Sidney Katz August 1 1953



Sidney Katz August 1 1953



Sidney Katz

IT FREQUENTLY happens that the Canadian judge, lawyer or juryman who has participated in a murder trial where the sanity of the accused has been in question has come away haunted by the terrible question: Has a mistake been made? Has there been a miscarriage of justice?

Such doubts are not uncommon because our present legal system of deciding sanity reduces many trials to a battle of experts. Crown psychiatrists testify the accused is sane and should be punished; defense psychiatrists testify that he is insane and should be acquitted on grounds of insanity. Conflicting evidence often leaves the jury in a quandary and the general public in confusion.

At the root of the present confusion are the so-called McNaghten Rules, written by a group of English jurists in 1843. The legal tests for insanity set forth in the Canadian Criminal Code are based directly on these rules. Despite the advances of medical knowledge during the last one hundred and ten years, they have remained unchanged. The result is that there now exist two kinds of insanity—“legal insanity” and “medical insanity.” In effect, what is a sound arm in law can be a broken arm in medicine.

The issue of sanity is so frequently debated in our courts because of the close relationship that exists between mental disorders and crime. Authorities like Dr. L. P. Gendreau, Deputy-Commissioner of Penitentiaries, estimates that twenty percent of criminals suffer a severe form of mental illness or are mentally deficient; that probably even a larger percentage are psychoneurotic—a milder form of mental illness.

The McNaghten Rules can be summarized as follows:

Every accused person is presumed to be sane at the time the crime was committed until the contrary is proved.

To establish a defense on the grounds of insanity it must be clearly proved that at the time of the crime the accused did not appreciate “the nature and quality” of his act or that what he was doing was “wrong.”

A person laboring “under a specific delusion but in other respects sane, shall not be accuitted on the grounds of insanity unless the delusion causes him to believe in the existence of some state of things which, if it existed, would justify his act.”

The specific objections which doctors have to the McNaghten Rules can lie summarized from the replies of eighty-six Canadian psychiatrists who were polled by Dr. G. H. Stevenson, until recently professor of psychiatry, University of Western Ontario:

First: The Criminal Code repeatedly uses the term “insanity.”

“This is entirely a legal term,” comments Dr. A. Crisp, a Toronto psychiatrist with wide courtroom experience. “No such illness exists; no such condition is ever mentioned in a modern medical textbook.” The correct terminology today is “mental illness,” “psychotic,” or “mentally deficient.”

Second: The Criminal Code holds that a man is sane and therefore responsible if he appreciates “the nature and quality” of his act or that the act was “wrong.” Dr. Kenneth Gray, professor of forensic psychiatry, University of Toronto, asserts that this test of sanity is

inconsistent with current medical thought. “The code only describes a test of intellect and memory,” he says. “Mental illness also involves the emotions. What good does it do the homicidal psychotic to know what he’s doing, or that what he’s doing is wrong, if he’s incapable of acting in any other way?”

Third: The Criminal Code speaks of an individual who is suf-

fering from “delusions” but is in “other respects sane.” Comments Dr. J. D. M. Griffin, director, Canadian Mental Health Association: “No psychiatrist has ever seen such a person. If he has delusions he’s mentally ill.” While the law does recognize that a man with severe delusions can be insane this is frequently canceled out by the over-all test of sanity stated earlier— knowing the “nature and quality” of his act and that the act was “wrong.”

In the same poll the psychiatrists were critical of our courts’ procedure for deciding the sanity of an accused. Psychiatric evidence, they felt, should be presented by a neutral panel of experts rather than by crown and defense witnesses who often give diametrically opposed opinions.

The final criticism—and the most controversial—is that juries of laymen are often incapable of making sense out of the reams of technical and conflicting evidence presented by psychiatrists. “The jury continues to flounder in its own incoherencies and mistakes,” says Dr. Rosario Fontaine, Quebec government medico-legal expert. Many medical men who favor the panel method of submitting psychiatric evidence believe the psychiatrists’ report should be discussed in front of the judge by the lawyers, without the jury being present, after which the judge could reach his own decision about the accused’s sanity.

On this point medicine and the law are in sharp and probably unalterable conflict. Departments of justice, judges and lawyers are opposed to limiting the powers of juries. “Trial by jury is the fundamental right of every citizen,” says C. R. Magone, Deputy Attorney-General of Ontario. “In the long run, juries make fewer mistakes than anyone else. When they do err, they err on the side of humanity.”

