Friday 15 October 2010

Were they both insane?

This article deals with an important issue in law---the issue of insanity. The question I will be raising in this article is whether or not the defence of insanity is merely a scam to avoid responsibility for committing a serious crime or it is a valid defence. In this article I will describe two Canadian cases in which the issue of insanity has been raised as a defence to the crimes committed by the defendants.

Adenir De Oliveira, 49, was charged with three counts of attempted murder and two counts of assault and at the time of this writing, he is undergoing his trial. The particulars of his crime are as follows. .

On February 13, 2009, this man was following close behind three teenage boys (all in grade nine) on a subway platform in Toronto, Ontario and later while they were standing on the platform waiting for the fast approaching subway train, the man pushed two of the teenage boys off the platform and onto the tracks. One of the boys managed to slide under the lip of the platform and pull the other boy towards him. Unfortunately, the second boy lost two toes as the train’s wheels ran over them. Meanwhile, the third boy (also in grade nine) managed to keep himself from falling off the platform. After the man did his dirty deed, he began running along the platform towards the exit in an effort to escape but was followed by an employee of the subway system along with other passengers as the suspect was running on Dufferin Street. De Oliveira then sat down outside a restaurant at the Dufferin Mall just before police arrived.

While De Oliveira and the others were waiting for the police to arrive, he was mumbling, but when the police officer showed up, De Oliveira said he tried to get help for his mental illness, that he went to the doctor, he went to the hospital and he tried to get medication. He said nobody would help. .

De Oliveira’s lawyer, Ian Kostman is not denying that his client committed the acts, but instead he is raising the possible defence that his client is not criminally responsible for his crimes because of mental illness. For this reason, De Oliveira has pleaded not guilty to three counts of attempted murder and three counts of assault.

To begin with, let me explain the legal definition of insanity as it is recognized in Commonwealth countries like Canada and how it is also recognized in the United States.

The courts must determine whether the accused, because of a disease of the mind, was rendered incapable of knowing that the act committed was something that he ought not to have done. To do so, the inquiry cannot terminate with the discovery that the accused knew that the act was contrary to the formal law. A person may well be aware that an act is contrary to law but, by reason of disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society.

In the Canadian Criminal Code, it states that no person shall be convicted of an offence in respect of an act or omission on his part while that person was insane. For the purposes of this section, a person is insane when the person is in a state of natural imbecility or has disease of the mind to an extent that renders the person incapable of appreciating the nature and quality of an act or omission or of knowing that an act or omission is wrong.

Further, a person who has specific delusions, but is in other respects sane, shall not be acquitted on the ground of insanity unless the delusions caused that person to believe in the existence of a state of things that, if it existed, would have justified or excused the act or omission of that person. Every one shall, until the contrary is proved, be presumed to be and to have been sane. This is why in such trials, the onus is on the defence to show the court that the defendant was insane when he committed the crime.

There is controversy in academic circles and the psychiatric profession as to whether insanity operates to negate a ‘condition precedent’ to legal responsibility or whether it operates as a defence in the sense that it negates criminal intent in the mind of the defendant.

The exact nature of the insanity defence is very difficult to ascertain. The wording of section 16of the Code itself is not particularly helpful in this regard. It tells us that a claim of insanity, if proved, will preclude a conviction, but it does not tell us whether a claim of insanity negates criminal intent, provides an excuse or justification, or whether it simply exempts an accused from a criminal conviction on policy grounds.

All types of defence can be illustrated by the M'Naghten Rules on insanity at common law. The central proposition in the M'Naghten Rules was that the defence would be available to someone who, because of a `defect of reason' resulting from `disease of the mind', did not `know the nature and quality of the act he was doing; or if he did know it, he did not know he was doing what was morally wrong'.

M’Naghten was a madman who attempted to murder Queen Victoria by shooting her when she was traveling in a horse-driven carriage through a park. The court ruled that M’Naghten was insane because he didn’t know that what he was doing was wrong, hence the rules that define insanity are referred to as the M’Naghten Rules.

In my view, the insanity provisions operate at the most fundamental level, as an exemption from criminal liability which is predicated on an incapacity for criminal intent. However, in some cases, this basic incapacity may manifest itself in a number of different ways depending on the claims put forward by the defendant. A claim of insanity, with its underlying claim of criminal incapacity, could give rise to a denial of the criminal act or of the criminal intent in some cases.

