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The Allan Schoenborn case

This will not be the most popular column I’ve ever done but it must be said. I want to talk about the Allan Schoenborn case, the one where the killer of his three children is to be allowed out of hospital on a limited basis.

The attitudes of both Attorney-General Barry Penner (who should know better) and columnist Mike Smyth (who can’t, on his record be expected to) are shocking because neither of them understand the system which permits limited leaves for people found NOT GUILTY because of limited mental capacity.

Dealing with the so-called “criminally insane” has tormented legal systems the world over. If a person does not have the capacity to understand his act and to form the necessary “intent” that is central requirement of a guilty finding, what do you do with him?

For many years that person was sent to an insane asylum and forgotten about. Happily we’ve done better in recent years.

Mr Penner and Mr Smyth seem incapable of understanding that Schoenborn was found NOT guilty by reason of his incapacity to form the necessary intent. If the prosecutor had been unhappy with that finding, he should have appealed to the Court of Appeal – he didn’t so we must take it that the Crown had no objection to the finding.

At that moment Schoenborn was NOT GUILTY and was detained “at Her Majesty’s Pleasure” until he was medically certified as no longer a threat to society than any other member of the public might be.

He is then out of the court system and into medical care.

Mr Smyth and Mr Penner please read the following and commit it to memory if that be possible – Mr Schoenborn was not committed as a penalty because we impose none on those detained; he was detained for health reasons not criminal law reasons. Because Schoenborn was innocent and under enforced medical care, the questions arises – will we ever let him out and if so, under what restrictions?.

I don’t know if there is still a Cabinet Committee to affirm any releases from custody but in my time I sat on a Committee with Garde Gardom, and the late Allan Williams. Over a five year period we sat as the final decision and, I can assure you that we considered some pretty awful fact patterns.

One, like this case, involved a man who had torched his house with wife and family therein. (He was permitted limited freedom.) All three of us were much impressed by the system where candidates for release were judged on their illness. We were also impressed with the conditions imposed and the reporting the release patient had to regularly make. We often went back to the doctors involved and confirmed the cases before. None of those we judged ever offended thereafter.

If it’s Smyth and Penner’s position that this system should be dumped then they should say so and tell us what process we should put its place.

If it’s their opinion that the partial release in the Schoenborn case was wrong because he was not sufficiently assessed, they should say so and tell us what evidence they have to back that position.

Instead these men aimed at a public that is, of course, appalled at the case itself and was only too willing to fall in line with the criticism. This was, to put it mildly, irresponsible. The only way the AG and Mr Smyth could be right is if Schoenborn was being punished and the punishment wasn’t enough. You don’t punish those not guilty – something the Harper government has a tough time understanding.

This is not a parole matter and the Parole Board has no involvement in such matters.

Forgive me for saying again, the Schoenborn case is not about criminal law, punishments and parole – it’s about mentally ill people who are, in effect, quarantined until it’s safe to release on strictly enforced reporting strictures.

These cases are never pretty. The facts are usually horrible. As one option we should scrap the system and simply let “offenders” rot in jail. If that’s what Smyth and Penner think, well Penner is the AG and should take the necessary steps.

There is an old and very true legal maxim: “hard cases make bad law”. The Schoenborn case is a hard one but if we’re going to change the law meaning that sanity is not an issue, we will take our civilization back 200 years.

As the law stands, people like Schoenborn do not go to jail but to hospital to await a decision by a medical panel that he might be freed with limitations.

The Schoenborn case was horrible. I, no less than any decent person, was shocked. But he was found Not Guilty, confined on medical grounds until it was safe to lift the quarantine.

Mr Penner and Mr Smyth owe more to the public than chest thumping appeals to those they should be helping to understand the law in these matters.

9 Responses to “The Allan Schoenborn case”

  1. Charles Stansfield says:

    Mr. Mair:
    I have missed your strong opininons and common sensical approach since CKNW deemed you to be too forthright to remain on CORUS. The “Bully Pulpit” is now a seeming weak-kneed affair, but in reality it is (for for politically-correct Canadian government and mainstream media) “Cruelty wearing a bland and therapeutic face”. CORUS is largely staffed by stuff and nonsense, punctuated by time and temperature, decapitated stock market quotations and the fill-time opinions of citizens who know little of which they speak (encouraged by what passes today for thoughtful, unbiased interlocutors, whose end-segment pronouncement of, “we’ll have to leave it there for now,” cheapens and discourages real discourse).

    Regarding Mr. Schoenbrun’s situation, I struggle with the general jurisprudential provision that allows certain mental states to bypass culpability, the *mens rea*, even though the “guilty act” has taken its toll.
    To me, this takes the *human-ness* out of the equation, negating the “free will” that is the bedrock of our criminal laws, in that it reduces the supposedly-diseased or miscomprehending mind to the same status of a boulder that has rolled down a mountain and crushed a tour-bus full of innocents: an “act of God”.

    Can any psychiatrist/psychologist say for certain that someone is “crazy”, either temporarily or long-term? How do they *know* when someone is “cured”, or sufficiently-recovered as to be permitted to rejoin society either partially or completely? The fact is, of course, an educated guess at best, upon which we rely as a community — sometimes at our peril.

