OTTAWA – He killed a Toronto police officer with a snowplow two years ago, but jurors in a Toronto court found Richard Kachkar not criminally responsible on Wednesday.
Sgt. Ryan Russell, 35, was killed on Jan. 12, 2011 while on duty when he was hit by a stolen plow driven by Kachkar, who had been on a two-hour rampage.
Although the defence is rarely used, the 46-year-old is the latest person to be declared not criminally responsible, or NCR, in a high-profile case.
The ruling means the person who committed a crime lacked the ability to appreciate what they did or know it was wrong due to a mental disorder at the time.
Among the dozens of witnesses heard during the trial were three forensic psychiatrists who concluded Kachkar was in a psychotic state when he killed Russell. None of them were able to categorize his mental illness.
The current “not criminally responsible” process
Instead of a first-degree murder charge, which would carry a life sentence, the ruling means that Kachkar will have to go before the Ontario Review Board within 45 days.
It will decide on a course of action, which could be an absolute discharge, conditional discharge or detention in custody in a hospital.
If detention is ordered, the person is placed in a mental health facility for an indeterminate amount of time. They remain under the authority of the review board until they receive an absolute discharge, but the board must hold a hearing every year to review the detention. Victims of crime can attend and speak at the review.
But a bill proposed by the Harper government could change the way people deemed not criminally responsible are dealt with in the future.
And Wednesday’s ruling made one new advocate of the proposed law – Russell’s wife, Christine.
“Ryan deserved a lot better than this,” she said. “He was killed by that man and nothing changes that fact.”
Russell said she would save her personal and emotional statements for the review board in the hopes that there will be some justice in this case, but she said there is no closure.
“In a verdict of not criminally responsible, my family, most likely, myself will have to fight this for the rest of my life,” she said, adding that she can’t even tell her son the man who killed his daddy won’t hurt him.
Changes sought by the Harper government
The bill would create a new “high-risk” designation for people found NCR in a serious personal injury offence and where past violence or the risk of future violence poses a risk to the public. A high-risk NCR person could not go into the community unescorted and would only get day passes in very rare circumstances.
The review board could also choose to only revisit the case every three years, but the “high-risk” person could still get treatment.
And while public safety is already the priority of the board, the new bill would make that explicit and would put the meaning of “significant threat to the safety of the public” in the law.
The proposed legislation would also give victims the chance to be involved in the process by notifying them of discharges, ensuring non-communications orders, and explicitly making victims’ safety a part of any decisions.
Justice Minister Rob Nicholson declined to comment on a specific case, but said of the bill: “I hope it gets passed very quickly.”
If passed, the law may be applicable to Kachkar. The provisions will be retroactive as long as the person declared NCR is still in detention.
But critics of the bill like lawyer Anita Szigeti, who specializes in mental health law, say the changes are wrong-headed and fly in the face of Canada’s legal values.
“Emotions do cloud these decisions, but that’s no excuse for the government to have its judgment on law-making be clouded by emotion as opposed to science and a clear-headed rational approach,” she said.
Szigeti said linking brutal offences to high risk is a mistake because forensic psychiatrists and studies show the more violent the crime, the less likely an NCR person is to reoffend.
Keeping NCR people in custody longer under a high-risk designation is punitive, she believes.
“We don’t criminalize not criminally responsible accused,” she said. “We put the focus on their treatment to minimize the risk.”
Szigeti added the high-risk designation, which is made by the judge, could clog up the court system as judges seek expertise from psychiatric experts.
Whether it will help victims feel like the scales are more balanced is yet to be seen, but one victim’s advocate said the new bill will be welcomed by many victims looking for greater responsibility to be borne by those deemed NCR.
“I hope that the new legislation will be helpful in some of those cases,” said Heidi Illingsworth of the Canadian Resource Centre for Victims of Crime. “The legislation is going to impact a really, really small number of cases that occur in this country, but I think that it will give some satisfaction to family members.”
But Kachkar’s lawyer Bob Richardson insists that justice was served.
“It’s not a ‘get out of jail free’ card. It is a recognition someone is very, very sick and needs to be treated,” Richardson said. “It doesn’t mean they are not accountable. He is accountable because he is doing it in the hospital system.”
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