Climate Change and Human Health: Who Should Bear the Cost?

Contributed by Pouya Dabiran-Zohoory

As early as 2001, there has been international recognition of the human impact on climate change. The Third Assessment Report of the Intergovernmental Panel on Climate Change stated: “There is new and stronger evidence that most of the warming observed over the last 50 years is likely to be attributable to human activities”.

Earth’s natural greenhouse effect has been amplified by human actions which increase the concentration of energy-trapping gases in the lower atmosphere.  The international community has demonstrated awareness of the problem and motivation to work towards a potential solution. Various treaties, including most recently the Paris Agreement, commit to rapid reduction in greenhouse gas (“GHG”) emissions to keep global average temperatures below a 1.5°C rise from pre-industrial levels.

Many different methods have been proposed, and in some cases implemented, to combat this problem – from incentive-based solutions such as sustainable investment policies, to market-based economic systems such as carbon tax or cap-and-trade programs. The main objective of these systems is to reduce GHG emissions.

While these efforts are promising, it is also important to acknowledge that even with drastic emission reductions, there are ongoing consequences of the GHGs already emitted. Specifically, one of the consequences of climate change is an adverse impact on human health. Some direct effects on health cited by the World Health Organization include extreme heatwaves and weather events, and air pollution. Some indirect effects include reduced food production and supply, and increased vector-borne diseases. Who should be held responsible for these serious consequences, and how?

While these efforts are promising, it is also important to acknowledge that even with drastic emission reductions, there are ongoing consequences of the GHGs already emitted

The Difficulties of Compensating Health Victims of Climate Change

The difficulty of finding justice in these scenarios is rooted in multiple issues including the vast number of people impacted by climate change in diverse ways, the interjurisdictional nature of climate change, the vast number of actors who contribute to climate change (both directly and indirectly), and defining what justice would even mean in this context.

To illustrate issues tied to a climate event with multiple actors and victims, let’s look at an example still fresh in our minds: hurricane Irma and its death toll of 102 people. The storm destroyed over 90 percent of the buildings and vehicles on the island of Barbuda. Estimates for its impact on the world economy range from dozens of billions of dollars to hundreds of billions of dollars. Importantly, its destruction will also be a source of health problems like increased mosquito-borne diseases, increased respiratory problems, increased carcinogens like ammonia and benzene in the environment, and increased bacteria leading to skin infections.

Irma In 2017, hurricane Irma swept across the Caribbean and southern United States, causing severe damage || (Source: Flickr // Hurricane Irma 67 )

The Issue with Causation

Although scientists are uncertain whether climate change will lead to an increase in the number of hurricanes, warmer ocean temperatures and higher sea levels are expected to intensify their impacts.  Therefore, it is not possible to assert that climate change and global warming caused hurricane Irma. This presents difficulty in a legal case where a victim of a similar storm sues for compensation under a tort, given the need to prove both factual and legal causation. If a statutory tort were to be created which only required proof of, for example, “involvement in an activity known to contribute to climate change and global warming”, both legal and factual causation would not be an issue.

However, it would seem an unnecessary burden on court systems to have the vast number of people affected by hurricanes bring forward claims for compensation. This is especially true with the looser causation requirements in a statutory tort, since one of the justifications for tort law – individual justice – requires a finding of responsibility attributing blame to the wrongdoer. Given the difficulties of finding individual justice by attributing responsibility, and the increasing need for compensation for climate change victims, it would seem much more efficient to set up a climate change victim-compensation scheme such as the no-fault regime in Quebec for motor accidents. In this scheme, victims of climate change related losses, such as hurricanes, could apply to such a fund to be compensated for their loss. All actors who participate in an activity known to contribute to climate change would be required to pay into the fund.

Determining the Extent of Responsibility for Each Actor in a “Climate Change Victim Compensation Fund”

We must identify the actors involved and the extent of their contribution to the problem in order to determine the relative responsibility of actors.

It seems impossible to adequately measure how much one individual emitter, such as a single company, contributed to an event such as a hurricane, given that it is impossible to define to what extent climate change contributed to the onset and severity of that hurricane. Our best estimations would be rooted in some contribution index tied to the percentage of overall GHG emissions. This can be modeled after a program like the GHG Protocol.

