You can be mad and guilty

Magnotta trial highlights some key issues

In a world that insists on seeing so much through the prism of one stark divide or another, it’s no surprise that cases such as Luka Magnotta’s are similarly viewed in black and white.

He, of course, is the 32-yearold now on trial in Montreal for a range of ghastly crimes, which through his lawyer he has already admitted committing.

The only real issue left for Quebec Superior Court Justice Guy Cournoyer and the jury is whether Mr. Magnotta is suffering from a mental disorder such that he should be found not criminally responsible.

Lawyer Luc Leclair told the jurors Mr. Magnotta committed “the physical part” of the crimes but said he lacked “the mental part, the mens rea [Latin for state of mind]” due to what he alleges is his schizophrenia.

Now, neither result necessarily would mean a picnic is in Mr. Magnotta’s near future.

If found guilty of first-degree murder, for instance, the most serious charge he faces, he’d get the mandatory life sentence with no chance of parole for 25 years; if found NCR , he’d be sent to a secure psychiatric hospital for an indefinite term, subject to an annual review.

In Ontario at least, sometimes those sent to hospital spend longer in custody than they might have done in prison. But sometimes, too, those deemed NCR and who seemed for all the world severely ill recover quickly (once they are put on medication, say, such as happened with Vince Li of Greyhound Bus infamy), or appear to do so, and are soon back in the world.

Former Quebec cardiologist Guy Turcotte, for instance, who killed his two young children, was found NCR, and released from a forensic facility after less than four years. Then that verdict was overturned, and he now faces a second trial next year.

So, it’s an uneasily murky place where criminal law and mental health intersect.

Just how murky is often lost in the public discussion.

So is the fact that a person can be both things: mentally ill, even seriously mentally ill, and yet still criminally responsible for his actions.

That’s because Section 16 (1) of the Criminal Code says: “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.”

In other words, the mental disorder constitutes a defence only if it has one or two effects: It must render the person incapable of appreciating exactly what the act is or incapable of knowing that it’s wrong.

In the Magnotta case, for example, was he so ill he didn’t understand the nature and quality of homicide, dismemberment, videoing some of that and posting the video online, and mailing out body parts, or that all of it was wrong?

Exhibit A, on both fronts, is a 2011 case called R v. Guidolin at the Ontario Court of Appeal. In 2007, Daniel Guidolin was facing trial on charges of robbery and two counts of resisting arrest. His fitness even to stand trial was much in the air, a psychiatric assessment was ordered, he was found unfit and a treatment order was made.

Finally, after about six months, Mr. Guidolin and his lawyer offered an NCR via mental disorder plea. The prosecutor didn’t oppose it. The parties agreed that the report of the psychiatrist, Dr. McDonald (his first name isn’t mentioned in the decision, but it was likely Angus McDonald, a well-known Toronto forensic psychiatrist), was good enough, and that he wouldn’t have to give evidence.

The trial judge, Lauren Marshall of the Ontario Court, duly concluded Mr. Guidolin had established the NCR claim and off he went to the tender auspices of the Ontario Review Board.

Mr. Guidolin was detained in a maximum security psychiatric facility, and by the spring of 2011, it appears, had had enough of that.

He was at the appeal court, lawyer Dan Medd acting as a friend of the court, demanding his NCR finding be set aside as unreasonable.

The court noted that Mr. Guidolin had a long criminal sheet and what Dr. McDonald described as a long-standing mental disorder — a “schizoaffective psychosis, polysubstance abuse and an anti-social personality disorder.”

Yet, Dr. McDonald wrote in his report, he regarded him as fit to stand trial.

“I will comment on this point on the issue of criminal responsibility or lack thereof.

“I am rather lukewarmly persuaded that this man qualifies, at least marginally, for a noncriminal responsibility finding.

“This is not because he has no capacity to recognize the wrongfulness of his acts or specifically the most recent act of robbery, indeed he can, but he is substantially morally indifferent, dismissively remarking at one point, ‘All I did was grab the money.’”

The doctor also found him “substantially evasive on many topics as if acutely sensitive to the possibility of making his situation worse by talking about it.”

The only logical way he could see Mr. Guidolin’s actions “as falling within the NCR rubric,” the doctor said, was that he was often acutely psychotic and “seemed to be suggesting” that he had had hallucinations at the time of the robbery.

Dr. McDonald agreed with reluctance to support the NCR status, largely, it appeared, because without it, Mr. Guidolin would be totally unmanageable in the community.

In other words, as the Court of Appeal found, he saw the NCR verdict “as the best way to protect the community and hopefully offer (Mr. Guidolin) some treatment.”

As laudable as that might have been for a psychiatrist, the court said, it wasn’t a proper basis in law for an NCR verdict.

The court set aside the NCR finding, substituted a conviction on the robbery offence, and ordered a new trial on the resisting arrest charges, if the prosecutor chose to pursue it.

As for Mr. Guidolin, after 44 months in custody, most of that in a psychiatric facility, he had done more time than he would have if he’d pleaded guilty, so he was sentenced to only one more day. As of April 11, 2011, he was a free man.

He may have been mentally ill, and his illness may even have caused his criminal conduct, but it didn’t render him morally indifferent to robbing and terrifying that woman at the bank machine. He was sad and bad. The two can happily coexist in the same human being, at the same time.