    Does a criminally “crazy” person not forfeit the epithet, “rational” or “human”, even though he/she retains the outward appearance of homo sapiens? And if such a person, during the time of lapse is not truly human, then what *are* they? The only other choices are either a religious one, “possessed by demons”, or a reassignment of the offender to the status of “animal”.

    Yet, when a marauding bear, cougar, or rabid dog work their instinctual imperatives upon us, we most often end their lives. Why is the legally-insane person treated any differently? With our disdain for the death penalty in this country, we lock up even our most heinous offenders for “life”, yet the “lapsed humans” can get a pass if the mind is considered to be defective.

    Meantime, the victims of distraught minds are reduced in value because of the legal concept of “intent”. The people/politicians who do not want this “man” (the former human being “Mr. Schoenbrun”) to be released under any circumstances at present are not convinced that this creature can have been brought back to a state of responsible humanity so quickly. Yet, another once-human, Charles Manson, still languishes in a California prison, his antiquated crimes *defining* him as “insane”, because his defence wasn’t able to convince a jury that he did not *intend* to kill his victims.

    In any substantive sense, how are Mr. Schoenbrun’s homicides different from Mr. Manson’s?

    If the injured parties could be brought back from their deceased states after Mr. Schoenbrun’s sanity (hence, *human-ness*) was restored, then I could subscribe to this way of looking at the effects of a action controlled by a mind that could not appreciate the difference between right and wrong, or which confused the two. If Mrs. Schoenbrun’s mental state could be healed, she would be infringing on Mr. Schoenbrun’s rights, once he was at least partially restored to some level of human-ness, by objecting to his accompanied freedom in her community.

    I submit that a “crazy” person’s state-of-mind can never be successfully assessed; neither can a “normal” person’s state-of-mind. In short, the proof is in the pudding, Raife. Once the line has been crossed, as with a dog who has bitten, or a man who has raped, the strand of common-ness, the shared human-ness, has been unalterably broken.

    The U.S. States of Idaho and Utah do not recognize a defence of “insanity”. I think that B.C. and Canada would benefit from adopting this form of strict liability regarding “intent”.

    If one is in control of an automobile when one’s blood-alcohol level is in excess of .08, (even though no harm is done or intended, and capacity is diminished), the offence is every bit as heinous as if someone had been hurt or killed. How much worse is a guilty act when death is the intended outcome, even when the mind misapprehends?

    No parole, even accompanied, for this being who has lost his right to be called “human”. Deranged human beings are not “acts of God”.

  2. Charles Stansfield says:

    Mr. Mair:
    I have missed your strong opinions and common sensical approach since CKNW deemed you to be too forthright to remain on CORUS. The “Bully Pulpit” is now a seeming weak-kneed affair, but in reality it is (for politically-correct Canadian government and mainstream media) “Cruelty wearing a bland and therapeutic face”. CORUS is largely staffed by stuff and nonsense, punctuated by time and temperature, decapitated stock market quotations and the fill-time opinions of citizens who know little of which they speak (encouraged by what passes today for thoughtful, unbiased interlocutors, whose end-segment pronouncement of, “we’ll have to leave it there for now,” cheapens and discourages real discourse).

    Regarding Mr. Schoenbrun’s situation, I struggle with the general jurisprudential provision that allows certain mental states to bypass culpability, the *mens rea*, even though the “guilty act” has taken its toll.
    To me, this takes the *human-ness* out of the equation, negating the “free will” that is the bedrock of our criminal laws, in that it reduces the supposedly-diseased or miscomprehending mind to the same status of a boulder that has rolled down a mountain and crushed a tour-bus full of innocents: an “act of God”.

    Can any psychiatrist/psychologist say for certain that someone is “crazy”, either temporarily or long-term? How do they *know* when someone is “cured”, or sufficiently-recovered as to be permitted to rejoin society either partially or completely? The fact is, of course, an educated guess at best, upon which we rely as a community — sometimes at our peril.

    Does a criminally “crazy” person not forfeit the epithet, “rational” or “human”, even though he/she retains the outward appearance of homo sapiens? And if such a person, during the time of lapse is not truly human, then what *are* they? The only other choices are either a religious one, “possessed by demons”, or a reassignment of the offender to the status of “animal”.

    Yet, when a marauding bear, cougar, or rabid dog work their instinctual imperatives upon us, we most often end their lives. Why is the legally-insane person treated any differently? With our disdain for the death penalty in this country, we lock up even our most heinous offenders for “life”, yet the “lapsed humans” can get a pass if the mind is considered to be defective.

    Meantime, the victims of distraught minds are reduced in value because of the legal concept of “intent”. The people/politicians who do not want this “man” (the former human being “Mr. Schoenbrun”) to be released under any circumstances at present are not convinced that this creature can have been brought back to a state of responsible humanity so quickly. Yet, another once-human, Charles Manson, still languishes in a California prison, his antiquated crimes *defining* him as “insane”, because his defence wasn’t able to convince a jury that he did not *intend* to kill his victims.

