Man Not Criminally Responsible for Greyhound Bus Beheading; Victim’s Family Call for Punishment

By: David Shulman · March 7, 2009 · Filed Under Criminal Law · 7 Comments 

liJustice John Scurfield ruled Thursday that a man accused of beheading and cannibalizing a Greyhound bus passenger is not criminally responsible (“NCR”) due to mental illness.

Vince Li’s trial lasted only two days and heard from two expert witnesses, both psychiatrists, who testified he is mentally ill.

Both the prosecution and the defence argued that Li cannot be held criminally responsible because he was suffering from schizophrenia and believed God wanted him to kill the victim because he was a force of evil.

Li did not know the victim, Tim McLean, before sitting beside him on the bus, nor did he speak with him during several hours before the attack, which Scurfield J. described as ”grotesque”,  ”barbaric”, and ”strongly suggestive of a mental disorder.”

A psychiatrist called by the prosecution Wednesday testified that Li cut up McLean’s body because he believed that the victim would come back to life and take revenge.

Having been found NCR, Li will be institutionalized without a criminal record. He will be reassessed every year by a mental health review board to determine if he is fit for release into the community.

McClean’s family are vowing to fight the law that allows those found NCR to be released into the community if they are rehabilitated. The family argues that these people should instead serve a minimum sentence in jail.

Howard Barbaree, Phil Klassen, and Padraig Darby, experts in the areas of law and mental health, have written a terrific commentary on this issue published in the Globe and Mail. In it, they argue that “Canada should be proud that it has developed a thoughtful, balanced and fair treatment system for mentally ill individuals who commit criminal acts.” The commentary is entitled, “The mentally ill who break the law deserve ‘all mercy and humanity’“.

In my own opinion, this proposed punishment, dubbed “Tim’s Law,” would be unconstitutional. It would violate a person’s Section 7 right to liberty under the Canadian Charter of Rights and Freedoms.

A finding of ‘not criminally responsible’, pursuant to Section 16 of the Criminal Code, is just that. A finding that the person is not a criminal.

The proposal by the McClean family is this: once released by a mental health review board, a person becomes capable of meeting the fault requirement for the past act that they commited while suffering from mental illness. The illogic of the proposed punishment is that a person who is now capable of appreciating right from wrong should be punished for what they did when they were not capable.

In common law countries such as Canada, the test of criminal liability is expressed by the Latin phrase, actus non facit reum nisi mens sit rea, which means that “the act does not make a person guilty unless the mind is also guilty”. Not explicitly stated in this this phrase is the requirement that the actus reus (act) and mens rea (guilty mind) must overlap in time.

In the case of Li, if he recovers from schizophrenia and is released by a mental health review board, he will merely have the capability of having mens rea for present actions. This capability of having mens rea will obviously not overlap in time with his past actions. Therefore, the punishment proposed by the McClean family, although perhaps understandble on an emotional level, would be cruel and unconstitutional as it would be inflicted on a person who has committed no crime under law.

Criminal Code, R.S.C. 1985, c. C-46, s. 16:

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 7:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Comments

7 Responses to “Man Not Criminally Responsible for Greyhound Bus Beheading; Victim’s Family Call for Punishment”

  1. KC on March 7th, 2009 5:48 pm

    While the McLean family’s anger is understandable since they lost their son in a pretty vicious way, the commentary that has followed this verdict has revealed a pretty disturbing “bloodlust” on the part of some other Canadians. Many have readily conceded that Li had no idea what he was doing but that he should STILL be “punished”.

    No social objective is served by “punishing” the mentally ill who would have commited a crime butfor their lack of mens rea. You can’t deter people from not doing things they have no control over and it makes no sense to denounce involuntary behavioiur. The public safety objective is served by the Mental Health Review Board.

    Its pretty sick. Medievil bloodlust and little more. Its pretty sad that people living centuries ago recognized the futility of “punishing” for punishmets sake but so many today dont.

  2. Lawrence Gridin on March 9th, 2009 11:28 am

    KC: You are spot on as usual.

    I have been nothing short of appalled by the comments I’m seeing on news sites reporting this story.

    For a change of pace, check out this article:
    http://www.theglobeandmail.com/servlet/story/RTGAM.20090306.wli0307/BNStory/National/home

  3. Erica on March 9th, 2009 2:31 pm

    The entire reason that we have criminal justice and not simply the “right of self-help” or mob justice is to take the decision of how to punish the criminal out of the hands of the victims and their families, thus allowing them to be (understandably) irrational. This process actually safeguards victims’ rights by allowing them to be irrational.

