INSANITY:  Its  defences

The difference in the colour of the background behind the text is merely an anomaly in the printing of this article.

This kind of defence is raised in criminal court cases in Canada, England and Wales, the Republic of Ireland, Australia and New Zealand, Hong Kong, Norway and most American States except Idaho, Kansas, Montana and Utah.

This kind of defence was first available to James Hadfield in the year 1800 after he had fired a shot from his horse at King George III and was subsequently found "not guilty"; he being under the influence of insanity at the time the act was committed. The criminal court of the time had two options: (1) release him into the community because he had been acquitted on the charges of attempt murder and treason, or (2) return him from whence he came (the prison). Lord Kenyon, Chief Justice, recognized that prison was not the place for Hadfield nor was his return to the community the right choice. During the course of giving his judgment he said the following:

“The prisoner, for his own sake, and for the sake of society at large, must not be discharged; for this is a case which concerns every man of every station, from the King upon the Throne to the beggar at the gate; people of both sexes and of all ages may, in an unfortunate frantic hour, fall a sacrifice to this man, who is not under the guidance of sound reason; and therefore it is absolutely necessary for the safety of society that he should be properly disposed of, all mercy and humanity being shown to this most unfortunate creature. But for the sake of the community, undoubtedly he must somehow or other be taken care of, with all the attention and all the relief that can be afforded him. For the present we can only remand him to the confinement he came from.”

He was returned to prison but as a result of the conundrum presented by Hadfield, the British Parliament passed the Criminal Lunatics Act, which gave the court authority to commit an accused found to be not guilty by reason of insanity to ‘strict custody’, in such place and in such manner as the court shall deem fit, until His Majesty's Pleasure is known. (which means when and if the authorities are satisfied that it is safe to release him back into society)  The Act further gave authority to His Majesty to make an order for the safe custody of such persons during his pleasure. The provisions of that Act were incorporated into the drafts of the British Criminal Code which was never enacted but which was later adopted by Canada as its first Criminal Code of 1892. These provisions remained virtually unchanged in form until the proclamation of Bill C-30 on February 5, 1992. The main part of Bill C-30 formed what is now Part XX.1 of the Criminal Code. According to that part of the Code, a Review Board must have at least one member who is entitled under the laws of a province to practice psychiatry and, where only one member is so entitled, at least one other member must have training and experience in the field of mental health, and be entitled under the laws of a province to practice medicine or psychology. Further, the chairperson of a Review Board shall be a judge of the Federal Court or of a superior, district or county court of a province, or a person who is qualified for appointment to, or has retired from, such a judicial office.

Most offenders who are declared not criminally responsible by reason of mental disorder return to society at some point after they have received treatment and a provincial Review Board has deemed them stable enough to be released back into society. On average, those found not criminally responsible and sent to an institution to serve an indefinite sentence are usually freed after about 10 years, according to statistics compiled by the Justice Department.

In the early 1980s, Judge Evan Dee Goodman helped establish a court exclusively that deals with mental health matters at Wishard Memorial Hospital in Indianapolis. This court at Wishard Hospital was a dual purpose court to handle the probate court needs of persons needing to be on a civil commitment for psychiatric treatment and it established a docket to deal with cases of the mentally ill offender who had been arrested on minor charges. This was necessary as the mentally ill were frequently arrested and had charges pending when the treatment providers sought a civil commitment to send their patient for long term psychiatric treatment.

 

Judge Goodman's court at Wishard Hospital could serve both purposes. The probate part of the mental health court would handle the civil commitment. The criminal docket of the mental health court could handled the arrest charges. The criminal charges could be put on diversion, or hold, allowing the patient's release from jail custody. The civil commitment would then become effective and the patient could be sent to a state hospital for treatment. Judge Goodman would schedule periodic hearings to learn of the patient's progress. If warranted, the criminal charges were dismissed, but the patient still had obligations to the civil commitment. The City of Toronto a similar court that deals only with accused persons who are mentally ill.

 

 

If the court in Toronto concludes that the defendant should be sent directly to a mental hospital, then that person can be treated for his illness but if the court sends him to a correctional facility, them there is no real hope for that defendant to be cured while in such a facility and eventually the defendant is released back into society to commit more crimes while still suffering from his mental illness.

Previously in 1800, a court decided that a crime committed under some delusion would be excused only if his delusion actually occurred to him.  This would deal with a situation when the accused imagines he is cutting through a loaf of bread, whereas in fact he is cutting through a person's neck. That kind of defence is often used. For example, the accused kills a neighbour but claims he saw him not as a neighbour but as a wild animal attacking him. That defence has been used in the past.

