The Not Criminally Responsible Reform Act : a Recap of the MLJH annual Colloquium

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.

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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!

The MJLH’s 7th Annual Colloquium: Dr. Archibald Kaiser on Mental Health Courts

Posted By Stephanie Hewson

Dr. Archibald Kaiser is a panellist at this Saturday’s Colloquium on the Not Criminally Responsible Reform Act. Dr. Kaiser is a professor at Dalhousie University in the Faculty of Law and an Assistant Professor in the Department of Psychiatry. Dr. Kaiser’s work focuses on the intersection of mental disability law with the criminal justice system.

Dr. Kaiser recently examined the “proliferation of mental health courts” across Canada. Mental health courts exist in most major urban centres in Canada as a means of diverting people with mental health issues out of the regular justice system, towards a “therapeutic conception of justice.” While Dr. Kaiser recognizes the commitment of lawyers, judges, social workers and mental health workers who staff mental health courts, he raises serious concerns about their role in perpetuating historical stigma, segregation and paternalism towards people with mental health issues.

Dr. Kaiser criticizes the coercive nature of the criminal justice system, even in the form of specialized courts, as a means of forcing treatment, including medication, on the accused. He writes that “mental health courts acquire the mantle of beneficence, but they function as another source of social control without addressing foundational issues.” Instead, Dr. Kaiser advocates for a rights-based approach to disability that focuses on self-determination, access to services and social inclusion.

The new Not Criminally Responsible Reform Act promises Canadians that “public safety comes first” on decisions about accused people found not criminally responsible or unfit to stand trial – indicating the continuation of segregation and social control, rather than movement towards disability rights and social inclusion. The MJLH is eager to hear directly from Dr. Kaiser on the implications of the Act on the future of mental health in Canada.

For more information on the MJLH Colloquium, and to read up on our other distinguished speakers, click here.

The MJLH’s 7th Annual Colloquium: What is the Mental Health Unit for Women Serving a Federal Sentence?

Posted By Lauren Hanon

The McGill Journal of Law and Health is hosting its 7th annual Colloquium this coming Saturday, February 21st. The topic of this year’s colloquium is: “The Not Criminally Responsible Reform Act: Mental Health and the Law.” With many great speakers and participants lined up, one notable contributor this year is Dr. Renée Fugère. Fugère is the Executive Director of the Philippe-Pinel Institute of Montreal, a hospital and center for research and teaching.

One of Fugère’s current projects with the Institute is the Mental Health Unit for Women Serving a Federal Sentence. The services offered to women serving a federal sentence by the Unit include psychiatric care and treatment through individual and collective therapeutic strategies. The treatment for each patient is aimed at addressing her specific and individual mental health needs, and offering women the type of necessary care that prisons simply do not seem capable of. The program thus seems extremely promising for any woman suffering from mental health issues who is serving a federal sentence.

How does a female detainee access the program?

There are two requirements for a female detainee to be admitted into the program: 1) the institution in which she is detained must request that she be assessed by the Philippe-Pinel Institute; 2) the needs of the female detainee, in terms of psychiatric care, must be too much for the institution itself to handle. There is also a voluntary aspect of this program for women who suffer from a severe personality disorder.

Is the program large enough to accommodate all women suffering from mental illness?

The program has approximately 15 beds and accepts women from across Canada. A detainee may stay for a maximum of 12 months.

A question that immediately pops up is whether this is enough for women suffering from mental health issues who are serving sentences. If not, are there other similar programs elsewhere in Canada? How many are there and how many women do they serve?

Other questions that I hope to see answered at the Colloquium this Saturday include: What quality of care do women receive within their institution before they would qualify for such a program? What does it mean for women to serve a federal sentence and be suffering from mental illness at the same time?

If you too would like to find out more about Dr. Fugère’s wonderful initiative, be sure to join us this Saturday, February 21st at the MJLH’s 7th annual Colloquium.

For more information on the MJLH Colloquium, and to read up on our other distinguished speakers, click here.