However, it is important to note that, like hurricanes, many effects of climate change involve merely increasing the frequency and severity of already existing phenomena. It would seem unjust to have the contributors to such a fund paying for the entire cost of certain events if the occurrence of those events was not caused by climate change. It would also make sense to have the State contribute to the fund since the State has historically funded climate related losses, even before the aim was to attribute responsibility through compensation. Additionally, the State holds some responsibility for these losses given that its policies determine the legality, incentives, and disincentives for climate change contributing activities. Lastly, since the State is the representative of citizens and residents in its territory, and consumer decisions drive global warming to an extent, this would also represent our shared contribution to climate change as individuals.

While climate science has some uncertainties, it can help inform the compensation framework. These policy decisions should integrate an interdisciplinary understanding of victim suffering. For example, climate science can help shed light on which losses are climate related by exposing the different pathways through which climate change can affect human health. Economic analysis can help quantify more accurately the financial losses suffered by a victim of a climate change related event. On the other hand, anthropology and sociology could shed light on the magnitude of losses suffered to a group of people’s way of life through the loss of traditional lands due to rising water or drought, which can in turn be tied to health consequences for communities. All these considerations could be under an umbrella analysis that further adds the degree to which the natural disaster was exacerbated because of climate change.

While a compensation scheme may seem no different than the implementation of a carbon tax regime, it is important to remember that the purpose of such a fund would be to compensate victim loss related to climate change. The purpose of a carbon tax regime is to quantify the unaccounted cost of a carbon footprint, and the tax collected is put to a variety of uses, including but not limited to victim compensation.

Drought Communities suffer consequences to their way of life and health due to droughts and loss of land from climate change || (Source: Flickr // EU Civil Protection and Humanitarian Aid Operations )

The Interjurisdictional Nature of Climate Change

Lastly, it is important to remember that climate change is a global phenomenon. Legal and political boundaries do not define or constrain the impacts of climate change. Responsibility for climate change related losses should not be constrained by jurisdiction either. It would seem harsh to require Antigua and Barbuda to pay to rebuild its country themselves when the responsibility for a catastrophe like Irma rests at the world’s feet. While inter-jurisdictional issues complicate compensation and attributing responsibility, it is important that the international community not only concern itself with reducing global warming, but also with developing adequate and concerted efforts to compensate for the inevitable impacts climate change will have on humanity – including those related to human health. A fund such as the one proposed above could eventually be adopted into an international scheme to help better capture responsibility for climate change related losses.

Pouya Dabiran-Zohoory is a Senior Online Editor with the McGill Journal of Law and Health, with a keen interest in sustainable development, specifically with a focus on climate change and its effects on human and animal health. He holds a Bcomm in law and business from Ryerson University. Since he joined the Faculty of Law at McGill University in 2016, he has taken an interest in how the common law, civil law, and regulations address health issues.

Mental Health on the Front-line: Legal Barriers to Psychological Injury Compensation for Public Safety Personnel

Contributed by Souhila Baba and Andréanne Angehrn

Post-Traumatic Stress Disorder

Public Safety Personnel (PSP) such as first responders, firefighters, police and correctional officers, often see their work as a duty, public service, and vocation. But what happens when this line of work becomes the source of an illness? This is the case for Natalie Harris, a paramedic from Ontario, and one of the many PSP who developed Post-Traumatic Stress Disorder (PTSD) due to the traumatic nature of her work. The likelihood of experiencing at least one traumatic event for Canadians is extremely high (74.2% for women and 81.3% for men), and approximately 15% to 24% of the individuals who experience a traumatic event will develop PTSD. However, among PSP trauma is a regular occurrence. PTSD is characterized by symptoms of hyperarousal, avoidance, intrusive memories and numbing, and approximately 9% of Canadians, and more than 21% of PSP workers, will go on to develop PTSD. Living through or witnessing life-threatening events, such as car accidents, physical or sexual assaults, and natural disasters, among others, can be the cause of PTSD. As the occurrence of traumas multiply, so does the risk of developing PTSD. Moreover, PTSD is often associated with other mental health problems such as depression, anxiety disorders, alcohol and/or substance dependence and/or abuse, as well as heightened suicide ideation and attempts. Particularly, more than 50 Canadian PSP took their own lives in 2017 and more than 27% reported having considered suicide in their lifetime. Natalie Harris has not yet returned to work after her PTSD diagnosis, but she is devoted to increasing awareness and legal support for others, who just like her, have to face unimaginable trauma as part of their 9-to-5 job.

