Li, who now goes by the name of Will Baker, beheaded McLean while suffering a schizophrenic episode. Baker was found not criminally responsible (NCR) for his actions, on account of mental disorder.
Because Baker was found NCR, he is eligible to apply for an absolute discharge, which he recently did to the “surprise” of the Crown, Global News Winnipeg reporter Sean Leslie tweeted from Baker’s review board hearing Monday.
The case would need to be made that Baker poses no threat to the public, and would benefit from the absolute discharge.
“In order to get an absolute discharge the review board has to determine that the accused is not a significant danger to the public, and in that event he or she can be unconditionally released,” said Archie Kaiser, professor at Dalhousie University’s Schulich School of Law.
“If a person receives an absolute discharge that means he or she is entitled to live in the community unconditionally, with no constraints imposed by the criminal law.”
No one would monitor Baker’s activity in any way or ensure he is taking his medication.
McLean’s mother Carol de Delley has called the thought of Baker receiving an absolute discharge “terrifying.”
While it might seem baffling that the board would grant Baker total freedom considering McLean’s brutal death, it is Baker’s right. The Supreme Court of Canada ruled in 1999 that a review board must order an absolute discharge if a person doesn’t pose a significant threat to public safety.
WATCH: Global News’ coverage of Vince Li, who is now known as Will Baker
“To make that determination they have to look at several factors that structure their decisions. They have to determine what disposition is necessary and appropriate in the circumstances, and they’re required to keep the safety of the public paramount,” said Kaiser.
Baker, who has been living in Manitoba since the attack, has known increasing freedoms in recent years. In 2010 he was allowed to take escorted walks on hospital grounds. In 2012 he was granted supervised day passes from Selkirk Mental Health Centre, escorted by one staff member and one security officer. In 2015 he was allowed unescorted visits to Winnipeg, then to live in a group home in the city.
In February 2016, Baker was given the right to live on his own on the condition he would be subject to monitoring and random drug tests.
At his annual review Monday, the board heard from Baker’s doctor and lawyers. The board heard that Baker has been living in the community since November, and understands his illness and the importance of taking his medication. He’s been going to the gym and attending church.
The board also heard that there is risk of relapse even if Baker takes his medication, and that Baker would be free to opt out of treatment following an absolute discharge.
The board will carefully consider what is best for the the public and for Baker before making a decision.
“They look at the need to protect the public, the mental condition of the accused, and the prospects for reintegration for the accused and the other needs of the accused,” said Kaiser.
Criminal Code provisions also recognize that people are entitled to be reintegrated into the community if they either present no risk or no significant risk, said Kaiser.
“The case law says very clearly, that a person who is an NCR patient who is not a significant danger to the public must be unconditionally released.”
Kaiser said it’s important to note that Baker has undergone “microscopic” scrutiny and the re-offend rate for people found NCR is very low.
The board will make its decision regarding an absolute discharge for Baker sometime this week. However, the Crown made it clear it is “absolutely opposed.”
Should it be denied this time around, Baker’s eligibility for absolute discharge will be annually reviewed on a mandatory basis, or upon request of Baker or those caring for him.
“We don’t let people just stay in a custodial facility without any assurance that their cases are being monitored and regularly assessed,” said Kaiser.
Baker plans to stay in Winnipeg to take post-secondary training. He also asked that if the absolute discharge was not granted, he be allowed to travel to China with his ex-wife.
— With files from the Canadian Press, Katie Dangerfield and Sean Leslie