CITLALLY MACIEL
<Staff Writer>
On the night of January 12, 2011, a police officer lost his life in the line of duty. His name was Ryan Russell, a devoted and exemplary officer, a loving father, a husband, and a son. His killer’s name is Richard Kachkar. That night, Sergeant Russell was called to check up on a man who had been reported to be driving a snowplow in a dangerous manner. After a short chase, Sgt. Russell got out of the cruiser he was driving and tried to stop Kachkar, but Kachkar did not stop and ran him over with the snowplow. Sgt. Russell died shortly after at a Toronto hospital.
Kachkar was arrested and charged. His trial concluded on March 27, 2012, finding him not criminally responsible on account of mental disorder (NCRMD). Given the circumstances of the case, specifically the testimonials from different witnesses regarding Kachkar’s odd behavior that night, the verdict does not come as a surprise. Sgt. Russell’s widow, family and friends, however, were astounded. Mrs. Russell said to the media after the verdict was rendered that “[Sgt. Russell] deserved a lot better than this” and similarly, other family members expressed their disappointment. As if the justice system had let them down. Gosh, even Toronto’s Mayor, Rob Ford, and hockey commentator Don Cherry have expressed their outrage!
Evidently, all these people have equated an NCRMD verdict with impunity. In addition, the need to retaliate is a common response among victims of crime. The question is: what role does vindicating victims play within the Canadian justice system? In other words, is providing redress to victims of crime part of the objectives of criminal punishment? Certainly, recent developments in the law indicate that the subject has become somewhat relevant.
On February 8, 2013, Prime Minister Stephen Harper announced the introduction of the Not Criminally Responsible Reform Act, the purpose of which is to “enhance the safety of victims and promote greater victim involvement in the Criminal Code mental disorder regime.” Indeed, the goal of the Act is public safety and not retaliation per se. However, the effects of the proposed amendments would make conditional or absolute discharge more challenging for an accused found NCRMD. Yet, is decreasing an accused’s likelihood of being released good enough or is a more severe punishment needed? Should an NCRMD individual go to jail like any other person found guilty of a crime?
In the book Introduction to Psychology and Law: Canadian Perspectives (2001), authors Ogglof and Whittemore give a comprehensive account of the history of criminal prosecution of the mentally ill in Canada. Essentially, the modern approach to the prosecution of the criminally ill surged in 1992. Before that, the approach remained unchanged for almost a century. Adopted in 1894, this approach was, not surprisingly, derived from the case law and the Criminal Code inherited from England at the time. The most significant feature of this approach was that the Lieutenant Governor was vested with the power to detain, on an indefinite basis, any individual found not guilty by reason of insanity.
Accordingly, in a review prepared in 1976, the Law Reform Commission of Ontario revealed that this arrangement resulted in some mentally ill individuals remaining in detention for longer periods than those who were actually found guilty. However, it was not until 1991 that the Supreme Court recognized the need for reform and prompted the legislature to act. The catalyst was the decision of R v Swain, a case that challenged the constitutionality of automatic detentions of individuals found not guilty by reason of insanity. The Supreme Court held that such detentions infringed an individual’s Charter rights because they were conducted without a proper hearing. The next year, the government proclaimed Bill C-30, thereby establishing the modern approach to prosecuting the mentally ill. Additionally, the Review Board was established as the body in charge of conducting reviews of those individuals deemed NCRMD.
Presently, when an accused is found NCRMD, a court may make an order for the accused to be discharged absolutely or conditionally, or to be detained in custody in a hospital. The standard used to determine whether it is appropriate to grant an absolute discharge order was established in the case R v Winko, decided in 1999. Essentially, an absolute discharge order must be granted when the accused does not pose a significant threat to the safety of the public. If an order for absolute discharge is denied, the corresponding provincial Review Board is then in charge of conducting an assessment to determine what disposition is best for the accused.
These Boards are normally directed by a judge (or an individual qualified by official appointment) and comprised of at least four individuals, one of which must be a qualified psychiatrist. If a Board makes an order for conditional discharge, the accused is released to the community under specific conditions. Alternatively, if detention is ordered, the accused is placed in a hospital under the supervision of the hospital administrator. Detention does not always entail the absolute confinement of an accused. The administrator has the authority to allow the accused to leave hospital grounds under certain conditions. However, unless an accused obtains an order for absolute discharge, the accused will remain under the authority of the Board until such an order is made.
Are NCRMD verdicts get-out-of-jail-free cards? Although this is a common belief, it could not be farther form the truth. An analysis of the Review Board system conducted by the Department of Justice found that only 12.5% of the orders were for absolute discharge, while 51.7% were detention orders. In addition, of all detention and conditional discharge orders made, 30.9% of cases remained under the supervision of the Board between 1 and 5 years, 24.9% remained under supervision between 5 and 10 years, and 35.1% remained under supervision longer than 10 years.
Although victims of crime may understandably feel like NCRMD verdicts are unjust and that the accused should go to jail, incarcerating mentally ill people cannot erase their anguish. In fact, their anguish may not be so much about the punishment but about the designation. Indeed, finding an accused “not criminally responsible” is a label that does not fulfill the denunciation purpose of punishment. The designation implies that the accused is not guilty of his wrongdoings. Conversely, finding someone guilty of murder bestows the accused with a scarlet letter that will forever hound him. Thus, a distinct label other than NCRMD may be enough vindication for victims. However, the idea that the morally innocent should not be held criminally responsible must remain the basis of our justice system. It is often said that the courts are slow to catch up with societal changes. In the case of the purpose and significance of NCRMD, it is perhaps society which has not caught up with the courts. As Francis Bacon once said: “Revenge is a kind of wild justice, which, the more a man’s nature runs to, the more ought law to weed it out.”