The MJLH’s 7th Annual Colloquium: Come listen to Justice Schneider on Bill C-14

Posted By Sabrina Mach

The adoption of Bill C-14, the Not Criminally Responsible Reform Act, has been met with much criticism. Amongst those skeptical about the Act’s effectiveness is the Honorable Mr. Justice Richard D Schneider, Justice of the Ontario Court of Justice and Chair of the Ontario Review Board. During the Standing Senate Committee meeting to consider Bill C-14, Justice Schneider explained his skepticism towards the bill and highlighted that his biggest concern with the reform was the addition of the “high-risk offender” provisions.

Important change brought by Bill C-14

With the new reform, accused persons who are found not criminally responsible (NCR) but who the Court believes will pose a higher risk of committing future acts of violence will be held for up to three years in custody in a hospital, and will not be released by a review board until the high-risk designation is revoked by the court. Prior to the bill, review boards were given more freedom; they could order the NCR individual to remain in the hospital, they could order a conditional or complete discharge, etc.

Given that he sits on the Ontario Review Board, it is not surprising that Justice Schneider would be critical of the reform, since the “high-risk offender” provisions encroach on the review board’s ability to assess NCR individuals. However, the criticisms that Justice Schneider raised during the Senate Committee run much deeper than simple encroachment of power.

Criticisms of the high-risk offender provisions

First, Justice Schneider argues that high-risk offender provisions are not applicable to most accused in Canada. They only address a small group of highly mediatized outliers, such as Vincent Li, Guy Turcotte and Allan Schoenborn.

Second, Justice Schneider asserts that changes should not be made to a system that is not broken. Evidence clearly demonstrates that the previous review board scheme worked extremely well and greatly reduced the probability of recidivism.

Finally, Justice Schneider emphasizes that the Bill C-14 might actually make things worse for the mentally disordered, not better. Given that those classified as NCR high-risk offenders run the chance of being locked up in a secure psychiatric facility for up to three years with no review, some mentally disordered individuals might choose not to raise the defense of NCR. The problem with not raising this defense, however, is that these individuals will end up in prison, which will prevent them from receiving proper treatment or assistance for their disorder, and thus increase their chances of recidivism.

Conclusion

Justice Schneider raises numerous compelling criticisms regarding Bill C-14. One of the main reasons why his arguments are so persuasive is because they are influenced by personal experience. Being the Chair of the Ontario Review Board as well as a former defense lawyer for the mentally ill, Justice Schneider is an expert in his field. It will be very interesting to hear him speak at the MJLH’s Colloquium on Saturday, February 21st, 2015.

For more information on the MJLH Colloquium, and to read up on our other distinguished speakers, click here.

MJLH Student Recruitment 2014-2015 / RDSM Recrutement d’étudiants 2014-2015

Posted By Katarina Daniels

The application forms for editorial, managerial, online and submissions and solicitations editor positions are now available online. The deadline for applications is September 17.

Should you have any questions about the journal or the application process, please do not hesitate to contact us at: editor.mjlh@mail.mcgill.ca or manager.mjlh@mail.mcgill.ca.

Jennifer Anderson, Editor-in-Chief, vol 9

Hersi Hujaleh, English Executive Editor

David Hamel, French Executive Editor

Samantha Allen, Executive Managing Editor

Katarina Daniels, Executive Online Editor

 


Les formulaires de candidatures pour les postes de rédaction, d’administration, de rédaction web, et de sollicitations et d’abonnements sont disponibles en ligne.

La date limite pour la soumission de candidatures est le 17 septembre.

Si vous avez des questions sur la RDSM ou sur le processus d’application, n’hésitez pas à nous contacter à: redacteur.rdsm@mail.mcgill.ca ou manager.mjlh@mail.mcgill.ca.

Jennifer Anderson, Rédactrice en chef, vol 9

Hersi Hujaleh, Rédactrice exécutive pour l’anglais

David Hamel, Rédacteur exécutif pour le français

Samantha Allen, Rédacteur exécutif administratif

Katarina Daniels, Rédactrice exécutive web