Equal Justice Act – Winnipeg Free Press

“No one shall be held criminally liable for an act or omission committed while under the influence of mental illness, which resulted in the person's inability to appreciate the nature and quality of the act or omission, or to know that it was wrong.”

— Criminal Code of Canada, sec. 16 (1)

The names of Donna Truman and Vince Lee are forever associated with the horrific crimes in Manitoba.

Truman grabbed a broom handle and killed her four-year-old son Skylar in 1991 at their Winnipeg home. Lee decapitated Greyhound bus passenger Tim McLean on the Trans-Canada Highway near Portage-la-Prairie in 2008.

Despite the serious nature of the crimes, both Truman and Lee were not prosecuted, a decision that is often controversial and routinely misunderstood.

A not criminally responsible decision – or NCR – means that the accused cannot be held responsible for the crime because they were suffering from a mental disorder at the time.

Truman's case was the first to be tried under Canada's new Criminal Code, which changed from not guilty to insanity.

To date, 109 Manitobans have been spared jail because they have not been charged with a crime. Conditions of release are tailored to each individual and are regularly reviewed by the Manitoba Criminal Code Review Board.

But whenever a particular case comes up as a defense with the NCR, a thorough investigation is conducted.

The trial of Jeremy Skibitsky was sensational in nature: accused of serial killers of vulnerable women at the epicenter of the nation's murdered and missing Indigenous women and girls.

There were many twists and turns leading up to the trial. His legal team requested a single judge trial and conducted a survey to determine whether their client could handle a fair jury trial. After this failed gambit, they turned to the NCR's defense, saying that they no longer minded killing.

“It must have made you incapable of judging the nature, quality and consequences of their actions, or it was morally wrong.”– Brandon Trask

Given the hours-long detailed confession to police in the early days of the trial, that may be the only option. Earlier this week, a judge ordered a psychiatric evaluation at the Crown's request.

The guilty verdict automatically gives Skibicki, who is charged with first-degree murder the murders of 24-year-old Rebecca Contois, 39-year-old Morgan Harris and 26-year-old Marcedes Mayran, as well as a fourth unidentified woman, also known as the Buffalo Woman. Life imprisonment with no possibility of parole for 25 years.

The NCR sentence will instead send him to a psychiatric hospital, where there is a theoretical possibility — if successfully treated — that he could return to the streets sooner rather than later.

This result is often lightning, although legal experts note that a high threshold must be met to meet the definition of NCR. They also report that NCRs make up a small percentage of cases in the criminal justice system, and defendants who are considered NCRs are held longer than if convicted and sent to prison.

Brandon Trask, an assistant professor of law at the University of Manitoba and a former prosecutor, said there is a two-step process. (Each person interviewed for this story said they could not comment specifically on the Skibicki case.)

“The first step is to determine if they are suffering from a mental illness,” Trask said. “Usually you can get over that hurdle.

“But the second step is a challenge. It made you unable to judge the nature, quality and consequences of their actions, or it was morally wrong. It's not enough for someone to say they have a mental illness.”

Retired attorney Heather Leonoff has a unique perspective on NCR. Before leading the province's constitutional law practice, he was a criminal defense attorney representing Truman in 1991. He said this case shows why it is important to amend the Criminal Code at that time. gave the justice system a third option other than to plead guilty or acquit.

“The last time I spoke to him was in the early '90s, and as far as I know, he's moved on with his life,” Leonoff said.

“People can have very acute psychotic disorders that lead to tragedy, but with proper medical care they can be very well….Donna Truman is a prime example of why this legislation needs to be changed.”

Leonoff said the law prioritizes protecting the public, but also has provisions for treating the accused and monitoring their progress. Although the accused is not in jail, there is no guarantee that the person will ever be released from the hospital, he said.

“Maybe mental illness will never be successfully treated,” he said.

The accused is referred to a provincial review board chaired by a judge or lawyer from whom the NCR has been found and with at least four other members and at least one psychiatrist. Karen Wittman, lawyer, is the current Chair of the Manitoba Criminal Code Review Board. He could not be reached for comment.

The longest case pending before the board dates back to 1998.

Dr. Stanley Jaren worked as a psychiatrist for five decades and was director of the province's forensic psychiatry department for nearly 30 years. Because the man who worked with people was found to be insane and innocent by reason of NCR, he often testified before the commission of inquiry. He later served on the board until his retirement.

“If anything, it has increased my respect and admiration for the work of the evaluation committee,” Jaren said.

“People can have very acute psychotic disorders that lead to tragedy, but with proper medical care they can be very well…”– Heather Leonoff

“Under the old system, there was no distinction as to how a person was evaluated…Now hearings are formalized…and the most important thing is to protect the community and secondly, the welfare of the individual.”

However, there is “no definitive test” for determining who is and is not NCR, Jaren said.

“It's really based on a clinical examination and looking at all the information related to the offense,” he said. “It's really based on the experience of a clinical psychiatrist.”

But the final decision will be made by the court, not the psychiatrist, he said.

Because NCR cases can involve high-profile crimes, the Harper government amended the NCR provisions in the Criminal Code to include a separate section for people considered “high-risk defendants,” Yaren said.

Those are cases in which the court finds there is still “a substantial likelihood that the defendant will use violence that threatens the life or safety of another person,” or if the actions are so brutal that they cause “serious physical or psychological harm to another person,” he said.

The final decision to release these people is made by the courts, not by the review boards.

According to Trask, the precursor to the NCR dates back to two centuries ago, when King George III was nearly assassinated by former British soldier James Hadfield.

Hadfield believed that the second coming of Jesus Christ would happen sooner if the British government killed him, so he hatched a plan to kill the king.

The judge ruled that he was insane, but as this meant Hadfield would be released to his family, the trial was adjourned until Parliament passed a law requiring that insane people be kept in hospital.

According to Trask, the men in Canada were detained indefinitely until the Supreme Court ruled it unconstitutional, which would have cleared the way for the NCR to overturn the insanity charge.

According to Trask, unlike criminals in the court system, those found in the NCR have a low recidivism rate.

“There have been some significant cases where this has happened, but it's very rare,” he said.

A 2013 study by the Mental Health Commission of Canada found that more than half of people who were determined to be NCR conditionally or absolutely discharged by a review board did not need to be re-hospitalized and had no further contact with the justice system.

Those who needed help returned to the health care system, not the criminal justice system.

The study also found that violent crimes – including murder, attempted murder and major sex crimes – accounted for only eight percent of NCR cases.

According to Trask, people need to recognize that the NCR system exists to prevent the punishment of people who act with delusions related to mental illness.

“We should not punish them as if they were morally culpable,” he said.

Leonoff said it's easy to criticize NCR and the mental health system until someone's family member is directly affected.

“None of us are immune to mental health challenges,” she said. “If someone in our family has an acute mental health problem, I'm sure they would want (kindness).

“These people have found themselves in very sad situations through no fault of their own. It was Donna Truman's physical body that did the deed, but not her usual one. It was a very psychotic person.”

Of the 109 Manitobans currently under consideration by the review board, two notable names are missing: Truman and Lee.

Both were granted an absolute discharge — the day Truman last appeared in court — and went on with their quiet lives.

“I've seen all of Donna Truemans,” Leonoff said. “I saw him in the midst of a sharp, sharp, sharp psychotic breakdown. He had no idea what he had done.

“Then the treatment worked for weeks, not months, and it was very good. Finally, I saw a quiet, unhappy, but completely safe Donna Truman. He was back to himself and they didn't need him to stay any longer.

“The NCR is not a free card to get out of the institution — it's about balancing public safety and compassion.”

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