We awake every morning possessed of both emotional and rational faculties, then spend much of our day mediating the conflicting demands of each. Usually this mediation is peaceful.
But occasionally the conflict escalates to dramatic proportions. And that is the subtext of the case of Vincent Li, found not criminally responsible by the courts for beheading Tim McLean, and recently granted unescorted day trips out of hospital.
Strong emotional opposition to Mr. Li’s unescorted freedom is only natural. He gruesomely killed an innocent man. Our empathy for the extreme suffering of both the victim and his family finds emotional expression in a desire to see Mr. Li punished long and hard.
Simultaneously, however, the order to expand Mr. Li’s liberty seems perfectly rational. The law clearly says we must not punish those who are not criminally responsible for their acts because of mental disorder. Instead we must treat the mental disorder to ensure the public is safe. There is no doubt Mr. Li was not criminally responsible for his gruesome act: that was not even debated at his trial. And in the years since, his treatment has made evident progress, already justifying several small steps gradually increasing his liberty. Each step was first scrutinized by an independent board with legal and psychiatric expertise and public representation. The board’s mandate is to grant Mr. Li as much liberty as is consistent with treatment needs and public safety. There is no reason to think the board is mistaken to date: because any earlier mistake could have been fixed by the courts. So the current order is just one more careful step by a board that has done everything right so far.
Thus we have a turbulent conflict between a legitimate emotional response to a terrible human tragedy, and an equally legitimate rational response.
So how do we, as individuals and a community, mediate this turbulent conflict? In 25 plus years as a criminal lawyer I have both prosecuted and defended countless mental disorder cases, and was immersed in the complex intersection of criminal justice and mental health. That experience teaches four lessons.
First, we must respect the validity of conflict between reason and emotion. Productive discourse never flows from denigrating understandable emotional reactions we may not share. Nor does productive discourse ever flow from dismissing rational conclusions we dislike for non-rational reasons.
Second, we must not assume the board’s order reveals a broken system. That order can be reviewed by the courts. Every system of adjudication is vulnerable to human error, which is why appeals are always built in, up to the Supreme Court of Canada if necessary. Such appeals occasion sober second thought. And when appeal options exist, but after due reflection are not exercised, that too can speak powerfully to the wisdom of the order made. We must allow these built-in safeguards for sober second thought to unfold before leaping to any conclusions about a flawed system.
Third, we must recognize there are two highly emotional tragedies unfolding in such cases, not just one. Often overlooked is the tragedy of the accused person’s life. A mental disorder neither asked for nor deserved has inflicted upon the accused person severe and long lasting legal consequences. Those consequences are no less severe for being necessary to protect the public. Thus the emotional landscape is itself complicated and contradictory.
Fourth and most importantly, during such turbulent conflicts between emotion and reason we look to the bigger picture. Cases like Mr. Li’s demand criminal justice dispensed for the broadest and highest public good, which includes clear-eyed consideration of mental health dynamics where they are present. This bigger picture teaches us that criminal justice outcomes driven by visceral reactions of the moment rarely withstand scrutiny. Our best criminal law responses to human tragedies must be thoughtful and rational first, and tempered by compassion second.
So if the decision to grant Mr. Li more liberty is carefully analyzed and shown to reveal an unacceptable risk to public safety, it should be swiftly changed. But if the hue and cry in this case to protect public safety is, on careful analysis, really just code for a visceral desire to punish a mentally disordered person, that hue and cry should be resisted.
David Butt is a Toronto-based criminal lawyer