“They (the victims) want to be involved, to see justice. The problem is that’s not what the criminal process was designed to do.” Patrick Baillie Calgary-based lawyer and forensic psychologist

Note: This story won a National Newspaper Award .





On the morning of Jan. 13, 2011, Richard Kachkar woke up handcuffed to a bed at St. Michael’s Hospital with two police officers on guard at his side.

The 44-year-old had a tube in his throat and was recovering from gunshot wounds to his arm, shoulder and nose. He was unable to speak, but signalled for a nurse to get him a pen and paper.

“I did someshng ver bad,” he wrote in a barely legible scrawl.

“Somethin was forcing me in my actions. I have never wanted to hurt.”

Much of his writing was incomprehensible — frantic, messy half-thoughts about “running in a dream,” fleeing from his “useless life.” One sentence was written in large, clear letters, filling up half a page: “I am sorry for everything.”

The notes would become a key piece of evidence at his murder trial two years later, a glimpse into the mind of a man who sprinted barefoot into the night, commandeered a snowplow and went on a destructive rampage that left a police officer dead, a child fatherless and a young woman widowed.

As details of Sgt. Ryan Russell’s tragic death emerged, the public struggled to understand such a bizarre and senseless event. Behind closed doors, so did Kachkar.

“I’m just so sad that I did something that tragic,” he said in an interview with two members of the Toronto police homicide squad in late January, two weeks after the incident. “It’s just — it’s just a horrible thing,” he continued. “Horrible thing. I don’t even know why — why or how or? I’m sorry. Sorry is not even a word . . . it was an accident. It wasn’t meant to be.”

Kachkar told detectives he didn’t remember much about the incident, but said it felt like he was being chased. He worried about going back to “being a zombie again” and wondered aloud about his own mental state.

“Maybe I’m sick,” he said. “Obviously I’m sick.”

“You think you’re sick?” asked Det. Sgt. Daniel Nielsen, a respected veteran detective who would lead the homicide investigation. His skepticism was palpable.

“For sure I’m sick,” Kachkar said. “Something’s wrong with me. Of course, who would do that? A normal person wouldn’t do that.”

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Kachkar had once lived a quiet and comfortable life with his wife and two children, in Toronto and later St. Catharines, but he’d been in a downward spiral for years. In and out of work, he squandered an inheritance on foreclosed properties south of the border, then lost them when he didn’t pay taxes. His marriage failed and his mental health began to slide. Kachkar had big dreams, but none of them came true. By 2010 he was spending his nights in homeless shelters.

In the days before the incident, his behaviour became increasingly erratic. He hopped a bus from St. Catharines to Toronto without taking anything with him, rambled on about “White Jesus” and going into business with the Kardashians, worried about “cameras everywhere.”

“Ritchie does not look good,” one of his close friends in Toronto told another, who agreed that Kachkar appeared to be “losing it.” On a visit to a walk-in clinic the afternoon of Jan. 11, Kachkar described his medical concern as “thinking.”

Less than 24 hours later — the morning of Jan. 12 — he was careening through the streets in a stolen snowplow, ranting nonsensically about the Taliban, Chinese technology and Russian Facebook. When he was finally apprehended an hour after striking Russell, he thought paramedics were trying to put microchips in his body.

“Do you see I’m not well when you look at me?” he asked the homicide cop two weeks later. “Do you feel something’s wrong? You must feel that?”

“Ah, again to be fair, you seem pretty normal to me,” Nielsen said. “I mean we’ve been able to converse for I think three hours now, or two and a half hours. Um yeah, I’m just trying to understand what happened. That’s what I see.”

With that began the debate about Richard Kachkar’s mental state. The detective’s observation that he looked “normal” in the aftermath of the crime would become a key issue as the case progressed: Kachkar’s apparent psychotic symptoms waned quickly, without medication, which is an unusual feature of a mental disorder and one the prosecution would home in on.

It also fuelled public suspicion that Kachkar was faking it.

In reality, of course, figuring out a person’s mental state is far more complicated than deciding whether or not he looks normal. Kachkar would spend the next two years being transferred from the Toronto West Detention Centre and the Don Jail to various mental hospitals, where he underwent three independent psychiatric assessments meant to evaluate his mental state at the time of the offence.

All three were conducted by highly respected forensic psychiatrists, two chosen by the defence, one selected by the crown. All three interviewed Kachkar extensively, observed his behaviour, spoke to his family members, considered other possible motives for his behaviour, reviewed details of the incident and events leading up to it, and delved into his complicated life history. All three tested for “malingering” — the medical term for faking or exaggerating symptoms.

