The recent arrest of Talya Davidson, videotaped spitting and making racist and “patriarchal” comments while holding a sign supporting Conservative party leader Andrew Scheer, has raised many legitimate concerns about potential “fake news.”

Davidson’s digital footprint shows deeper connections to the political left than to Scheer or the Conservatives and her Facebook profile was almost entirely deleted prior to her single person “protest” and arrest.

Davidson was arrested for assault, for spitting at the photographer, as captured on video, as well as for allegedly assaulting police officers. The first court appearance is covered by an automatic publication ban, which protects Davidson’s right to a fair trial, but it was reported that her case was also moved to “mental health court” with the next appearance scheduled for September 12, 2019.

As with any other accused, Ms. Davidson has the right to a fair trial based on the facts of her case. Her mental health is currently being assessed and this may affect both her fitness to stand trial and whether or not she can be held criminally responsible.

Legal expert Joseph Neuberger, spoke with The Post Millennial about how Davidson’s mental health assessment may impact her trial. Aside from being an experienced criminal defence lawyer, Neuberger has also authored a book called Assessing Dangerousness: A Guide to the Dangerous Offender Application Process which addresses the role of mental health in criminal liability. He offered the following insight:

“I think it’s very important for the integrity of the process, and out of fairness to this woman, that if she has been referred to mental health, or there is obviously some basis for concern that she is suffering from some mental disorder, hopefully through the mental health court she’ll have an assessment done by a forensic psychiatrist. And if it is determined that she’s suffering from a mental disorder it may very well be that disorder was operative at the time of her behaviour.”

Neuberger said that the woman’s statements and actions, if mentally ill, “may not be a reflection of her true beliefs, it may be a reflection of her aligning with viewpoints that are out in the media that may be prominent in her mind.” Neuberger said “it’s way too early to make judgments as to whether she was doing this as political motivation.”

Neuberger also pointed out that Davidson was charged with not just assaulting the cameraman who was filming her, but also for assaulting police officers and a person in court and that “that behaviour is going well beyond the pale.” He pointed out that her behaviour was escalating after arrest and that indicates serious concerns about her mental condition.

There is a common concern that people accused of a crime may claim mental illness to escape responsibility for their actions but Neuberger, who is experienced in cases of mentally ill offenders, pointed out “using mental illness as a way to get out of a crime makes no sense to me.” He said “when you’re being assessed, you’re in a locked facility and if you’re found not criminally responsible you may very well wind up going back to a locked facility. And so these are not free cards out. There are serious, prolonged consequences for it.”

Further to that, Neuberger added that, in cases of mental illness, we have to treat people with legitimate mental health problems differently than those who commit crimes with proper awareness.

When Davidson receives a mental health assessment, they will determine not only if she has a mental illness but whether or not it was operative at the time of her actions.

In terms of the upcoming legal process, Neuberger said “If, hypothetically, someone had a disability that was operative at the time and it robbed them of the ability to appreciate the nature and consequences of their act, or that it was morally wrong and legally wrong, then the trial could be very truncated.”

Having seen the video from Nathan Phillips Square, Joseph Neuberger acknowledged “spitting is an assault and it’s captured right on camera so it’s very hard to defend that from a criminal law standpoint” but said that he felt the video showed there were serious questions about Davidson’s mental health.

Neuberger said one of the things the court would react to is whether or not Davidson was able to instruct counsel or understand what was happening in court. Her fitness to stand trial is separate from assessing her mental health at the time of the offences.

Neuberger said that, from his experience, “there is a lack of understanding about how profound mental illness is and how mental illness is a very serious force in people committing acts that are criminal in nature” and the public sometimes incorrectly sees this as a “get out of jail free card.” He emphasized that we have to avoid demonizing people who suffer from mental health disabilities that legitimately impact their actions and understand it’s just like having any other physical illness that may impact the way a person behaves or functions.