Students of the law will know that Lady Justice, the enduring symbol of our criminal justice system, carries a scale and a sword. She also often wears a blindfold.
The scale represents the justice system's careful measurement of legal arguments. The sword has been interpreted by some as a symbol of vengeance; others note the sword is double-edged, a reminder that justice is meant to treat all parties equally. The blindfold is generally accepted as a symbol that justice should be delivered objectively, without fear or favour.
This collection of metaphors means that Lady Justice has no room to bear additional weapons or tools. For example, there is no scroll of public opinion polls tucked under her arm. She is not pulling a wagon containing a ballot box. And there is no sack of victim impact statements slung over her back.
These are the tough realities of the justice system, principles that are often lost when the law collides with grief and suffering. But even in these taxing circumstances, these principles must be protected.
These principles will be, in some senses, under siege today when a Manitoba court hears arguments on the sentencing of Vincent Li, a Chinese immigrant accused of the horrific murder of Timothy McLean last year, who was stabbed and mutilated on a Winnipeg-bound bus. Although arguments are still to be heard, it seems quite likely that Li will be found not criminally responsible (NCR) for the murder. This possibility has enraged some members of McLean's family.
McLean's mother Carol de Delley has launched a campaign to change the Criminal Code to keep anyone convicted of murder in jail for his or her natural life, including those who are found to be NCR at the time of the crime. Proponents have dubbed this "Tim's Law."
In numerous interviews, de Delley has made it clear she is sickened that Li could not only avoid a prison sentence, but also win release in a few years if doctors believe he no longer represents a threat to society. "I believe there should be treatment and punishment, not treat and release," de Delley told a rally in Brandon last weekend.
This campaign certainly puts the justice system in a difficult position. How can you argue with a grieving mother? How could someone reasonably turn down her request to ensure there is some measure of punishment in every finding of guilt?
The problem here is that McLean's murder does not lend itself well to the broad parameters of Tim's Law. Although the full details are not yet known, it appears on the face of this case that Li was a troubled man who may have had a history of mental problems. The unspeakable brutality of the crime also speaks to someone who is clearly not of sound mind. This was an unprovoked, incredibly violent crime between two people who were strangers. One does not have to stretch to imagine the tortured mind of the murderer.
In cases like this, the Criminal Code allows that anyone who is found to be mentally incapable of grasping either the nature and quality of the crime, or who does not have the capacity to tell moral right from wrong, can be found NCR. Our justice system prescribes a lenient approach for these people. They will have no criminal record and will have their illness treated. If the illness can be brought under control, they are released back into the community with no minimum period of incarceration.
A NCR finding may not serve the interests of the victim's family to see someone punished, but it is a feature of a justice system that is reasoned and compassionate. Along with punishment must come mercy and humanity. Although many will disagree, the NCR provision is not a "weakness" of the system. It is a byproduct of a society that has the confidence to decide on a case-by-case basis what is right and what is wrong.
Victims and their families deserve to be part of the proceedings of the criminal justice system. They must be informed about developments in their cases, and kept abreast of all major decisions made by police and prosecutors. Unfortunately, the principles of impartiality, equality and objectivity often trump a grieving family's desire to change the law. And that is not an injustice in and of itself.
The gory details of Tim McLean's murder may enrage and shock. But they should not cause us to lose sight of the fact that justice is much more than punishment.