The Murder of Alice Alguire

The confusion inherent in our present system of deciding sanity is illustrated by the trials of Elias Meek, aged nineteen, who worked on the farm of Allan Alguire, near Cornwall, Ont.

On Sept. 28, 1951, Alice Alguire, the young wife of Meek’s employer, was found murdered. She was lying in a passageway that led from her kitchen to a shed. Her head had been bashed with a hammer and her abdomen had been stabbed several times. Beside her lay a butcher knife and a bread knife.

Meek, the quiet uncommunicative youth who had been the Alguire’s farm hand for two years, had disappeared. Police and farmers, armed with rifles, combed the swamps surrounding the Alguire farm. Their search came to an abrupt end at 4 a.m. when Meek, dirty, unshaven and blue with cold, gave himself up to the police. An hour later he had

signed a confession for the Cornwall Township Police which read in part:

I haven’t been getting along with Mrs. Alguire for two weeks... I went to the house...Mrs. Alguire was doing the washing...I don’t know what made me do it but I grabbed her and choked her. I had a hammer and hit her.. .She was lying down and near gone when I went to the kitchen and got two knives. One was a bread knife, the other a meat knife...

I stabbed her.

Later, asked by police why he took two knives, Meek explained, “One of them was dull.”

There was no apparent motive for this brutal murder. Only a short time before the crime Meek had told his brother how fond he was of both Mr. and Mrs. Alguire. It was only after the trials got under way that some light was shed on the inner workings of Meek’s disordered, saturnine mind.

The defense counsel, J. C. Horwitz, QC, of Ottawa, asked that the jury find Meek not guilty on the grounds of insanity. Meek, he said, was mentally ill and suffering with delusions. He imagined that Mrs. Alguire had been going about the countryside for some weeks , talking about him in a derogatory manner. Meek admitted he had no proof of this, but he was convinced that people were now looking at him “queerly” and that they regarded him as “crazy.” He felt that he had to kill her “before everybody knew.”

Horwitz’ claim was strengthened by the appearance of his client. For seven days Meek sat in the prisoner’s box, motionless, staring straight ahead, his mouth contorted, his complexion grey and waxy. He contributed only three words to the proceedings, and these only at his lawyer’s prompting. Qualified psychiatrists testified on Meek’s behalf. Dr. Victorin Voyer, a University of Ottawa psychiatrist, said he could only conclude that Meek was suffering with delusions. He was incapable of reacting emotionally to any situation. His past history suggested the schizoid type of personality; he was a shy, retiring youth and always had difficulty adjusting to other people. Voyer carefully noted the physical symptoms of catatonic schizophrenia in the prisoner. “No movements . . . hands cold, moist and clammy . . . waxy skin.” Dr. Gordon Lugsdin, Ottawa, gave the same diagnosis. “He guesses that it was the wrong thing to do, but he felt he had to do it. He had an increasing sense of urgency, which is sometimes seen in schizophrenics.” Dr. C. H. McCuaig, professor of psychiatry, Queen’s University, explained the nature of Meek’s delusions of persecution and concluded, “I feel that he is not to be considered responsible for his actions.”

Dr. McLean Houze, of the Ontario Mental Hospital, Brockville, testified that two of Meek’s sisters had been schizophrenic, one of them dying in mental hospital “stupored, hallucinated and confused.” A cousin and a maternal aunt were described as “psychotic.” Two weeks before Meek’s second trial, a young brother had hanged himself by the helt of his bathrobe.

Two psychiatrists, both on the staffs of Ontario provincial hospitals, testified for the crown. One, Dr. Charles Tennant, stated, “I saw nothing that made me think the man (Meek) was suffering from any mental illness schizophrenia or any other.” The other, Dr. J. N. Senn, declared

“I could find no evidence to make me think the man had been suffering at any time from mental illness.”

Meek was found guilty and sentenced to hang. Horwitz appeared before the Appeal Court of Ontario and described the verdict as “a miscarriage of justice” because “there was a preponderance of evidence proving that the accused was insane and suffering from delusions . . . and not responsible for his actions.”

Meek was granted a new trial. Again he was adjudged sane and guilty and sentenced to hang. Through the last-minute intervention of the Minister of Justice his sentence was commuted to life imprisonment.