    In any substantive sense, how are Mr. Schoenbrun’s homicides different from Mr. Manson’s?

    If the injured parties could be brought back from their deceased states after Mr. Schoenbrun’s sanity (hence, *human-ness*) was restored, then I could subscribe to this way of looking at the effects of a action controlled by a mind that could not appreciate the difference between right and wrong, or which confused the two. If Mrs. Schoenbrun’s mental state could be healed, she would be infringing on Mr. Schoenbrun’s rights, once he was at least partially restored to some level of human-ness, by objecting to his accompanied freedom in her community.

    I submit that a “crazy” person’s state-of-mind can never be successfully assessed; neither can a “normal” person’s state-of-mind. In short, the proof is in the pudding, Raife. Once the line has been crossed, as with a dog who has bitten, or a man who has raped, the strand of common-ness, the shared human-ness, has been unalterably broken.

    The U.S. States of Idaho and Utah do not recognize a defence of “insanity”. I think that B.C. and Canada would benefit from adopting this form of strict liability regarding “intent”.

    If one is in control of an automobile when one’s blood-alcohol level is in excess of .08, (even though no harm is done or intended, and capacity is diminished), the offence is every bit as heinous as if someone had been hurt or killed. How much worse is a guilty act when death is the intended outcome, even when the mind misapprehends?

    No parole, even accompanied, for this being who has lost his right to be called “human”. Deranged human beings are not “acts of God”.

  3. cherylb says:

    Mr. Mair:
    You are right. This will not be the most popular column you have ever written, but you are bang on the money. As awful as it will be for his former wife to know that he is allowed out of hospital on a limited basis, he was found NOT GUILTY due to limited capacity. He wasn’t found GUILTY of premeditated murder because he is ill. It’s a very sad story all the way around.

  4. Scotty on Denman says:

    The Shoenbrun case is horrible and tragic beyond words which is why it’s not surprising that many of the comments have been over-the-top, emotional outbursts about what “punishment”, “what I’d like to do”, what the mentally ill Sheonbrun “deserves.” Perhaps, given the horror of the case, some of these can be forgiven.

    But when the Attorney General, and other politicians of the “tough on crime” persuasion appear to whip up such thoughtless sentiments, especially because they know perfectly well Shoenbrun’s legal disposition, they have breached the ethical standard of their offices.

    To take advantage of the Shoenbrun case for political gain is demagoguery and an affront to those three murdered kids and everyone else who’s suffered because of this tragedy.

    It is beyond unethical.

  5. jartann says:

    Rafe”s analysis is of course on the money legally. What many people are really saying is that if this is what the law provides, then the law is an ass. The finding of “guilty” but of diminished mental capacity would go a long way toward dealing with cases like this. Once it has been decided that he is no longer of diminished mental capacity, then the criminal justice system has him. We don’t execute people in Canada, so he could be eligible for parole under certain conditions.

    The current system says to people, if a loved one is killed by a person who can show that he is a nutter, well its too bad but no one can do anything and you just have to accept that. This is by no means justice and I believe this is what people are reacting to.

    Mr Penner and Mr Smyth are not playing to the uniformed and ignorant. They are responding to the understandable horror people are feeling that would allow any measure of freedom for a person who has done something like this, no matter what mitigating factors are said to exist.

    There is, after all, a school of thought that argues that anyone who would murder another person must be of diminished capacity. The law needs to be changed and for good and valid reasons. Not, as Rafe is suggesting, to pander to the tastes of the ignorant and uninformed.

  6. martin says:

    sounds like Jartan would like to be rid of all the mentally diminished. And what about us with “hidden disorders” perhaps we could be put down too. You can start with Romeo Dallaire, unless of course ptsd isn’t real either.
    thanks Rafe!

  7. Don Maroc says:

    Thanks Rafe, for a profound explanation. Part of our problem may be we have a system of “crime and punishment”, instead of being based on “crime and justice”. My brother, who spent nearly 30 years on the bench, recalls, when attending law school, asking a question about justice and being told, if you’re interested in justice you should go down the street to the department of philosophy. If we opt for “justice”, it would have to apply equally to the perpetrator, the victim, and the community. A possibly impossible equation.

  8. Joanne Ellis says:

    Thank you Rafe
    it is an important topic and I personally was appalled at Michael Smyth’s ignorance but I often am and I wonder why they keep him. In my neighbourhood, opinions formed and spread without real knowledge are referred to as gossip. It is a sad statement on the print media in this province, but I see lots of opinion columns (not identified) and very little reporting in the rag Michael works for .

  9. R.A. Finlay says:

    Respectfully, Mr. Mair (and that is sincerely expressed) I believe your post misses the point. The Review Board erred in this case. The attitudes of critics of the decision is quite irrelevant. The decision is real issue; and a poor decision it was, as I have discussed on my blog (http://lawcanada.blogspot.com/), and where I set out a number of specific findings of the trial judge which, quite frankly, should have been in the forefront of any reasonable board member’s considerations in this case.

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