Slightly Medieval Misconceptions

There seems to be a public misconception perpetuated by the media that when an individual is brought before the courts anyone can make an attempt to use the “mental illness card” and seek a designation of Not Criminally Responsible On Account of a Mental Disorder (NCR). Firstly, when a lawyer seeks the designation of NCR it may be the prosecution or the defense and it is rarely at the direction of the accused. Secondly, it is not pursued for any individual with a mental disorder but only in those cases where there is a possibility that the mental disorder rendered the accused incapable of appreciating the nature and quality of the act or of knowing that it was wrong. There needs to be a causal relationship between psychiatric symptoms and the offence. To have a mental disorder itself does not automatically lead to a loss of reality.

A finding of NCR does not simply mean that the accused has a diagnosis but that the disorder removed a crucial element of a crime. In order to be convicted of a crime the prosecuting crown must prove that there was criminal conduct or a guilty act but also that there was a criminal state of mind or a guilty mind beyond a reasonable doubt.

In certain instances a mental disorder can render an individual incapable of appreciating that an act was wrong which can subsequently prove that their mind was not guilty. It is not a matter of being ignorant about a law it is a matter of being incapable.

Individuals who are found to be NCR are not innocent or guilty and are thereafter referred to as the accused. They are usually confined to a forensic hospital for treatment and rehabilitation for an indefinite period. Their progress or lack thereof is reviewed yearly by a Review Board and a disposition is decided by a panel after hearing evidence from the hospital, the crown, the accused and the victims. Restrictions may be removed or added depending on the evidence. Public safety is paramount and it follows that the least restrictive and least onerous conditions for the accused are put in place. Treatment and rehabilitation are important but they do not overshadow public safety.

There are instances where a finding of NCR could be pursued but some lawyers do not pursue it as it places their client in a position of indefinite custody. To act in the best interests of their client a finding of guilt is preferred as the freedom of their client is determinant. This is logical but serves no one as the underlying illness is sometimes ignored. From the perspective of public safety this is the less desirable option as treatment and rehabilitation reduce recidivism.

There is a misconception that to be found NCR is some form of getting off. In some instances NCR individuals gain community access sooner than if they were sentenced but the opposite is just as probable.

My interest in the Luka Magnotta case is that it provides me an opportunity to inform and educate. These high profile cases highlight the stigma and misconceptions that permeate our society. The attitudes that spring forth are of little consequence to me personally but I am alarmed because they affect all individuals who experience mental illness. NCR is not a club or union that seeks members. Like anyone I would prefer to see no NCR cases as I am acutely aware that there are victims on both sides.

The NCR provisions in the Canadian Criminal Code protect us all on many levels. They insure humane and progressive treatment of the accused and for anyone with insight who realizes they are not immune to mental illness it is a relief to know you would not be punished for an illness that rendered you incapable of appreciating the nature of a wrong. No one should be punished for events that are beyond their control. This is civilized and this is humane.

I personally believe that the defense in the Luka Magnotta case has a difficult task but my mind remains open to all possibilities and I will wait for more evidence. There appears to be evidence of knowledge of wrongfulness but even this could be explained in the light of a mental disorder. There can still exist an impaired ability to reason or appreciate. It has to be proven that Luka Magnotta had the ability to apply the knowledge that his actions were wrong. To form an opinion and tie the knot of the noose in the first week of a trial is unfair, dangerous, irresponsible, unjust and slightly medieval.

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