Will Baker leaves the Law Courts building in Winnipeg, after his annual criminal code review board hearing, on Monday, February 6, 2017.Trevor Hagan/The Canadian Press
It is one of the rarest situations in Canadian law but also one of its most controversial: A person who has committed a heinous crime being declared not criminally responsible and allowed to escape criminal punishment – and even walk free.
How courts deal with those who commit offences while suffering extreme mental illness has been thrust into the spotlight in recent days, with news that Will Baker – formerly known as Vince Li – was given an absolute discharge in the murder and mutilation of his seatmate on a Greyhound bus in 2008. The decision means Mr. Baker is living free in the community without any conditions or monitoring to ensure he continues taking medication for schizophrenia.
"I was well expecting that there would be many people who would be profoundly disappointed and angry in this decision," said Chris Summerville, executive director of the Manitoba Schizophrenia Society, who says he has been inundated with calls and e-mails about the decision.
"A lot of people are struggling with, 'How can you let a murderer go free?' and don't understand or reject the designation of not criminally responsible."
Mr. Baker attacked Tim McLean as they rode together on a bus near Portage la Prairie in July, 2008, after the 22-year-old stranger smiled at Mr. Baker and asked how he was doing. Mr. Baker later said he thought Mr. McLean was an alien, and that voices told him he was the second coming of Jesus and would save the world. He mutilated and cannibalized Mr. McLean's body while passengers watched the protracted scene in horror from the darkened highway.
The murder made headlines around the world, and had far-reaching effects on many touched by the case. One of the RCMP officers who responded, Corporal Ken Barker, took his life in the summer of 2014. His family said at the time he had PTSD and started having flashbacks after Mr. Baker was allowed to leave the psychiatric hospital for walks.
Mr. Baker's doctors have described him as a model patient who has responded well to medication and understands he has to keep taking it to manage his illness. Still, some are questioning the Manitoba Criminal Code Review Board's decision to grant Mr. Baker an absolute discharge for such a brutal crime less than nine years later.
Members of the public and Mr. McLean's family have expressed shock and anger at the decision on social media, and Mr. Summerville said there are questions within the mental health community as well.
"I think in the whole mental health community there's a conversation that's saying, 'Is this the right time? Are we sure? How about another year?'" Mr. Summerville said.
"Does everybody with schizophrenia agree with the decision of the review board? No."
Conservative interim leader Rona Ambrose raised the case in the House of Commons last week, saying: "I think I speak for a lot of Canadians when I say this doesn't seem right."
She urged Prime Minister Justin Trudeau to assure Canadians he'll look for ways to "close loopholes that allow killers to change their names, and even walk our streets only a few short years after their heinous crimes."
Not criminally responsible, or NCR, designations are predicated on the idea that a person shouldn't be held responsible for a crime if they didn't know what they were doing or didn't understand that it was morally wrong due to a severe mental disorder.
Dr. Andrew Haag, a forensic psychologist in Edmonton who has been studying NCR designations intensively for the past three years, says the standard is extremely high, and NCR cases account for less than 1 per cent of all criminal files.
People declared NCR are assessed every year by a board of at least three people, and are then either detained in hospital, given a conditional discharge with rules and monitoring, or granted an absolute discharge .
The Supreme Court of Canada ruled in 1999 that there must be clear evidence of significant public risk to continue imposing conditions after a person is found not criminally responsible, and that an absolute discharge must be granted if the board believes the person no longer poses a significant threat to public safety.
Initially held in secure custody in a locked psychiatric hospital, Mr. Baker has been granted increasing freedoms throughout the past 8 ½ years. He was allowed to move from the hospital to a group home in 2015, then given approval to live independently in his own apartment in Winnipeg last year, though subject to nightly monitoring to ensure he took his medication.
Dr. Haag says the standard for an absolute discharge is very high, and that the foremost consideration for review boards is public safety, as laid out by the Criminal Code of Canada. He says his research shows people who were given NCR designations reoffend at rates far lower than the general criminal population. He did not speak specifically about Mr. Baker's case.
In his study, Dr. Haag said there was a recidivism rate of about 11 per cent after 35 years for violent offences.
"The traditional justice system would far exceed that number within two years. I'm talking 35 years," he said. "So indeed, when we're talking about how these folks are managed, clearly there's something different."
The National Trajectory Project, which examined NCR cases in B.C., Quebec and Ontario from 2000-2005, concluded people who were declared NCR for severe violent offences were less likely to reoffend than those who had committed less serious offences.
In 2012, Mr. Summerville released an interview in which Mr. Baker said he hoped to get out of the hospital one day. He said then that he would change his name to be anonymous, but would call his doctor if ever he heard voices again.
"I didn't know at that time I had schizophrenia," he said, in a transcript that appeared in the Winnipeg Free Press. "Now I do."
With files from The Canadian Press
Jana G. Pruden