Sunday, 6 April 2014

Should a killer be eventually released from an insane asylum?


This is a question that is on the minds of a great deal of people. I am going to give a case where that question was answered.


Forty-four year old Richard Kachkar appeared unannounced at a friend’s apartment in Toronto.  He was unshaven and had no clothes or luggage with him.  He had abruptly left a shelter for homeless men in St. Catharines, Ontario where he had been staying for about a week prior to travelling to Toronto.


Several days later, on the morning of January 11, 2011, he simply left his friend’s apartment.  After walking for most of the day, he went to a medical clinic where the doctor advised him to go to the hospital.  Instead, he went to the Good Shepherd Shelter on Queen Street where he was assigned a bed.    

The next morning, (January 12th) shortly before 5:00 a.m. he suddenly left the Shelter, running away through the snow in his bare feet.  Now you can see that there is something not quite right in his head. I once represented a man in court who never wore shoes when he was an adult. He even walked in the snow with only socks on his feet. There was something wrong in his head also.

Kachkar was next seen at about 5:00 a.m. in a nearby Tim Horton’s restaurant.  Just outside, a truck equipped with a snow plow had been left unoccupied, but with the engine running.  The respondent ran out of the restaurant, got in the truck, and drove away.  About forty-five minutes later, Sergeant Ryan Russell, who was on duty at the time, spotted Kachkar driving the stolen snow plow north on Avenue Road.  Sergeant Russell gave chase and caught up to it.  At that point, Kachkar made a U-turn and drove directly towards the police car.  Sergeant Russell got out of his car and tried to get the snow plow to stop.  However, Kachkar made no attempt to do so.  He continued driving at the police car, striking Sergeant Russell, dragging him for a number of metres, and killing him.  Kachkar was arrested shortly thereafter and charged with first degree murder for intentionally killing a police officer on duty.  At the conclusion of his trial on March 27, 2013, the jury did not convict Kachkar since they found him not criminally responsible on account of mental disorder.

Dr. Philip Klassen, a forensic psychiatrist, gave expert evidence at Kachkar’s trial, and had previously conducted a psychiatric assessment of Kachkar in preparation for his testimony. Dr. Klassen’s opinion was that Kachkar suffered from a long-standing mental illness that had waxed and waned since 2004 or 2005 and caused significant dysfunction in his life.  His illness displayed episodic periods of intensification and psychotic behavior.  These psychotic fluctuations and the Kachkar’s functional decline led Dr. Klassen to conclude that Psychosis Not Otherwise Specified, rather than Schizophrenia, was likely the right diagnosis.        

Dr. Klassen testified that in his opinion, the offence took place during such a psychotic episode, one that “spooled up” or intensified over a period of about two weeks.  Over that period, Kachkar increasingly displayed marked paranoid psychotic symptoms.  Dr. Klassen noted that the impulsivity that characterized the index offence took place in the context of this episode, although over most of his life, Kachkar’s actions had not been particularly impulsive, except in the context of psychosis. He said that over most of Kachkar’s life, he had not been particularly impulsive, except in the context of psychosis.

Psychosis is a serious mental disorder characterized by thinking and emotions that are so impaired, that they indicate that the person experiencing them has lost contact with reality. People who are psychotic have false thoughts (delusions) and/or see or hear things that are not there (hallucinations). One of the symptoms of psychosis is paranoia—a belief that the world is full of people who are ‘out to get you. ’That was the kind of psychosis that Kachkar was suffering from.

Chemical inbalances in the brain or excessive drinking or use of certain drugs, syphilis, excessive use of marijuana, brain injury and brain infection can cause psychosis in mental illnesses. I don’t know what caused the imbalances in Kachkar’s brain.

Dr. Klassen testified that Kachkar remained a significant threat to public safety based on the extreme severity of the offence of killing the police officer with the snow plow.

Dr. Klassen said that in the mental hospital that Kachkar was in, he was under intense scrutiny by professionals trained to watch for the development of a psychotic episode.  If he were treated with anti-psychotic medication and if there was no evidence of paranoid psychosis, he would not be a flight risk if he was permitted to be escorted outside the hospital.  Dr. Klassen was also clear, however, that granting Kachkar privileges would depend on his behavior, his response to treatment, his proper engagement with his treatment team and would occur only when the Hospital felt that Kachkar was ready for that kind of privilege.

In order for the hospital to grant such a privilege, it must get permission from the Ontario Review Board.(ORB)  The ORB annually reviews the status of every person who has been found to be not criminally responsible or unfit to stand trial for criminal offences on account of a mental disorder. The ORB is established under the Criminal Code of Canada. The Board is made up of judges, lawyers, psychiatrists, psychologists and public members appointed by the Lieutenant Governor in Council.

The Board accepted Dr. Klassen’s evidence that Kachkar suffers from a major mental illness, Psychosis Not Otherwise Specified.  It concluded its decision as follows:

“In making the disposition, the Board has concluded it should contain provisions for escorted and accompanied passes, and as noted earlier in these reasons, such privileges will only be granted when the hospital is satisfied that it is appropriate to do so, based on Mr. Kachkar’s mental state, his participation in treatment at Ontario Shores (the mental hospital) and his response thereto.  While the joint recommendation from the parties was for escorted hospital and grounds passes only, the Board felt this was not compatible with its obligation to balance public safety and the least onerous and the least restrictive disposition for the individual.  While we are mindful that public safety is paramount in the twin aims of Part XX.1, (of the Criminal Code) we do not believe that a pass into the community, accompanied or escorted by staff, if determined to be appropriate by the person in charge at Ontario Shores, can put the public at risk.” unquote      

The Crown argued that the Board’s decision to grant the hospital the discretion to allow Kachkar access to the community was unreasonable.  It said that there was no evidence that spoke to the appropriateness of community access or whether that could be done without compromising public safety, which is particularly important in light of the way the crime was committed.  The Crown said that the community access condition was unreasonable because it cannot be supported by the evidence submitted to the Board.

