Borutski trial part five: The law of “not criminally responsible”

You would not be alone if you have wondered over the past weeks or months about whether Basil Borutski might make a claim at some point that he is not criminally responsible for his actions because he is mentally ill. His behaviour since his arrest as well as many of his actions and statements in the weeks and months leading up to September 22, 2015 have been, at best, odd.

The law, rightly, provides for a special approach in situations where the accused person may have had a serious mental disorder at the time the offence took place as well as where the accused person, regardless of his mental state when the offence occurred, is not mentally fit to stand trial.

Here is a quick lesson in how the law treats cases where there is a question about the mental health of the accused person at the time the offence took place.

Just what does the law say?

Section 16 of the Criminal Code of Canada states that:

• 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;
• Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1) until the contrary is proved on a balance of probabilities;
• The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

How does the law work?

Either the defence or the Crown can raise the issue of not criminally responsible for reason of mental disability (NCRMD) issue in a case. The defence can raise it at any time in the proceedings; however, the Crown can only raise it after the accused has been found guilty beyond a reasonable doubt.

The accused person cannot simply have a mental illness to be found NCR. S/he must have a mental disorder such that s/he was not capable of understanding the nature and quality of what s/he was doing OR of knowing it was wrong.

Whether it is the defence or the Crown that raises this issue, they must enter evidence – usually in the form of forensic psychiatric testing – to prove this is the case on a balance of probabilities. In other words, it must be more likely than not that the accused suffers from this mental disability. This is a different and lower standard of proof than the standard of proof – beyond a reasonable doubt – that must be met for an accused to be found guilty.

The judge, or jury if there is one, will consider the evidence that has been provided and make a decision about whether or not the accused is NCRMD.

Then what?

If the accused raises the issue of mental disorder before the trial begins or is completed, and the judge or jury finds that the accused is not NCR, the trial will continue as it would with any other accused person.

If s/he is found to be NCR, then the trial would not continue, and the case would be handed over to a provincial or territorial review board.

If the Crown raises the issue, it means the accused has already been found guilty. If the judge or jury finds the accused is not NCR, the judge will proceed with the sentencing phase of the trial.

If the accused is found to be NCR, then the criminal proceedings come to an end and the case is handed over to a provincial and territorial review board.

These review boards conduct an assessment and make a decision about an appropriate disposition. They can:

• Grant an absolute discharge, which means the individual is free to return to their life as it was before
• Grant a conditional discharge, which means the individual must complete or follow certain conditions
• Place the individual in a mental hospital for treatment, where their mental health will be assessed at regular intervals and they may be released at some time if it is determined this is appropriate

By virtue of the NCR finding, the individual is not legally responsible for whatever harm they may have caused or contributed to. Rather, they are treated as someone with an illness that needs treatment.

But is it safe?

There is considerable public skepticism about NCR findings. Some of this stems from people’s concerns about public safety, especially in high-profile cases like that of the man who beheaded a fellow passenger on a Greyhound bus a number of years ago.

But there is skepticism, too, from people who think that a finding of NCR somehow lets the accused person off the hook.

However, if someone is not capable of understanding that what they are doing is wrong, it seems clear that it is wrong to punish them.

Further, NCRMD findings are very rare. As associations that work for the rights of people with mental health issues have been telling us for decades, a person who is mentally ill is far more likely to be the victim of a crime than the perpetrator of one.

Only two out of 1,000 criminal cases results in a finding of NCRMD. Of those, only 8.1% are in cases involving serious violence.

Recidivism rates for individuals who have been found to be NCR are much lower than for those who have been found guilty and have spent time in jail or prison, with those who have engaged in violent behaviour showing the lowest recidivism rate of all.

Next week:

What can we glean from what Borutski has said and written?