    That is why people should not put much store in what victims and their families want to have happen to the perpetrators. It is not only nonsensical, it is also harmful to their own rights. If victims have a say in the punishment, society will have to start expecting them to be rational, just, and fair to avoid chaos.

    I also agree with all that has been said by commenters above.

    It is really interesting that in this case, the non-legal community is practically united against a practically unanimous legal community that thinks along our lines. It is rather miserable that the non-legal community has a great deal more electoral clout. This results, for example, the imposition of mandatory minimum sentencing, which the legal community is mostly agreed doesn’t achieve any of its alleged purposes.

    I’m worried that ‘Tim’s Law’ may be considered an actual possibility by the political powers that be because of the extent of public outrage over this.

  4. KC on March 9th, 2009 8:11 pm

    Erica – I wouldnt worry about Tim’s Law. Even if it got traction with politicians (which I doubt) it would have a tough time passing constitutional scrutiny.

    A few points I would disagree with you on though is that the non-legal community is united in favour of the concept behind “Tim’s law”. It might appear that when witnessing the screeching hysterics of internet comments.

    Also I don’t think its necessary “miserable” that lawyers (disclosure: Im still just an articling student for a few more months) dont have all the clout. We have our own biases as well (that admittedly dont come into play necessarily on this issue). We are more affluent, live in safer neighbourhoods, have the resources to provide our kids with more opportunities and so on.

    On the other hand we can use our skills with rational argument on issues such as this. The few hysterial folks I got into lengthy discussions on this subject retreated somewhat from their strong initial position.

  5. Bibek on March 10th, 2009 8:16 pm

    Erica,

    I do not understand what you mean.

    Did you mean that non-legal community who raised their voices on behalf of victim and his family is irrational ? if so, then it appears that offender’s action is rational and he should get justice, and that’s how he is legally ‘not criminally responsible’ !! do you want to say so ?

    Why do Americans say that Osama Bin Laden is a criminal ? He committed a lots and lots of barbaric crimes, he can also claim that he is mentally ill, probably he is though. He can claim that God told him to kill so many evils to protect him !! and he should get the same justice!!! and you support that.

  6. David Shulman on March 11th, 2009 7:02 am

    Bibek:

    Vince Li was diagnosed by psychiatrists as having schizophrenia, a mental disorder which can significantly influence one’s behaviour, and which is in the Diagnostic and Statistical Manual of Mental Disorders-IV (“DSM-IV”). That is why Vince Li was found not criminally responsible.

    Religion, even fundamentalist religion such as that espoused by Osama Bin Laden, is not itself recognized by the DSM-IV. Assuming Osama Bin Laden does not have a mental disorder that significantly controls his behaviour, he would probably be found criminally responsible by a court of law.

    Lastly, you say that, if much of the legal community believes that the victim’s family is irrational (and I am not saying that is true or false, I have no idea), then they would also believe that Vince Li’s actions are rational.

    This deduction is not logically valid. Take two people: Sally and John. Let’s say that I believe that Sally likes soup. Does that mean that I necessarily believe that John doesn’t like soup? Of course not! There is no reason to infer that; it’s entirely possible that I might also believe that John likes soup. That is because the two things are not connected. Sally and John can both like soup, both not like soup, or only one can like soup.

    In this case, a member of the legal community can believe that members of the victim’s family are irrational for wanting Vince Li to be punished, but I am certain that the entire legal community also believes that Vince Li acted irrationally when he killed Tim McClean.

  7. Chirios on November 17th, 2009 10:36 am

    Bibek raises a valid point though.

    As far as logic goes, would you really want to trust someone like Vince Li when a mental health professional declares him “fit to enter society?” Consider that.

    Just face it. It costs a lot more to pay for the housing and rehabilitation of Vince Li (that society will never benefit from, as he’ll never be trustworthy again) than it does to pay for a lethal injection, or a 9mm round.

Leave a Reply




Warning: Comments must be approved by editors before appearing on the site. Comments that are off-topic, racist, sexist, homophobic, etc. or otherwise offensive will be deleted or modified for suitability without notice. If there is a post or comment discussing you personally that you think is unfair or untrue, please feel free to contact us to address the situation.