Luka Magnotta case: The challenges of a 'not criminally responsible' defence

LukaMagnottahas admittedkillingConcordiaUniversity student Jun Lin in May 2012, buthis defence lawyerswill spend the next few weeks attempting to convince ajury thathe is not criminally responsible for that act because he was mentally ill at the time.

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"I intend to show you that at the time of the events, he was not criminally responsible," Magnotta's defence lawyerLuc Leclairtold a Montreal courtroom on Monday, the first day of the highly anticipatedtrial.

Magnottahaspleaded not guiltyto all five charges against him, including first-degree murder,buthasagreed to the underlying facts ofthe case.

In the lead-up to the trial, it was speculated Magnotta'slawyers wouldrely on the not criminally responsible, or NCR,defence.Quebec Superior Court JudgeGuyCournoyerconfirmed that soon after the trial began when he told the jury their task would be "to determine whetherhe committed the five offences with the required state of mind for each offence."

UnderSection 16 (1) of Canada's Criminal Code, a person cannot be found criminally responsible "for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing it was wrong."

The important piece is not simply the mental disorder. The important piece is the next partof the phrase,which says mental disorder which renders the accused incapable.- PatrickBaillie, forensic psychologist, lawyer

It's the second part of that statement that is key to a successful NCR defence, saysPatrick Baillie, a Calgary-based lawyer and forensic psychologist with Alberta Health Services who has provided expert testimony in several NCR cases.

"The important piece is not simply the mental disorder. The important piece is the next partof the phrase,which says mental disorder which renders the accused incapable," Baillie said.

"This isn't something that distorted thepersons thinking or they were depressed and they did something they wouldn't ordinarily do because they just didn't care, but rather the mental disorder left them incapable of knowing what they were doing or knowing that it was wrong."

Premeditated behaviour doesn't rule out NCR

NCR cases begin with a presumption of sanity, and it's up to whoever raises the NCR application in Magnotta's case, the defence to overcome that presumption and prove the opposite.

"It's done on a balance of probability. Itdoesn't have to be beyond a reasonable doubt," said Baillie.

In Magnotta'scase, the Crown will likely attempt to convince the jury thatthe behaviour Magnotta exhibited prior to and after the alleged crime shows that he clearly knew what he was doing. Crown prosecutorLouis Bouthillier told the jury Monday that he intends to prove Magnotta planned his crime six months in advance.

But, Baillie says, that doesn't necessarily invalidate an NCR defence,because a defence lawyer only hasto prove one of the two conditions: that the accused was incapable eitherof knowing what they were doing or of knowing it was wrong.

"You can still have planned and premeditated behaviour; the issue is whether or not you knew that it was wrong," he said.

A typical example is the case of Andrea Yates, the Texas mother of five who drowned her children but was found not guilty by reason of insanity in 2006.

"She knew what she was doing but did not believe that it was wrong because in her distorted way of thinking,she came to the conclusion that the children would be better off dead,"Baillie said.

'Organized behaviour' could undermine defence

In Magnotta'scase, the defence might have difficulty proving that he"didn't appreciate the nature and quality of the acts," saidMichael Lacy, a veteran criminal trial lawyer and a partner at Greenspan PartnersLLPin Toronto.

The Crown will likely argue thatMagnottaacted with "orderly conduct," he said. The actionsMagnotta is accused of which include killing Lin, committing an indignity to his body, publishing and mailing obscene materialand harassing Prime Minister Stephen Harper and otherMPs are inconsistent with someone suffering froma serious mental disorder, Lacy said.

The Crown will also likely bring up the allegation thatMagnottatravelled to Europe immediately after the alleged crime, sparking a massive international police manhunt.

"That also evidences a level of organized behaviour that, at leastviscerally, for most lay people... is sort of inconsistent with someone having a serious mental disorder," Lacy said.

However, mental illness is complicated, and the behaviour couldbe a part of whatever disorderMagnottamay have, Lacy said.

Defence to argue Magnotta was schizophrenic

The defence said in court Monday that it will show that Magnotta wasschizophrenicand was hearing voices and feeling persecuted before the crime occurred. Schizophreniais one of the most common diagnoses in NCR cases, Baillie said.

"Most NCR cases come back to some form of delusion or hallucination and therefore, typically, are tied to psychotic disorders:schizophrenia, a reaction to bad drugs, postpartum depression, those kinds of conditions," he said.

Lacy also stressed the fact that whileMagnottahas not been diagnosed as a psychopath, psychopathic behaviour itself does not render an accused not criminally responsible.

"Having no conscience about what you do is not a disease of the mind that would render you not criminally responsible," he said.

The challenge for psychiatricexperts testifying in NCR cases, Baillie said, is assessing after the fact how an individualbehaved in the moment. This is where a past medical record becomes key.

"In the majority of NCR cases, there is a full medical record," Baillie said. "These people are not strangers to the mental health system. A majority of them have had recent hospitalization, so there is a psychiatric record."

That is, in fact, what happened in Magnotta'scase, according toLeclair. The defence attorney told jurors Monday that his client had had a one-hour psychiatric assessment at a Montreal hospital just weeks before Lin was killed. He also said the court would hear from health workers who treatedMagnottaand be presented with his past medical record.

Yates, too, had had contact with mental health professionals, as didVincent Li, who was found not criminally responsiblein the 2008 death and beheading of fellow Greyhound bus passenger Tim McLean. Yates had been diagnosed with postpartum psychosis and depression and had attempted suicide; Li had been previously hospitalized for delusional behaviour.

NCR cases rare and not usually violent

When there isn't a mental history, "there has to be verythorough evaluation to make sure theperson is notmalingering, or more commonly known as faking it," Baillie said.

Bailliesaid he expects multiple psychiatrists to testifyat Magnotta's trial but noted that in his 20 years as an expert on NCRcases in Calgary, the successful ones have been those where the Crown's experts and the defence experts agree.

"Typically, when you get into the battle of the experts, at least out here, the court comes to the conclusion that theaccused was not NCR," he said.

NCR cases are rare and do not usually involve violent offences, Bailliesaid. Much more common are cases in which a person commits an impulsive act like a theft or leaving a restaurant without paying because of some delusional belief or perceived danger ("the restaurantdiners have turned into zombies and are out to hurt me," for example).

"Just under 10 per cent of [NCR] cases are serious personal violence, and the majorityareviolence againstfamilymembersand friends," Baillie said.