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

Posted By Sabrina Mach & Katarina Daniels

At this year’s annual MJLH colloquium, six distinguished speakers presented their perspectives on the Not Criminally Responsible Reform Act, which received Royal Assent on April 11, 2014. The speakers were, in order of presentation: Dr. Patrick Baillie, Mental Health Commission of Canada; Dr. Renée Fugère, Institut Philippe-Pinel de Montréal; Dr. Archibald Kaiser, Schulich School of Law and Department of Psychiatry at Dalhousie University; Officer Michael Arruda, Service de police de la Ville de Montréal; Dr. Hy Bloom, Adjunct Professor at the University of Toronto’s Faculty of Law and Assistant Professor in the Department of Medicine; and, the Honourable Justice Mr. Richard Schneider, Chair of the Ontario Review Board. The Colloquium was moderated by Professor Alana Klein from McGill’s Faculty of Law.

The speakers each began their presentations by highlighting the amendments to the Criminal Code brought by the Not Criminally Responsible Reform Act, and critically analyzed the new Act’s merits and pitfalls. There was a general consensus that the reform was unnecessary, that it was not research-based, and that it would generate more problems than solutions – as Justice Schneider argued, the Act is a “bad solution to a problem that does not exist”. The speakers also presented reform paths that would better protect Canadian society, the underlying goal of the Act.

Important changes brought by the Not Criminally Responsible Reform Act

The Not Criminally Responsible Reform Act amends the Criminal Code’s mental disorder regime. In particular, the Act targets the Not Criminally Responsible (NCR) defence. As explained by Dr. Baillie, the defence is available to any accused suffering from a mental disorder that renders him or her incapable of appreciating the nature and quality of the criminal act.

According to the federal government, the Act is part of their commitment to “protecting victims of crime and to making streets and communities safer for Canadians”. This is evident in the Act’s first major amendment: identifying “safety of the public” as the primary concern in court and Review Board decision-making processes relating to NCR accused. Our speakers suggested that the link between the mentally ill and public security was created by the Conservative government in response to the recent highly sensational cases of Vince Li, Guy Turcotte and Allan Schoenborn – mentally ill individuals who committed horrific acts. Indeed, as Dr. Kaiser pointed out, the Conservative Party’s “Tough on Crime” website uses Vince Li as a poster boy for NCR reform.

The reform also creates a high-risk designation to protect the public. “High-risk” NCR accused will be held in custody in a hospital and will not be released by a review board until the courts revoke the designation. Additionally, a high-risk NCR accused would not be allowed unescorted visits into the community. Dr. Fugère noted that these leaves are an important part of therapy, but left unanswered whether the treatment process would be seriously compromised by this change.

Lastly, the reform enhances the rights of victims. Dr. Fugère clarified that victims are now notified when an NCR accused is discharged absolutely or conditionally, and can also be informed as to where the accused eventually resides. Officer Arruda argued that this change perpetuates stigma of the most vulnerable in society. He also made this striking comparison: individuals who have not been found guilty of a crime will have their private information shared with victims once they have been reintegrated into society, while individuals who have been found guilty of sexual assault crimes maintain their privacy.

Merits and Pitfalls of the Not Criminally Responsible Reform Act

The speakers all agreed that concern for public safety should be paramount in any legislation, but that the Act did not meet this goal. The main criticisms were: it is unjustified and unnecessary, it increases stigma in society, it creates financial problems for hospitals and provinces, and it reduces the support given to the mentally ill.

First, all speakers agreed that the new Act was not driven by sound research and policy. Dr. Fugère claimed that it is a purely political response void of any evidentiary support. Dr. Kaiser argued that it is unnecessary given the incremental progress that had been made under the previous reform following Swain. Interestingly, Justice Canada did commission the Mental Health Commission to prepare data on NCR accused before the bill was drafted. According to Dr. Baillie, however, the data was seemingly ignored: NCR findings occur in less than 1.8/1000 criminal cases in Canada and the recidivism rates of NCR accused are very low. The new legislation might therefore apply to fewer than 7 cases per year in Canada.

Second, many of the speakers emphasized the added stigma from the new “high-risk” designation. Dr. Bloom noted that with the new designation, there is now the possibility of “quadruple stigma”: they are deemed psychiatric patients, forensic patients, criminals, and possibly high-risk accused as well. Officer Arruda also explained that it is illogical to give a title to the NCR when criminals are not given one. This stigmatization will make it more difficult for NCR individuals to reintegrate into society.

Third, the Not Criminally Responsible Reform Act will be very costly to implement. All “high-risk” accused will be forcibly detained in hospitals. As a result, the number of hospital beds will have to increase – at a cost of $500 to $700 per day, according to Dr. Bloom. Dr. Fugère highlighted the need for more psychiatric experts in hospitals to treat these patients. These costs will fall on the provinces, which are responsible for health services.

