When Is a Crime Not a Crime?

Two tragic deaths, months and thousands of kilometers apart, recently collided in my consciousness as I pondered the topic of my latest contribution to this SLAW Justice Column.

In late March of 2013 a jury found Richard Kachkar not criminally responsible (“NCR”) in the tragic high-profile death of Sgt. Ryan Russel. Kachkar had been charged with murder after an early morning barefoot rampage in a stolen snowplow. By the time the evidence at this trial was done, both the defence and crown psychiatric experts had reached the conclusion that Kachkar was suffering from a serious and debilitating mental illness. The jury’s NCR finding surprised no one in the legal community though it did ignite a firestorm of public outrage lighting up the phone lines at talk-radio stations with such public faces as Toronto’s Mayor Rob Ford and larger-than-life hockey mouthpiece Don Cherry expressing righteous indignation.

Fast-forward five months to the heartbreaking beating death of six year old Lee Bonneau. As if the murder of a child wasn’t enough of a horror to inflict on a small Saskatchewan First Nations community, the suspected killer was revealed to be only a child himself. The Criminal Code and Youth Criminal Justice Act set the age of criminal responsibility at twelve. When it was learned that no charges could be laid against the youth, media channels – both social and traditional – exploded with concern that justice would not be done.

The visceral reaction to a perceived injustice in the face of undeniable tragedy is understandable. It is the subsequent calls for criminal justice reform that are misplaced. There is a fundamental disconnect between society’s legitimate desire to see perpetrators punished for their criminal actions and an understanding of the preconditions to criminal responsibility in the first place.

Most people have at least a vague innate understanding of the foundational underpinnings of criminal law – the law ascribes responsibility only to those who both commit a criminal act and have an active criminal intent (the actus reus and mens rea for those with a penchant for showing off otherwise vestigial Latin skills). At the risk of making my job as a criminal defence lawyer look utterly facile, you’re not guilty unless you deliberately and intentionally commit a criminal act. For this reason, the driver who caroms through a cross-walk killing pedestrians is still not guilty of the heinous consequences of her actions if she was suffering from a seizure at the time of the loss of control. In one example taught back in my law school days, a man was acquitted of dangerous driving when he explained his erratic conduct behind the wheel as a desperate – if ill-timed – attempt to coax a bee out of his car.

While it is relatively easy for people to accept the explanation of a buzzing bee, when a defendant cites a demon buzzing in their ear at the time of a criminal act, forgiveness and understanding seem to be in short supply. This is an understandable – but not excusable – reaction to an experience so many of us thankfully will never encounter. Whereas we can all empathize, albeit somewhat embarrassingly, with the wild overreaction of a man swatting a bee, the delusional swattings of a paranoid schizophrenic are much harder to comprehend. It is for this reason that we rely on the expert analysis of trained psychiatrists to give us insight into the troubled minds of the mentally ill. Our lack of understanding cannot be permitted to translate into perverse demands to incarcerate those who we know were incapable of understanding or controlling the actions that resulted in their prosecution.

Children, though not mentally ill (at least as a class), suffer from the same under-developed sense of moral consequence. If my grade five class had been subject to prosecution for every assault, threat and theft my middle-school graduation would have looked more like a pre-pubescent penitentiary than a grade school. Although it pains us to articulate this, the absence of criminal intent in children under the age of twelve applies regardless of the consequences of the criminal act. We cannot laugh off the ostensible sexual assault perpetrated by a eleven-year old who pats a girl’s bum while at the same time insisting on prosecuting a child who may have been of the same age when he brutally murdered Lee Bonneau.

Criminal law is the most blunt of tools. It is passably good at discerning guilt from innocence. It can provide a degree of safety to victims whose perpetrators serve periods of incarcerations. When applied wisely it can even be a flailing flawed but still well-intentioned vehicle for modest rehabilitation. But, when we cry out to criminal law to jail our sickly and punish our children, we make the mistake of compounding tragedy with a fear-induced desire for vengeance. Locking up schizophrenics or sending ten-year olds to court signals a fundamental misunderstanding about the capacity of criminal justice to heal a grieving community. It can hurt to give voice to the truth: some heinous acts will go unpunished. Such is the price a mature and responsible society must pay.