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 A newer version of this chip, developed by a company called Braingate, is currently undergoing clinical trials.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.

The Curious Dichotomy of (in)Sanities

Contributed by Loïc Welch

For most people, the inner workings of the brain and the resulting behaviour work seamlessly, and we behave in “socially acceptable” ways. But, what happens when the brain is “faulty?” Take for instance the famous case of Phineas Gage, who had a tragic accident at work, where a railroad blasting rod pierced through his skull into his brain. Mr. Gage survived this accident, however, his once well-behaved personality was altered to a more chaotic one. He began gambling, and became short-tempered, impulsive, and violent. Mr. Gage had suffered damage to the area of the brain known as the orbitofrontal cortex, implicated in emotional regulation, decision making, and impulse control.

Phineas Phinease Gage suffered brain trauma from a rod that pierced through his skull || (Source: Flickr // Protocol Snow)

If, for instance, Mr. Gage had killed someone in a barfight, without premeditation; by today’s legal standards, would Mr. Gage be found guilty (of 2nd degree murder or manslaughter) or would he instead be found not criminally responsible on account of mental disorder (NCRMD)? Is he responsible for his aberrant, perhaps incontrollable, behaviour ensuing from a traumatic brain injury? Or to the crux of the issue, are humans responsible for their behaviour, if it is nothing more than the result of brain function? A biological view of behaviour suggests that regardless of whether someone has a rod in their brain (tumour or other forms of severe brain trauma), all of their actions are controlled by their brain’s function.

The Guilty Mind

The above example is an introduction to the deterministic view of human behaviour as dictated by our brain (mal)functioning. Mr. Gage’s actions were determined by a brain that “misfired” as a result of physical trauma, leaving very little room for the concept of free will and voluntary action. This poses a fundamental challenge to the concept of criminal justice that relies on a crucial principle: that only the morally guilty should be punished. Guilt is determined by a defendant’s level of culpability, or in legal terms, their mens rea, which comes from the Latin phrase actus reus non facit reum nisi mens sit rea, translated to “the act is not culpable unless the mind is guilty.” The basic tenets of criminal justice inform our conception of mens rea: guilt is determined by one’s capacity to distinguish right from wrong and subsequent choice to act in the wrong. There is an assumption of free will and voluntary action. What happens to mens rea if the neuroscientific understanding of brain and behaviour removes free will from the agent? This question has lead to such defences as sane automatism, which can lead to full acquittal because it removes voluntary action from the individual.

The Not-so-Guilty Mind

To understand the case below (R v Stone), let me first explain the concept of automatism. There are two types of automatism defences: the first is sane automatism, where involuntary behaviour does not result from a mental disorder and is a complete defence, giving rise to full acquittal. For instance, sane automatism could be used as a defence if a defendant had murdered someone during a sleepwalking episode. Indeed, the Supreme Court of Canada, in R v. Parks, upheld the trial decision of allowing sleepwalking to be used as a sane automatism defence. This brings back the notion of mens rea: that only voluntary actions may lead to legal culpability. Generally, the factors required for a sane automatism defence must be extrinsic and are as follows: (1) there must exist an involuntary action arising from external source (or reflex action); (2) the action must be completely involuntary; and (3) the automatism must not be self-induced (that is why excessive alcohol/drug consumption is not a viable defence of automatism).

What happens to mens rea if the neuroscientific understanding of brain and behaviour removes free will from the agent?

The second type is insane automatism, where the actions of the accused are held to be the result of a mental disorder and triggers s.16 of the Canadian Criminal Code leading to a defendant being found NCRMD, again reflecting that the defendant could not appreciate the nature and quality of their act. Recall the earlier example of Mr. Gage killing a patron during a bar brawl; which of the two automatism defences could be argued most effectively? Would Mr. Gage’s brain injury justify the use of insane automatism because it would be considered as resulting from an internal cause? Or would the murder be acquitted under a sane automatism defence because Mr. Gage’s brain injury had an external causal factor [a rod] and was exacerbated by alcohol consumption? The predicament raised by the automatism defences, and the fine line between what is considered sane or insane by the courts, identifies a disconnect between fictional legal dichotomies and the neuroscientific reality that our brain controls our behaviour in all situations. This renders the concept of voluntariness moot to the eyes of science.

(mis)Communication of Science in the Courtroom

In recent years, there has been a sharp increase in the use of expert witnesses in courts which exemplifies a shift in the legal paradigm toward “hard facts,” stemming from science and its rigorous methodology. Among these experts are psychologist, psychiatrists, neuroscientists, and other specialists whose mandate is to inform the triers-of-fact in making more scientifically-informed judgements. When neuroscience meets the legal discipline, it is coined neurolaw.