It’s Difficult To Be Legally Insane

The legal tests used by the court to determine Meek’s sanity owe their existence to a famous murder which occurred in London in 1843. In that year, Daniel McNaghten, a Glasgow tradesman, murdered Edmund Drummond, private secretary to Sir Robert Peel, the Tory Prime Minister. For years McNaghten imagined that he was being persecuted, sometimes by the Jesuits, at other times by the Tories. He wrote letters to high officials seeking protection. To escape his tormentors he would often spend the night sleeping in the fields. Once his delusions led him to flee to safety in France. Finally he became so alarmed he felt that he must strike back before “they” took his life. For several days he kept vigil outside the prime minister’s office; then, seeing a man who he thought was Peel coming out of the front door he followed him for a few blocks and shot him dead. Although the victim turned out to be Drummond, McNaghten felt satisfactorily revenged.

A jury found McNaghten insane and the judge had him committed to a mental hospital. The verdict was an unpopular one and the House of Lords asked a group of prominent jurists to bring in a report on the matter of criminal responsibility and sanity. Their report known as the McNaghten Rules is the basis for determining sanity today in the courts of Great Britain, Canada and the United States. It has been a consistent target for attack, especially during the last fifty years with the growth of psychology and psychiatry. Lord Bramwell, the English jurist, once observed: “A person is rarely mad enough to be within the definition of madness laid down in the McNaghten Rules.”

It is the section of the law which decrees that a person with delusions can still be sane that is all-important because a large proportion of murderers are diagnosed as “schizophrenic—paranoid type.”

This illness follows a well-defined course. In adolescence the schizophrenic is shy, withdrawn, uncommunicative. The process of withdrawing within himself progresses as he becomes older. His emotions become blunted and he can discuss the greatest sadness or cruelty with a smile. Later he develops peculiar ideas, most frequently that someone is out to harm him. The patient becomes dangerous if the time comes when he feels that he has to strike a blow against his “tormentors.” Still later there may be a general disintegration of all mental functions.

A seriously ill patient with delusions can Continued on page 37

Stop Hanging The Insane


give all the appearances of normalcy. One psychiatrist tells of a patient—the wife of a wealthy broker—who could intelligently discuss any subject under the sun. However, the simple question: “What does your husband do in the basement?” revealed the true severity of her illness. She firmly believed that her husband concealed the corpses of women in the cellar; that he dismembered them and shipped them all over the country to people engaged in mysterious “experiments.” No amount of argument could dislodge her from this belief. These delusional ideas may some day lead her to commit an act of violence. Yet, strictly applying the McNaghten Rules, i.e. knowing the nature and quality of the act and that the act was wrong, such a person would be held by the law to be responsible for her behavior.

Such cases actually occur. A few years ago, Leslie Davidson, a twentynine-year-old musician, shot his girl friend in a downtown Toronto restaurant. The shooting took place just after the girl went to the telephone to take a call. As the defense psychiatrists pointed out at the trial, the accused had long suffered delusions of persecution. He now believed that his girl friend was planning to have him killed. The phone call, he believed, was to summon the two men she had chosen to do the job. The court asked, “Granted that the accused did have these delusions, why was it necessary for him to commit murder?” Why didn’t he flee? Or why didn’t he wait till his “attackers” arrived, then fight it out with them. In other words, a delusioned man was expected to act rationally. He was found guilty and executed.

Is a jury of laymen capable of deciding the issue of sanity? Or should the responsibility be placed in the hands of a neutral panel of psychiatrists?

Most members of the legal profession, such as Mr. Justice Dalton Wells, of the Ontario Supreme Court, vigorously defend the competence of juries. “I’ve never found a jury floundering,” he says. One of his colleagues, Mr. Justice Keiller Mackay, observes, “If a jury fails to appreciate the significance of evidence it might be well if counsel and judge in the case look to themselves to determine if they have properly discharged their duties.” Joseph Sedgwick, a leading Canadian criminal lawyer, says, “Juries bring in their verdicts according to common sense; psychiatrists tend to think that everybody is crazy.”

Psychiatrists favor the use of expert panels, because they believe, in the words of Dr. F. S. Lawson, “Jurymen are inconsistent, and are unduly swayed by the eloquence of lawyers and their own superstitions about mental health.” Dr. A. Crisp, Toronto psychiatrist, once gave evidence at a murder trial which featured “a battle of the experts.” Later, he says, one of the jurymen told him, “We didn’t know what to decide. We talked it over and finally decided to believe you because you had such an honest face.”

While they frequently disagree among themselves, some psychiatrists claim their inability to agree—and the consequent confusion among jurors—is partly due to the method now used of putting evidence. All too frequei>f' they admit, expert testimony*on a hurried and incomplet" tion of the mental heaP1

Take the case oF year-old Dona,,J

old man who made a practice of approaching women and indecently exposing himself. The magistrate later commented, “I don’t know who needs the examination the most—the prisoner or the doctor.”