All three would come to the same conclusion.

We called it the insanity defence until the early 1990s. The verdict back then: not guilty by reason of insanity.

Under the old regime, an accused deemed criminally insane was automatically detained without a hearing to determine appropriate action or assess his or her dangerousness. That changed after a landmark Supreme Court decision in 1991 declared the law was in conflict with the Charter of Rights and Freedoms. The government was ordered to fix it.

Out of that came the defence we have today: not criminally responsible on account of mental disorder, often shortened to NCRMD or NCR. The new law created provincial review boards to oversee patients found not criminally responsible or mentally unfit to stand trial.

NCR is not a guilty verdict, but it isn’t quite an acquittal, either. It’s an in-between judgment through which the law recognizes that a person who did not have the mental capacity to form criminal intent cannot be found guilty of a crime. People found NCR are treated as patients, not criminals, and though their freedoms are restricted in hospital, they are not meant to be punished.

Instead, the aim is to rehabilitate people like Richard Kachkar, to make him well, mitigate his dangerousness and ultimately, if and when he is no longer deemed a “significant risk” to the public, to reintegrate him, slowly and carefully, into the community.

Evidence suggests the system is working well, with recidivism rates for NCR patients significantly lower than those for offenders released from prison. But the verdict is not a satisfying end for victims, many of whom are understandably frustrated when they feel no one is held accountable for their pain and loss.

“Ryan deserved a lot better than this,” said Christine Russell, the police sergeant’s wife, after the trial. “He was killed by this man and nothing changes that.”

For the Russell family, the verdict didn’t feel like justice and it didn’t bring closure.

“I have tremendous sympathy for victims who are frustrated by the criminal justice system. They want to be involved, to see justice,” says Patrick Baillie, a Calgary-based lawyer and forensic psychologist. “The problem is that’s not what the criminal process was designed to do.”

A stairwell door bursts open and out runs a barefoot and jacketless Richard Kachkar, down the stairs, out another door, across a snow-covered alley and into the night.

The brief and bizarre exit was caught on security cameras at the Good Shepherd shelter on Queen St. E. just before 5 a.m. the day Russell was killed. The video was shown in court as evidence.

The behaviour captured on camera, defence lawyer Bob Richardson argued at trial, was that of a man in the midst of a psychotic, fear-based flight from an imagined enemy.

As he fled the shelter, “whatever slim hold that Kachkar may have had on reality slipped away,” Richardson told the jury.

The trial began on Feb. 4 and would last seven weeks, during which the most remarkable thing about Kachkar’s behaviour was his ability to sit stock still in what appeared to be the exact same position every day. Flanked by two court officers, the 46-year-old hunkered down in the prisoner’s box with his head bent, eyes trained on a fixed spot in the distance, showing very little emotion but for a furrowed brow that appeared to furrow deeper during difficult testimony.

From the outset, the defence conceded that Kachkar had killed Russell, but argued he was not culpable — in other words, not legally blameworthy — because he was acting under the influence of a mental disorder.

The Crown presented a different interpretation. Though prosecutor Christine McGoey acknowledged it was more likely than not that Kachkar had a mental disorder, she argued it wasn’t serious enough to meet NCR standards. Kachkar’s snowplow rampage, she suggested, wasn’t driven by an illness, but by his anger and frustration over the difficult turn his life had taken.

“Your mental disorder can play a role and you can still be criminally responsible,” she said.

It’s a common misconception that anyone with a mental illness who commits a crime can claim insanity to avoid jail. Not so. You can’t just kill a neighbour and blame your depression.

Enshrined in Section 16 of our Criminal Code, the NCR defence comes with a strict legal definition that hinges on two fundamental questions. First: did the accused, in this case Kachkar, have a mental disorder at the time he committed the act?

Timing is key. Kachkar’s defence had to prove he was insane at the moment he struck Russell with the snowplow. “Not the day before or the day after,” Ontario Superior Court Justice Ian MacDonnell would say in his charge to the jury.

Second: did the mental illness render Kachkar either a) incapable of appreciating the nature and quality of the act, or b) incapable of knowing the act was wrong?

In order to deliver a verdict of NCR, a jury must answer yes to the first question and yes to at least one branch of the second question, though members do not have to agree which one.

In an NCR trial, it is up to the party who advances the defence to prove the accused is not criminally responsible, which means it fell on Richardson to prove Kachkar was psychotic when he killed Russell and therefore not culpable. The standard of proof, however, is not “beyond a reasonable doubt,” but “on the balance of probabilities,” or more likely than not.

