NCR

Man Found Not Criminally Responsible for Killing Police Officer Has Been Released

Written on Behalf of Affleck & Barrison LLP

A man who was found not criminally responsible for killing a Toronto police officer in 2011 by running him over with a stolen snow plow has been released from a psychiatric hospital and is living in Durham Region.

What Happened?

In winter 2011, Richard Kachkar was in the midst of a psychotic breakdown and behaving erratically when he stole a snow plow, barefoot and without a jacket on. After an hour of driving around Toronto, he was apprehended by Sergeant Ryan Russell, and ran him over with the plow as the Sergeant tried to stop him, killing the officer.

At trial, Kachkar’s defense lawyers conceded that he had killed Russell, but argued that Kachkar was not legally blameworthy (i.e.- culpable) because he had been influenced by a mental disorder.

The Crown (i.e- prosecution) acknowledged that it was more likely than not that Kachkar had been suffering from a mental disorder, but argued that it was not serious enough to meet the threshold of “not criminally responsible”. Instead, the prosecutor suggested that Kachkar had been influenced by his anger and frustration by the direction his life had taken.

In 2013, after a seven-week trial, a jury found Kachkar not criminally responsible for the crime and he was sent to the Ontario Shores Centre for Mental Health Sciences in Whitby.

Not Criminally Responsible

Currently, s. 16 of the Criminal Code recognizes the defense of not criminally responsible on account of mental disorder, referred to more often as NCR.

The NCR defense depends on the answer to two fundamental questions:

  • Did the accused have a mental disorder at the time the act was committed?
  • Did the mental illness render the accused either a) incapable of appreciating the nature of the act or b) incapable of understanding that the act was wrong.

In order for a jury or judge to deliver an NCR verdict, they must answer yes to the first question and to at least one of the two options in the second question.

During an NCR trial, it is up to the person who wants to rely on the NCR defense to prove that the accused is not criminally responsible- in this case, Kachkar’s lawyers. The standard of proof is a “balance of probabilities” (i.e.- more likely than not).

An NCR verdict is not a guilty verdict, but it is also not an acquittal. Rather, it recognizes that a person who did not have the mental capacity to have a criminal intent cannot be found guilty. An accused who is found to be NCR is treated as a patient, not a criminal, and are remanded to a mental health institution of hospital. The intention is not to punish them, but to rehabilitate and mitigate their future risk to the public. Eventually the goal is to slowly reintegrate the individual into the community.

If you or someone you know has become involved in the criminal process, or have questions about your rights, contact Affleck & Barrison LLP. We provide skilled criminal defence, including for murder, manslaughter, and other serious offences. Located in in Oshawa, we serve clients throughout Ontario in the Durham Region, the Greater Toronto Area and points east. Call 905-404-1947 or contact us online.

Man Found Not Criminally Responsible for Beheading Fellow Bus Passenger Seeks Absolute Discharge

Written on Behalf of Affleck & Barrison LLP

Will Baker, formerly known as Vince Li, was originally found not criminally responsible (i.e.: “NCR”) for the murder of Tim McLean, whom he had decapitated and cannibalized on a Greyhound bus in Manitoba in 2008.

Mr. Baker has now asked the Criminal Code Review Board for an absolute discharge. If granted, there will be no conditions placed on his freedom, and no legal requirement to obtain treatment for his mental illness.

Absolute Discharges

In 1999, the Supreme Court of Canada found that individuals who have been found to be not criminally responsible for their crimes must be granted an absolute discharge if they do not pose a “significant threat to public safety”.

Mr. Baker’s Current Situation

Following the murder, Mr. Baker was diagnosed with schizophrenia, and initially housed in a secure psychiatric facility in Selkirk, Manitoba. Over the last several years, he has been gradually granted more freedoms.

Mr. Baker began living on his own in 2016; however, a pharmacy employee continues to ensure that he takes his medications daily.

