RSS FeedMentally ill and the criminal justice system
Mother wants answers as to why son died
When Ikram Said’s son was placed in seclusion for up to 23 hours a day, he begged her to hire a lawyer and get him out of Mental Health Centre Penetanguishene, she said today.
But she never listened to the pleas of 22-year-old Kulmiye Aganeh.
“I thought he was safe in the government’s hands,” the mother said at a media conference where she raised questions about the circumstances of her son’s death five months ago.
Man Not Criminally Responsible for Greyhound Bus Beheading; Victim’s Family Call for Punishment
Justice 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.
Sniffing Armpits a Capital Offence
A 36-year-old man in Singapore has been jailed for 14 years for molesting residents of the country over the past 15 months.
His offence was forcefully sniffing the armpits of random women.
As you can probably expect, mental illness is suspected. But the court also sentenced him to 18 strokes to his buttocks with a cane.
From a Canadian perspective this seems strange – beyond the odour fetish – as we require moral responsibility for criminal sanctions.
How ethical is it to punish an offendor who is unlikely to grasp the significance of the punishment, or have it deter them from future reoffending?
Moral culpability in Canada is negated by incapacity, because there is no assertion of choice. The appropriate defence is found in the Criminal Code:
Defence of mental disorder
16. (1) 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.
Further details are found in Part XX.1 of the Code.
Sanctions for Mental Disorders
A Not Criminally Responsible (NCR) defendant may still be committed, but this is to protect the public from harm and provide treatment, and not for punitive reasons.
NCR outcomes were found constitutional in Winko v. BC (1999) SCC, where an NCR defendant that does not pose a public risk is provided an absolute discharge,
There is no presumption that the NCR accused poses a significant threat to the safety of the public. Restrictions on his or her liberty can only be justified if, at the time of the hearing, the evidence before the court or Review Board shows that the NCR accused actually constitutes such a threat. The court or Review Board cannot avoid coming to a decision on this issue by stating, for example, that it is uncertain or cannot decide whether the NCR accused poses a significant threat to the safety of the public. If it cannot come to a decision with any certainty, then it has not found that the NCR accused poses a significant threat to the safety of the public.
Rights to NCR Defence
The issue of NCR can be raised at any time. The Crown can also raise it under certain circumstances.
R. v. Swain (1991) SCC ruled that a mental disorder has a prejudicial effect on the jury and affects the right of the accused to control their own defence. As a result, the Crown can only raise the NCR when:
- The accused’s own evidence tends to put his mental capacity into question
- After a finding of guilt, but before sentencing, the Crown can raise the issue.
But what exactly constitutes a mental disorder?
R. v. Simpson (1977) Ont. C.A. ruled that personality disorders could qualify as diseases of the mind. Medical evidence may be used in part, but this issue is a question of law.
Strangely, Canadian courts have not yet ruled as to whether armpit sniffing is a personality disorder that would qualify for the NCR defence.
Evaluating the NCR Defence
Cooper v. R (1980) SCC and R. v. Abbey (1982) SCC found that the defendant must appreciate the nature and the quality of the act. Appreciate means to estimate and understand the consequences, but does not include the need to appreciate the penal consequences.
If someone is sniffing armpits for 15 months, it’s not likely they appreciate that this is probably not a welcome gesture.
A more useful test might be found in R. v. Chaulk and Morrisette (1990) SCC. Appreciation of whether something is wrong is more than just legally wrong,
…if he is incapable of understanding that the act is wrong according to the ordinary moral standards of reasonable members of society.
Omar’s Corner
We do know that men who eat meat have smellier armpits to women who sniff them, but we have no indication of the opposite effect with the genders reversed.
Scientists have revealed that armpit odours do indicate female fertility, and ovulating women smell much better to men than those who are menstruating.
Occasionally we lapse into relationship advice here on Law is Cool more frequently than we should.
Still, a woman’s position in her menstrual cycle is typically information revealed well after a first date (at least), and the reasonable standards of a society even in Singapore would indicate that coming on this strong is definitely wrong.
The court did consider that the defendant would likely reoffend.
But punishing him with a sore bum is not likely to discourage or rehabilitate him in any way, and the most women in Singapore will probably see is deodorant sales skyrocket.
h/t Ismaeel Babur of UWO Civil Engineering and Internatlonal Development
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