Sometimes people die when mistakes occur. The death of Sgt Ryan Russell in Toronto came about as a result of two mistakes. Before I get to them, I will give you some history as to how this police officer died and why.
In the morning of January 12th 2011, at sometime just after four, a snowplow driver had been working with the plow in the Regent Park area near Parliament and Dundas streets in Toronto. At one point, the driver, Daniel DaSilva and his helper left the truck with the key in the ignition and the engine still on. DaSilva crossed the street for a coffee break at Tim Hortons while his helper was busing shoveling snow nearby. While DaSilva was waiting for his coffee, he noticed a disheveled, agitated man staring at him through the window of the coffee shop. Suddenly the man bolted across the street and climbed into the cab of the truck. It was Richard Esber Kachkar, 44, a homeless man, wearing no shoes or socks, who had jumped into it and drove off with DaSilva hanging on it for a short while before he fell off the truck.
Leaving the keys in the ignition was a very stupid thing to do. There are always criminals and jerks roaming the streets looking for vehicles in which the stupid owners have left their keys in the ignition and gone into a store to do some shopping or a restaurant to get a coffee. Some of these dumbos even leave the engine running so that when they return to their vehicles, it is still warm inside the vehicle. Of course, sometimes when these people leave the building they were in to return to their vehicles, their vehicles are no longer there any more.
Previously, the homeless man had just slipped out of the shelter for homeless men without any shoes of socks on. As an aside, years ago I once represented a man in court who hadn’t worn shoes for many years. Even when it was bitterly cold outside and there was snow on the ground, he always walked about in his socks only. To do that on a cold freezing day with snow on the ground makes you wonder if such people are functioning with a full brain. In any case, Kachkar saw the snow plow nearby and having been trained in the past on how to operate a snow plow, this jerk, (for want of a better appellative) climbed into the cab of the vehicle and guess what? He drove off down the street in it. It would have been nice if all he wanted to do was to clear the snow from the roads but he had something else to do with his new-found toy.
Over the next two hours, the Chevrolet 3500 – equipped with a front-end plow and a back-end dump box filled with salt was driven by Kachkar on a slow circuitous route west across central Toronto.
For 70 blocks, the thief smashed into 15 parked cars and also into store fronts. At 5:22 a.m., two hours before sunrise, in a city submerged beneath a blanket of snow, reports started coming into police headquarters about a snow plow striking vehicles and being driven recklessly. A frantic cab driver called Toronto police with a premonition. He told the 911 operator that a man was driving a snow plow truck that had rammed his cab twice as he sat waiting for fares. “This man is dangerous,” the cabbie told police around 5:30 a.m. “He’s looking to kill somebody.”
The first officer to respond was Ryan Russell an 11-year veteran of the force. He was an eager goalie for several recreational hockey teams and was renown among colleagues for talking incessantly about his wife Christine and two-year-old son Nolan. This officer was well respected by the officers that knew him. He had served with the guns and gangs unit before being promoted as sergeant six months ago. He caught up with the cabbie and asked where the snow plow was and the cabbie pointed north along Avenue Road. Russell immediately went in pursuit, driving through streets covered in snow.
Meanwhile the thief shattered the front window of a Ferrari dealership along Avenue Road and sideswiped a mirror off another taxi around 5:30 a.m. The taxi’s driver said the plow then drove off, only to reappear behind him. He thought the plow driver was returning to apologize and trade insurance information. Then he noticed the Chevy gain speed. He leaped from his taxi as the plow crumpled his driver-side door. “He’s lucky to be alive,” said Gail Souter, general manager of Beck Taxi.
By 6:00 a.m., falling snow had hampered efforts by the police to coral the thief so a road block was set up on Avenue Road, a couple blocks north of Davenport Road. As Kachkar was heading south along Avenue Road towards Davenport with police cruisers close behind, he saw the roadblock ahead of him and managed to weave his way through it. Police say he then drove the snow plow south in the direction of Sgt. Russell’s vehicle which was stopped just beyond the roadblock. The sergeant was standing next to the side of his cruiser attempting to flag the driver of the snow plow to stop. The officer managed to fire a couple of shots from his handgun. Seconds later, the near-3,000-kilogram plow truck was seen veering towards the police officer and it then slammed into the 35-year-old officer. He was struck by the the snow plow. As a result of the impact, Sgt. Russell suffered massive head injuries and was later pronounced dead at St. Michael’s Hospital.