An example of how expert medical advice can help the courts is provided by the forensic clinic of the Toronto Psychiatric Hospital. When a judge has doubts about a prisoner’s sanity he can have him committed to the hospital for several weeks of study and observation. Recently, the bizarre behavior of one prisoner was satisfactorily explained by the discovery in hospital of a well-concealed brain tumor.

If we liberalize the criminal code, will criminals escape punishment by feigning insanity? Most doctors and lawyers agree that an accused can seldom pretend successfully to be insane. Broadly speaking, the faker can choose to simulate one of two types of behavior— excited or depressed. In either case he’s usually taking on a job he can’t handle.

The faker who tries to stage an excited or manic phase usually can’t keep it up. The real sufferer is able to talk incoherently and go without eating or sleeping for days at a time; often he has to he kept alive by intravenous feeding. One faker, exhausted by two days of such behavior, abruptly ceased, gorged his food, and went to sleep for fourteen hours. The real sufferer, who may hear voices continually, is never able to relax. A faker who claimed these symptoms was observed by a psychiatrist to he reading quite comfortably and relaxed when he was alone.

Prisoners are more likely to attempt imitating a depressed state because it seems easier. However, what the faker can’t reproduce are the accompanying bodily characteristics—dry hair, anaemia, constipation, subnormal tempera ture and accelerated pulse.

Told Cloak-and-dagger Yarn

The faker usually has shown no signs of insanity before his crime. Again, he’s often naive enough to point to his head and complain that he’s nutty. The mentally ill person, on the other hand, is usually quite satisfied that he’s sane and resents any suggestion to the contrary. One of the few cases where mental abnormality was successfully simulated involved a professional actor who had at one time worked in a mental hospital. He could imitate an epileptic seizure right down to the lasl bodily twitch.

It is probable that cases of feigned sanity are more frequent in the annals of Canadian homicide than feigned insanity. Prisoners in this category commit a crime and then are only too anxious to pay for it with their lives. “It’s an involved way they have of committing suicide,” comments psychiatrist Crisp. Not only does society have to be protected against such individuals; they need to be protected against themselves. A recent illustrative case was that of Harry Lee, aged thirty-seven, of Hamilton, Ont.

A garage owner living on a highway about forty miles from Hamilton was attracted by the blowing of a car horn early in the morning of June 2, 1952. He went to the car and found Lee bleeding profusely in the front seat. In the back seat was the body of Mrs. Mary Rosenblatt, her chest pierced by two bullets.

Lee told police a fantastic cloak-anddagger story involving two strangers who kidnaped Mrs. Rosenblatt and himself and terrorized them for two days. Later, he was to give two other versions—each one more elaborate and improbable than the preceding one.

a movie called The Sniper twelve times, he accosted two teen-age girls on a downtown street and wounded one of them with a rifle. Later, concealed on top of a billboard, he wounded two other people at the entrance to a restaurant.

Fisher had spent all but six months of the eleven years before the shooting in mental hospitals where he had been diagnosed as “mentally deficient with schizophrenia.” Why had he shot at the girls? “I’m mad at girls,” said Fisher. “I hate them. Once I offered a girl a piece of gum and she took two

pieces.” Why had he singled out the restaurant as a target? “There was a fellow in there I wanted to get. I was going to shoot everyone who came out of there until I got him.” Lately he had been troubled with voices who said, “Get them before they get you!”

As a preliminary to Fisher’s trial the issue of his fitness to stand was debated in court. A crown psychiatrist expressed the opinion that, as a result of his examination, the accused was well able to follow the proceedings and instruct counsel in his defense. Two defense psychiatrists, armed with

Fisher's hospital records, gave contrary testimony and the jury decided the trial should not go on. Fisher is now in a mental hospital.

In most magistrate’s courts, where less serious criminal cases are heard, the mental examination of prisoners is often so haphazard as to be practically worthless. The local prison doctor, to whom the investigation is entrusted, is usually not a trained psychiatrist. Rarely does he report that the prisoner is not “sane and normal in every respect.” In an Ontai'io city recently one such doctor reported favorably on an


John Agro and Gerard Kennedy, Lee’s lawyers, were amazed to find that their client really believed the stories he told. They suggested a plea of insanity. Lee became indignant. “I’ll have nothing to do with it,” he said. He refused to be seen by doctors or psychiatrists and was found guilty and sentenced to hang. An appeal for a new trial ended in failure. Dr. Arthur Doyle, a prominent psychiatrist whom Lee agreed to see after his trial, reported that the prisoner had “a paranoid type of illness” and seriously questioned his sanity. A plea for clemency to the Minister of Justice was rejected and Harry Lee walked to the gallows, singing and smiling.

