A jury weighing the role psychosis played in the mind of a troubled drifter when he mowed down and killed a Toronto police officer with a snowplow will resume deliberations on Tuesday.
The fate of Richard Kachkar, 46, was put in the hands of the jury at his first-degree murder trial on Monday but they were unable to reach a verdict before retiring Monday evening.
There’s no doubt Kachkar was driving the stolen snowplow when it hit and killed 35-year-old Sgt. Ryan Russell on Jan. 12, 2011, Ontario Superior Court Judge Ian MacDonnell told jurors. What they must decide is his mental state at the time.
Kachkar’s lawyer has urged the jury to find him not criminally responsible by reason of mental disorder, arguing the troubled man was psychotic and had lost his grip on reality when he killed Russell.
The Crown has argued for a first-degree murder conviction, telling the jury that even though he was mentally ill, Kachkar knew what he was doing when he hit the police officer with the plow.
Court has heard Kachkar, who pleaded not guilty to first-degree murder, yelled about the Taliban, Chinese technology and that “it’s all a Russian video game” while driving around the city with the stolen plow.
The Crown suggested that Kachkar wanted to commit suicide but didn’t want to actually do it himself, so he may have tried to force that on Russell in a “kill or be killed” situation. Kachkar had plenty of time to avoid hitting Russell, but he didn’t, said Crown Attorney Christine McGoey, who suggested that some of the facts are inconsistent with a fear-based psychosis.
Just because someone has a mental disorder doesn’t mean that is the only thing operating in their mind, she said.
The jury can find Kachkar not criminally responsible only when they are satisfied that his mental disorder rendered him incapable of knowing his actions were wrong, MacDonnell told the jury.
Before the jury entered the courtroom Monday, defence lawyer Bob Richardson raised with MacDonnell what he called “prehistoric” comments about the case that Toronto Mayor Rob Ford made on a radio show Sunday.
Ford called in to a legal show on Newstalk 1010 to complain about the not criminally responsible defence, saying he is “really disappointed” in the defence’s position in this case.
“One of our finest got killed, left behind a wife and a little son and we’re trying, you know, to find an excuse why this guy, you know, stole a tow truck or whatever he did or a snowplow and killed a police officer,” he said.
“You can’t defend that. These people put their lives every day in the line of fire. They jeopardize their life and we’re trying to justify this?”
The legal panellists explained that if a mental illness deprives someone of the ability to appreciate their actions are morally or legally wrong, the law says they are not criminally responsible, but it doesn’t mean they “get off.”
MacDonnell decided not to give the jury a specific caution about the comments because he had already told them to ignore all media coverage.
The trial heard from dozens of witnesses over nearly two months. Three forensic psychiatrists who testified, including one who had assessed Kachkar at the request of the Crown, concluded that he was in a psychotic state when he killed Russell, but they were all unsure exactly how to categorize his mental illness.
Dr. Philip Klassen said Kachkar appears to have been suffering for several years from a “low-grade” mental illness with periodic spikes, such as in 2006 when he woke up in the middle of the night screaming that he was possessed by the devil and slapped his wife.
Klassen said if he had to offer a diagnosis it would be either an unspecified psychotic disorder or possibly schizophrenia.
Dr. Lisa Ramshaw testified that Kachkar was unable to apply knowledge in a meaningful way at the time. Kachkar was interpreting his world in a false way, believing people were after him, she said.
Kachkar fled a shelter where he had spent the night before 5 a.m. that day, running out into the snow in bare feet. He stole a pickup truck with a plow attached to the front from two landscapers who had stopped for coffee.
The man from St. Catharines, Ont., drove the plow around the city for two hours, driving into a luxury car dealership, hitting vehicles and crossing into oncoming traffic before he was stopped by emergency task force officers who Tasered him and shot him in order to arrest him.
At about the halfway point of the rampage Russell tried to stop Kachkar. The dashboard camera from Russell’s cruiser shows the plow doing a U-turn and then driving toward the police vehicle.
Russell reverses as the plow comes toward the cruiser. The plow is briefly off camera and witnesses testified that in that moment Kachkar slowed the plow and opened the door as if to get out.
Russell then got out of his cruiser and Kachkar accelerated at him, witnesses testified. The plow clipped the driver’s side front corner of the cruiser and Russell fired three shots toward the plow as it continued toward him, but he was struck, witnesses said.
The impact knocked Russell over and spun his body toward the centre of the plow, court heard. Its blade struck Russell in the head, fracturing his skull.
The jury’s first task is to consider a not criminally responsible verdict, MacDonnell told them. If the jurors believe Kachkar couldn’t appreciate what he was doing, their deliberations end there.
If they don’t believe that, the jury must go on to consider murder or manslaughter, MacDonnell said. If they believe Kachkar meant to kill Russell, they must find him guilty of first-degree murder.
They could also find him guilty of first-degree murder if they are not convinced Kachkar meant to hit Russell, but they believe that he was attempting to evade arrest and drove toward Russell in such a way that it was a dangerous act Kachkar knew could likely cause death.
Kachkar would be guilty of second-degree murder if the jury believes Kachkar did not know Russell was an on-duty police officer.
If the jury finds Kachkar is criminally responsible, he is at the very least guilty of manslaughter, MacDonnell said.
A first-degree murder conviction brings an automatic life sentence with no chance of parole for 25 years. Second-degree murder also brings an automatic life sentence, but parole ineligibility is set at between 10 and 25 years. There is no minimum sentence for manslaughter.
The jury should not be concerned with the consequences of the verdict, MacDonnell said, but he assured them that a not criminally responsible verdict doesn’t mean Kachkar will immediately return to the community.
People who are found not criminally responsible are sent to mental health facilities for an indeterminate period of time and can be released only when a review board finds they are no longer a significant threat to public safety.
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