Now as we all know, standing beside your vehicle on a highway is extremely dangerous. Although Avenue Road isn’t a highway and it wasn’t particularly busy at that time of the morning, he was in a very dangerous position at that moment. There was a dangerous driver heading towards him and a police officer making any attempt to flag down a dangerous driver who has been swerving back and forth, smashing into cars and store fronts is extremely risky to say the least.
In my respectful opinion, I believe that standing next to his cruiser was a mistake on Sgt. Russell’s part and that mistake is what killed him. We have no way of knowing what was going on in his mind when he chose to stand by his cruiser on the street while attempting to flag down the driver of the snow plow but we do know that the driver of the plow had no intention of stopping simply because a police officer in front of him put his hand up as a means of ordering the driver to stop the vehicle. Unfortunately, Sgt. Russell lingered too long beside his vehicle and couldn’t escape the oncoming truck.
After Russell was struck, the truck thief continued driving erratically through the snow-covered city, striking several more parked cars and making a number of U-turns on Bloor Street West.
Peter Tolias, the owner of the company that the tow truck was registered to, followed the stolen truck along with police. He said that a GPS device installed in the stolen truck enabled him to pinpoint exactly where it was located. He passed that information on to the police as he joined in the pursuit.
The stolen truck travelled along Bloor Street and north on Dundas Street West. The truck then headed up Keele Street, at which point heavily armed Emergency Task Force officers joined in the pursuit.
The stolen truck struck a City of Toronto garbage truck near Humberside Avenue at around 7:20 a.m. That’s where the two-hour fracas between a slumbering city and a rapacious driver ended. An armoured Emergency Task Force vehicle boxed the Chevy from behind and an officer opened fire. One witness said he thought it he heard seven or eight shots being fired.
The thief was seriously injured and taken into custody and taken to St. Michael’s hospital. A second officer was also injured during the arrest. An ETF officer was seen limping to a nearby van, with fellow officers helping him along. He and the suspect were both taken to St. Michael's Hospital. The suspect has undergone surgery at St. Michael's hospital and is intensive care at the time of this writing.
Richard Esber Kachkar, who police allege drove the snowplow that killed Sergeant Ryan Russell, would have been no stranger to that kind of heavy machinery. For 10 hours a day, five days a week over three months, Mr. Kachkar trained to use heavy machinery at the St. Catharines campus of Transport Training Centres, a program his instructor said was funded by the Ontario government. While the grader snowplow on which he’d trained was larger and more complex than the plow he’s alleged to have stolen in the predawn hours of Wednesday morning, he would have understood how lethal a machine like that can be – one with a blade capable of slicing through a police car “like a can opener.
A camera in Sgt. Russell’s cruiser captured “quite a bit of the events” leading to his death. It certainly helps the police outing together the time-line of Sgt. Russell’s death. It’s going to be a big part of the investigation. The windshield-mounted camera was automatically activated when Sgt. Russell turned on his car’s red and blue lights.
Mr. Kachkar, who has two grown children and became separated from his wife about five years ago, has no history of mental illness, Det. Sgt. Nielsen said. He also does not have a criminal record. He was born in Edmonton and lived in Vancouver before moving to Ontario. Mr. Kachkar was a familiar face at St. Catharines’ Southridge Community Church homeless shelter. He took on odd jobs through a temp agency, and owned a small building on Geneva Street which he called his “shop” – a battered brick building with no hydro, and which is empty save for a couple of tables.
Kachkar has been charged with first-degree murder in the snow plow death of Sgt. Russell. He has also been charged with two counts of attempted murder. Chief Blair said Thursday morning that the attempted murder charges stem from Kachkar allegedly trying to kill two others while driving the snowplow. One of those two charges involves a cab driver whose car was side-swiped by the accused and the other was a police officer who was injured in the incident when the accused was finally captured.
