Luka Magnotta: The possible path of a 'not criminally responsible' designation

When Luka Magnotta’s lawyer announced to a packed court that his client admitted to the allegations against him, he chose to make Canada’s closely-watched murder trial a debate about mental health and legal culpability.

Instead of arguing whether Magnotta killed Jun Lin in May 2012, Luc Leclair instead indicated he would spend the weeks-long trial trying to convince the jury that Magnotta was not in control of his actions, that he was mentally ill at the time, and that he should be found not criminally responsible.

"I intend to show you that at the time of the events, he was not criminally responsible," Leclair said in his opening remarks, according to CBC News.

The Magnotta trial may be the culmination of the country’s most notorious murder investigation in the past generation. Magnotta faces five charges after allegedly killing Lin, a Concordia University student, cutting up his body and filming the process. Magnotta had previously pleaded not guilty to all charges, and on Monday Leclair indicated he would attempt to show that Magnotta was not guilty because he was mentally ill at the time.

[ Related: Luka Magnotta case: The challenges of a ‘not criminally responsible’ defence ]

Toronto criminal lawyer Aaron Harnett told AdvocateDaily.com that the jury will now have to determine whether Magnotta was responsible for his actions.

“That is the test in s. 16 of the Criminal Code,” he said. “To do that, his lawyer will likely lead with evidence that he was suffering from a major mental illness to show that its operation on the client’s mind deprived him of the ability to appreciate the nature and consequences of his acts.”

A Not Criminally Responsible (NCR) ruling would find Magnotta neither guilty nor innocent of the charges against him, and instead send him into a lengthy and in-depths mental health treatment process that has recently undergone significant reforms.

Canada’s Not Criminally Responsible designation has, in the past, been somewhat controversial, being cited in some of the country’s most graphic cases and recently subjected to tighter guidelines.

The Harper government introduced last year the Not Criminally Responsible Reform Act, which recast how those suffering from mental illness would be treated in the judicial system.

Among the changes brought in by the Act was a hard-line emphasis on deciding when those found not criminally responsible (NCR) should be released from custody, and the circumstances of that release.

There have been a small handful of high-profile NCR findings in Canada over the past few years. Notably, Vincent Li was found NRC after he stabbed to death a passenger on board a Greyhound bus in Manitoba. According to the Canadian Press, Li said he heard God tell him to kill the man because he was actually an alien.

There are other cases, including that of Guy Turcotte, who is set to stand retrial after an NCR ruling was appealed in the death of his two young children, and Richard Kachkar, who was heard yelling about the Taliban and claiming he was in a “Russian video game” when he stole a snow plow in 2011 and struck and killed a Toronto police officer.

[ Related: List of prominent not criminally responsible cases ]

Spectacular and gruesome cases like those of Li and Kachkar are more often than not the cases highlighted when discussing Canada’s NRC designation. But in some ways they are the exception to the rule. According to the Mental Health Commission of Canada, the vast majority of NCR cases are not related to violent crimes at all.

A Justice Canada study found that homicides account for just 2.6 per cent of NRC cases, with attempted murder accounting for 3.3 per cent and sexual offences another 2.1 per cent.

When an accused is found NCR, they are considered to be found neither convicted nor acquitted.

The accused is referred to the provincial review board to determine the best course of action. If treatment is determined to be necessary, the person is transferred to a mental health facility. Li, for example, continues to be treated at the Selkirk Mental Health Centre, though he is now allowed to take escorted day trips into town.

The provincial board conducts annual reviews of the individual’s progress to determine whether they can be given a conditional release or even an absolute discharge.

According to the report conducted for Justice Canada, those included in the 2013 study who were being treated after violent offences spent an average four years in treatment. Of those who were found NCR of a homicide, about half were still being detained at the time of their fourth annual hearing.

Those numbers may be a bit misleading, however, as each case is handled in a standalone manner. The results of a handful of previous review board decision do not indicate how long others will be required to be treated before securing a discharge.

The recent changes introduced by the Not Criminally Responsible Reform Act, for example, created a high-risk designation. Those given the high-risk designation cannot be granted either conditional or absolute discharges until the review board determines they are not a threat. It also allows the board to make review periods three years long, instead of annually.

This is one fate that could be waiting for Magnotta. It is a long road to recovery, one that he could walk if found not criminally responsible for the death of Jun Lin.