In other words, the jury had to be convinced that it was more likely than not Kachkar had a mental disorder when he struck Russell, and that it was more likely than not the illness made him do it.

Three prominent forensic psychiatrists were tasked with wading into the broken mind of Richard Kachkar.

Dr. Lisa Ramshaw of the Centre for Addiction and Mental Health met with him in jail twice in 2011. Dr. John Bradford saw Kachkar for five hours that August, and then assessed him during a six-week stint at the Brockville Mental Health Centre in 2012. Dr. Philip Klassen assessed Kachkar over a two-month period at the Ontario Shores Centre for Mental Health Sciences in Whitby.

Ramshaw and Bradford saw Kachkar at the request of the defence, while Klassen was chosen by the Crown. They were three of eight psychiatrists to testify at trial, but the only ones tasked with assessing Kachkar’s mental state at the time of the crime, and the only ones to conduct complete forensic assessments.

All three psychiatrists found Kachkar difficult to diagnose because his illness had a number of unusual features. Ultimately, they settled on an unspecified psychotic disorder or some form of schizophrenia.

The uncertainty about a diagnosis, however, did not affect their opinions about his mental state at the time in question. All three concluded that from the time he fled the Good Shepherd shelter, barefoot in the snow, to the time he was apprehended, he was suffering from a psychotic disorder and was in a state of psychosis.

“This is a man who was interpreting his world in a false way,” Ramshaw testified. “This is a man who believed people were after him . . . (who) couldn’t make sense of the world.”

On the second requirement for NCR, all three concluded Kachkar’s psychosis made him incapable of knowing what he did was wrong.

“His choices,” said Klassen, “were predicated on unreality rather than reality.”

“His behaviour,” said Bradford, “(was) driven by persecutory beliefs.”

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Ramshaw and Klassen, the psychiatrist chosen by the Crown, both agreed Kachkar met the first branch of the test as well — that he was incapable of appreciating the nature and quality of his actions — while Bradford did not offer a firm opinion. NCR verdicts are more common on the second branch than the first.

In short, all three believed Kachkar met the criteria for an NCR verdict. There was no competing testimony.

How did they know Kachkar wasn’t faking it? His quick recovery from psychosis in the days and weeks after the incident, without antipsychotic medication, was “highly unusual,” as Klassen said. The doctors also found that he sometimes exaggerated memory loss, which appeared to support the Crown argument that he was being untruthful.

All three psychiatrists said they conducted tests to determine if Kachkar was malingering, which is a standard part of the assessment process.

Forensic experts use a number of tests to weed out potential malingerers: observing patients when they don’t know they’re being watched, administering tests with validity scales that tell them if the patient is trying to appear unrealistically distressed. People who are malingering will often endorse fake symptoms: Yes, it does feel like my right eye is going to explode. Yes, I am having visions right now.

“It is easy to lie,” says Dr. Sandy Simpson, chief of forensic psychiatry at CAMH and head of forensic psychiatry at the University of Toronto. “But it is not so easy to lie effectively in a sustained way over longer periods of time.”

Throughout his assessments, Kachkar often downplayed his psychotic symptoms, which is not consistent with malingering. The psychiatrists did not believe he was lying about his illness. Under cross-examination, they maintained that his behaviour the day he fled the shelter and stole the snowplow was panic driven by psychotic fear, not the angry actions of a man with a plan for destruction.

However, it was still ultimately up to the jury to determine how much or how little weight to give the psychiatric evidence, a point the judge made very clear in his instructions. “Let common sense be your guide,” he said.

The verdict came 48 hours later, on a rainy Wednesday in late March: not criminally responsible on account of mental disorder.

Kachkar barely blinked.

Only two of every 1,000 criminal cases in Canada end in an NCR verdict, according to the most recent government figures available.

Though the NCR defence is rarely used and seldom successful, a handful of ghastly, high-profile cases have received a lot of media attention, making it appear otherwise.

Few could forget Vincent Li, who beheaded and cannibalized 22-year-old Tim McLean on a Greyhound bus in Manitoba five years ago. Allan Schoenborn , who killed his three children in 2008, was found NCR by a B.C. judge. Both remain in mental hospitals.

The most controversial, perhaps, is the case of Guy Turcotte , a Quebec cardiologist who stabbed his two children to death in 2009. He was released from hospital with conditions 18 months after the verdict, a decision that sparked outrage and unfounded fears that all NCR individuals move through the system that quickly. The Crown is appealing his verdict and the case will be heard this fall.

Li, Schoenborn and Turcotte are the big three — horrific examples, certainly, but outliers.