The Legislative Issue

A team of experts led by Dr. Nicholas Carleton at the University of Regina conducted a nation-wide study of PSP (defined as dispatchers, correctional workers, firefighters, police officers, paramedics, and RCMP officers) and their experiences of general mental disorder symptoms. From a sample of 5,813 first responders, the results suggested that the prevalence of mental disorders in this cohort was significantly higher than that of the general public. However, because of sampling differences, direct comparisons were not possible. As such, what this study suggested is that this group is potentially at a greater risk of suffering from a mental disorder than the rest of the population. In light of these considerations, certain provinces, notably Alberta, Manitoba, New Brunswick, Ontario, and Saskatchewan have legislated a presumption of causality between the development of a mental disorder, like PTSD, and the workplace for certain professions. Consequently, the process of worker’s compensation for a workplace injury is facilitated and simplified. In Québec, however, there are no such presumptions for first responders, which forces them to go through the regular channel for workplace compensation. This process can become time-consuming, stressful, and expensive.

Firefighters.jpg Public safety personnel, such as firefighters, have a heightened propensity to developing mental health issues, including post-traumatic stress disorder || (Source: Flickr // Heather Paul )

The Administrative and Legal Framework

In Ontario, a first responder who develops PTSD stemming from witnessing or experiencing a distressing event benefits from the presumption that this diagnosis is a workplace injury (s.14, Workers Safety and Insurance Act). As such, if they present to the Workers Safety and Insurance Board (WSIB) with a diagnosis of PTSD by a psychologist or a psychiatrist, their claim should be presumed valid. This is, however, a rebuttable presumption, meaning that the WSIB or the employer can deny a claim if they believe that the PTSD did not in fact stem from the workplace environment. The first responder can then appeal this decision by using an “intent to object” form and requiring the Appeal Resolution Officer (ARO) to reconsider the decision. Up to this point, all of the decisions are administrative, passing directly through the WSIB framework. If the first responder wants to pursue the claim further by appealing to the Workplace Safety and Insurance Appeals Tribunal (WSIAT), then the WISB or the employer will have to show, on a balance of probabilities, that the injury (i.e., the PTSD) did not stem from the workplace. The first responder in this example does not have the burden of proof.

Up to the stage of appeal to the Tribunal Administratif du Travail (TAT), the procedure in Québec  is quite similar in that it is an administrative decision through the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST). However, if a first responder decides to appeal to the TAT, then the burden of proof is on them to show, on a balance of probabilities, that the PTSD diagnosis was in fact a workplace injury to enable them to be compensated through CNESST. This major difference in the two frameworks (between Ontario and Québec) possibly reflects a different understanding of the link between first responders’ daily work and their mental health. Additionally, presumption schemes are not unknown to the Québec framework. Indeed, the Act Respecting Industrial Accidents and Occupational Diseases, which governs CNESST, contains presumptions of causality for various diseases caused by infectious or physical agents (Schedule I). None of the diseases, however, are related to mental health.

The Missing First Responders: The Case of Nurses

An important group of professionals missing from the Ontario legislation (s.14(2)) and the nation-wide study mentioned above, are nurses. Often subject to violence in the workplace, nurses, especially emergency and psychiatry nurses, are at the highest risk (across health sector professionals) of experiencing such violence. Moreover, this type of violence is gendered, with women nurses overwhelmingly being the target of workplace violence. In the United States, workplace violence is the second leading cause of occupational deaths in women. Instances of violence or trauma, even a single event, can lead to the development of mental health issues, particularly PTSD. To counter this, the Registered Nurses’ Association of Ontario (RNAO) is currently lobbying for their profession to be included in the list of first responders benefiting from a presumption of causality regarding PTSD as a workplace injury. Moreover, the government of Ontario issued a news release in December 2017, stating the need to include nurses in the presumption legislation.

fence.jpg Front-line workers including nurses face legal barriers to receiving workplace compensation for mental health injuries || (Source: Flickr // Daniel Steinberg )

In contrast, in Québec, the current framework is burdensome on a particularly vulnerable population. For example, in a specific case, a worker, who was a hospital attendant in training to become a nurse, had been the victim of an incident of violence by a patient. Although the CSST (now CNESST) allowed her to claim compensation for her physical injuries, her claim for reimbursement of medication for her diagnosed PTSD was contested, alleging that she had developed PTSD prior to the violent event. At trial, she presented evidence from ten different doctors, psychiatrists, and psychologists to support her claim. The difficulty in such cases lies in the nature of the illness and its possible comorbidity with other health concerns such as substance use or abuse and depression symptoms. This blurs the line of causality between the workplace trauma and the subsequent diagnosis. Although in this case her claim eventually succeeded, the process of the reviews of administrative decisions by the TAT, the gathering of evidence, the hiring of legal representation, and the mental strain of testimony and trial procedure may have been avoided if there existed a presumption in the law.