In 1999, the Supreme Court of Canada was confronted with the challenging case of R v. Stone where Mr. Stone was appealing the guilty verdict of manslaughter for the killing of his wife via 47 stabbings. The trial judge had instructed the jury to consider insane automatism as a defence, but this failed, and he received a seven-year imprisonment sentence for manslaughter. The appeal, asking for Mr. Stone to be found NCRMD, was dismissed by the majority of the Supreme Court justices. However, three of the justices dissented, stating that the assessment of the appellant’s mental status at the time of the crime was not fully presented to the jurors. Specifically, the forensic psychiatrist brought in as an expert witness testified that the appellant was in a dissociative state, considered an unconscious state, when killing his wife. Furthermore, this was not attributed to a mental disorder, but rather a reaction to severe stress allegedly inflicted on him by his wife. The trial judge, and the concurring appeal judges, stated that although the accused had “periods” of unconsciousness during the murder, the expert witness did not assess the lack of voluntariness required for the defence of automatism. Interestingly, the jurors found that the appellant did not commit the crime voluntarily, thus resulting in a guilty verdict of manslaughter. The problem here is that the trial judge had only informed the jury of insane automatism, which requires the presence of a mental disorder (which the appellant did not have). Had the judge informed the jury about sane automatism, the verdict may have been a full acquittal.

Dissociative A dissociative state can cause impaired consciousness || (Source: Flickr // Vlad Gilcescu)

The lack of proper instruction to the jurors in R v. Stone brings forward a very important issue arising from the increased use of science in court. Namely, a need for comprehensive scientific literacy on the part of the jurists. In this case, the SCC dismissed the appeal partly on the grounds that the steps required for the insane automatism defence were not satisfied, stating: “As I have explained above, automatism is more properly defined as impaired consciousness, rather than unconsciousness. Furthermore, lack of voluntariness, rather than consciousness, is the key legal element of automatism. Accordingly, the trial judge should have concerned himself with assessing whether there was evidence that the appellant experienced a state of impaired consciousness in which he had no voluntary control over his actions rather than whether there was evidence that the appellant was unconscious throughout the commission of the crime.”

Although eloquent in its rhetoric, this reasoning does not reflect the state of the scientific evidence. The judge rests the dismissal of the appeal on a false dichotomy between unconsciousness and impaired consciousness, wherein he posits that the former does not fall in the latter. If the question of whether unconsciousness fell in the realm of impairments of consciousness was put to a neuroscientist, several questions about what was meant about impairment and in what context would follow. Rooted in the context of R v. Stone the unequivocal answer would be a strong affirmative of: “Indeed, Mr. Stone was impaired of consciousness.” The next question for the neuroscientist would be: “If the appellant suffered from impairment of consciousness resulting from a dissociative state, could his actions be considered of his own volition?” The logical answer would be in the negative. The issue appears to boil down to one of mismatched communication. Where jurors, attorneys, and judges would benefit from increased scientific literacy to clarify the issues put before them and assess the true worth of the expert testimony, and where neuroscientist (and experts in general) could use a crash course in legal standards and a disambiguation of legal jargon.

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 of Violence, Abuse, and Trauma in San Diego, California.

 

When Science meets Alternative Sentencing: Young Adult Courts (Part 1)

Contributed by Souhila Baba

On the theme of psychology, this two parts blog-series will showcase recent developments in alternative sentencing, first in the United States and second in Canada, portraying how findings in science contribute to innovation in the legal field.

Don’t Treat Young Adults as Teenagers.” “Why Reimagining Prison for Young Adults Matters.” “​How Germany Treats Young Criminals.” “Criminals under 25 should not go to adult prison, MPs say.” These are but a few examples of the headlines urging change with regard to young adults in criminal justice around the world. While the law sets a threshold in differentiating adolescents from adults (18 years of age), science shows that the young adult (18-24 years of age) brain is still developing.

Young Adults in the Criminal Justice System

In Canada, once a person reaches the age of 18, they are no longer treated by the justice system as a juvenile offender, but as an adult. This results in an overrepresentation of young adults in the prison system. Following a section 7 constitutional challenge in 2008, the Supreme Court of Canada found that juvenile defendants (under 18 years of age) not only have a presumption of reduced moral culpability, they also cannot be sentenced as adults unless the Crown proves it is adequate beyond a reasonable doubt to do so. Since young adults are tried and sentenced as adults, they do not benefit from a similar presumption, and cannot be tried as juveniles. The Supreme Court of Canada is silent on this issue, and there are currently no alternative programs or sentences specifically catered to this age group.

Similarly, in the United States, young adults roughly ranging in age from 18-29, are also consistently overrepresented in prisons: making up 21% of inmates while representing only 10% of the population. Neuroscientific evidence has long held that the brain is continuously in development, from conception to death. While there are critical periods of significant brain development during infancy, childhood, and adolescence, the brain continues to undergo changes even into adulthood and beyond. In law, when a person reaches the threshold of 18 years of age they are characterized as an adult, without considering the developmental gradients that scientists are aware of.

