Criminal Liability & Mental Illness: A Clash of Minds, Media, and Parliament

The Role of the Review Boards

Once an accused is found NCR, they fall under the authority of the province (or territory) and will receive treatment until such a time as they no longer pose a threat to society. The ultimate goal is to reintegrate the individual into society, while weighing the safety of the public against the rights of the accused. The provincial authority is embodied by the Review Board whose purpose is to review and modify dispositions to NCR offenders. Review Boards are administrative courts specialized in mental health and criminal law which require the presence of at least one psychiatrist and/or a physician with a different specialization, in addition to a mental health practitioner. The Review Board must set dispositions for the accused on a yearly basis, taking into account public safety, the mental condition of the accused, and the goal of societal reintegration. In Winko v BC, the accused posed a section 15 (equality under the law without discrimination) Charter challenge of section 672.54 of the Criminal Code, claiming that it placed an unfair burden on the accused to disprove dangerousness as failing to do so could lead to indefinite detention – reminiscent of the NGRI’s lieutenant governor’s discretion. The SCC rejected this argument but specified that the Review Board must order the least onerous and restrictive disposition available, unless the accused poses a significant threat to the public. Ultimately, following Winko the SCC stipulated that “[if] the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely.”

Shift in NCR Policy

In 2005, however, a shift in policy (Bill C-10) began affecting the NCR regime, where victims’ rights were bolstered at the expense of offenders’ liberty. For instance, Review Boards now had to inquire whether the victim knew about their right to submit an impact statement and could potentially adjourn the hearing if this right had been infringed by not informing them of their right to submit said statement. Importantly, the Review Board could now extend hearings by up to two years for offenders charged with a serious personal injury offence in detention and who were not considered likely to show behavioural improvement. This policy trend found public support following a series of brutal offences (often involving the killing of children) and wide-spread media coverage of the perpetrators’ NCR proceedings. The visceral reaction is understandable given the brutal and shocking nature of the index offences being publicized, however, it is important to consider that these cases are of extremely rare occurrence: approximately 1 in 1000 cases are found NCR and 10% of these are for violent offences.

In response to increased public fear, parliament adopted a tough-on-crime approach such as 2014’s Bill C-14’s introduction of a high-risk accused designation for persons with mental illness who have committed a serious personal injury offence and representing an increased likelihood of future violence. Furthermore, at Review Board hearings, the status of high-risk prevents the accused from obtaining any type of non-medical related leave from the hospital or detention centre. The new legislation increases the permissible interval between review hearings to a maximum of 36 months rather than the usual annual review given for other NCR individuals. Finally, once the Review Board is satisfied that the accused no longer poses a substantial risk, they must refer the case to the Superior Court for review, which is the only court with the power to revoke the high-risk status.

Three years since its introduction, no court has yet given an NCR offender the high-risk status. Most notably, the case of Mr. Schoenborn, who was found NCR in 2010 for the killing of his three children, has set a precedent in the applicability of the new designation. In 2015, the Crown petitioned the Supreme Court of British Columbia to have Mr. Schoenborn designated as a high-risk accused. The Court avoided ruling on this new piece of legislation by claiming that it did not operate retrospectively. However, in 2017, the Crown once again applied to have Mr. Schoenborn found high-risk, and this time, the Court ruled that the dangerousness of the accused must be assessed at the “present” time. Therefore, even if “high-risk” was introduced in 2014, the statute was not applied retrospectively.

In 2005, however, a shift in policy began affecting the NCR regime, where victims’ rights were bolstered at the expense of offenders’ liberty.

There is little doubt, however, that eventually an NCR offender will be labelled high-risk and this is likely to bring forth many of the same Charter challenges as the initial NGRI regime (i.e., s.7, s.9, s.15). In addition, it is fair to assume that an increasing “high-risk” designated population would strain current facilities and associated resources due to their long-term mandatory detention. These changes appear to stem from a change in the past fifty years that witnessed a shift from institutional care (such as psychiatric wards) toward community-based intervention in mental health. However, lack of community resources, and increasingly complex clinical and psycho-social profiles resulted in many individuals in need of institutional care coming instead in contact with the criminal justice system.

Loïc Welch is an Online Editor of the McGill Journal of Law and Health and a first-year B.C.L./LL.B. student at McGill University’s Faculty of Law. Loïc holds a M.Sc. in Forensic Psychology from Maastricht University (Netherlands), was a research assistant at the Douglas Mental University Institute in Montreal, and interned at the Professional Clinical and Forensic Services, a part of the Institute on Violence, Abuse, and Trauma in San Diego, California.