Posted By Sabrina Mach & Katarina Daniels
At this year’s annual MJLH colloquium, six distinguished speakers presented their perspectives on the Not Criminally Responsible Reform Act, which received Royal Assent on April 11, 2014. The speakers were, in order of presentation: Dr. Patrick Baillie, Mental Health Commission of Canada; Dr. Renée Fugère, Institut Philippe-Pinel de Montréal; Dr. Archibald Kaiser, Schulich School of Law and Department of Psychiatry at Dalhousie University; Officer Michael Arruda, Service de police de la Ville de Montréal; Dr. Hy Bloom, Adjunct Professor at the University of Toronto’s Faculty of Law and Assistant Professor in the Department of Medicine; and, the Honourable Justice Mr. Richard Schneider, Chair of the Ontario Review Board. The Colloquium was moderated by Professor Alana Klein from McGill’s Faculty of Law.
The speakers each began their presentations by highlighting the amendments to the Criminal Code brought by the Not Criminally Responsible Reform Act, and critically analyzed the new Act’s merits and pitfalls. There was a general consensus that the reform was unnecessary, that it was not research-based, and that it would generate more problems than solutions – as Justice Schneider argued, the Act is a “bad solution to a problem that does not exist”. The speakers also presented reform paths that would better protect Canadian society, the underlying goal of the Act.
Important changes brought by the Not Criminally Responsible Reform Act
The Not Criminally Responsible Reform Act amends the Criminal Code’s mental disorder regime. In particular, the Act targets the Not Criminally Responsible (NCR) defence. As explained by Dr. Baillie, the defence is available to any accused suffering from a mental disorder that renders him or her incapable of appreciating the nature and quality of the criminal act.
According to the federal government, the Act is part of their commitment to “protecting victims of crime and to making streets and communities safer for Canadians”. This is evident in the Act’s first major amendment: identifying “safety of the public” as the primary concern in court and Review Board decision-making processes relating to NCR accused. Our speakers suggested that the link between the mentally ill and public security was created by the Conservative government in response to the recent highly sensational cases of Vince Li, Guy Turcotte and Allan Schoenborn – mentally ill individuals who committed horrific acts. Indeed, as Dr. Kaiser pointed out, the Conservative Party’s “Tough on Crime” website uses Vince Li as a poster boy for NCR reform.
The reform also creates a high-risk designation to protect the public. “High-risk” NCR accused will be held in custody in a hospital and will not be released by a review board until the courts revoke the designation. Additionally, a high-risk NCR accused would not be allowed unescorted visits into the community. Dr. Fugère noted that these leaves are an important part of therapy, but left unanswered whether the treatment process would be seriously compromised by this change.
Lastly, the reform enhances the rights of victims. Dr. Fugère clarified that victims are now notified when an NCR accused is discharged absolutely or conditionally, and can also be informed as to where the accused eventually resides. Officer Arruda argued that this change perpetuates stigma of the most vulnerable in society. He also made this striking comparison: individuals who have not been found guilty of a crime will have their private information shared with victims once they have been reintegrated into society, while individuals who have been found guilty of sexual assault crimes maintain their privacy.
Merits and Pitfalls of the Not Criminally Responsible Reform Act
The speakers all agreed that concern for public safety should be paramount in any legislation, but that the Act did not meet this goal. The main criticisms were: it is unjustified and unnecessary, it increases stigma in society, it creates financial problems for hospitals and provinces, and it reduces the support given to the mentally ill.
First, all speakers agreed that the new Act was not driven by sound research and policy. Dr. Fugère claimed that it is a purely political response void of any evidentiary support. Dr. Kaiser argued that it is unnecessary given the incremental progress that had been made under the previous reform following Swain. Interestingly, Justice Canada did commission the Mental Health Commission to prepare data on NCR accused before the bill was drafted. According to Dr. Baillie, however, the data was seemingly ignored: NCR findings occur in less than 1.8/1000 criminal cases in Canada and the recidivism rates of NCR accused are very low. The new legislation might therefore apply to fewer than 7 cases per year in Canada.
Second, many of the speakers emphasized the added stigma from the new “high-risk” designation. Dr. Bloom noted that with the new designation, there is now the possibility of “quadruple stigma”: they are deemed psychiatric patients, forensic patients, criminals, and possibly high-risk accused as well. Officer Arruda also explained that it is illogical to give a title to the NCR when criminals are not given one. This stigmatization will make it more difficult for NCR individuals to reintegrate into society.
Third, the Not Criminally Responsible Reform Act will be very costly to implement. All “high-risk” accused will be forcibly detained in hospitals. As a result, the number of hospital beds will have to increase – at a cost of $500 to $700 per day, according to Dr. Bloom. Dr. Fugère highlighted the need for more psychiatric experts in hospitals to treat these patients. These costs will fall on the provinces, which are responsible for health services.
Finally, the “high-risk” designation is said to worsen rather than improve the support given to the mentally ill. Justice Schneider calls this implication the real problem and grand irony of the Act. The new designation will discourage mentally ill individuals from entering the NCR system due to the mandatory detainment provision. Consequently, they will choose to go to prison instead, where they will not get the proper care required. This lack of treatment will in turn increase the probability of recidivism once these individuals are released. In Ontario, for example, Justice Schneider noted that there has been a 20% drop of NCR cases since the introduction of the new Act. The reform thus has the indirect effect of deteriorating the care available to the mentally ill, defeating the goals of the legislation.
Alternate paths of reform
The speakers suggested alternatives to the Act that would better respect the rights of the mentally ill and better protect society. Dr. Kaiser suggested that we should strive as a community to improve the condition of the mentally ill: law students should be encouraged to do pro bono work in the criminal justice system, and we should build on the foundations of human rights law for the mentally ill by ensuring that Canada respects its responsibilities under the UN Convention on the Rights of Persons with Disabilities and ratifies the Optional Protocol. Dr. Kaiser also advocated for resistance to the Act, encouraging everyone to write to his or her local MPs.
Justice Schneider argued that in order to reduce the number of criminal offences by NCR accused, the civil system should treat mental illnesses before they deteriorate to a point of criminality. He explained that prior to committing a criminal act, many accused were already in contact with civil mental health institutions. He considered a forensic patient to be a failed civil patient. Additionally, Dr. Kaiser and Dr. Baillie noted a correlation between poverty, mental illness and crime, and suggested a need to intervene on that level.
What to expect?
Our panel of experts agreed that we should expect a lot of Charter litigation in the future. Justice Schneider asserted that the Supreme Court of Canada will turn this Act around when it gets the opportunity. However, the opportunity for Charter litigation seems limited: to date, the amendments to the Criminal Code have only directly affected one individual. Additionally, many provinces have ordered their Crown Prosecutors not to seek “high risk” designation until the issue is resolved by the Supreme Court in order to avoid the high costs of potential Charter litigation. It remains to be seen when and whether the Act – as a whole, or in part – will be overturned.
Thank you for reading our recap. The recording of the event can be found by clicking this link. We hope to see you at the next MJLH Colloquium in 2016!
McGill Journal of Law and Health 