Instances of violence or trauma, even a single event, can lead to the development of mental health issues, particularly PTSD.

While many are calling for a nation-wide, cohesive framework to protect the front-liners who put their security and mental health on the line daily to protect us, conversation around this issue has not led to public action. Should the Québec framework allow for a presumption for all workers who suffer from PTSD as is the case in Manitoba? Or should all psychological disorders benefit from such a presumption as is the case in Saskatchewan? Last year, the Report of the Standing Committee on Public Safety and National Security recommended the creation of a Canadian Institute for Public Safety Officer Health Research and the elaboration of a national strategy regarding operational stress injuries. Undeniably, we have yet to see the results and possible action plans recommended by this report. Meanwhile, workers all around Canada, like Natalie Harris, have to face ambiguous and strenuous legal procedures before being able to focus on their ultimate duty: their own recovery, mental health, and eventual journey back to doing the work that they love.

Andréanne Angehrn holds a BA (Honours) with distinction in psychology from Concordia University. She will join Dr Nicholas Carleton’s team in the fall as a graduate student in clinical psychology at the University of Regina. Andréanne is enthusiastic about providing care and support to those affected by trauma, and about extending the scope of research to minorities. Recently she presented her undergraduate thesis that focused on circadian autonomic functioning and stress in children at the American Psychosomatic Society’s annual conference in Louisville, KY under the supervision of Dr Jennifer J McGrath. 

Souhila Baba is a Senior Online Editor with the McGill Journal of Law and Health with a keen interest in mental health, access to health services, and access to justice. She holds a BSc with distinction in Psychology, with a minor in Political Science from Concordia University. Since she joined the Faculty of Law at McGill University in 2016, she has been able to expand her interests in policy, technology, science, and the law, and the important contributions that women make to these fields and their intersections. Souhila is currently interning with the McGill Research Group on Health and Law at the CIUSSS du Centre-Ouest-de-l’Île-de-Montréal under the supervision of Me. Nathalie Lecoq.

The authors would like to thank Me. Cristina Toteda for her guidance and insight on the practical and real-world implications of the occupational safety and health framework in Québec. Souhila would further like to thank Prof. Derek J. Jones for allowing her to explore this topic further through a research paper in the course “Law and Psychiatry”.

Mind Protection: Data Privacy Legislation in the Age of Brain-Machine Interfaces

Contributed by Dr. Anastasia Greenberg

Brain-machine interfaces (BMIs) are a class of devices that allow for direct communication between a human brain and a device such as a computer, a prosthetic limb, or a robot. This technology works by having the user wear an electroencephalography (EEG) cap that extracts brain activity, in the form of brain waves. These waves are then processed and interpreted by advanced software to “decode” the brain’s intended actions. These intended actions are translated into a command sent either to a computer or a mechanical device – the gadget options are seemingly infinite. With the growth of big data analytics and artificial intelligence (read an MJLH article on this issue), the proliferation of BMIs pose a unique legal and ethical risk for personal data privacy and security given the highly intimate nature of the information that BMIs gather.

Recent Advances in BMIs

The major limiting factor of the widespread application of BMIs is the ability to accurately interpret a person’s thoughts from their recorded brain activity. Major headway has been made in the last decade. A highly publicized example includes a quadriplegic patient with an implanted brain chip (instead of a non-invasive EEG cap) who was able to check emails, turn lights on and off, and play video games using his thoughts alone. A newer version of this chip, developed by a company called Braingate, is currently undergoing clinical trials. Similarly, such developments have potentially life-changing heath care implications for locked-in syndrome patients who have lost ability to communicate due to muscle paralysis. BMIs allow locked-in patients to communicate using their thoughts.

BMI1 Brain-machine interfaces allow for control of computers and mechanical objects using thoughts || (Source: Flickr // Ars Electronica )

The applications of BMIs extend beyond health care into the consumer context. A company called Emotiv Lifesciences created a sophisticated driving simulator that allows for thought-controlled navigation through a virtual course. Another company called Muse offers an enhanced meditation experience by providing feedback to allow users to modulate their own brain waves.

