Court must hear out NCR defence

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This article was published 25/05/2024 (522 days ago), so information in it may no longer be current.

It is inevitable that any time an accused person — particularly someone accused of a violent crime — argues they were not criminally responsible for their actions, the justice system itself will be on trial. And so it is in the case against Jeremy Skibicki.

The city, and indeed the country, are watching closely as Skibicki and his lawyers prepare to argue that he was not criminally responsible (NCR) for the 2022 murders of three Indigenous women — Rebecca Contois, Marcedes Myran and Morgan Harris — and a fourth unidentified woman known as Buffalo Woman.

The introduction of the NCR defence in this case is unusual, for many reasons.

The NCR defence comes from Sec. 16 of the Criminal Code, which states that no accused person “is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.”

There are caveats, of course. The court presumes a person was not suffering from a mental disorder until it is proven on the balance of probabilities. And the burden of proof of the disorder rests with the party that raises the issue — in this case Skibicki and his legal team.

Is the NCR defence applicable in the Skibicki case? There is a general consensus in the psychiatric world that while serial killers often suffer from a range of mental disorders — including psychopathy — it is rare for these disorders to prevent the accused from knowing what they were doing was wrong.

Serial killings often take place over an extended period of time, and involve some measure of planning, not only in the commission of the killings but also in the concealment of them. These kinds of behaviours do not fit easily into the NCR defence.

A quick review of NCR cases, and those involving Canadian serial killers, can help to explain the subtle lines of demarcation on this point.

Vincent Li, who beheaded a man on a Greyhound bus bound for Winnipeg in 2008, was found to be NCR. It was determined that Li, who lived for many years with undiagnosed schizophrenia and suffered with disembodied voices and hallucinations, was so disconnected from reality he could not control his violent actions.

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On the other hand, while nearly all of this country’s most famous serial killers — including Robert Pickton and Paul Bernardo — pleaded not guilty at their trials, they did not use the NCR defence largely because of the proven facts that described their evil, methodical actions.

The psychiatric nuances that distinguish disorders like schizophrenia and psychopathy will be of little comfort to the families of the victims Skibicki has admitted to killing, or to the general public who may be outraged the accused is attempting to mitigate his responsibility for the slayings. However, the fact the NCR defence has been raised in this case does not invalidate it as a legal concept.

This is an age where awareness of mental health is much more acute. Corporately funded awareness campaigns are trying to destigmatize mental illness and prompt more sympathy and support from the general public. Each year, an increasing number of celebrities of all descriptions volunteer to describe their own experiences with mental illness.

Although they are on the far end of the mental disorder spectrum, the illnesses that truly make someone NCR for a violent crime need to be recognized and treated differently by the justice system.

It is unclear as of yet whether Skibicki’s attempt to employ the NCR defence will be successful. But either way, NCR must continue to be seen as a valid defence.