Now comes an interesting rhetorical question. If it is firmly established in court that Richard Esber Kachkar was the driver of the plow that killed the police officer (and that doesn’t appear to be in dispute) is he guilty of first degree murder?
We first have to ask this question. Was Kachkar crazy? In 1992, Parliament replaced the ‘insanity defence’ with the defence of ‘not criminally responsible on account of mental disorder’. In other words, no person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that what he or she did was wrong. There is no doubt in my mind that this man was fully aware of his actions and that he knew that what he was doing was wrong.
Disease of the mind embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning. Thus, personality disorders may constitute disease of the mind.
Kachkar certainly suffered from a personality disorder. He was weird. Walking about in bare feet in the snow is certainly weird and while he was taking a course of transport driving, he bragged that he had mafia ties. Anyone connected to the mafia would hardly be bragging about it. Further, saying that you have mafia ties when you don’t have them is inviting trouble not only from the police but also from members of organized crime.
If he was insane when he killed the police officer, then he would be found not guilty. However, even though he is a disturbed individual, I don’t think he was incapable of appreciating the nature and quality of his actions when he was driving the snow plow around the city streets of Toronto.
The Ontario Court of Appeal in 1985 stated that the existence of a mental disorder is not incompatible with the commission of a planned and deliberate murder. It stated that in particular, the word ‘deliberate’ has not imported a requirement that the accused’s previous determination to kill the victim must have been the result of normal thinking or must be rationally motivated.
Serious mental disorder or psychosis is not synonymous with absent criminal responsibility. From a psychiatric perspective, the symptoms of the mental disorder need to have expressed themselves robustly enough at the critical time before a psychiatrist can reasonably say that the symptoms of the mental disorder were instrumental in bringing about the behaviour under consideration.
If Kachkar deliberately drove the snow plow at Sgt. Russell because he thought the sergeant was going to kill him, was Kachkar incapable of knowing the moral wrongfulness of his act in that he felt morally justified in taking the self protective steps that resulted in the sergeant’s death? Was he so disorganized with his mental disorder that he could not make a rational choice with respect to his actions on the street to figure out what was right or wrong?
The history of Canada’s insanity provision and the cases that were heard in our courts indicate that the inquiry focuses not on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act.
If the accused raises the insanity defence, then the crux of the trial will be whether the accused lacked the capacity to rationally decide whether the act of driving towards the sergeant was right or wrong and hence to make a rational choice about whether to do it or not.
Mr. Justice Martin of the Ontario Court of Appeal ruled in one particular case he had before him that “in considering whether an accused was, by reason of insanity, incapable of knowing the nature and quality of the act committed by him, or that it was wrong, the legally relevant time to be considered by the court is the time when the act was committed. The accused may by a process of reconstruction after committing some harmful act realize that he has committed the act and know that it was wrong. That is not inconsistent with an inability to appreciate the nature and quality of the act or to know that is was wrong at the moment of committing it.”
In other words, a person may have adequate intelligence to know that the commission of a certain act, e.g., murder, is wrong but at the time of the commission of the act in question he may be so obsessed with delusions or subject to impulses which are the product of insanity that he is incapable of bringing his mind to bear on what he is doing.
It is possible that Kachkar understood the nature of his actions, and so forth—but that does not in itself mean that there is not an inner pathological process at work that prompted him to exhibit a form of behaviour that is unacceptable, dangerous, violent and so on, as well as a psychotic process that would be clearly, if you will, obvious in another person.
In my opinion, Kachkar was quite able to distinguish between right and wrong, when he drove the truck into Sgt. Russell and although he was mentally ill, he was technically sane.
Section 231(4) of the Canadian Criminal Code states in part that irrespective of whether or not a murder is planned or is deliberate on the part of any person; the murder committed is first degree when the victim is a police officer.
But was it murder in the first degree if Kachkar aimed the snow plow towards Sgt. Russell after the sergeant fired his gun in the direction of Kachkar and Kachkar was trying to prevent the sergeant from shooting him from the side of the vehicle where he would be far easier to be reached?