They are the cases that spawned Bill C-54, a proposed federal government law that would create a “high-risk accused” category for some NCR. It would delay the time between reviews from one year to as long as three years, restrict community passes and make a discharge contingent on a court lifting the high-risk designation.

Review board officials, mental health organizations and legal experts have expressed serious concerns about the bill, which many say is a knee-jerk reaction to misinformed public outcry about a problem that doesn’t exist. The Canadian Bar Association and other groups believe the changes could be vulnerable to a challenge under the Charter of Rights and Freedoms because of its punitive nature.

The stated intent of the law is to “put public safety first” and give victims a stronger voice in the process. It is a response, the government has said, to concerns raised by victims. Part of the law makes it a requirement for provincial review boards to notify victims, upon request, if the NCR person is to be released into the community, a change even the opposition supports.

But many groups believe the “high-risk” designation will paradoxically make the system less safe because people with mental illness will be more likely to plead guilty and keep quiet about their mental health needs, making them an increased risk when they leave the correctional system.

“There is no evidence of a rising risk to public safety and Bill C-54 seeks to label people high-risk who may not be,” the Canadian Psychiatric Association wrote in a critique of the bill last week after two months of research.

It is unclear whether Kachkar would be designated high-risk, but Christine Russell certainly wants him to be. The widow and mother of Russell’s 4-year-old son, Nolan, threw her support behind the bill outside the courthouse the day the verdict was delivered.

“Stephen Harper, I know you’re listening,” she said, surrounded by TV cameras and reporters. “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.”

Tiny rooms, thick glass, weighted furniture, heavy locks on every door, long hallways, fluorescent lights: this is what it looks like inside a typical forensic psychiatric ward. Imagine dormitory meets jail.

Richard Kachkar is now under the authority of the Ontario Review Board, which heard his case Friday and will announce a decision on his next move Monday. It seems likely the board will order Kachkar detained at the Ontario Shores Centre for Mental Health Sciences in Whitby, as recommended jointly by the Crown and defence, who also agreed he could have the privilege of escorted hospital grounds passes.

Forensic psychiatrist Dr. Philip Klassen of Ontario Shores, who testified at the ORB hearing, said he believes Kachkar currently poses a “significant threat” to public safety, an opinion based on the severity of the act and unanswered questions about what prompted his psychotic episode.

“We need to better understand, or try to better understand what happened here,” Klassen said.

Kachkar will remain under the board’s jurisdiction for as long as they deem him a significant threat. Release is meant to be a gradual, carefully considered process, balancing public safety with the NCR patient’s right to liberty.

NCR patients are entitled to annual review hearings, which are typically held in a courtroom for the first appearance and in hospital thereafter.

Very few NCR patients get an absolute discharge after the first hearing and about 35 per cent spend more than 10 years in the system, according to a study prepared for the government. Many NCR patients, particularly those charged with less serious offences, end up detained in hospital for longer than they would have spent in jail.

In the years to come, Kachkar may be eligible for a range of freedoms, including the ability to venture into hospital grounds, receive accompanied passes into the community and eventually unaccompanied passes. They are privileges meant, in part, to observe how patients handle being in the real world.

If Kachkar is designated a “high-risk accused” under the new law, he may not get those privileges.

Unaccompanied community passes are, as the Canadian Bar Association put it in a recent position paper on Bill C-54, an important intermediate step in the gradual release process. “Without them,” wrote criminal defence lawyer Eric Gottardi, “high-risk accused may be eventually released into the community with no prior experience of being unsupervised, which may have negative consequences.”

Eventually, with or without the restrictions of the new law, Kachkar may also be eligible for community living privileges, which are granted with closely monitored conditions, such as a requirement to live in supervised housing and remain on medication, and can be revoked.

The final stage in the system is an absolute discharge, which means the patient is released without any restrictions or follow-up. It may be years, decades even, before Kachkar gets to that point.

Anne Crocker, a psychiatry researcher and professor at McGill who is leading the National Trajectory Project, an in-progress study of people declared NCR, says “there is no evidence the review board system isn’t working well.”

That is why there is much confusion, among psychiatric and legal professionals, about the purpose of Bill C-54. In aiming to fix a problem that doesn’t appear to exist, they argue, the law may create new problems — a burden on the courts, the potential for Charter challenges and less effective treatment, to name a few. It has also reinforced the public perception that the system is broken, when that does not appear to be the case.

What happens if a patient granted an absolute discharge stops taking his medication, becomes psychotic again and hurts someone else?

It could happen but available data suggests it is unlikely. To get an absolute discharge, a patient must show he has developed insight into his illness, as well as the ability to recognize the need for medication and signs of mental deterioration.