A defendant could raise the argument that his or her mental condition was such that while he or she was acting consciously and voluntarily, he or she did not have the requisite criminal intent. For example, a person charged with murder could claim that while he consciously and voluntarily did the act of chopping, he thought that he was chopping a log in half, when, in fact, he was chopping off the victim's head.

In such a case, the insanity claim is manifested as a denial of criminal intent In other words, the defendant had no intention to bring about the consequence of death. In yet another case, an accused, charged with murder, could argue that while she consciously and voluntarily did the act of killing and while she desired to bring about the death of the victim, she did so because her mental condition was such that she honestly believed that the victim was evil incarnate and would destroy the earth if the defendant did not kill him. In such a case, the insanity claim is manifested not as a denial of criminal act or criminal intent, but rather as a defence in the nature of an excuse or a justification based on the fact that the accused's mental condition rendered her incapable of knowing that the act was wrong.

There is the issue of incapacity for criminal intent to consider. Such incapacity arises because a defendant, due to his mental condition, is incapable of distinguishing between right and wrong. This claim of incapacity does not manifest itself as a denial of criminal intent in the particular case.

The criminal law is not concerned with whether a sane accused knew that his act was wrong. Knowledge of wrongness is not part of the requirement of criminal intent. This is because sane people are presumed to have the capacity to distinguish between right and wrong. If a sane person is of the opinion that murder is not wrong, his opinion makes him ‘bad’ as opposed to ‘sick’ because he has the capacity to distinguish right from wrong. A truly insane person would believe that murder is not wrong.

The question that the trial judge must determine is whether or not De Oliveira believed that what he did was not wrong. But for De Oliveira to use that belief as his defence, he must satisfy the court that he had a motive that in his own mind was justifiable for attempting to murder the three teenagers. He has not taken the witness stand to give testimony as of yet and he may not do it since it is his right to refuse to testify at his own trial. If he doesn’t testify at his trial and the psychiatrists who examined him weren’t told by him as to what his motive was, the trial judge will have to make her decision without that most pertinent evidence being given to her to consider.

What has been disclosed to the psychiatrists are facts (which if believed) would clearly show that this man is a real sick person. Keep in mind that many people are very sick in their minds but that doesn’t necessarily make them insane.

Dr. Julian Gojer, a psychiatrist for the defence testified that De Oliveira comes from a ‘disturbed’ family and is not criminally responsible for his actions. he testified that De Oliveira has had a life of mental-health issues, bestiality and an apparent suicide attempt where he lay on subway tracks himself, at one time in an attempt at suicide.

Gojer,a psychiatrist with the Toronto Western Hospital, said that before De Oliveira was charged, he met with him on several occasions, the first time six days after the February 13, 2009, incident at the Dufferin Subway Station. Testifying for the defence at the downtown University Avenue, Gojer painted a picture of a deeply troubled man who spoke of hallucinations and hearing voices. He said De Oliveira's family included a brother and sister who suffer from schizophrenia and depression, and a ‘jealous’ father who used to stalk his mother from the bushes. According to the psychiatrist’s talks with the defendant, he said that De Oliveira grew up on a farm in Brazil and as a teenager, engaged in sex with cows and horses and with his sister. As an adult in Canada, he has been prescribed multiple anti-depressant and anti-psychotic drugs for anxiety, insomnia and hallucinations. In the weeks leading up to the subway incident, De Oliveira frequented his doctor and the emergency ward of Humber River Regional Hospital. Gojer also claims the Centre for Addiction and Mental Health gave De Oliveira medication instead of only observing him, then concluded he had no mental illness. That doesn’t mean of course that he wasn’t suffering from some form of mental illness. If what he told the psychiatrist is true then he is definitely suffering from a form of mental illness.

De Oliveira's actions were evident of psychotic symptoms that were ‘part and parcel’ to his history of depression. He suffered from ‘a major depressive disorder at the time of the offence with psychotic features.’ according to the psychiatrist.

You have to ask yourself what would prompt someone to have sex with farm animals.There seems to be psychopathology that runs in this family from both sides, from sisters, his brother, father. It's a very disturbed family. Of course, we haven’t heard from members of his family so what De Oliveira has said about them may be untrue.

Prior to the shoving the kids, De Oliveira spent much of that day sitting in the food court of Dufferin Mall, drinking coffee, eating Chinese food and having suicidal and homicidal thoughts that were so strong, they felt like "an echo," Gojer told the court. Though initially intent on going home, by the time he arrived at Dufferin subway station and saw three boys standing on the platform, the only thoughts he had were ‘push or jump.’ But after he chose to push the boys onto the tracks, De Oliveira ran, assaulting three people who tried to stop him until police found him sitting on a rock outside the Pizza Hut back at Dufferin Mall.