The community access condition to the Board’s disposition is clearly less onerous and less restrictive to Kachkar than limiting him to access to the Hospital grounds alone.  But the community access condition must also be consistent with public safety.  The question to be asked is whether, as the Crown argued, that conclusion cannot be supported by the evidence that the Board had before it.

The court of appeal wrote the following;     

“Dr. Klassen’s evidence provided ample support to sustain the conclusion that the community access condition would not compromise public safety.  In particular, he found Kachkar’s illness displaying episodic periods of psychotic behavior which “spooled up” or grew intense over periods of perhaps several weeks.  During these episodes, the respondent could exhibit impulsive behavior like that of January 12, 2011 although he was not generally impulsive. Dr. Klassen’s opinion was that if Kachkar were on anti-psychotic medication and were closely scrutinized for psychotic episodes by the professional staff at the Hospital, he would not be a flight risk on escorted or accompanied passes.  Dr. Klassen testified that Kachkar could properly be given either type of pass when the Hospital felt he was ready for them.  Dr. Klassen drew no distinction between passes to access the Hospital grounds and passes to access the community.” unquote       

The court concluded that Dr. Klassen and Dr. DeFreitas had provided strong evidentiary support for the community access condition that the Board attached to Kachkar’s disposition.  It could not therefore be said that the condition stated by the Board was unreasonable.

I agree with that decision. It must be remembered that prior to Kachkar committing the crime, he was not taking his medicine that would control his mental illness. But if he is permitted to visit the nearby town for several hours unescorted and has to immediately return to the hospital where he will receive his medicine, the chances are slim that he will commit a criminal offence while he is in town.

The office of the Attorney General of Ontario complained to the court that they were not invited to attend the Board’s hearing so that they could present its views on the matter. The Crown says that it was denied procedural fairness to which it was entitled.


In evaluating this argument, it is important to be mindful of the nature of the Board process.  It is inquisitorial, not adversarial.  Kachkar was assigned no burden.  Rather, the burden was on the Board to gather and consider the relevant evidence.  Another party does not come to the Board with the obligation to make its case.  While the criminal law sets out when a judge can depart from a joint submission, and the limited opportunity to make further argument the judge should offer, it does not require that the judge who declines to accept that submission must afford counsel the opportunity to make submissions on the very sentence the judge proposes to impose prior to the judge doing so. That principle applies also to an administrative Board that makes a decision.

When the hospital feels that Kachkar is well enough to go unescorted into the town and return to the hospital after his visit in the town, he will get that privilege. I don’t have a problem, with that.

However, I would be less than honest if I didn’t express my concern about him being released from the hospital with no obligation to return to the hospital.

Daniel Wayne Staley had been in and out of jails and mental hospitals since he was 10 years old. Staley was arrested by Dallas police in May 2010 for digging up a woman's corpse and cutting off her foot. He later approached officers with the remains in his backpack. Staley was sent to a mental hospital. He had failed to take his medications regularly, so his mental illness had gotten worse. He has stated over and over again that he will kill when he gets out because that is his mission from Satan.  Would you believe it?  The state is going to release him back into society again. The state says that under the law, there is little that can be done as he can't be kept in a mental hospital for life. If when he is released from the mental hospital and he stops taking his meds, then it is conceivable that he will kill someone and again be sent to the mental hospital temporarily.

The former Bradford, England lorry driver, Peter Suttcliffe received 20 life sentences in 1981 for murdering 13 women and attempting to murder seven others. Sutcliffe is said to have believed he was on a “mission from God” to kill prostitutes although not all of his victims were sex workers. The serial killer, now known as Peter Coonan, is detained at Broadmoor high-security psychiatric hospital in Berkshire.  He has spent nearly all his years in custody at Broadmoor after being diagnosed as mentally ill, but he refused treatment until 1993 when the Mental Health Commission ruled it should be given to him forcibly.

A psychiatrist report stated Sutcliffe had been on anti-psychotic medicine since 1993, which had made it possible for him to successfully contain his mental illness. The hospital was suggesting that he could be released as he has been cured of his illness. The hospital said Sutcliffe posed a “low risk of reoffending.” This was said in support of 64-year-old Suttcliff’’s application to have a minimum term set to give him the chance of parole.

That hospital’s proposal was shot down by the judge who heard the application. Mr. Justice Mitting said in his decision: “This was a campaign of murder which terrorized the population of a large part of Yorkshire for several years. Apart from a terrorist outrage, it is difficult to conceive of circumstances in which one man could account for so many victims. Those circumstances alone make it appropriate to set a whole life term.” unquote

The decision to impose a whole of life term means that, as things stand, Peter Sutcliffe (now Coonan) will never be released.  

I believe that if a person kills a human being while he is insane, he should never be released from a mental hospital as there is no way anyone can be sure that such a person will continue taking his medicine that improves his state of mind and if he stops taking his medicine, it is possible that he will subsequently kill again.

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