If Breivik were Canadian

Norway’s homegrown terrorist, Anders Behring Breivik, may not go to jail:

Anders Behring Breivik, who killed 77 people in a bomb blast and gun rampage in Norway, is likely to escape jail after a psychiatric evaluation concluded he had been “psychotic” at the time of the attacks.

The decision means that Breivik instead faces years, or even a lifetime, of compulsory psychiatric treatment in a secure ward, if, as expected, it is backed by an expert panel.

State prosecutor Svein Holden said that the two forensic psychiatrists believed Breivik had been insane throughout the years that he meticulously planned the attacks.

“Anders Behring Breivik during a long period of time has developed the mental disorder of paranoid schizophrenia, which has changed him and made him into the person he is today,” he said in a press conference after receiving the report.

The two forensic psychiatrists, Torgeir Husby and Synne Soerheim, had uncovered “grandiose delusions whereby he believes he is to determine who is to live and who is to die,” he explained.

Jarl Robert Christensen, whose lost his daughter Birgitta in the attack, said that victims’ relatives would struggle to accept the ruling.

[…]

It now needs to be approved by Norway’s Board of Forensic Medicine before a further court hearing to ascertain whether Breivik is guilty.

Dr Tarjei Rygnestad, the head of the panel, had said in July that it was unlikely that Mr Breivik would be declared insane because it was unlikely that a true schizophrenic would have been able to plan an attack as carefully and calmly as Mr Breivik had.

He said the conclusion was “interesting”, adding that he would reserve his judgment until he and his colleagues had time to study the report.

Experts said Breivik faced a maximum of 21 years in prison (a prison nothing like any you’ve ever seen, no less) had he been deemed fit to stand trial and convicted.  It’s actually kind of comforting to know he may instead spend the rest of his life in a secure treatment facility.

But is this the kind of decision that should be made by doctors instead of the courts?  Not in Canada:

While Norwegian Anders Behring Breivik has been deemed insane by a panel of psychiatrists, meaning he likely won’t face time behind prison bars, the confessed mass killer may have faced a different fate in Canada.

“It’s entirely possible,” Prof. Roy O’Shaughnessy, head of the forensic psychiatry program at the University of British Columbia, told CBC News. “This would have been in a court of law and would have been subjected to an extremely vigorous cross-examination.”

[…]

“Each country has different criteria that they impose on how you determine whether a person is criminally responsible for their behaviour. And in Canadian jurisprudence, as well as all Commonwealth countries and the U.S., that decision is only made by the courts, not by psychiatrists,” O’Shaughnessy said.

Under Section 16 of Canada’s Criminal Code, a person is deemed to be not criminally responsible (the term ‘insane’ having been scrapped) if the crime was committed 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 that it was wrong.”

O’Shaughnessy said the issue of responsibility is determined by a number of factors.

“Did the person have a severe mental disorder at the time of the offence. They’re clearly saying [Breivik] did. But in Canadian jurisprudence, simply having a mental disorder, even severe, doesn’t mean you’re going to be held not criminally responsible.

“You then have to apply the disorder to the facts of the case and reach the conclusion as to whether the disorder was of such severity that it caused him to be unaware what he was doing was wrong in a moral as well as legal sense.”

O’Shaughnessy said an accused person can be delusional and have beliefs that are incorrect but may still be held responsible if that person appreciates what they were doing was wrong.

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