Christine Russell, the widow of Sgt. Ryan Russell, fights back tears as she speaks about Richard Kachkar, 46, being found not criminally responsible for her husband’s death.Peter Power/The Globe and Mail
It was cold and snowing the morning that 46-year-old Richard Kachkar, in bare feet and coatless, jumped into an idling truck with a snowplow attached and rampaged down a city street toward a police officer, Sergeant Ryan Russell. He did not swerve or slow down; he killed him. When paramedics came, he said the Taliban were after him and talked about being trapped in a Russian video game. Much later, sounding quite normal, he said that he'd been ill and not the master of himself. The psychiatrists who examined him had trouble describing the exact nature of his mental illness.
The line between responsibility and madness is hard to draw. Hard, but it's essential that we do, and get it right. If we truly believe in the presumption of innocence, we won't blame the mentally ill for what their illness made them do.
Where to draw the line? Fifteen-year-old Robert Chaulk and 16-year-old Francis Morrissette were convicted of first-degree murder in the 1985 beating death of an 83-year-old man in Winnipeg. Like Raskolnikov in Dostoyevsky's Crime and Punishment they felt above the law – like supermen – and deemed themselves justified in killing a "loser." They suffered from paranoid psychosis. But they knew they were breaking the law.
Their case would become a template for Canada. It was not enough that the boys knew what the law said about killing. The Supreme Court of Canada said the key question is the individual's capacity to recognize right from wrong "according to the moral standards of society." It threw out the convictions.
The case was also a warning of the dangers of premature release – whether of the insane or of a wilful killer. Mr. Chaulk was subsequently found not guilty by reason of insanity, and spent four months in hospital. Freed, he eventually stabbed two people to death and was sentenced to life in prison.
Many people who kill might be deemed "sick." There are 2,500 psychopaths in federal prison who either cannot or will not choose right from wrong. But they know the difference.
In the 1931 German movie M, Peter Lorre plays a pedophile serial killer captured by beggars and criminals, who put him on trial. I had no choice, he cries out, and they jeer him. The Lorre character knew the difference between right and wrong. He simply could not or would not choose right. He was not insane.
Luka Magnotta of Montreal, on trial in the videotaped dismemberment killing of university student Lin Jun, may argue he was "not criminally responsible" because of a mental disorder. In Colorado, James Holmes, who carefully planned a mass shooting at a movie theatre and killed 12 people, may attempt an insanity defence. In Norway, Anders Breivik, who had been diagnosed with schizophrenia, was initially deemed insane by the prosecution and a medical report after he killed 77 people, mostly teenagers. In all these cases, the planning and deliberation do not suggest delusional thinking.
If a person lacks "the capacity for rationality," he can't be held responsible for his actions, according to one definition. But "if he has the capacity but simply fails to use it," he can be.
When John Hinckley Jr. was found not guilty by reason of insanity in 1982 after shooting President Ronald Reagan, the backlash was so strong that three states – Utah, Montana and Idaho – abolished the insanity defence.
In Quebec, Guy Turcotte, a medical doctor, stabbed his two children 46 times, killing them, after his marriage ended, and was found not criminally responsible two years ago. Just three years after the killings, he was released. Stephen Harper's tough-on-crime government seized on the case in introducing changes to this area of law. Mr. Harper hasn't proposed to abolish the defence – probably an impossibility under the Charter – but he is trying to make it more difficult for "high-risk" offenders to be released.
That group, presumably, would include Vince Li, a schizophrenic who killed a seatmate on a bus and cannibalized him. A psychiatrist who treated Mr. Li, Stanley Yaren, called him a victim. "Don't hate the person. Hate the illness."
Advances in psychiatric treatment mean that some who would have been held indefinitely in the past may now return fairly quickly to the streets. Perhaps Mr. Li will be free again one day. The issue will become more volatile, not less. People may hate the illness but they justifiably fear it, too. It's hard to believe that it will ever be safe to release Mr. Li.
The Kachkar jury heard from several psychiatrists, including one hired by the Crown who said that Mr. Kachkar had a longtime, low-grade mental illness, but that sometimes it spun out of control and became a psychosis. The Crown argued that, though he was mentally ill, he knew what he was doing – he was trying to get himself killed.
Toronto's Mayor, Rob Ford, phoned a radio talk show as the jury was deliberating last week. "One of our finest got killed," he said. "He left behind a wife and a little son, and we're trying to find an excuse . . . . to justify this?"
A jury heard the evidence and found Mr. Kachkar not criminally responsible. It was the right decision, and showed that ordinary Canadians don't think severe mental illness is an excuse or a phony justification. Those who kill because of a mental disorder do have a responsibility to accept treatment, and try to heal, a responsibility shared with society to treat and try to heal them, but juries accept the humane principle that someone who does not know what he's doing should not be held criminally responsible for his actions.