Balancing Public Safety and the Rights of the Mentally Ill: The Insanity Defense in Canada

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At 6:30 pm on December 9th, 2014, Jeff Weber saw a black man having his after dinner cigarette outside. Weber then walked to a store, bought a hammer, a knife, and a calendar and walked back to where the man was smoking. He then attacked the man, fifty-five year old Nabute Ghebrehiwet, by repeatedly hitting him on the head with a hammer. One blow struck Ghebrehiwet in the eye, leaving him partially blind.

Weber was charged with aggravated assault and possession of a dangerous weapon. His attorney used the defense of Not Criminally Responsible (NCR) – Canada’s insanity plea, because his client has treatment-resistant paranoid schizophrenia and is well-known to authorities. Since 2005, Weber has been charged with over twenty five offenses ranging from assaults, to threats, to attempted abductions.

On September 29th, 2016, Jeff Weber was found Not Criminally Responsible for his crime. This is the fourth time he’s successfully avoided criminal liability via this defense.

The insanity defense is a popular subject in books, film, and television. The plots always follow the same formula: someone gets murdered, they find the killer, and the defense attorney claims his client was crazy and didn’t know what they were doing.

Sometimes the person is convicted and goes to jail only for the attorney to find out that the person was insane all along. Sometimes the insanity plea works and the person goes free, only for someone to secretly find out the accused was sane and faking.

Despite what pop culture would have us believe, in Canada a successful use of the NCR defense does not mean the accused will go free.

The rules regarding an NCR defense are written into the Canadian Criminal Code.

They start with the premise that anyone who commits a crime while suffering from a mental illness that renders them incapable of knowing that what they did was wrong is not considered criminally responsible for their actions.

The second rule is that everyone is presumed sane enough to be held accountable for their crimes.

The third rule is regarding the burden of proof.

In ordinary criminal cases, the burden of proof is on the State, represented by the prosecution, who has to prove the accused’s guilt beyond a reasonable doubt. To get an acquittal, all the defense has to do is raise a reasonable doubt as to their client’s guilt.

When an insanity plea is raised, the burden of proof shifts onto the defense, which has to prove by a balance of probabilities – a standard lighter than proving something beyond a reasonable doubt – that the accused was not only suffering from a mental illness or disorder, but also that this disorder made the person incapable of telling right from wrong. The accused does not have to be incapable of telling right from wrong all the time for an NCR defense to work; they only have to prove that they were not criminally responsible at the time they committed the crime.

The way to prove that an accused is not criminally responsible is via psychiatric assessment. The defense will usually have the accused assessed by one or more mental health experts.

The court can order its own assessment of the accused at any time during criminal proceedings. The prosecution can also apply to have the accused assessed, but the court can only grant this request if the accused brings up his mental capacity for criminal intent during the trial, or if the State convinces the court that there are reasonable grounds to doubt that the accused was criminally responsible at the time of the offense.

If the court is convinced the accused committed the crime but their mental illness kept them from being aware of their actions or the fact that they were wrong, the court will issue a verdict saying that the defendant committed the crime but is not criminally responsible on account of a mental disorder.

This verdict is not a conviction and it is not an acquittal, but something in between.

All defendants found Not Criminally Responsible have to go through the Review Boards of their respective provinces. The job of the Review Boards is to review the status of all people found Not Criminally Responsible or mentally unfit to stand trial.

At least one of the Board’s five or more members has to be licensed to practice psychiatry, and where the board has only one psychiatrist, there also has to be at least one other member who is a medical doctor or psychologist with training and experience in mental health. In order to determine what should happen to a defendant found not criminally responsible, the Review Board holds a disposition hearing.

The hearing determines what should happen to an NCR person, which can include an absolute discharge – meaning they are completely free to go, a release with conditions such as taking their medication and seeing a psychiatrist, or being held in a hospital. The sentence depends on how much of a danger the person is to the public.

The Review Board system is far from perfect, for it is their failings that put Jeff Weber back on the street to blind an innocent man. It is nonetheless better than countries like the US, where the mentally ill are often killed by police, incarcerated, or shipped off to another state. Unlike many countries, Canadian laws regarding the mentally ill are designed with the intent to balance public safety with getting people the care they need so that they can live fulfilling, independent lives.

* Featured Image: Court sketch of Jeff Weber

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