"Miscarriage of justice:" the trial of Donald Kushniruk

In Jan. 2012, a mentally ill Edmonton man spent two-and-a-half years in custody for a crime that netted a seven-day sentence. Advocates say his case and eventual suicide are symptoms of an overburdened justice system not designed to deal with mental illness.
Donald Kushniruk, shown on the left in a family photo and on the right in a note he carried around with him years later. His family said that his mental health deteriorated swiftly before he committed suicide in custody last year. (Photo illustration. Photos supplied)

On Jan. 31, 2012, Donald Kushniruk was sentenced to seven days in jail for pulling a knife during a disagreement in an Edmonton dog park, and for obstructing the police officers who came to arrest him.

For that week-long sentence, Kushniruk -- a man with no criminal record who was struggling with mental illness -- spent more than two-and-a-half years in custody, trapped in an overburdened criminal justice system not well-equipped to deal with mental illness.

It was within this system that he would later take his own life.

“He was an amazing person and to live your life the way he did for the last few years -- that wasn't Don. He wasn't a criminal,” said Sheila Hallett, Kushniruk’s ex-wife.

The Chief Justice of the Provincial Court of Alberta calls it “one of the worst (and saddest) examples I have come across in my time on the bench."

Hallett remembers the person Kushniruk used to be: a good listener and an attentive father to the couple’s two children. He was an intellectual man who once woke the family up in the middle of the night so that they could watch a meteor shower.

“When I think about Don, I think about how smart he was, how talented he was,” she said.

“He took pride in things that he did and he wanted them done right.  He was a lot of fun.  He had a good sense of humour.”

"I didn't want to be at home”

The turning point, she says, came when someone broke into Kushniruk's car using a crowbar. After that, he became obsessed with self-defence law. He would pore over Canada’s Criminal Code to learn what legal rights people had when it came to protecting their property -- and what weapons could be used.

“And he just started getting deeper and deeper into this. To the point where he was just manic.”

Kushniruk's ex-wife and daughter say he was an intelligent, talented man who declined quickly following a diagnosis of bi-polar disorder. (CBC)

Kushniruk continued to spiral. He was eventually diagnosed with bi-polar disorder and spent a month in hospital. But he worsened when he returned home -- Kushniruk refused to take his medication, saying that he did not like the way that it made him feel.

His focus on self-defence remained. Erin Kushniruk says her father’s behaviour started to put a strain on her entire family.

“I didn't trust him anymore. Sometimes he was good, then other times he would do things I just thought were completely wrong,” she said.

“One time I had my friend over and we were probably in Grade 8 or 7. He went on a rant and started talking about how we needed to learn to defend ourselves. Then he ended up pushing me against the wall and my friend started crying. I didn't want to be at home.”

Eventually, it became too much for the family. Sheila Hallett left Kushniruk, taking Erin and her brother to a new home.

Two years and seven months

In June 2009, Kushniruk got into an argument with another man in the parking lot of a public park in west Edmonton. During the exchange, Kushniruk pulled out a knife, which he referred to as his “educational tool” and began waving it around.

Police were called in to subdue him. Court transcripts show that Kushniruk punched and kicked two officers before they got him in handcuffs. On him, police found a note stating that he did not consent to being touched and saying that he had been assaulted for "attracting attention to law."

He was taken into custody, where he would spend the next two years and seven months of his life.

See the documents

 "...a gross miscarriage of justice" - Appeal lawyer Peter Royal's letter to the Chief Judge

"...one of the worst (and saddest) examples I have come across..." - The judge's response

Kushniruk wanted to defend himself from the charges, but was clearly mentally ill. The court appointed a lawyer to help him with the case, but Kushniruk didn’t like his counsel, so the case dragged on.

It was delayed again when the defence lawyer helping Kushniruk became sick. And further still when the judge presiding over the case had surgery. The Crown argued in a subsequent appeal that many of the delays were due to outbursts from the defendant and that lawyers on both sides underestimated the time the trial would take.

The whole time, Kushniruk remained in custody. Neither he nor his lawyer had applied for bail.

Eventually, 31 months after his arrest, Kushniruk was sentenced to seven days for assault and obstructing police. The judge dismissed a charge of assaulting a police officer.

If he had been convicted of all the charges, he would have faced a maximum of six months in jail. 

Kushniruk served the seven-day sentence and was released. But Hallet says he never really recovered from the incident.

“Two years and seven months later, he'd lost his job, he'd lost his family, he lost his home, he lost his independence. And you know in the end, I think he was just tired of fighting.”

In May 2013, Kushniruk got into a disagreement with his probation officer and was charged with criminal harassment and failure to keep the peace. He was sent back to the Edmonton Remand Centre.

Two weeks later, he killed himself -- the first person to die in the newly-constructed remand complex.

A system under strain

Peter Royal, the lawyer who was handling Kushniruk’s appeal at the time of his death, brought attention to the case in a letter written to Chief Judge Terry Matchett.

He called the trial "a gross miscarriage of justice" and criticized the handling of the case by the presiding judge.

Advocates say there are many cases similar to Kushniruk’s in the justice system. Chris Hay, Executive Director of the John Howard Society of Alberta, says the system isn’t set up to handle many cases involving mental illness.

“For me it is one of the most extreme I've heard. I'm very saddened. His story is horrific. There's no one necessarily at fault here. There's not necessarily an individual in my opinion who is at fault. It's the system that broke down for this person,” he said.

“But there are many people like him who may not have such an extreme story, but who should not be going through the current system of justice.”

Chief Justice Matchett responded to the letter from Kushniruk’s appeal lawyer, agreeing that the system had broken down in the case.

“While I believe a culture of delay permeates our criminal justice system and that delays plague many of the cases before our Courts, this case is certainly one of the worst (and saddest) examples I have come across in my time on the bench,” he wrote.

“In spite of the fact that an accused with no criminal record was in custody awaiting trial, it does not appear that the participants in this trial were sufficiently focused on moving this matter along in a reasonable manner.”

Matchett also promised a committee would look into delays in the system, as well as a pilot project in the Edmonton courthouse that aims to speed up certain cases.

Because Kushniruk died in custody, a fatality inquiry by the province is mandatory, although a date has not yet been scheduled. 

Any changes in the system will come too late for Donald Kushniruk. But Hallett hopes that his death, and the attention on the case, will mean a different outcome for other defendants with mental illness.

“To watch somebody you love go through that is just hard,” she said.

“And if people if can be helped by us talking about this, then good.  Because things need to change for people with an illness."

Story and reporting by Janice Johnston/written by Scott Lilwall