March 3, 2009
Students of the law will know that Lady Justice, the enduring symbol of our criminal justice system, carries a scale and a sword. She also often wears a blindfold.
The scale represents the justice system's careful measurement of legal arguments. The sword has been interpreted by some as a symbol of vengeance; others note the sword is double-edged, a reminder that justice is meant to treat all parties equally. The blindfold is generally accepted as a symbol that justice should be delivered objectively, without fear or favour.
This collection of metaphors means that Lady Justice has no room to bear additional weapons or tools. For example, there is no scroll of public opinion polls tucked under her arm. She is not pulling a wagon containing a ballot box. And there is no sack of victim impact statements slung over her back.
These are the tough realities of the justice system, principles that are often lost when the law collides with grief and suffering. But even in these taxing circumstances, these principles must be protected.
These principles will be, in some senses, under siege today when a Manitoba court hears arguments on the sentencing of Vincent Li, a Chinese immigrant accused of the horrific murder of Timothy McLean last year, who was stabbed and mutilated on a Winnipeg-bound bus. Although arguments are still to be heard, it seems quite likely that Li will be found not criminally responsible (NCR) for the murder. This possibility has enraged some members of McLean's family.
McLean's mother Carol de Delley has launched a campaign to change the Criminal Code to keep anyone convicted of murder in jail for his or her natural life, including those who are found to be NCR at the time of the crime. Proponents have dubbed this "Tim's Law."
In numerous interviews, de Delley has made it clear she is sickened that Li could not only avoid a prison sentence, but also win release in a few years if doctors believe he no longer represents a threat to society. "I believe there should be treatment and punishment, not treat and release," de Delley told a rally in Brandon last weekend.
This campaign certainly puts the justice system in a difficult position. How can you argue with a grieving mother? How could someone reasonably turn down her request to ensure there is some measure of punishment in every finding of guilt?
The problem here is that McLean's murder does not lend itself well to the broad parameters of Tim's Law. Although the full details are not yet known, it appears on the face of this case that Li was a troubled man who may have had a history of mental problems. The unspeakable brutality of the crime also speaks to someone who is clearly not of sound mind. This was an unprovoked, incredibly violent crime between two people who were strangers. One does not have to stretch to imagine the tortured mind of the murderer.
In cases like this, the Criminal Code allows that anyone who is found to be mentally incapable of grasping either the nature and quality of the crime, or who does not have the capacity to tell moral right from wrong, can be found NCR. Our justice system prescribes a lenient approach for these people. They will have no criminal record and will have their illness treated. If the illness can be brought under control, they are released back into the community with no minimum period of incarceration.
A NCR finding may not serve the interests of the victim's family to see someone punished, but it is a feature of a justice system that is reasoned and compassionate. Along with punishment must come mercy and humanity. Although many will disagree, the NCR provision is not a "weakness" of the system. It is a byproduct of a society that has the confidence to decide on a case-by-case basis what is right and what is wrong.
Victims and their families deserve to be part of the proceedings of the criminal justice system. They must be informed about developments in their cases, and kept abreast of all major decisions made by police and prosecutors. Unfortunately, the principles of impartiality, equality and objectivity often trump a grieving family's desire to change the law. And that is not an injustice in and of itself.
The gory details of Tim McLean's murder may enrage and shock. But they should not cause us to lose sight of the fact that justice is much more than punishment.
Great column by Dan Lett, from last year's Winnipeg Free Press. We need to have compassion for the mentally ill and offer them treatment and treat them humanely, and with dignity and respect. Li's actions were unintentional and were completely out of his control. It was not a conscious choice. The public needs to move past the details of the horrific act and think reasonably, logically and rationally. The mentally ill should NOT be punished or deprived for actions which were out of their conscious control. That would be inhumane and uncivilized and would only worsen their mental conditions, meaning that they would be released into society as more of a danger to re-offend. Prisons do not offer adequate mental health programs or services. Li needs to be in a mental health facility. We need to have compassion and sympathy for the mentally ill. Yes, the actions Li committed were horrific and gruesome, but it is not considered a crime legally, as he lacked intent (the required mental state). He is legally, not a criminal. This is a sick individual who is a victim of his mental disorder. This column was insightful and compassionate and explained the essential aspect of a civilized justice system. The public needs to stop calling for vengeance, revenge and retribution/punishment of the mentally ill. It is not their fault.
Tim's Law should NEVER become a reality. Civilized societies do not imprison and punish the mentally ill who had no awareness of what they were doing at the time. We are not living in the dark ages. Treating someone with no moral fault the same as someone with moral fault is repugnant and contrary to :the principles of fundamental justice" as outlined in the Charter. Imprisoning the mentally ill, is also subjecting them to "cruel and unusual treatment/punishment" which is against human rights. Li did not understand what he was doing at the time and the killing was not a conscious choice of his. He lacked intent and awareness and did not appreciate the nature and consequences of his actions due to his mental disorder. Tim's family's desires scream of vengeance and retribution for the mentally ill, which is uncivilized and inhumane. I hope there will be a day in the future when mental illness is not so stigmatized and society is more compassionate to those suffering from it. Many people confuse justice with revenge and they are very different. Justice means equality and fairness and a sanction which is fair and just. That means that we must treat the mentally ill. Revenge should not be justified in a civilized society.
Very well written column Dan. I think many out there are confusing justice with revenge and they are certainly not the same thing. The highest level of justice is justice tempered with mercy and if we overlook that, we are on a slippery slope to anger and revenge that can never be satisfied. Even if we executed Mr. Li (which is not possible in this country), it won't bring back Tim nor will it necessarily erase the anger in his mom's heart (which is rightly hers to have). She needs to do that herself, it can't come from a punishment against Mr. Li. The law of the harvest is "you reap what you sow". The natural consequences to the offender for committing unjust acts will always follow. If we can believe that, then we can become a more tolerant and enlightened society.
Are we punishing what is morally wrong or getting back at somebody who committed an atrocious act? To do something morally wrong, you must be aware of it. If Li wasn't aware of the nature of his actions he should be treated differently than a person who intentionally hurt the victim. Li should definitely not be let out in public in the condition he is in, but he also shouldn't be punished the same way an intentional murderer would be. It is very unfortunate an innocent victim, Tim McLean was killed through his actions.
Dan, thank you for this compassionate and thoughtful column. I can't begin to imagine how Tim McLean's family must feel, and the justice system can do nothing to bring Tim back. Having said that, Vince Li has a family as well, and surely their suffering shouldn't be overlooked. If Li is found NCR and eventually recovers, he will have to live with the awareness of what he did, and that's a punishment he cannot ever escape. I believe that victims' rights are important but also believe that vengeance is not one of those rights.
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