If our courts required a compulsory mental examination of all those facing a serious charge the outcome of the Lee case might have been different.

Closely allied to feigned insanity is j.he plea of temporary insanity, which Includes a variety of conditions such as amnesia, blackout and irresistible impulse.

Our courts are frankly sceptical when a lawyer pleads that his client committed murder or assault while he was temporarily insane and didn’t know or couldn’t remember what he was doing. This scepticism is shared by the medical profession. Dr. Frederic Wertham, one of New York’s leading psychiatrists, says, “Temporary insanity is a nonexistent condition arising from a defect in the law. It is used in any case lacking a better defense.”

There are bona fide mental conditions where the person commits a violent act when in a state of clouded consciousness. But any attempt to explain a crime by the way of “a blackout” in the absence of a convincing history of mental illness is apt to end in failure. Frank Kasperek, who operated a farm near St. Catharines, Ont., found that out.

Police had arrested Kasperek at nine o’clock on the morning of June 28, 1950. At the time he was choking his wife and shouting, “I’ll kill you.” Kasperek’s lawyer pleaded that his client had experienced a temporary blackout between the hours of eight and nine-fifteen that morning. A psychiatrist testified that Kasperek had been in a depressed state. Two crown psychiatrists, who had observed Kasperek in hospital before the trial, stated that there was no possibility of amnesia during the crime. Was Kasperek lying? Not necessarily. One of the crown witnesses explained it was possible that Kasperek was so revulsed by his crime that he had successfully repressed the memory of it. Kasperek Was sentenced to ten years in prison.

The Ontario Court of Appeal reduced

his sentence to three years but refused him a new trial. “Impulsive insanity is the last refuge of a hopeless defense,” observed Justice Bowlby in handing down the court’s decision. “There is no such defense and such a defense should not be recognized in our courts.”

The law is similarly unyielding when an accused pleads that his crime was committed in response to an “irresistible impulse.” The most outspoken declaration against the “irresistible impulse” defense in Canada was made by Justice Riddell in the case of Rex vs. Creighton in 1908: “The law says to men who say that they are afflicted with an irresistible impulse, ‘If you cannot resist an impulse in any other way, we will hang a rope in front of your eyes and perhaps that will help. ’ ”

When Dr. C. H. Stevenson polled Canadian psychiatrists they were overwhelmingly against legalizing the irresistible impulse as a defense.

What happens to a person accused of murder who is found not guilty on account of insanity?

The practice is to commit him to a mental hospital where he remains at the pleasure of the lieutenant-governor; this generally means incarceration for life. To the doctor who recommends the discharge of such a patient from hospital because he has recovered, the provincial attorney-general usually asks, in effect, “Can you give me a foolproof guarantee that this man will not commit murder again?” No such guarantee can be given. Indeed, when one attorney-general asked for such an assurance the psychiatrist turned to him and said, “I can’t even guarantee that the attorney-general won’t commit a murder some day!”

Many psychiatrists believe this policy is unnecessarily severe. With modern treatment many mental patients fully recover, including some who have committed murder. A young man of twenty-one was committed to a Saskatchewan mental hospital after he had murdered his sweetheart. After a few years the hospital director was convinced that the boy was completely normal. For three years the director tried unsuccessfully to get him discharged. He pointed out that the exmurderer was cheerful, constructive and sociable. He had learned to be a dental technician in the hospital clinic and the dentist referred to him as his most valuable employee. Finally, in desperation, the director permitted his patient to take a jób as technician with a prominent dentist in a nearby city. The patient would go to work every morning and return to the hospital at night. He made good at the job and, at the end of two years, had saved several hundred dollars. Ft was only after the director was able to point out that his patient had been living in society successfully for two years that his release was obtained.

We have learned a great deal about the human mind since the McNaghten Rules were introduced one hundred and ten years ago. That is why the Canadian Mental Health Association recently suggested to the Parliamentary Committee on the Revision of the Criminal Code that the sections dealing with sanity are in need of modernization. This view is shared by some Canadian lawyers but by no means all. Similar requests have been made in the United States by the American Medical Association and the American Bar Association. The advocates of reform believe that law and medicine must co-operate in the task of rewriting the present laws. Such a step, they claim, will eliminate much of the present confusion, protect the mentally ill prisoner from himself and also help to safeguard the community in which he lives, ic