There can be no doubt in anyone’s mind that De Olieira was a walking time-bomb just waiting to explode.

The bizarre behaviour continued after the attack. A note made by a Don Jail officer and read out by Kostman in court described an incident in which De Oliveira was "nude and dancing on his bed, also on top of the toilet," and not responding to a staff member's voice. De Oliveira also expressed beliefs that jail guards wanted to "rape and burn and kill him.”

A note written by a nurse at the Centre for Addiction and Mental Health described an incident in which De Oliveira was being interviewed by a staff psychiatrist when he began to leave the interview room, stated his "mind is heavy," and walked to his bedroom. After yelling and banging was heard from De Oliveira's room, he was found on the window sill, kicking the window and yelling. Once placed on the bed, he cried, hit himself on the head and said he was having suicidal thoughts, the note said.

Of course, he could have been faking all these symptoms in order to escape the consequences of his actions at the subway station. The psychiatrist said he found no evidence that De Oliveira was faking or exaggerating his symptoms. Unfortunately there is no real way that can be determined. Some medical reports have concluded De Oliveira has exaggerated his illness or symptoms.

Dr. Karim Eid’s notes from the January 5, 2009 visit say De Oliveira was obsessive, worried his girlfriend was cheating on him, had paranoid feelings and didn’t get along with his brother during a trip to Brazil, but there were no psychotic symptoms. His evaluation is wrong since paranoid feelings are a psychotic symptom. He may have been suffering from a major depressive disorder at the time of the offence, with psychotic features. If that is so, then he was suffering from a serious debilitating mental illness. But would that illness make him insane?
Gojer said De Oliveira told him he woke up depressed the day of the offence and spent the day at Dufferin Mall’s food court, where he was preoccupied with thoughts of killing himself and others.

According to Gojer, De Oliveira said he decided to go home and headed into the subway station, where he experienced intense thoughts of jumping in front of a train. Then he saw three young males and suddenly thought of pushing them, the doctor recalled him saying. He felt compelled to jump in front or push the youths — his only thoughts were “push or jump.

De Oliveira had stopped taking his antidepressant medication for several months because it caused erectile dysfunction and he was in a relationship, the court heard. I don’t know what medication he was on so I can’t comment on what side effects it would have on his sex life.

A report filed by a psychiatrist who will testify for the Crown later in the trial concluded that Mr. De Oliveira suffers from major depression and panic attacks, yet understood the consequences of his actions at the subway station.

One factor that must be seriously taken by the trial judge is the fact that after De Oliveira pushed the boys off the platform, he ran away. This means that he knew that what he had done was legally wrong but a man who is insane would not run away because he would believe that he did nothing morally wrong.

Ontario Superior Court Justice Nancy Backhouse must ultimately choose between conflicting psychiatric conclusions about Mr. De Oliveira, who came to Canada from Brazil more than 20 years ago. The sole question to be determined by the judge, who is sitting without a jury, is whether Mr. De Oliveira was so mentally ill when he pushed the boys onto the subway tracks that he was incapable of appreciating what he was doing or that it was wrong or whether he is simply a bad man who was angry at society and took his anger out on the boys.

The second case involves a woman who murdered her two daughters. Minutes after their mother calmly called police saying her children were dead, officers found 19-month-old Sophia Campione in bed, dressed in her Tinkerbell pyjamas, holding hands with her three-year-old sister Serena. Between their lifeless bodies lay a photo album and a rosary.

The Crown alleges their mother, Frances Elaine Campione, 35, drowned them in the bathtub in October 2006 so their father could not get custody of them.

A videotape was found in the room with the girls' bodies that showed Campione addressing the camera and speaking as if she and her daughters were dead. She said as if addressing her estranged husband, “There, are you happy? Everything's gone. Gone. God's taking care of them now. There is no way I could have them with you.” Clearly she drowned them so that her husband wouldn’t have custody of their two daughters.

She was speaking to her estranged husband, believing he would hear the terrible words only after her own self-administered death. “Now you can look at the caskets and talk to them that way.” The bitterness is toxic, as if something evil has entered the room. On and on Campione delivered her foul soliloquy, remonstrating, blaming, accusing. “You’re the devil, you’re the psychotic devil. I hate you, I hate you, I hate you. ”Then, shifting to a self-piteous dirge: “I did everything a perfect wife and mother should have done. It was never enough.” Slurring a little now she then said, “You wanted to win? You won. Are you happy? How does it make you feel?”