BMI technology can also be used for direct brain-to-brain communication. In 2013, researcher Dr. Rajesh Rao sat in his laboratory at the University of Washington wearing an EEG cap and faced a computer screen displaying a simple video game. The object of the game was to fire a canon at a target by pressing a key on a keyboard at the right moment. Rao did not touch the keyboard and instead used his thoughts to imagine moving his right hand to press the key. On the other end of the university campus, Dr. Andrea Stocco sat in his own laboratory with a Magnetoencephalography (MEG) stimulation coil (which is used to activate specific areas of the brain) placed over the part of his motor cortex that controls hand movements. Stocco did not have access to the video game display in front of him. Every time that Rao imagined firing the canon, a command would be sent via the internet to trigger the MEG stimulation over Stocco’s head, forcing his finger to press a keyboard key which would then fire the canon at the target on Rao’s computer screen. Therefore, Rao was able to control Stocco’s movements through the web with his thoughts.

Data Privacy in Canada

In the age of big data, personal information in the form of search engine entries, online shopping activity, and website visits, when aggregated, can reveal highly accurate details about a person’s life. This reality has raised public concerns over data privacy in Canada. As BMIs increasingly enter the market and join the “internet of things”, organizations will for the first time, have access to the most personal information yet – information obtained directly from the brain.

In Canada, the protection of personal data, such as brain data, can be captured by a complex web of privacy legislation. Although the Canadian Charter of Rights and Freedoms does not explicitly mention a right to privacy, it is protected to some degree by sections 7 (liberty) and 8 (unreasonable search and seizure). The Privacy Act governs the handling of personal information by the federal government, while the Personal Information and Electronic Documents Act (PIPEDA) is a federal statute that applies to businesses in Canada that collect, use, and disclose personal data for commercial purposes. PIPEDA was enacted in 2000 in attempt to harmonize data privacy standards across the country and to strike a balance between economic benefits stemming from private data use and respect for individual privacy. To add extra complexity, provinces and territories can enact their own data privacy legislation which supersede PIPEDA if the federal government considers the legislation to be “substantially similar” to PIPEDA.

BMI2.jpg Privacy legislation in Canada and abroad aims to protect personal information, such as health-related data || (Source: Flickr // luckey_sun )

PIPEDA has been criticized heavily since coming into force for its feeble enforcement mechanisms. As a result, in 2015, amendments to PIPEDA introduced a requirement to notify the Privacy Commissioner of any data privacy breach creating significant harm to an individual, including bodily harm, reputational harm, and identity theft. Failure to notify can result in fines up to $100,000. Furthermore, the Office of the Privacy Commissioner provided guidance on section 5(3) of PIPEDA which prohibits inappropriate collection, use, and disclosure of personal data. The so called “No-Go Zones” under section 5(3) prohibit activities such as: the processing of data in a way that would lead to unethical or discriminatory treatment, and data uses that are likely to cause significant harm. Significant harm means, “bodily harm, humiliation, damage to reputation or relationships, loss of employment, business or professional opportunities, financial loss, identity theft, negative effects on one’s credit record and damage to or loss of property”. These changes can bolster privacy protection of brain data.

What remains intact following the amendments is an insidious provision that leaves the door ajar for government surveillance. Section 7(3)(c.1) is a blanket provision that mandates private entities to disclose personal information at the request of the government in the name of national security and law enforcement. Given the rich information that brain data contains, it is not evident how the government may decide to use such unfettered access in its activities.

Data Privacy Internationally

Europe is known to have the world’s highest data privacy standards. The European Union Data Protection Directive (Directive 95/46) is interpreted in light of the Charter of Fundamental Rights of the European Union, which specifically recognizes personal data protection as a human right. Article 8(1) of the directive provides that member states adopt prohibitions on processing sensitive data including health-related data, which brain data may indeed fall under. However, much like PIPEDA, the desire to balance organizational interests with privacy protection is reflected in exceptions to this prohibition if consent is obtained from the data subject, if the data processing is in the public interest, or for certain medical and health care purposes.

