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Justice may not be served by 'Tim's Law'

By: Dan Lett

3/03/2009 1:00 AM | Comments: 16

De Delley: 'Treatment and punishment'

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De Delley: 'Treatment and punishment' (MIKE DEAL / WINNIPEG FREE PRESS ARCHIVES)

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.

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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is sickened that Li could not only avoid a prison sentence, but also win release in a few years if doctors believe he no longer represents a threat to society.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.

dan.lett@freepress.mb.ca

Republished from the Winnipeg Free Press print edition March 3, 2009 A4

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16 Commentscomment icon

I am losing complete confidence in the Canadian Justice system. What a joke. We just put a:
"You can come to Canada, cut someone's head off, claim you're crazy and we'll take it easy on you." VERY SCARY

It is absolutely pathetic that a clinically insane individual has the potential to be released if they "behave" for a few years.. you have got to be kidding me!

For all those who have shown much sympathy for Mr. Li, I ask you to take a long look in the mirror and ask yourself it you would feel the same way if Mr. Li brutally murdered one of your family members. GIVE YOUR HEAD A SHAKE!!!!

Many of these people RE-OFFEND upon release, they get a scott free record, they might work in your home, your office, your child's school,who knows, it may be your family member next.. SMELL THE COFFEE PEOPLE!

I am so appalled by the decision and 150% fully endorse Tim's Law, which i hope "normal" people are smart enough to understand.

@ Chris Buors - Religious officials may not testify about the state of someone's soul, but they are called to testify in matters of faith and religion. They are experts in that situation, meaning they know more about it than most other people involved in the trial. Likewise, psychiatrists are experts on the inner workings of the brain and mind. They know more than the lawyers and judge in this trial. Making this decision without their input would be making it without all of the facts. Where's the justice in that?

Dan Lett's commentary is the best treatment of the commonly misunderstood verdict of "not criminally responsible" that I have ever read! It is critically aware, insightful and compassionate, while explaining this essential aspect of a civilized justice system with simplicity and grace. And amidst the cries for vengence, it also takes courage to stand on the side of justice tempered with mercy.

Thankfully I don't think "Tim's Law" would ever survive a charter challenge as the thought of treating someone with no moral fault the same as someone with moral fault would be repugnant and contrary to "principles of fundamental justice" (with which obviously many posters, and especially Tim's mother are not familiar). It's sad that such a tragic event is being used to promote injustice against other people.

One of the most intelligent and rational items I've seen on this topic. Thank you for that.

What about the concept of "equality before the law?" The insanity defense ought to be abolished and psychiatrists should be kicked out of the courtroom. We don't let the priest into court to testify about the state of Vincent Li's soul at the time he acted so why would we let a psychiatrist in there to testify about the state of Vincent Li's mind? The "mind" is but a metaphor for the soul. Vincent Li ought to stand before the law equal to anyone else who would be accused of a crime or there cannot be any such thing as equality before the law.

Thanks for a wonderful column, Dan. As someone who has suffered with a serious mental illness for most of my life, I feel a lot of compassion for others who are suffering, including Li. I feel for Tim's family, and am in fact acquainted with a few of his friends and relatives. However, Carol De Delley's proposed law has some wording issues. She wants anyone to makes the decision to take a life imprisoned for the rest of theirs. Li did not have the capacity to make that decision, or to fully understand what he was doing. Even if Carol's law is passed, Li would not qualify under the stipulations she has set forth. Unfortunately, in this case, the family's desires scream of vengeance, and that should not be a motive in such a sensitive situation. I hope there will be a day soon when mental illness is not so stigmatized and society is more compassionate to those suffering with it.

Very well written column Dan. I think many out there are confusing justice with revenge and they are certainly not the same thing. The highest level of justice is justice tempered with mercy and if we overlook that, we are on a slippery slope to anger and revenge that can never be satisfied. Even if we executed Mr. Li (which is not possible in this country), it won't bring back Tim nor will it necessarily erase the anger in his mom's heart (which is rightly hers to have). She needs to do that herself, it can't come from a punishment against Mr. Li. The law of the harvest is "you reap what you sow". The natural consequences to the offender for committing unjust acts will always follow. If we can believe that, then we can become a more tolerant and enlightened society.

Are we punishing what is morally wrong or getting back at somebody who committed an atrocious act? To do something morally wrong, you must be aware of it. If Li wasn't aware of the nature of his actions he should be treated differently than a person who intentionally hurt the victim. Li should definitely not be let out in public in the condition he is in, but he also shouldn't be punished the same way an intentional murderer would be. It is very unfortunate an innocent victim, Tim McLean was killed through his actions.

Dan, thank you for this compassionate and thoughtful column. I can't begin to imagine how Tim McLean's family must feel, and the justice system can do nothing to bring Tim back. Having said that, Vince Li has a family as well, and surely their suffering shouldn't be overlooked. If Li is found NCR and eventually recovers, he will have to live with the awareness of what he did, and that's a punishment he cannot ever escape. I believe that victims' rights are important but also believe that vengeance is not one of those rights.

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