It is difficult to say with absolute confidence that what the Ontario Review Board did Monday in granting Richard Kachkar escorted passes to the community where he will be hospitalized is a bit of a surprise.
I say that because the ORB hearing was a Canadian classic of its kind — ostensibly wide open to press and public and a great comfort to those who love to love what’s called the “open-court principle,” but for all practical purposes, it might as well have been held behind closed doors in a proper Star Chamber.
There was no amplification (i.e., microphones) in the Old City Hall courtroom where the hearing was held last Friday; the acoustics were appalling; the five board members and the Crown attorney were all mumblers or low talkers, and the press was conveniently seated behind most of them, so there was little hope of lip reading.
This, by the by, is completely the norm in this country.
However, it does appear that neither Mr. Kachkar’s lawyer, Bob Richardson, nor Crown attorney Michael Feindel asked the board to grant Mr. Kachkar passes to go into town.
The two lawyers had submitted a joint proposal to the ORB panel, asking that Mr. Kachkar be detained at Ontario Shores, a medium-security psychiatric facility in Whitby, the small city east of Toronto, and that he be allowed escorted passes to walk the grounds of the hospital.
But not even my youngest, sharpest-eared colleague in attendance (the fabulous Allison Jones of The Canadian Press) heard anyone ask that this privilege also be extended to the town itself.
In the scheme of things, it’s small potatoes, really.
Mr. Kachkar will be detained in the secure forensic unit at Ontario Shores, just as the lawyers agreed he should be; his psychiatrist Dr. Philip Klassen, to judge by his testimony (and he was audible) last week, is hardly inclined to underestimate either Mr. Kachkar’s potential dangerousness or the seriousness of his mental illness and seems unlikely to be pushing him out the door, and in a year, another panel of the ORB will re-assess the case.
Whether he gets to walk the hospital grounds or venture to a Tim Hortons in town, with a staff escort, seems a difference without a distinction.
But predictably, the “disposition” decision formally released by the board Monday was greeted by outrage in a couple of quarters.
The first was the family of Toronto Police Sergeant Ryan Russell, the fine young police officer who was killed by Mr. Kachkar on Jan. 12, 2011.
Mr. Kachkar had fled a downtown homeless shelter in a panic, gone barefoot in a snowstorm, stolen an idling truck-cum-snowplow, taken it on a rampage of destruction throughout the city, and then driven the massive vehicle at Sgt. Russell and killed him.
After a seven-week trial that saw unanimous psychiatric evidence that Mr. Kachkar had been in the grips of a psychosis of some sort and eyewitness consensus that he had been acting like a crazy man that day, a jury returned last month with a verdict of “not criminally responsible,” or NCR.
The verdict moved the 46-year-old Mr. Kachkar out of the criminal justice system with its finite terms of punishment and into the forensic one, where terms aren’t set in stone, often, in fact, public opinion to the contrary, to the detriment of the offender.
In any case, Sgt. Russell’s widow Christine quickly decried the extra the board tacked onto Mr. Kachkar’s conditions, correctly pointing out that she had gone “along with” the joint submission in good faith, assuming he would be confined to the hospital and its grounds. It was, she said, “completely unacceptable” that the board should have sneaked in an add-on.
The board hasn’t released its reasons yet, but it’s a fair guess that members were trying to provide Mr. Kachkar, as its two-headed mandate says it must, with the “maximum liberty” that is compatible with public safety. The decision can be appealed at the Ontario Court of Appeal.
I think Ms. Russell has a point, in that it would have been better and more transparent for the board to have discussed this fillip in public; she feels misled, and that’s hard to argue.
But the hard fact of the matter is that she, and all those who loved Sgt. Russell, aren’t parties to either the justice or ORB systems.
Rhe hard fact of the matter is that she, and all those who loved Sgt. Russell, aren’t parties to either the justice or ORB systems
In the courts, this case was R vs. Kachkar, the R for Regina, meaning the Queen or the state; at the ORB, the action is “in the matter of the accused Richard Kachkar.” Criminal trials and ORB hearings aren’t contests between people; they aren’t to be personal; the outcomes aren’t tailored, and must never be tailored, to speed “healing” or “bring closure” to victims.
Victims and families have a voice certainly, and the place for it to be heard is at the time of sentencing, which in this case, because of the NCR verdict, didn’t happen.
Yet Sgt. Russell’s widow and family nonetheless had two opportunities to speak, one in court though there was no sentencing, and one at the ORB.
A bigger voice, a larger role, is frankly incompatible with the notion of the rule of law: Tough medicine perhaps, but right.