Defence lawyer Mary Cremer told the court they don't dispute that Campione "caused the girls to drown." But Cremer said she would explore "what was going on in the mind of Elaine Campione when this tragedy occurred" and will contest whether Campione had the mental state to form criminal intent. In other words, was she insane when she murdered her two daughters.

After killing her daughters Campione tried to kill herself by overdosing on the anxiety medication clonazepam and had attempted suicide in the past.

Elaine and Leo Campione's marriage was a rocky one. He had been charged with assaulting his wife and his eldest daughter and Elaine Campione and the girls lived at a shelter for a while before moving into an apartment. Leo Campione's parents had custody of the girls for a time while their mother was in hospital for stress and suicide attempts, but at the time of their death the girls and their mother, Elaine Campione were living in the apartment.

Leo Campione had made an application to get custody of his daughters — an application that was to be heard the day after his daughters were found dead.
The assistant crown attorney Meijers told the jury, "She did this in order to keep her estranged husband from getting custody of Serena and Sophia.

The videotape found in the bedroom showed footage from the night of Oct. 2, 2006 of the sisters playing and colouring, Meijers said. The tape was turned off at 8:39 p.m. and at that point "Serena and Sophia were very much alive," he said.

Then at 9:27 p.m. the video camera is turned back on and Campione is sitting alone on a couch facing the camera and talks about her hatred for her estranged husband, how "there is no way I could have them with you," and states that God is taking care of them. The camera is turned on again at 8:19 a.m. on Oct. 3 and Campione, sitting in the same spot, tells the camera she tried to overdose but it didn't work. The camera is turned on again soon after. "It's morning and our babies are in heaven," Meijers quoted Campione as saying.

The jury also heard a recording of a call at 6:15 a.m. on October 4th made to police in Barrie, Ontario on an administrative line and not 911 — in which Campione states in a quiet voice, “My children are dead.” When asked what happened, she says, “I don't know. I don't remember.”

An autopsy found the cause of death for both girls to be drowning. Court will hear from a friend of Campione who will testify the woman told her how she held the girls' heads under the water in the bathtub.

Was this woman insane or was she simply an evil woman who killed her two young daughters to get even with her husband? Quite frankly, I am inclinded to believe that she wasn’t insane, even though she was deeply disturbed. She knew that what she had done was legally and morally wrong.

More than a year before she drowned her two young daughters, Elaine Campione threatened to carry out a ‘grand gesture’ after a telephone conversation with her former husband. This means that she planned to carry out her plan to murder her children if things didn’t improve between her and her husband.

She knew that what she had done was illegal because it was the police she called and not an ambulance. Even if she, relying upon the defence of insanity, knew that her act was legally wrong, she would still be within the definition of insanity if she believed her action to be right according to the ordinary standard of reasonable human beings. But surely she had to know that her actions were morally wrong since her acts were based solely on vengeance and nothing else.

So far, we have not heard evidence relating to the issue as to whether, at the time the offences were committed, the defendant, owing to disease of the mind, though appreciating the nature and quality of her acts, did not know that what she was doing was morally, or legally, wrong.

But suppose at that moment when she murdered her children, she was temporarily insane. But mere proof of insanity alone is not enough. She is only to be considered insane for the purpose of that subsection in the Criminal Code if she has a disease of the mind to an extent that renders her incapable of: (a) appreciating the nature and quality of her act; or (b) knowing that such act was wrong. The words ‘nature and quality’ deal with the physical character of the act. If, therefore, when she committed the crime, she did not, by reason of disease of the mind, know what she was doing, she cannot to be convicted of the murder of her children because it really was not really her act.

The question is not whether the defendant knew that the act was wrong but whether she was capable of knowing it was wrong. Was she capable of comprehending that which militated to make the act wrong? In applying section 16(2) of the Canadian Criminal Code, one must delve into the thought process of the defendant, coherence, logic, rationality, rather than merely her knowledge of the wrongness of the particular act. Did disease of the mind so affect the capacity of the defendant to make a moral choice that she was unable to discern between what was morally right and what was morally wrong?

It is my opinion that this woman murdered her children so that she could forever deny her husband custody of their children. That wasn’t the act of an insane person but the act of a very disturbed but evil person who killed her own children to get a point across.

As soon as the courts render their decisions, I will post them at the end of this article as an update.

UPDATE: re De Oliveira, go to October 27th 2010.

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