‘A barometer of failure:’ Killers so sick they are not criminally responsible

A son who believed he was being poisoned by his father, so he stabbed him 43 times.

A man who thought his neighbours were out to get him, so he broke into their home and shot the first man he saw.

A son so tortured by visions of what he was convinced predicted his parents' gruesome deaths that he stabbed his dad and then mom to spare them a worse fate.

The details of each of these recent Hamilton homicide cases are different, so too are the complicated mental-health histories of each man who wielded a weapon. Each left behind shattered and at times divided families. But in each case, despite being physically responsible for the deaths, none are responsible in the eyes of the law.

They are not guilty, nor are they innocent. They have been deemed not criminally responsible due to a mental disorder.

The ways in which the mental health and justice systems interact are myriad, from mental health and drug treatment courts, to the courts considering mental illness as a factor in sentencing, to the need for an accused to be mentally fit to stand trial. But perhaps least understood by the public are the not criminally responsible (NCR).

To be found NCR it is not enough to have a mental disorder. At the moment of the crime the person must also either be incapable of understanding what they are doing or of knowing it is wrong.

It is a very small percentage of people that end up being found NCR," said Dr. Gary Chaimowitz, head of the forensic psychiatry program at St. Joseph's West 5th Campus.

He has been doing forensic psychiatric assessments since the 1990s and testified in court as an expert witness hundreds of times. These detailed assessments include observing the person in a secure forensic psychiatric hospital for 30 to 60 days, but also include looking at video evidence, medical and police records, and interviews with family. Doctors have tests to prove a person isn't faking - called malingering.

I cannot fathom how hard must be for family members who have lost a family member because of this," he said, but he stressed that people found NCR are sick.

Most people who have a mental illness are not violent. Many are far more likely to be victims of crime. And most NCR cases are for nonviolent offences.

According to the Mental Health Commission of Canada, when there is no substance abuse involved, less than three per cent of all violent crimes committed in Canada are caused by people with mental illness.

Provincial statistics and experts, including Chaimowitz, say the number of not criminally responsible cases remain consistent. Typically it's only high-profile cases that get public attention. In Hamilton, this includes three homicide cases that ended with NCR findings between December and January.

Killers found NCR

Jonathan Vader Lewis killed his dad - Teenage Head founding guitarist Gord Lewis - stabbing him inside their apartment because he believed his dad was poisoning him. Court heard Jonathan went to hospital 10 times seeking help, but was never admitted despite having been previously hospitalized for schizoaffective disorder. He was found NCR in December for the August 2022 murder.

Mark Duckett smashed through his next door neighbour's door on Magnolia Drive and shot 28-year-old Nikko Sienna 12 times with his legally owned handgun in July 2019. Duckett believed his neighbours were out to get him. Court heard Duckett was increasingly paranoid before the shooting, including installing a camera pointed at his neighbour's house. His father felt compelled to return early from a business trip in April. His parents urged him to see a doctor, but he did not. It was only after the shooting that he was diagnosed with schizophrenia. Several hours before the shooting, the Sienna family called police because Duckett was staring through, banging on and shining a flashlight in basement windows. He was given a warning. The shooting left the Sienna family devastated and angry at both police and the justice system. Duckett was found NCR in January, on the eve of when a criminal trial was to begin.

Phuoc Hoa Vo killed his parents, stabbing his 67-year-old dad, Hung Vo, in the family's George Street apartment and then his 61-year-old mom, Moui Khuu, in the hallway, before turning the knife on himself. Court heard he believed he was being sent messages and videos showing his mother being strangled and dad fed to dogs, so he stabbed them to spare them a worse fate. The younger Vo was the only survivor. His sisters told the court in written victim impact statements that he is no longer part of the family, they live in fear of him and feel shame. One said the murders will be a lifetime secret" kept from her children.

Gradual release

In Ontario, once found NCR the person is sent to one of 10 forensic psychiatric hospitals in the province where their case is reviewed annually by the Ontario Review Board. They can only be released from hospital when they are deemed well enough. This usually happens gradually, starting with passes on the hospital grounds, then day passes, before community living and the eventual possibility of an absolute discharge. But there is also no guarantee a person will ever be released, regardless of the seriousness of the offence.

Annual statistics from the Ontario Review Board (ORB) show cases remain steady. In 2020-21 - the latest numbers available - there were 1,653 accused under the ORB's jurisdiction, including 158 new people. These cases represent both people found unfit to stand trial and NCR. ORB held more than 1,900 hearings during that time in which 116 people received absolute discharges.

There is a misconception that NCR is a way to escape punishment," Chaimowitz said. People are generally in the forensic system longer than jail."

People found not criminally responsible are also less likely to reoffend than someone who goes to prison, according to the National Trajectory Project - an ongoing study that tracks not criminally responsible cases across Canada. Its landmark study, first published in 2015, followed 1,800 NCR cases for five years found roughly 17 per cent of the offenders the study followed had reoffended after three years, with those who committed serious, violent offences less likely to reoffend.

But these statistics can be cold comfort for the families who have lost a loved one to violence, because no amount of treatment after the fact can undo what happened. Experts and families say there ought to be a shift of focus to prevention strategies.

The National Trajectory Project also found 72 per cent of offenders had at least one hospitalization for mental illness prior to the offence, a key indicator that not enough is being done to help people to prevent crises. This leaves experts and family with questions:

Why did it take someone being killed to get this person the help they needed?

What could have been done to prevent this crisis?

What lessons can we learn from these deaths?

None of the people who committed these violent acts suddenly became sick the day of the murders. There are almost always warning signs. Details in court show there is often histories of hospitalizations or calls to police under the Mental Health Act, and there is often an escalation of symptoms leading up to the offence.

Chaimowitz said there is great care available, including the hard-working forensic psychiatric team at St. Joe's. But community mental-health resources are stretched thin, with many outpatient services having long waiting lists.

And while demand is growing, some services are being forced to scale back services because of budget and staff constraints. This includes the shuttering of Catholic Family Services, a Hamilton non-profit that offered a range of programs to all ages, including counselling. And the local Elizabeth Fry Society branch, which works with incerated and at risk women, ceasing operations.

If people were adequately housed, had access to treatment, meaningful employment, were surrounded by people who cared for them, had treatment for substance-use disorder, Chaimowitz said there would be much less mental-health driven crime and people in the forensic system.

It makes a very big difference to public safety," he said, adding that the gaps became much more apparent during the pandemic when people couldn't access as many services because of lockdowns and the stretched resources that followed them.

I wish we didn't need a forensic psychiatric system," Chaimowitz said. Because it is to some degree a barometer of failure."

Nicole O'Reilly is a crime and justice reporter at The Spectator. noreilly@thespec.com