Kachkar is Found Not Criminally Responsible – What does this really mean?

Richard Kachkar, who was accused of stealing a snow plow and killing Toronto Police Sergeant Ryan Russell, has been found Not Criminally Responsible for his actions by an Ontario jury – this, according to the Globe and Mail article that can be found at:

http://www.theglobeandmail.com/news/national/man-not-criminally-responsible-for-cops-death-as-feds-vow-crackdown/article10435954/

What, exactly does it mean to say that Mr. Kachkar is “not criminally responsible”?  According to s. 16(1) of The Criminal Code of Canada, a person is not criminally responsible “for an act committed…while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act…or of knowing that it was wrong.”  The onus of proving the mental disorder “is on the party that raises the issue.”  (s. 16(3) of The Criminal Code of Canada.)  A complete version of this section, and of the Code in general, can be found at:

http://laws-lois.justice.gc.ca/eng/acts/C-46/page-5.html#docCont

This has always been a very controversial section of the Criminal Code: on one hand, those who are against this provision, view it as nothing more than an “excuse” to justify horrendous criminal acts.  (See the previous post that cites Mayor Rob Ford’s comments as an example of this viewpoint.)  While on the other hand, those who are in favour of allowing Accuseds to plead “not criminally responsible” argue that placing the burden of proving the mental disorder upon the Accused is tantamount to forcing the Accused to prove him or herself “innocent”.  In any event, the defence of “mental disorder” or “not criminally responsible” is almost invariably met with chagrin.

So, having successfully pleaded this defence, does Mr. Kachkar get released?  No.  He is confined to a hospital or institution where he will be treated for his mental disorder, and will then be subjected to a hearing by a Review Board.  Pursuant to s. 672.47(1) of the Criminal Code, the Review Board initially has 45 days after the verdict of “not criminally responsible” to hold a hearing to determine if the Accused is a danger to society.  If the Review Board finds that the Accused continues to be a danger, the Accused can be held, arguably, indefinitely.  However, if the Review Board finds that the Accused is no longer a danger, the Review Board must discharge the Accused.

This is not to be confused with pleading that the Accused is not fit to stand trial.  Not only does that argument have its own set of rules and regulations, but the Review Board’s actions, in that case, are also different – in the case of “unfitness”, once the Review Board finds the Accused “fit”, the Accused is then remanded back into the Court’s jurisdiction and the Accused’s case begins anew.

Ultimately, while the media and the general public may jump to the conclusion that Mr. Kachkar is now a free man, the reality is vastly different than perception.