The insanity defence having a moment in Canada’s courts

Not criminally responsible defence has become politicized

Rarely used, and even more rarely used successfully, the insanity defence is having a high-profile moment in Canada.

Defendants in two major cases of mass homicide are seeking a verdict of not criminally responsible by reason of a mental disorder.

In effect, they admit the actions but not the crimes. As counsel in such cases often say, this is not a whodunnit. Rather, trials about this unusual verdict are usually contests of expert witness psychiatrists.

In New Brunswick, a jury will hear final arguments on Monday in the case of Matthew Raymond, a psychotic spree killer who has pleaded NCR to four counts of first degree murder, including two police officers. Jurors have already heard he was delusional because of schizophrenia back in 2018, and that he believed his victims were demons coming for him, because he had made disordered mathematical calculations.

“I thought the end of times was in full swing,” Raymond, 50, testified in his own defence.

In Toronto, a judge is hearing the case of van rampage killer Alek Minassian, 28, without a jury. This one is unusual because the mental illness in question is reportedly an autism spectrum disorder, which is not usually associated with psychosis or losing touch with reality, but in Minassian’s case involved similarly distorted thinking, according to a defence psychiatric report described by the prosecution. No expert witness psychiatrist has yet testified.

In both cases, the verdict will come down to the defendant’s state of mind at the time of the killings, and whether the defence can prove that a disease of the mind raises reasonable doubt about criminal guilt.

The premise for this law is that people who are punished for crimes in Canada must have known what they did was wrong, or should have known, or at the very least could have known, had they considered it. If mental illness left them unable to have this moral insight, or to appreciate what they were doing in the first place, then they are simply not guilty under the law.

It is spelled out in the Criminal Code. 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.”

The Fredericton jury and the Toronto judge are therefore faced with a psychological question, even philosophical, but it is not open ended or vague. It is a precise question of fact, about some person’s thoughts at some specific time. Did he appreciate the nature and quality of what he was doing? Did he know it was wrong?

Deciding this mental state is different than deciding whether someone is fit to stand trial, which requires the ability to follow proceedings, understand their consequences, and instruct counsel. Many people who are severely mentally ill are still fit to stand trial, and those who are found unfit often become fit with forced treatment, allowing their prosecutions to continue, as in the 2015 Toronto stabbing death of Rosemarie Junor in the underground PATH. In that case, the killer, Rohinie Bisesar, was eventually found fit to be tried in 2018, and her “not criminally responsible” verdict followed soon after. She had schizophrenia, which often responds well to treatment, and this year she was allowed to start living outside a secure hospital in supervised accommodation.

A disease of the mind that renders a person incapable of knowing an act is wrong is also different from the mental disturbance that can support a finding of infanticide, rather than murder, for mothers who kill their newborns. That disturbance is a looser concept, and the Supreme Court has ruled it has no formal or technical definition. It means just what it says, and does not require a professionally diagnosed psychiatric disorder.

It is a high hurdle for defence lawyers to clear, but because the NCR verdict results in no jail sentence, and the impression that no crime has been committed, it has also become one of the most politicized aspects of criminal law.

There was public outrage, for example, at the increasing freedoms given to Richard Kachkar, who killed Toronto police officer Sgt. Ryan Russell with a stolen snowplow in 2011, and has since been conditionally discharged, and Matthew de Grood, who killed five young people at a Calgary house party in 2014.

For surviving victims and their allies, NCR can seem an unsatisfying verdict, as if the defendant found a convenient excuse, even a “get out of jail free card.” The most outrageous cases often prompt concerns about malingering or faking symptoms. These cases sometimes also tap a deeper cultural vein of skepticism about psychiatric diagnoses, even doubt about the reality of mental illness.