I realize that is quite a stretch but his lawyer will probably try to find any way out for his client that will result in the conviction being something other than first degree murder. Of course, that is all academic if witnesses testify that the sergeant only fired his gun after Kachkar deliberately drove towards him.
There may be the issue of mens rea (criminal intent) raised during the trial. The prosecutor will have to satisfy the jury and/or the judge that Kachkar intended to kill the sergeant. He might say in court (if he testifies) that he didn’t intend to kill the sergeant but instead, drove towards him to scare him away. But even if that is true and the jury believes it to be true, could he be convicted of second degree murder or even manslaughter instead of first degree murder?
Although the sentence for second-degree murder is life imprisonment, there is discretion on the part of the judge as to when a person might be able to apply for parole between ten and twenty-five years. The Criminal Code provides that jurors be asked for recommendations about when a second degree murder defendant should be able to apply for parole. They do not have to make a unanimous recommendation. The jurors may decline making any recommendation. Further, the judge doesn’t have to accept the recommendation of the jury with respect to the sentence.
Just because a police officer is killed during the execution of his duty does not necessarily mean that the accused would be facing a first degree charge. For example, if a drunk driver lost control of his vehicle and crashed into a police cruiser driven by a police officer and the police officer was killed, it wouldn’t make him guilty of first degree murder.
The trial of Kachkar will be a very interesting one because of the various issues that may be raised by the defence. But like all trials of this nature, it will probably be several years before Kachkar goes to trial.
It is indeed sad that a fine, brave officer like Sgt. Russell was killed because some stupid oaf decided that he wanted to play with a snow plow. Whatever sentence is given to Kachkar for his foolishness, I hope he spends a great many years in prison.
UPDATE: January 19, 2011
As many as 12,000 police officers from around North America along with other emergency personnel joined 2000 citizens who also attended the funeral on the 18th which was held in the large International Conference Centre in Downtown Toronto.
UPDATE: May 2, 2013
His jury found him not guilty by reason of insanity.
In the morning of January 12th 2011, at sometime just after four, a snowplow driver had been working with the plow in the Regent Park area near Parliament and Dundas streets in Toronto. At one point, the driver, Daniel DaSilva and his helper left the truck with the key in the ignition and the engine still on. DaSilva crossed the street for a coffee break at Tim Hortons while his helper was busing shoveling snow nearby. While DaSilva was waiting for his coffee, he noticed a disheveled, agitated man staring at him through the window of the coffee shop. Suddenly the man bolted across the street and climbed into the cab of the truck. It was Richard Esber Kachkar, 44, a homeless man, wearing no shoes or socks, who had jumped into it and drove off with DaSilva hanging on it for a short while before he fell off the truck.
Leaving the keys in the ignition was a very stupid thing to do. There are always criminals and jerks roaming the streets looking for vehicles in which the stupid owners have left their keys in the ignition and gone into a store to do some shopping or a restaurant to get a coffee. Some of these dumbos even leave the engine running so that when they return to their vehicles, it is still warm inside the vehicle. Of course, sometimes when these people leave the building they were in to return to their vehicles, their vehicles are no longer there any more.
Previously, the homeless man had just slipped out of the shelter for homeless men without any shoes of socks on. As an aside, years ago I once represented a man in court who hadn’t worn shoes for many years. Even when it was bitterly cold outside and there was snow on the ground, he always walked about in his socks only. To do that on a cold freezing day with snow on the ground makes you wonder if such people are functioning with a full brain. In any case, Kachkar saw the snow plow nearby and having been trained in the past on how to operate a snow plow, this jerk, (for want of a better appellative) climbed into the cab of the vehicle and guess what? He drove off down the street in it. It would have been nice if all he wanted to do was to clear the snow from the roads but he had something else to do with his new-found toy.
Over the next two hours, the Chevrolet 3500 – equipped with a front-end plow and a back-end dump box filled with salt was driven by Kachkar on a slow circuitous route west across central Toronto.
For 70 blocks, the thief smashed into 15 parked cars and also into store fronts. At 5:22 a.m., two hours before sunrise, in a city submerged beneath a blanket of snow, reports started coming into police headquarters about a snow plow striking vehicles and being driven recklessly. A frantic cab driver called Toronto police with a premonition. He told the 911 operator that a man was driving a snow plow truck that had rammed his cab twice as he sat waiting for fares. “This man is dangerous,” the cabbie told police around 5:30 a.m. “He’s looking to kill somebody.”