Richard Kachkar (now 46) on January 12^th 2011 ran without an overcoat and barefoot from the Good Shepherd homeless shelter on Queen Street East in Toronto and stole an idling snowplow from in front of a Regent Park Tim Horton donut shop and taking it for a joyride. Kachkar drove through the city core, smashing into cars, shattering glass doors of a Maserati dealership before hitting Russell with the snowplow on Avenue Road during that snowy night on January 12, 2011.

 

While he was driving the snowplow, he struck and killed Constable Ryan Russell, 35 of the Toronto Police Service. The first strike of the plow knocked Russell off his feet, the second clipped his head, leaving him unconscious and bleeding heavily. He was pronounced dead before 7 a.m. at St. Michael’s Hospital in downtown Toronto.

 

The question before the court during his trial was whether or not he was criminal responsible for his crime or alternatively, he wasn’t criminally responsible because he was too mentally ill to understand what he had done or appreciated the consequences of his criminal act. 

Jurors reached the verdict in the trial of Richard Kachkar, 46, in the third day of deliberations by saying that he was not criminally responsible for his actions because he was suffering from a mental disorder at the time.

The verdict means the jury actually believed Kachkar couldn’t appreciate what he was doing when he struck and killed Sgt. Ryan Russell, 35, with the blade of the snowplow on January 12, 2011 because he was mentally ill.

People in Canada who are found not criminally responsible for the crimes they commit are sent to mental health facilities for an indeterminate period of time and can be released only when a Review Board finds they aren’t a significant threat to public safety.

 

The Review Boards in Canada are independent tribunals established pursuant to the Criminal Code of Canada which stipulates that each province and territory must establish or designate a Review Board to oversee these individuals. Individuals subject to the jurisdiction of the province of Ontario where the snowplow crime took place, must convince the Ontario Review Board they can be released back into society or be moved to a different facility where the security is less stringent.   

 

Was his so-called confused thoughts those of a psychotic man whose mind was out of his control or was he a man who was sharp enough to conjure up a tangled web of deception?  This is the question jurors in this man’s trial had to decide. In other words, did he really suffer from a mental disorder that rendered him incapable either of appreciating what’s called ‘the nature and quality of the act’ (meaning could he understood the physical consequences of what he was doing?) or of knowing that what he was doing was morally wrong?

 

I know what you are thinking. Anyone who would run out of a warm building with his bare feet hitting the snow has to be out of his mind. That by itself doesn’t mean that he was crazy. Many years ago, I represented a man in court who only wore socks when he was outside—even in the winter. Other than that strange oddity, he was quite sane. Eighteen-year-old Colton Harris-Moore, most commonly known as the ‘barefoot robber’, was wanted by the RCMP and the FBI in 2009. He was captured in 2010 and at no time during his trial did anyone suggest that he was insane. And he certainly didn’t make that claim.

 

The only issue for the jury to consider was Kachkar’s state of mind at the time, and whether or not his thinking was so disturbed, he wasn’t able to form the criminal intent that is a necessary element for a conviction of first-degree murder or any other crime for that matter.

 

Under Section 16 of the Criminal Code of Canada, a person can’t be held criminally responsible if he is insane. One of the less-understood presumptions in the law is that everyone is presumed not to suffer from a mental illness, meaning the burden of proof lies with the defence to convince a jury that he is insane.

 

But where the presumption of innocence is presumed, by contrast, it can be overcome only by a high standard of proof because jurors must be convinced beyond a reasonable doubt that a person is sane and thereby guilty of the crime he committed. However, lawyers arguing a not-criminally-responsible defence need prove it only on what’s called ‘a balance of probabilities’. That means if jurors are even 51% sure someone was so mentally ill, then they must find him not mentally responsible for the crime he committed. That doesn’t mean that 51% of the jurors are convinced he is insane. It means that on a scale of 100, they as a group are 51% convinced that he is insane.

 

Let’s look into Kachkar’s history. By 2006, when social workers became involved with the family because of child-protection concerns over Kachkar’s behaviour, he was complaining of what he referred to as “tangled thoughts.” He and his wife separated, and Kachkar went from a rented apartment in St. Catharines, Ontario to a rented building (for which he had delusional and grandiose plans) and finally to a homeless shelter. In my opinion, this merely is proof that he was a loser who had troubled thoughts.

 

By his second-last day at that shelter, a fellow resident watched as Kachkar spun the combination lock to his locker for between four and six hours—classic psychotic behaviour, one forensic psychiatrist testified at trial. I am not convinced that it necessarily constitutes psychotic behavior in Kachkar’s case.

