a mental disorder at the time of the incident, but he was not suffering from psychosis on a level that deprived him of the knowledge that what he was doing was wrong.
Wilson explained that he had "difficulty" accepting Brink's opinion of McCrae's mental state.
"First, Dr. Brink did not know the versions of events McCrae told Dr. Duncan following the attack," Wilson said. "Second, Dr. Brink's original opinion assumed McCrae knew and liked Const. Tymofichuk."
Conflicting answers were given by Brink after these concerns were brought up to him, said Wilson, which cast doubt on his assertion that McCrae lacked the capacity for his quality of actions.
McCrae's comments to Dr. Duncan, while not true according to Wilson, still showed contemplation of a potential defence to his attack, and he made "no comment" regarding having no memory of the attack.
Wilson found that McCrae wanted to protect the woman in the tent, to prevent the tent from being moved, which showed criminal responsibility.
After acknowledging criminal responsibility, Wilson found McCrae guilty of aggravated assault of a police officer, attempt to disarm a police officer and resisting arrest. He was found not guilty of attempted murder, possession of a weapon for a dangerous purpose and resisting arrest.
"There is no doubt that McCrae's action could have resulted in the death of Tymofichuk," said Wilson regarding the attempted murder charge. "In my view, the evidence in this case does not go as far as establishing that McCrae had the specific intent to kill Tymofichuk, as distinct from engaging in conduct that may have that consequence."
McCrae will be in court for sentencing on Sept. 29.
