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 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 12th 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.
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