The Science of Brain Development

Neuroscientists distinguish between an 18-year-old and a 26-year-old, as the development of certain brain regions is still in progress. Already in 1999, an experiment performed using Magnetic Resonance Imaging (MRI) technology to map differences in brain anatomy between adolescents (ages 12-16) and young adults (ages 23-30) found that the maturation at this stage was localized in the frontal lobe. The frontal lobe is responsible for decision making, assessment of risks and consequences, and impulse control. The study found that the maturation seen in the older age group was due to an increase in information transmission speed between brain cells, leading to increased cognitive function.

frontal The frontal cortex continues to develop in the young adult brain || (Source: Flickr // Laura Dahl)

But what does this mean? Simply put, with regards to impulsivity or assessment of risks, the young adult brain is not at the same cognitive level as the adult brain: an adolescent, or even a young adult, does not have the same appreciation of risks as older adults do. In this transition phase, young adults are prone to irresponsible and at times reckless behaviour. In failing to account for neurological and behavioural differences between young adults and adults, the criminal justice system sets standards that may be inadequate to account for the mens rea (i.e. moral blameworthiness) needed for a criminal conviction.

While these findings provide for a general understanding of this age group on average, they do not suggest that any given individual with specific anatomical characteristics has failed to appreciate the consequences of their actions. Sentencing is an individual-driven process, and as such, scientific findings about a particular age group only inform the possibility of reduced moral blameworthiness, but do not impose it. In any case, a lack of understanding of developmental nuances seems to correlate with an overrepresentation of young adults in penitentiaries.

Young Adult Courts

In several US states, specifically Idaho, Illinois and most recently California, there is an increase in sentencing diversion programs catered to young adults. In basing their programs on the neuroscientific evidence that young adult brains are still developing, young adult courts were created with preventive and rehabilitative goals in mind. No defendants for violent crimes are admissible to the program as the court mainly deals with felonies such as robbery and assault. All young adults (ages 18-24) admitted to the program go through mandatory classes on controlling emotions and impulses, anger management, and receive therapy. Moreover, they meet with the same judge on a weekly basis where their standing in the program is assessed: if their performance is adequate, they may continue in the program and eventually “graduate”, if it is not, they are sent to jail. Graduating from the program leads to reduced charges or full exoneration.

2870256515_283fcfc87d_o.jpg Young adult courts in the Unites States provide creative alternatives to traditional sentencing for young adults || (Source: Flickr // Priya Deonarain)

As these courts are still in their early stages, it is difficult to assess their effectiveness in reducing the overrepresentation of young adults in prison and in preventing recidivism. One thing is certain, however, in establishing alternatives to prison terms: this court is using an approach that is proactive rather than relying on the currently reactive system.

A Balancing Act

It is difficult to balance the autonomy of young adults and the need to protect a particularly vulnerable age group (see MJLH’s Medical Records Episode 1 with Prof. Shauna Van Praagh). In assessing the mental element of an offence (the mens rea), how much sway should the age of the defendant hold? The legal doctrine in the matter is divided, while the scientific evidence will inevitably be nuanced by social and environmental factors. For example, under certain conditions, young adults may exhibit higher-level reasoning than adolescents, performing at a comparable level to adults. A recent study investigating the cognitive control of individuals, found that young adults’ cognitive performance depended on their emotional level. The study specifically found that when shown images of people experiencing negative emotions, young adults reacted as impulsively as adolescents. However, when the participants were shown images of positive or neutral emotions, young adults reacted similarly to adults over 21 years of age.  They found that in the transitional phase of young adulthood, behaviour may be dictated by emotional state, where a negative emotional state resulted in similar behaviour as adolescents. This may be related to the criminal justice system context as criminal acts may correlate with negative emotional states.

In basing their programs on the neuroscientific evidence that young adult brains are still developing, young adult courts were created with preventive and rehabilitative goals in mind.

Moreover, neuroscience has shown us that there are no clear lines to be drawn between adolescents, young adults, and adults – effectively reflecting the legal approach of basing certain policies differently according to maturity level in different circumstances. As highlighted in this article, maturity level of an adolescent is based on the circumstances that are being assessed. This survey showed that although adolescents have the cognitive ability to make an informed decision pertaining to abortion, it does not necessarily follow that they should be treated as adults with regard to criminal consequences. This is due to the different cognitive abilities assessed in each situation. In deciding on abortion, young people are to be assessed based on their ability to reflect on moral and social implications. In this case, young adults are just as competent as adults. On the other hand, when determining moral culpability in a criminal matter, the cognitive function to be assessed is related to the young person’s psychosocial abilities such as impulse control and resistance to peer pressure: the cognitive skills that are still developing in young adults. This context-specific understanding of young adult decision making should be in line with the law’s reluctance to impose a higher standard in determining criminal culpability when dealing with young defendants, while still respecting the autonomy of young people to make and be responsible for their actions.

These findings show that there is still a need for research in this area, particularly as the young adult age group has been historically studied as part of the adult group. In this case, advocating for young adults to be treated as juvenile defendants may be an overstatement of the available scientific evidence. Instead, the establishment of young adult courts provide for a creative alternative in the wake of evidence pointing to the lowered moral culpability of young adults. The ongoing legal experiment in the US may provide future insights for the Canadian context.

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.