The Kachkar Ruling: A (moderately informed) Layperson’s Take

Fractured Perspectives on a Tragic Case

Since the Kachkar ruling came down Wednesday, there’s been no end to the hand-wringing over what to do with Richard Kachkar. But the tragedy is not that Kachkar was found not criminally responsible (NCR), but our response as society and the inability of the press to parse what NCR means as opposed to an acquittal. Everyone has an opinion on this highly emotional and divisive case, and unfortunately such luminaries as Toronto Mayor Rob Ford and Don Cherry have waded hip deep in order to muddy the waters further.

Don Cherry’s response is predictable and while I would like nothing better than to ignore it, unfortunately the CBC has allowed this celebrity addled brain a pulpit from which to spew his attrociously misinformed opinion. So Grapes, let’s make some vinegar from your little tirade.

Cherry’s position, according to his official Coaches’ Corner Twitter account seems to be that Kachkar was let off “scott-free.” That “an unelected left-wing judge” had, along with a “left-wing media” allowed a jury to feel sympathy for Kachkar. He’s also been musing about the heart-break for Sgt. Russell’s widow and family.

The difficulty with Cherry’s position is that somehow he believes that sympathy for the victim and his family is somehow incompatible with the recognition that Richard Kachkar was not in his right mind at the time of the incident and will not live a life free of penalty.

Based on what he said to the Toronto Sun, Chief of Toronto Police Services, Bill Blair, showed a remakable amount of compassion in the wake of the ruling:

“There’s no satisfaction in (the) outcome … It’s a tragedy for Ryan Russell’s family, it’s a tragedy for this city and for the Toronto Police Service … But I think it’s also a tragedy for Mr. Kachkar … And the system has dealt with it in the best way it was able.”

Contrast this with Christine Russell’s response in the Globe and Mail:

“I believe Ryan deserved better than this, Stephen Harper, I know you’re listening.”

“And there is something out there called Bill C-54 that’s trying to amend some of the not criminally responsible rights. I’m going to advocate for that very hard.”

What rights would Mrs. Russell be referring to? The right to not be held criminally responsible? Or the right not to be detained unnecessarily? The fact that he was found NCR does not mean freedom. The ruling does not ignore that a life was lost, but that the act that killed her husband was not something anyone could predict. And even that is not true.

There were signs that Kachkar was not of his right mind. The bigger tragedy is not the NCR ruling, but that Kachkar might have been helped before he got anywhere near that snowplow. But there was no intervention, instead we have the ruling. We have a tragedy that played out in the far-too harsh glare of the media. What we have is Richard Kachkar and, whether he likes it or not, he has become a conduit for a broader set of issues. Not the least of these seems to be the strange perceptions we have about what it means to be “not criminally responsible”.

What does NCR mean?

An accused found to be NCR is not automatically released into the public. Nor is there any guarantee they will ever leave detention. They will forever live a life under scrutiny. For Kachkar that scrutiny began on Wednesday.

45 days following the finding, Kachkar will undergo an assessment.

One result could be discharge. But given the source of his metal illness is undetermined it is likely that he could face either a conditional discharge or detention in custody in a hospital – and this would be indefinite. Even convicted criminals know when they are set for release.

Dyanoosh Youssefi, writing for the HuffPo notes that the experience of an NCR finding is not as advertised in the first place:

In theory, a person who has been found NCR is not supposed to spend any time in jail. In reality, people who have been found NCR often do spend days, weeks, or sometimes even months in jail while awaiting a bed in one of our over-burdened mental health institutions.

Note that not going to jail does not mean free.

After a first assessment, NCR persons often spend years in a psychiatric facility in order to get treatment. They are locked up in these so-called hospitals, until such time as a Review Board deems them safe enough for some form of a leave.

Kachkar is not a convicted criminal. What he was, according to witnesses, was ill at the time of the incident. And he may still be, but this is for the review board and not for Don Cherry, Rob Ford, Christine Russell, Stephen Harper, you, me or anyone else to decide. Our response to this is critical. If we cannot recognize that help was needed and not found, then there are more Richard Kachkar’s in our future. This is all the more tragic because our Federal Government is trying to make us believe they have public safety in their sights with the changes they’re proposing in Bill C-54. The problem is that the Government seems to misunderstand the very legislation they’re seeking to change.

The Bill C-54 Boondoggle

Youssefi points out, quite rightly, that:

Review Boards do not make their decisions casually. They know the stakes. They also know that the person before them committed the acts that they did because they were sick. Once that illness is under control, the person no longer poses a risk to society.

Keep those mentally ill people who have recovered from their disease institutionalized longer, as Bill C-54 would, and you endanger their recovery, overburden our already taxed mental health institutions, and keep others who need those beds in jails rather than in hospitals.

The troubling bit about Bill C-54 is that it claims to provide greater involvement in the Justice System to victims. This is, at first blush, a noble goal, but ignores a long and well trodden legal tradition which recognizes that verdicts are not about victims. They can’t be due to the deeply emotional issues at stake which cloud the victim or their family’s ability to recognize justice. And justice is not the same thing as fairness, or equality, or retribution, something that is again not well explained to the general public.

Justice David Paciocco, in his book Getting Away With Murder provides excellent insight into the danger of letting victims into the court room – and this presumably extends to the hearing chambers for the Review Boards. Criminal justice is about punishing transgressions not against the person, but against what is commonly called the King’s Peace. This notion is that criminal acts aren’t specifically crimes against an individual but against society at large. It is because of this distinction that cases are prosecuted by the Crown on behalf of Her Majesty. It is why the Kachkar case is Regina v. Kachkar. The matter before the court was not Russell v. Kachkar. Paciocco notes that the distinction between Criminal law and the law of Torts (i.e. the civil pursuit of damages by a victim) is precisely to allow the distinction to be recognized and that a civil suit brought against an acquitted party is valid in some cases (but not all). What Paciocco argues is invalid is the invocation of victim’s rights to provide input either in the matter or pursuing charges, the verdict, or the sentence. Particularly offensive to the pursuit of Justice is the victim’s rights movement and the political opportunism that panders to it:

The biggest threat is the claim made by some victims’ rights advocates, echoed sadly by some politicians and even some judges, that the way we treat offenders within the system is a matter of victims’ rights. Indeed, the unspoken assumption that all complainants are victims, and that all persons charged are offenders, even changes to the laws of evidence and criminal procedure are being advocated, and in some cases implemented, in the name of victims’ rights … Unfortunately, not all “victims” are victims, and not all accused persons are criminals.

What we have in Kachkar is a victim who is a victim and an accused who is not a criminal. And this is precisely the distinction shown in Blair’s comments and it is a nuance missed utterly by those calling for “tougher” measures of the sort found in Bill C-54. To ignore this distinction would be a gross error.

Post Scriptum:

There are a set of interlocking problems which I did not get to address here and may come in later posts. The most pressing of these is why did Kachkar fall through the cracks of the mental health system? Why, when he had been estranged from his family due to clearly erratic behaviour, did someone not step in and find help? Why couldn’t the shelter he was at before the incident catch him before he ran, barefoot, into the night? This is a Royal Commission that needs to be called. It might prove crucial to helping us move public opinion in the direction of changing the outcomes of mental illness in Canada.

A second issue alluded to is the applicability of the law of Torts to Kachkar. I have no insight into the tests that would have to be made in a civil court to secure some kind of recognition of damages. But this may be a situation where NCR also means not civilly responisble. However, I might argue that the state itself is at fault due to its failure to produce meaningful mental health care policy for decades. But again this is something which will require more reflection on my part.

 

 

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