In May of 2018, the General Data Protection Regulation (GDPR) will officially replace Directive 95/46. One of the prominent changes from Directive 95/46 relates to the widening of jurisdiction, as the GDRP will apply to all companies processing the personal data of individuals located within the EU, irrespective of where a company is located. The effect of this change will likely force non-EU companies, including Canadian companies, to comply with the GDPR to allow for cross-border data transfers. The strategy behind this new approach is to ensure that Europe lays the ground rules for the international data privacy game.

As BMIs increasingly enter the market and join the “internet of things”, organizations will for the first time, have access to the most personal information yet – information obtained directly from the brain.

Other major changes that will be introduced with the GDRP are the inclusion of the “right to access”, in which a data subject will be able to request copies of their personal data, and the “right to be forgotten” in which the data subject can request for their personal data to be permanently erased. Just as BMIs are introducing highly intimate data into the mix, the GDRP may offset some of the increased privacy risks by putting more control in the hands of the data subject and by attempting to coerce international privacy standards.

The Future of Privacy

The promise of brain-machine interfaces is hard to overstate. BMIs can already restore lost abilities such as vision, hearing, movement, and communication.  Beyond restoration, BMIs allow for super-human enhancement in the form of control over virtual environments, manipulation of robots, and even transmitting linguistic messages without vocalizing speech. The effective implementation of BMIs speaks directly to the effectiveness of neural decoding: the technology’s ability to “mind read” – albeit currently in crude form. Organizations that create BMIs and control its software will have access to rich brain data. Governments will desire access to that data. The EEG data in question are as unique as one’s fingerprints, providing biomarkers for the prediction of individual intelligence, and predispositions to neurological disorders such as depression, Alzheimer’s disease, and autism. The ongoing development of data privacy legislation in Canada and abroad will shape future control of the mind’s personal bits.

 

Anastasia Greenberg is a second-year student in the B.C.L/LL.B. program at McGill University’s Faculty of Law and is the Executive Online Editor of the McGill Journal of Law and Health. Anastasia holds a PhD in Neuroscience from the University of Alberta.

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

Contributed by Loïc Welch

“In every society there are those who commit criminal acts because of mental illness. The criminal law must find a way to deal with these people fairly, while protecting the public against further harms. The task is not an easy one.” [Justice McLachlin in Winko v B.C.]

Several high-profile Canadian cases (e.g., Allan Schoenborn, Guy Turcotte, Vincent Li) brought much media coverage, societal attention, and community backlash to the Criminal Code’s section 16 liability regime—Not Criminally Responsible on account of Mental Disorder (NCR). The public outcry stemmed from a lack of understanding of mental health, criminal law procedures, and the NCR regime itself, culminating in an amendment in 2014. For an appreciation of these changes, it is important to gain a bit of historical perspective as to the development of the current regime.

The History of the NCR Defence

The NCR defence was introduced following the 1992 amendments to the Criminal Code and replaced the Not Guilty by Reasons of Insanity defence (NGRI), which absolved criminal responsibility. The accused would come under the authority of the State and could be indefinitely detained until otherwise decided by the lieutenant governor. In addition, the NGRI defence could be raised by either party and effectively could be used as a means of involuntary and indefinite imprisonment with no mandatory review imposed on the State. The NGRI regime put the safety of the public above the interests of the accused and offered no procedural protection for the mentally ill. Offenders could not appeal the decision and were left in psychiatric institutional detention to the deference of the lieutenant governor – the only official endowed with power to allow their reintegration into society.

Window Under the old NGRI regime, a person with mental health issues could be detained involuntarily for an indefinite amount of time. || (Source: Flickr // Paul Hudson )

In R v Swain (1991), the Supreme Court of Canada (SCC) found the NGRI regime unconstitutional and pushed Parliament to enact new legislation for mentally ill offenders. Specifically, Chief Justice Lamer writing for the SCC majority, took issue with the NGRI regime’s automatic detention being subjected to the lieutenant governor’s beneficence and enabling potential indefinite detention. The SCC ruled that this violated section 7 (right to life, liberty, and security of the person) and section 9 (right not to be arbitrarily detained) of the Canadian Charter of Rights and Freedoms. The SCC struck down the regime, read down its current application, and asked Parliament to write new legislation within six months. And so, in 1992, Bill C-30 amended the Criminal Code, introducing the Review Board, a provincial/territorial tribunal with authority over mentally ill offenders, which thereafter introduced the new NCR regime via section 16.