The first officer to respond was Ryan Russell an 11-year veteran of the force. He was an eager goalie for several recreational hockey teams and was renown among colleagues for talking incessantly about his wife Christine and two-year-old son Nolan. This officer was well respected by the officers that knew him. He had served with the guns and gangs unit before being promoted as sergeant six months ago. He caught up with the cabbie and asked where the snow plow was and the cabbie pointed north along Avenue Road. Russell immediately went in pursuit, driving through streets covered in snow.
Meanwhile the thief shattered the front window of a Ferrari dealership along Avenue Road and sideswiped a mirror off another taxi around 5:30 a.m. The taxi’s driver said the plow then drove off, only to reappear behind him. He thought the plow driver was returning to apologize and trade insurance information. Then he noticed the Chevy gain speed. He leaped from his taxi as the plow crumpled his driver-side door. “He’s lucky to be alive,” said Gail Souter, general manager of Beck Taxi.
By 6:00 a.m., falling snow had hampered efforts by the police to coral the thief so a road block was set up on Avenue Road, a couple blocks north of Davenport Road. As Kachkar was heading south along Avenue Road towards Davenport with police cruisers close behind, he saw the roadblock ahead of him and managed to weave his way through it. Police say he then drove the snow plow south in the direction of Sgt. Russell’s vehicle which was stopped just beyond the roadblock. The sergeant was standing next to the side of his cruiser attempting to flag the driver of the snow plow to stop. The officer managed to fire a couple of shots from his handgun. Seconds later, the near-3,000-kilogram plow truck was seen veering towards the police officer and it then slammed into the 35-year-old officer. He was struck by the the snow plow. As a result of the impact, Sgt. Russell suffered massive head injuries and was later pronounced dead at St. Michael’s Hospital.
Now as we all know, standing beside your vehicle on a highway is extremely dangerous. Although Avenue Road isn’t a highway and it wasn’t particularly busy at that time of the morning, he was in a very dangerous position at that moment. There was a dangerous driver heading towards him and a police officer making any attempt to flag down a dangerous driver who has been swerving back and forth, smashing into cars and store fronts is extremely risky to say the least.
In my respectful opinion, I believe that standing next to his cruiser was a mistake on Sgt. Russell’s part and that mistake is what killed him. We have no way of knowing what was going on in his mind when he chose to stand by his cruiser on the street while attempting to flag down the driver of the snow plow but we do know that the driver of the plow had no intention of stopping simply because a police officer in front of him put his hand up as a means of ordering the driver to stop the vehicle. Unfortunately, Sgt. Russell lingered too long beside his vehicle and couldn’t escape the oncoming truck.
After Russell was struck, the truck thief continued driving erratically through the snow-covered city, striking several more parked cars and making a number of U-turns on Bloor Street West.
Peter Tolias, the owner of the company that the tow truck was registered to, followed the stolen truck along with police. He said that a GPS device installed in the stolen truck enabled him to pinpoint exactly where it was located. He passed that information on to the police as he joined in the pursuit.
The stolen truck travelled along Bloor Street and north on Dundas Street West. The truck then headed up Keele Street, at which point heavily armed Emergency Task Force officers joined in the pursuit.
The stolen truck struck a City of Toronto garbage truck near Humberside Avenue at around 7:20 a.m. That’s where the two-hour fracas between a slumbering city and a rapacious driver ended. An armoured Emergency Task Force vehicle boxed the Chevy from behind and an officer opened fire. One witness said he thought it he heard seven or eight shots being fired.
The thief was seriously injured and taken into custody and taken to St. Michael’s hospital. A second officer was also injured during the arrest. An ETF officer was seen limping to a nearby van, with fellow officers helping him along. He and the suspect were both taken to St. Michael's Hospital. The suspect has undergone surgery at St. Michael's hospital and is intensive care at the time of this writing.