 

 Sterotypic movement disorder  is a disorder characterized by repeated, rhythmic, purposeless movements or activities such as head banging, nail biting, body rocking or even twirling the dial of a combination lock.These movements either cause self-injury or severely interfere with normal activities.

 

Stereotypic movements were first described as a psychiatric symptom in the early 1900s. Since then, they have been recognized as a symptom of both psychotic and neutological.  Despite that, many ordinary people engage in some degree of habit-like behavior in their lifetime. For example, habits can range from seemingly benign behaviors, such as nail biting or foot tapping, to more noticeable physically damaging behaviors, such as teeth grinding and hair pulling. Some children rock back and forth because they are trying to re-experience the warm feeling when they were rocked to sleep by their mothers while in their mother’s arms.     

                                   

Habit disorders, now subsumed under the diagnostic term ‘stereotypic movement disorder’, consist of repetitive, seemingly driven, and nonfunctional motor behaviors that interfere with normal activities. Stereotypies are repetitive, purposeless actions that are most commonly seen in childhood but they can continue into adulthood. That doesn’t necessarily mean that they are psychotic. To say such a person is psychotic is to say that people who tap their fingers on the table are psychotic.

 

Stereotypies do not have a clear definition, because of the wide range of possible stereotyped behaviors and the overlap with other movement or behavioral disorders. Stereotypic movement disorder is more common among boys than girls. The repetitive movements appear to increase with stress, frustration, and boredom. That could certainly fit Kachkar’s twirling of the dial of his combination lock. That would mean he was psychotic. I would mean he was neurotic and being neurotic doesn’t mean he is insane.

 

Crown prosecutors McGoey and Jessica Smith Joy argued that although he was mentally ill, Kachkar knew what he was doing was wrong and was therefore guilty of murder. Further, because he knew that uniformed Russell was a police officer, Kachkar should have been declared guilty of first-degree murder since the killing of a police officer on duty is a crime punishable with imprisonment for a minimum of 25 years.

 

They argued he deliberately drove the snowplow at Russell to kill him or cause enough injuries that death would likely result.

 

Alternatively, McGoey told the jury, Kachkar is guilty of murder because he drove at Russell in a dangerous manner to evade arrest and, although he may not have meant to kill him, he had to have foreseen the likelihood of Russell’s death.

 

But the defence argued Kachkar showed classic signs of mental deterioration in the weeks before the homicide. He was at loose ends, living in a homeless shelter in St. Catharine’s, estranged from his wife and two near-adult children. Lots of people are experiencing these problems but that doesn’t mean that they are insane.

 

The unshaven man took a bus to Toronto and stayed with friends, raising their concern over his erratic behaviour. He sought medical help from a Regent Park doctor for help, as he told him with his “thinking,” the day before, the defence pointed out. The fact that he sought help from a doctor is proof that he is not insane.

 

The Crown argued, on the contrary, that although he showed signs of mental illness in December 2010 and January 2011, he could make rational decisions and plan for the future. His behaviour during the two-hour snowplow joyride, in which he deftly manoeuvred the large truck and yelled at passersby, is consistent with a man seeking attention or a sense of power.

 

His lawyer argued, “who goes barefoot and coat-less on a snowy, frigid day? Who shouts about Chinese technology and the Taliban? Who drives up and down Avenue Road crashing into showroom windows and sideswiping parked taxis?

 

Only the most fact-resistant person could see these as the actions of a man who was sneakily planting the seeds of his forthcoming Not Criminally Responsible  defence.

There were some unsettling aspects of the evidence: Mr. Kachkar’s quick recovery from the worst of the psychosis, which is rare; his seeming awareness he had done something “bad” or that people were “mad” at him, but not what or why that was; his lucid-seeming appearance in police interview videos.

His actions were all explicable since mental illness waxes and wanes  and giving them more weight than the overwhelming evidence that Mr. Kachkar was seriously disturbed would be akin to first treating the minor shrapnel wounds of someone who has had limbs blown off.

Within 45 days from his trial, Mr. Kachkar would have a “dispositions hearing” before the Ontario Review Board, (ORB) will determine what mental facility will be his new home. He will be assessed and treated, and once a year be reviewed. The federal government is proposing that the review period be extended to three years.

Such boards are only as good as their members, and thus historically ORB decisions have been mostly good, with a few spectacular mistakes. The board is to balance the protection of the public with the right of all Canadians to be as free as is reasonable.

If he is released within months or even less than a year as being sane, I will really be suspect as to whether or not he was faking his mental illness.