The Criminal Code Review Board

Under the Criminal Code, a Review Board must be established in each province to make or review decisions concerning any individual who has received a verdict of not criminally responsible by reason of mental disorder. The Boards are generally made up of judges, lawyers, psychiatrists, psychologists, and members of the public who are al appointed by the Lieutenant Governor.

The mother of Mr. Baker’s victim told the Review Board reviewing Mr. Baker’s status that she is concerned about public safety should he be granted the discharge, and informed the Review Board that in her opinion, he should remain in a facility and never be “completely free”.

Crown Attorney Mary Goska likewise argued that an absolute discharge would be too great of a risk to the general public, telling the Board that “it’s clear that [Mr. Baker] can be dangerous in certain circumstances”.

A doctor who has treated Mr. Baker told the Review Board that while it had taken more than a year for Mr. Baker’s symptoms to “resolve completely” he is now at a “low risk”, as he understands that his medication keeps his illness under control. The doctor did admit that there is a risk of relapse if Mr. Baker was to stay off his medication for a prolonged period of time, and recommended that Mr. Baker always continue to see a psychiatrist.  According to the doctor, Mr. Baker plans to remain in Winnipeg for several years, but ultimately wants to visit China, his native country.

The Review Board is expected to make a decision with respect to the absolute discharge shortly. We will continue to follow developments in this matter and will update our readers once more information becomes available.

If you have questions about absolute discharges, a finding of NCR, or the Review Board process, contact the skilled Oshawa defense lawyers at Affleck Barrison online or at 905 404 1947. For your convenience, we offer 24-hour phone services and a free confidential consultation. We are available when you need us most.

Senior Who Beat Fellow Long Term Care Home Resident to Death Gets Life in Prison

Written on Behalf of Affleck & Barrison LLP

We previously blogged about Peter Brooks, a 76-year old man who had been found guilty of second-degree murder after Joycelyn Dickson who was beaten to death at a long term care facility in Scarborough in 2013.  Brooks had used a cane to fatally injure the other resident. He was also charged with attempted murder following an attack on another elderly resident at the same facility.

Brooks has since been sentenced to life in prison, and will not be able to apply for parole for another 10 years, which is the minimum period of time following a second-degree murder conviction.

The Trial

Brooks’ defence lawyer had argued that Brooks was not criminally responsible for his actions. The defence relied on evidence by a forensic psychiatrist who testified that Brooks had been suffering from dementia and delusions at the time of the incident which had caused damage to his brain’s frontal lobe and left him unable to distinguish the consequences of his actions:

We all know that, regardless of what Peter’s belief was, there is nothing that can justify his actions. This is where Peter’s departure from society’s moral code becomes glaringly obvious. He is still unable to appreciate the moral wrongfulness of his actions.

The Crown had argued that despite Brooks’ mild dementia, he had deliberately and intentionally attacked the two residents for “sweet revenge” (which had been Brooks’ own words). Brooks’ belief that the women had been conspiring against him was based in reality as the women had complained to management on a number of occasions about violent or hostile interactions they had previously had with Brooks. It was the Crown’s position that there had been no evidence of “psychotic thinking that can be raised above suspiciousness”, that Brooks had threatened to kill the resident and then took steps to act on the threat, that he ultimately minimized his conduct and blamed the victims, and then lied to the jury about being unable to remember the murder and made up an account of being told to “beat” the women in a dream.

All second degree murder charges have an automatic sentence of life in prison. If you have been charged with murder or manslaughter, or have questions about other criminal charges and your rights, contact the Oshawa criminal lawyers at Affleck Barrison online or at 905-404-1947. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.

Psychiatrist testifies that senior in murder trial has dementia and delusions, and is not criminally responsible

Written on Behalf of Affleck & Barrison LLP

Peter Brooks, 76, is on trial for first degree murder after he beat Joycelyn Dickson, 72, to death in her bed with his cane. Dickson was a fellow resident at the Wexford long-term care facility in Scarborough. Brooks is also charged with attempted murder, for attacking a second resident, Lourdes Missier, 91, on the same night.