Richard Esber Kachkar, who police allege drove the snowplow that killed Sergeant Ryan Russell, would have been no stranger to that kind of heavy machinery. For 10 hours a day, five days a week over three months, Mr. Kachkar trained to use heavy machinery at the St. Catharines campus of Transport Training Centres, a program his instructor said was funded by the Ontario government. While the grader snowplow on which he’d trained was larger and more complex than the plow he’s alleged to have stolen in the predawn hours of Wednesday morning, he would have understood how lethal a machine like that can be – one with a blade capable of slicing through a police car “like a can opener.
A camera in Sgt. Russell’s cruiser captured “quite a bit of the events” leading to his death. It certainly helps the police outing together the time-line of Sgt. Russell’s death. It’s going to be a big part of the investigation. The windshield-mounted camera was automatically activated when Sgt. Russell turned on his car’s red and blue lights.
Mr. Kachkar, who has two grown children and became separated from his wife about five years ago, has no history of mental illness, Det. Sgt. Nielsen said. He also does not have a criminal record. He was born in Edmonton and lived in Vancouver before moving to Ontario. Mr. Kachkar was a familiar face at St. Catharines’ Southridge Community Church homeless shelter. He took on odd jobs through a temp agency, and owned a small building on Geneva Street which he called his “shop” – a battered brick building with no hydro, and which is empty save for a couple of tables.
Kachkar has been charged with first-degree murder in the snow plow death of Sgt. Russell. He has also been charged with two counts of attempted murder. Chief Blair said Thursday morning that the attempted murder charges stem from Kachkar allegedly trying to kill two others while driving the snowplow. One of those two charges involves a cab driver whose car was side-swiped by the accused and the other was a police officer who was injured in the incident when the accused was finally captured.
Now comes an interesting rhetorical question. If it is firmly established in court that Richard Esber Kachkar was the driver of the plow that killed the police officer (and that doesn’t appear to be in dispute) is he guilty of first degree murder?
We first have to ask this question. Was Kachkar crazy? In 1992, Parliament replaced the ‘insanity defence’ with the defence of ‘not criminally responsible on account of mental disorder’. In other words, no person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that what he or she did was wrong. There is no doubt in my mind that this man was fully aware of his actions and that he knew that what he was doing was wrong.
Disease of the mind embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning. Thus, personality disorders may constitute disease of the mind.
Kachkar certainly suffered from a personality disorder. He was weird. Walking about in bare feet in the snow is certainly weird and while he was taking a course of transport driving, he bragged that he had mafia ties. Anyone connected to the mafia would hardly be bragging about it. Further, saying that you have mafia ties when you don’t have them is inviting trouble not only from the police but also from members of organized crime.
If he was insane when he killed the police officer, then he would be found not guilty. However, even though he is a disturbed individual, I don’t think he was incapable of appreciating the nature and quality of his actions when he was driving the snow plow around the city streets of Toronto.
The Ontario Court of Appeal in 1985 stated that the existence of a mental disorder is not incompatible with the commission of a planned and deliberate murder. It stated that in particular, the word ‘deliberate’ has not imported a requirement that the accused’s previous determination to kill the victim must have been the result of normal thinking or must be rationally motivated.
Serious mental disorder or psychosis is not synonymous with absent criminal responsibility. From a psychiatric perspective, the symptoms of the mental disorder need to have expressed themselves robustly enough at the critical time before a psychiatrist can reasonably say that the symptoms of the mental disorder were instrumental in bringing about the behaviour under consideration.
If Kachkar deliberately drove the snow plow at Sgt. Russell because he thought the sergeant was going to kill him, was Kachkar incapable of knowing the moral wrongfulness of his act in that he felt morally justified in taking the self protective steps that resulted in the sergeant’s death? Was he so disorganized with his mental disorder that he could not make a rational choice with respect to his actions on the street to figure out what was right or wrong?
The history of Canada’s insanity provision and the cases that were heard in our courts indicate that the inquiry focuses not on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act.
If the accused raises the insanity defence, then the crux of the trial will be whether the accused lacked the capacity to rationally decide whether the act of driving towards the sergeant was right or wrong and hence to make a rational choice about whether to do it or not.