Importantly, the new NCR regime introduced new procedural safeguards, stipulating that only the defence may raise issues of mental deficiency (there are some exceptions that are beyond the scope of this article), thus respecting the choice of the accused who may not wish to raise the NCR defence for a variety of reasons. Once raised, mental incapacity for the offence must be proved on a balance of probabilities (i.e., that is it more probable than not that the accused was suffering from a mental disorder at the time of the offence). When an accused is found to not have been in the “right” state of mind to appreciate the nature and quality of their acts, or could not form the requisite intent (i.e., mens rea or guilty mind), due to a “disease of the mind”, the accused will be found NCR. This ruling is not synonymous with an acquittal as the individual is deemed to have committed the offence – actus reus – but was lacking the mens rea component necessary for a guilty verdict.

2013-05-19 - 09.15.00 (Public) The Supreme Court of Canada found the NGRI regime unconstitutional. || (Source: Flickr // Robert Lindsell )

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.

Canadian Developments in Alternative Sentencing: Mental Health Courts (Part 2)

Contributed by Souhila Baba

Part two of this two-parts series on the theme of psychology showcases alternative sentencing measures regarding mental health courts in Canada (read part 1 on young adult courts here).

In June 2009, Donald Kushniruk was arrested after taking out a knife in a public park in Alberta. He chose to self-represent at trial, and although a lawyer was appointed to consult with him, neither him nor the lawyer ever applied for bail. He had been diagnosed with bipolar disorder, and possibly suffered from schizophrenia. Due to recurrent delays, Kushniruk spent over two and a half years in jail awaiting trial for an offence for which he would ultimately be sentenced to seven days. A few months after his release, Kushniruk was arrested again after an argument with his parole officer. Two weeks into his incarceration, he committed suicide. Although the problem of over-incarceration of individuals with mental illnesses has led to the implementation of mental health courts across Canada, our conceptions of individual capacity and autonomy suggest that there may be some theoretical and practical barriers to their success . In exploring this sentencing alternative, we will first look at the functioning of these courts across Canada and then zoom-in on Québec as a case study.

The Mental Health Court

Across Canada, mental health courts share similar overarching goals: increasing the well-being of those involved, decreasing recidivism, improving access to services, and enhancing community safety. However, there are variants of the mental health court across provinces: Old City Hall Court in Toronto is a fully independent court, working full-time in parallel to other courts. While in Montreal, the court is integrated into the criminal division of the Municipal court, a program termed PAJ-SM (Programme d’Accompagnement Justice-Santé Mentale).

ForkRoad Mental Health Courts provide an alternative path to traditional criminal trial or guilty plea. || (Source: Flickr // Miwok )

Actors Involved in Mental Health Courts

In general, the mental health court team consists of crown attorneys, judges, defence lawyers, health care providers (i.e., general practitioners and psychiatrists), and justice system actors (i.e., police officers, parole officers, and criminologists). Assistant crown attorneys are most likely to be involved in the creation process of the courts (in Ontario, in 68% of cases), while judges and mental health workers often aide in the process (in Ontario, in 37% of cases).

Diversion Programs

A diversion program is an alternative to traditional criminal trial or guilty plea. A diversion plan, devised by health workers, may implement a variety of conditions based on available resources, including consulting a medical practitioner, complying with medication requirements, refraining from alcohol or any illicit drugs, and attending information or training sessions. Most of the time, these are soft conditions, meaning that contravening them does not necessarily lead to reprimand (although there is the possibility of being removed from the court program).

In Quebec, there are two types of diversion programs offered by PAJ-SM: “Suivi”, which is similar to the Ontario program, or “Liaison” which constitutes a softer approach, where the interventions from the court and health workers are minimal. In both programs, non-compliance with one of the conditions leads to the individual being tried more strictly by law, although the judge may consider mental illness in her decision. Most Quebec mental health courts, in addition, offer support services as part of the diversion program such as crisis and emergency response, safe beds, support for housing, and so forth – again, based on available resources.

Eligibility Criteria

Another difference in the functioning of the mental health courts across Canada is the different eligibility criteria for participating in the program. While almost all courts require the individual to agree to participate in the process (i.e., in Montreal and in most of Ontario), Old City Hall Court in Toronto does not require such willingness. Moreover, in Windsor, the court does not have any eligibility or entry requirements, but rather it relies on the judge to decide on eligibility, based on the general evidence obtained.

