A decision to allow the man who killed a Toronto police officer with a stolen snowplow to go on escorted visits into the community puts public safety at risk, Ontario's highest court heard on Monday.
Richard Kachkar, 47, has been detained in a psychiatric hospital since he was found not criminally responsible last spring for the death of Sergeant Ryan Russell, 35, in January, 2011.
The Ontario Review Board, which manages people found not criminally responsible, ruled that Mr. Kachkar could go on trips into the community accompanied by hospital staffers. The decision has raised questions about public safety as well as how mentally ill offenders are treated in the criminal justice system.
Crown attorney Eric Siebenmorgen, who is appealing the board's decision, argued before the Ontario Court of Appeal on Monday that allowing such visits "creates serious issues from a standpoint of public safety."
The panel of three judges reserved its decision in the matter.
Mike McCormack, president of the Toronto Police Association, called for further information on Mr. Kachkar's condition and risk, including his triggers. Doctors have not definitively diagnosed him.
"There has to be the transparency in this process going forward, especially [relating to] not criminally responsible," Mr. McCormack told reporters outside the court. "We're still concerned about his risk to reoffend and the risk to public safety."
Sgt. Russell's widow, Christine, who was out of the country and did not attend Monday's hearing, has previously spoken out in favour of efforts to strengthen laws dealing with offenders found not criminally responsible.
The federal government has introduced the Not Criminally Responsible Reform Act, which would give courts fresh powers to create a new high-risk category that would hold mentally ill offenders longer, without formal reviews, and make it more difficult for them to leave psychiatric facilities. The bill is currently before the Senate.
In court on Monday, Mr. Siebenmorgen argued that the Ontario Review Board overstepped in deciding to allow Mr. Kachkar to go on escorted trips outside the hospital. He noted that the Crown and Mr. Kachkar's lawyer appeared before the board last year with a joint recommendation for where Mr. Kachkar should be treated and what privileges he should be granted, which included walking the grounds of the hospital while escorted but not making trips into the community.
"The Crown was effectively blindsided," Mr. Siebenmorgen said, before saying later: "Nothing at all was said about entering the community. … That just was not, it seems, on the table at all."
Mr. Siebenmorgen also argued that it is unsafe to allow Mr. Kachkar to enter the community. He noted that if an incident occurred, hospital staffers who would accompany Mr. Kachkar are trained not to intervene, but instead to call the hospital or 911.
Mr. Siebenmorgen noted that police would be the ones to respond to such a disturbance, just as they did on Jan. 12, 2011. "Given that history, that is a dangerous situation to set up, in my opinion."
However, Mr. Kachkar's lawyer, Peter Copeland, said his client does not have any animosity toward police and never set out to target officers three years ago.
Mr. Copeland also said that so-called fresh evidence "cures" any concerns the court may have on the issue of allowing Mr. Kachkar out on escorted community visits.
Mr. Kachkar's doctors say he has not shown any active psychosis and has been "fully compliant" with treatment and medication since he was detained in April, 2013, in the Ontario Shores facility in Whitby, Ont.
"The respondent has been clinically stable throughout his time at Ontario Shores and has not displayed any symptoms of active psychosis," Mr. Kachkar's lawyers write in summarizing the evidence of Dr. Karen DeFreitas, who was Mr. Kachkar's attending psychiatrist from April until July, when another doctor took over.
"While at Ontario Shores, the respondent has exhibited both remorse regarding the index offence and 'good insight and judgment into his current situation and the need to comply with treatment.' "
The hospital appears to have not yet allowed Mr. Kachkar into the community, as his lawyers say he has been granted "off-ward" privileges more than 100 times, though all within hospital property.
The hospital has taken a "very cautious approach" because of the seriousness of what Mr. Kachkar did, but it has allowed him off of his secure forensic unit, while escorted, to attend therapy and programs and take walks on the grounds, Dr. DeFreitas reports. From July to October, this happened 131 times, according to Dr. DeFreitas.
Mr. Kachkar is usually escorted by two or more staff members, though six times within the hospital he was accompanied by only one staffer, Dr. DeFreitas reports.
In finding Mr. Kachkar not criminally responsible, a jury believed the expert testimony of three psychiatrists that Mr. Kachkar's psychosis rendered him unable to appreciate what he was doing.
Once people are found not criminally responsible, a provincial review board manages their case and decides what level of supervision they need, ordering them detained in a hospital or releasing them either with or without conditions. Absolute discharges are not granted until the board is satisfied that the person no longer poses a significant threat to public safety.
Mr. Kachkar still poses a significant threat, the board said in its reasons, but added that letting him go into the community on an escorted basis, if the hospital feels it is appropriate, does not pose such a threat.
Review boards are governed by a requirement to issue "the least onerous and least restrictive" levels of supervision while also balancing public safety along with accused offenders' needs, Ontario Shores wrote in a submission to the court supporting allowing Mr. Kachkar out on escorted community visits.
One tricky aspect to the case is that the exact nature of his illness remains mysterious, the Crown notes.
"The respondent's mental disorder is not well understood. … In the face of these uncertainties, it was not reasonable for the board, without hearing submissions or evidence pertaining to the issue, to make provision for a return into the general community," prosecutors said in their submission to the appellate court.
Mr. Kachkar's lawyers, however, pointed at the fact that their client behaved oddly for nearly two weeks before the confrontation that killed Sgt. Russell, and that during that phase he tried three times to get medical help.
While Mr. Kachkar's illness is hard to diagnose, it is not necessarily difficult to predict another episode, they said.
"We would obviously be surveilling for psychosis and I believe should be able to see it as it took a couple of weeks to spool up," they quoted Philip Klassen, a forensic psychiatrist who assessed Mr. Kachkar, as saying.
With reports from The Canadian Press and Tu Thanh Ha.