Wednesday, March 27, 2013

An appeal in the Kachkar case would likely fail

The Crown can appeal a finding of Not Criminally Responsible but only in very limited circumstances. The Crown has to show the trial judge made a material legal error in charging the jury, the jury's verdict was perverse or somehow the decision was a miscarriage of justice. It is not enough that the decision was wrong - the jury are entitled to be wrong just so long as they are not perverse. 

And that means an appeal in the Kachkar case would likely fail. The trial judge appears to have given a perfectly acceptable charge. Kachkar's behaviour, screaming about Chinese technology and the Taliban, as he ran in a snowstorm barefoot from the Good Shepherd homeless shelter stealing an idling snowplow from in front of a Regent Park Tim Hortons and taking it on a demented joyride, is weird enough to justify an NCR finding.  And remember a psychiatrist hired by the Crown testified for the defence!  

The Criminal Code provides:

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice;


Simon said...

hi James...that's very reassuring since it was not only his behaviour that night that illustrates his state of mind. But also his behaviour in the days leading up to the incident. The man was clearly heading for a psychotic breakdown, and the verdict is the right and decent one. What I fear is that Harper will use this tragedy to stir up prejudice against the mentally ill, and put even more of them in prison...

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