Despite growing interest in these alternatives, there are only a few mental health courts in Canada, especially compared to the hundreds in the US. Across the board, major concerns for these courts is the lack of dedicated funding and availability of psychiatrists.

Case Study: Québec

Central to mental health courts is the complicated relationship between supporting individuals with mental health issues and respecting autonomy of the individual. In Québec, this is represented in an ongoing debate between various stakeholders: victims rights groups, families of individuals with mental health concerns, hospitals and health practitioners, human rights advocates, prison officials, the police force, other criminal justice actors, governmental institutions, and society at large. From this debate, three interconnected points are most relevant: first, the stigma of differentiating individuals with mental health problems within the court system, second, inconsistent application of laws related to individuals with mental health issues, and third, links between mental health concerns, homelessness, drug addiction, and the criminal justice system.

The Stigma

Issues of labelling, diagnosis, and stigma are prevalent in any mental health question. For mental health courts, these stem from differentiating a “normal” court from a “specialized” court. Certain stakeholders argue that judicializing mental illness in this way further stigmatizes individuals living with mental illness as they are isolated and segregated from the rest of the process. Furthermore, although the program is voluntary, some argue that there is no true choice between the possibility of going to jail and having a matter be processed through this alternative court. Consequently, individuals who do not think they suffer from any mental illness, or do not wish to be diagnosed, may nevertheless choose to take part in the diversion program. This begs the question: are we looking out for what we believe to be in the individual’s best interest, or their freedom and autonomy to make decisions for themselves?

The Law

In Québec, there is a variety of legislation that includes provisions dealing with mental health issues: the Québec and Canadian charters of human rights and freedoms, the Civil Code of Québec (a.27-31), the Quebec Code of Civil Procedure (a.123; a.391-397), the Act Respecting Health Services and Social Services and, the most controversial: the Act Respecting the Protection of Persons whose Mental State Presents a Danger to Themselves or to Others (la loi P-38). Briefly, P-38 aims to provide a structure for various stakeholders in the confinement of individuals whose mental health issues may be dangerous to themselves or others.

HospitalWard La loi P-38 allows for involuntary confinement of individuals with mental health issues || (Source: Flickr // Vancouver Coastal Health )

The controversy over this law is clear: while the Charters protect the right to freedom, P-38 allows for involuntary confinement, irrespective of criminal behaviour. The legal framework in Québec can lead to some inconsistent results when dealing with individuals with mental health issues. Under P-38, without committing any crime, a person could be confined within a hospital or health care institution. Conversely, within the framework of the mental health court, after committing a crime, a person could be set-free.

The Social Context

The vast majority of individuals living with mental illness do not encounter the criminal justice system in their lifetime.  However, the over-incarceration of individuals with mental illnesses reminds us that some still do. For many stakeholders, this is not due to a question of criminality, but rather to lack of access to the services needed, be it treatment, social support, financial resources, housing, and/or others. Moreover, most mental illnesses can occur comorbidly with other mental health issues (e.g., drug or substance abuse, depression, eating disorders, etc.), which may strain individuals further, and lead to criminality. Indeed, a study by Jaimes and collogues supports that most crimes committed by individuals with a mental illness are minor crimes, usually related to homelessness, low-income status, and other social circumstances.

Under P-38, without committing any crime, a person could be confined within a hospital or health care institution. Conversely, within the framework of the mental health court, after committing a crime, a person could be set free.

We arrive then at a circular issue: lack of resources compounded with mental health issues may lead to criminality, which is dealt with through mental health courts, which in turn lack sufficient resources to support individuals. Mental health courts come as a second thought, a reactive measure, while there should be preventive measures in place.

This two-part series on alternative sentencing is aimed at understanding the various intricacies of criminal justice and health law, and the need for creativity and innovation with regard to issues disproportionally affecting certain groups in society. This is in the hope that our deeper understanding of human development, behaviour, and mental health will help to shape our legal frameworks.

Souhila Baba is a Senior Online Editor with the McGill Journal of Law and Health with a keen interest in mental health, access to health services, and access to justice. She holds a BSc in Psychology from Concordia University. Since she joined the Faculty of Law at McGill University in 2016, she has been able to expand her interests in policy, technology, science, and the law, and the important contributions that women make to these fields and their intersections. Souhila is currently interning with the McGill Research Group on Health and Law at the CIUSSS du Centre-Ouest-de-l’Île-de-Montréal under the supervision of Me. Nathalie Lecoq.