Mr. Justice Martin of the Ontario Court of Appeal ruled in one particular case he had before him that “in considering whether an accused was, by reason of insanity, incapable of knowing the nature and quality of the act committed by him, or that it was wrong, the legally relevant time to be considered by the court is the time when the act was committed. The accused may by a process of reconstruction after committing some harmful act realize that he has committed the act and know that it was wrong. That is not inconsistent with an inability to appreciate the nature and quality of the act or to know that is was wrong at the moment of committing it.”
In other words, a person may have adequate intelligence to know that the commission of a certain act, e.g., murder, is wrong but at the time of the commission of the act in question he may be so obsessed with delusions or subject to impulses which are the product of insanity that he is incapable of bringing his mind to bear on what he is doing.
It is possible that Kachkar understood the nature of his actions, and so forth—but that does not in itself mean that there is not an inner pathological process at work that prompted him to exhibit a form of behaviour that is unacceptable, dangerous, violent and so on, as well as a psychotic process that would be clearly, if you will, obvious in another person.
In my opinion, Kachkar was quite able to distinguish between right and wrong, when he drove the truck into Sgt. Russell and although he was mentally ill, he was technically sane.
Section 231(4) of the Canadian Criminal Code states in part that irrespective of whether or not a murder is planned or is deliberate on the part of any person; the murder committed is first degree when the victim is a police officer.
But was it murder in the first degree if Kachkar aimed the snow plow towards Sgt. Russell after the sergeant fired his gun in the direction of Kachkar and Kachkar was trying to prevent the sergeant from shooting him from the side of the vehicle where he would be far easier to be reached?
I realize that is quite a stretch but his lawyer will probably try to find any way out for his client that will result in the conviction being something other than first degree murder. Of course, that is all academic if witnesses testify that the sergeant only fired his gun after Kachkar deliberately drove towards him.
There may be the issue of mens rea (criminal intent) raised during the trial. The prosecutor will have to satisfy the jury and/or the judge that Kachkar intended to kill the sergeant. He might say in court (if he testifies) that he didn’t intend to kill the sergeant but instead, drove towards him to scare him away. But even if that is true and the jury believes it to be true, could he be convicted of second degree murder or even manslaughter instead of first degree murder?
Although the sentence for second-degree murder is life imprisonment, there is discretion on the part of the judge as to when a person might be able to apply for parole between ten and twenty-five years. The Criminal Code provides that jurors be asked for recommendations about when a second degree murder defendant should be able to apply for parole. They do not have to make a unanimous recommendation. The jurors may decline making any recommendation. Further, the judge doesn’t have to accept the recommendation of the jury with respect to the sentence.
Just because a police officer is killed during the execution of his duty does not necessarily mean that the accused would be facing a first degree charge. For example, if a drunk driver lost control of his vehicle and crashed into a police cruiser driven by a police officer and the police officer was killed, it wouldn’t make him guilty of first degree murder.
The trial of Kachkar will be a very interesting one because of the various issues that may be raised by the defence. But like all trials of this nature, it will probably be several years before Kachkar goes to trial.
It is indeed sad that a fine, brave officer like Sgt. Russell was killed because some stupid oaf decided that he wanted to play with a snow plow. Whatever sentence is given to Kachkar for his foolishness, I hope he spends a great many years in prison.
UPDATE: January 19, 2011
As many as 12,000 police officers from around North America along with other emergency personnel joined 2000 citizens who also attended the funeral on the 18th which was held in the large International Conference Centre in Downtown Toronto.
UPDATE: May 2, 2013
His jury found him not guilty by reason of insanity.
1 comment:
Sane or insane or weird this plow man was extremely dangerous and poses a public risk. It was pure luck or God's hand that there were no kid or people in those cars.
I also do not understand why the officer felt he would stand in front of such a large vehicle headed at him.
The man should be locked away for his own and others good and even if he has has parole should have a police escort around him. It is just unbelievable to think that people could lose their life in such a bizarre event. I just don't understand why he could not be apprehended sooner it is sad and unacceptable. Maybe they should have starter like in cars to keep it warm but not allow the vehicle to run in those things.
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