On the evening of March 13, 2013, Brooks entered Missier’s and attacked her with his cane, leaving her with injuries to her hands and face. Brooks then went upstairs and killed Dickson, who was partially paralyzed, by hitting her in the head at least seven times while she slept in her bed.

Brooks pled not guilty to the charges at his first trial date, where he appeared in a wheelchair and required an assistive listening device in order to hear the proceedings. A forensic psychiatrist retained by Brooks’ defence lawyers has since testified that at the time of the incident, Brooks was suffering from dementia and delusions and should be found not criminally responsible.

History of Animosity

The jury previously heard of a history of animosity between Brooks and the women over the course of the two years that Brooks lived in the facility.

Missier and Brooks had once lived on the same floor and had been friendly, but their friendship eventually soured after Missier began to share treats she received from her family with residents other than Brooks. Brooks and Dickson once resided on the same floor for a year and had engaged in verbal clashes.

Brooks was moved back to the same floor as Missier days before the attacks occurred. On the day of the attacks, Missier expressed a fear of Brooks and informed staff that she did not want to be on the same floor as him. On the same day,  Dickson told a Wexford employee that she feared that Brooks would kill her.

Dementia and Delusions

Dr. Julian Gojer, a forensic psychiatrist, testified that Brooks has likely had dementia since 2010, and this has impacted his brain functioning, memory, and inhibitions. In addition, since 2011, Brooks suffered from a strong paranoid delusion that Missier and Dickson were conspiring with staff and management to harass him and get him removed from the facility.

Dr. Gojer testified that

[Brooks] is now suffering (from a mental disorder) and was suffering from a mental disorder at the time of homicide. I can say that with a very strong conviction.

In Dr. Gojer’s opinion, Brooks was so consumed by his delusional behaviour nothing else seemed to matter. Brooks would have been unable to foresee the consequences of his actions, or weigh the pros and cons of his actions (which is a major component of determining criminal responsibility). He pointed to Brooks’ admission to hitting the women when confronted by staff, and the fact that he made no attempt to run away following the attacks.

Dr. Gojer additionally suggested that the attacks had been triggered by Brooks’ fear of being moved within the facility, to the independent wing, and his worries about his ability to care for himself and afford the higher costs of living there. The psychiatrist noted that, in 2010, prior to living at Wexford, Brooks had been found in his apartment, “in a terrible state”, drinking heavily and depressed following the death of his wife. Brooks was initially admitted to hospital, and later transferred to Wexford.  According to Dr. Gojer, there had been no effort by Wexford staff to treat Brooks’ dementia or paranoid delusions.

The psychiatrist testified that:

…Rather than treat his delusion with anti-pyschotic medication they thought about transferring him to another unit…[i]f he was placed in a nursing home again, I guarantee there would be problems. He is not a safe person to be put in a nursing home, he needs to be in a hospital. He needs to be treated.

Dr. Gojer additionally refuted the prosecutor’s suggestion that Brooks was lying or faking his condition, and the allegation that Brooks had to have remembered attacking the women. The psychiatrist testified that Brooks had been tested for signs of “malingering” (i.e- lying) and did not show any signs of it. Additionally, Brooks’ claim that he did not remember the attacks could be explained by the fact that people suffering from dementia are highly susceptible to filling gaps in their memories with information they received from other sources.

Dr. Gojer emphasized that Brooks has no known history of violence and no criminal record prior to moving into the Wexford. He noted that it will be up to the jury to decide:

Is (Brooks) simply an angry old man, a cantankerous disgruntled nursing home resident or is he a person with a delusion acting in a violent manner because he thinks someone is harming him?

We will continue to follow developments in this case and will provide updates as necessary.

If you have been charged with murder or manslaughter , or have questions, contact our firm online or at 905-404-1947 to discuss your charges with one of our experienced Oshawa lawyers. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.