Finally, the “high-risk” designation is said to worsen rather than improve the support given to the mentally ill. Justice Schneider calls this implication the real problem and grand irony of the Act. The new designation will discourage mentally ill individuals from entering the NCR system due to the mandatory detainment provision. Consequently, they will choose to go to prison instead, where they will not get the proper care required. This lack of treatment will in turn increase the probability of recidivism once these individuals are released. In Ontario, for example, Justice Schneider noted that there has been a 20% drop of NCR cases since the introduction of the new Act. The reform thus has the indirect effect of deteriorating the care available to the mentally ill, defeating the goals of the legislation.

Alternate paths of reform

The speakers suggested alternatives to the Act that would better respect the rights of the mentally ill and better protect society. Dr. Kaiser suggested that we should strive as a community to improve the condition of the mentally ill: law students should be encouraged to do pro bono work in the criminal justice system, and we should build on the foundations of human rights law for the mentally ill by ensuring that Canada respects its responsibilities under the UN Convention on the Rights of Persons with Disabilities and ratifies the Optional Protocol. Dr. Kaiser also advocated for resistance to the Act, encouraging everyone to write to his or her local MPs.

Justice Schneider argued that in order to reduce the number of criminal offences by NCR accused, the civil system should treat mental illnesses before they deteriorate to a point of criminality. He explained that prior to committing a criminal act, many accused were already in contact with civil mental health institutions. He considered a forensic patient to be a failed civil patient. Additionally, Dr. Kaiser and Dr. Baillie noted a correlation between poverty, mental illness and crime, and suggested a need to intervene on that level.

What to expect?

Our panel of experts agreed that we should expect a lot of Charter litigation in the future. Justice Schneider asserted that the Supreme Court of Canada will turn this Act around when it gets the opportunity. However, the opportunity for Charter litigation seems limited: to date, the amendments to the Criminal Code have only directly affected one individual. Additionally, many provinces have ordered their Crown Prosecutors not to seek “high risk” designation until the issue is resolved by the Supreme Court in order to avoid the high costs of potential Charter litigation. It remains to be seen when and whether the Act – as a whole, or in part – will be overturned.


Thank you for reading our recap. The recording of the event can be found by clicking this link. We hope to see you at the next MJLH Colloquium in 2016!

Getting to Know the MJLH, vol 9: Katarina Daniels, Executive Online Editor

Posted By Katarina Daniels

What is the best part of your role as Executive Online Editor of the MJLH?

Learning from my peers. The Online Board dedicates itself to bringing the latest in health law, policy, and ethics to MJLH followers, and our editors are constantly surprising me with the impressive range of topics they choose to cover, as well as the high quality of their work as writers and editors. I can’t wait to see what the Volume 9 team produces this year!

What did you do this summer?

Lots of traveling (and a bit of school and work)!

In May, I was lucky enough to be one of ten students – along with Jen Anderson, the MJLH Editor-in-Chief – chosen to participate in the McGill-Shantou Summer Law Programme in Shantou, China. Despite the short duration of the trip (just 2 weeks), we learned a great deal about the Chinese legal system, Chinese arbitration systems, the Chinese approach to disability law, and legal education in China. It is an experience that I will carry with me always, and I highly encourage all McGill students to apply to the program!

Upon my return, I started a legal clinic placement at Chez Doris, a day centre for women in difficulty. It was my first real hands-on legal experience, and a very valuable one at that! I wrote letters to landlords and neighbours, I prepared flyers on topics including landlord-tenant relationships, bed bugs, and legal aid, and I got to accompany clients to Legal Aid and to the Régie du Logement, among other responsibilities.

During my placement, I also took two vacations: a 4th of July trip to Chicago (home of the best burgers ever – check out Kuma’s Corner), and a two-week trip to Malaysia and Hong Kong. Both vacations, highly recommended. Necessary R&R before starting 3L!

Quelles sont vos ressources préférées pour les nouvelles de la santé?

Mon application Twitter est toujours ouverte pour que je puisse “re-tweeter” et faire des commentaires sur les nouvelles de la santé. La RDSM suit: @Ghealthrights, @IMHLMcGill, @ONThealth, @ILOHealthcare, @McGillMed, @healthcouncilca, @worldbankhealth, @GenomicsPolicy , @AMaioni, @EU_Health, @nprGlobalHealth, @Health_Care_Law, parmi beaucoup d’autres.

What attracted you to join the MJLH?

Health law is so relevant and omnipresent, and yet we rarely discuss issues relating to health care in first year law. After all the theory in 1L, I desperately needed to see real-life, current applications of the concepts I was studying. I have absolutely no background in health law or policy, but I started following the MJLH on Facebook and was really interested in some of the news articles that they posted. That’s when I looked into the Online Board.

Quels sont vos festivals d’été préférés de Montréal?

Le Festival Juste pour rire – je l’ai manqué cette année parce que j’étais en Asie, mais normalement j’assiste aux spectacles ‘Off JFL,’ qui sont moins chers mais également amusants. J’ai aussi beaucoup aimé les festivals pour le Grand Prix: je suis allée au Festival sur la rue Crescent, mais aussi celui sur la rue Monkland, à NDG. Je dirais par contre que je les aimais plus pour les food trucks que pour les autos!

Getting to Know the MJLH, vol 9: Samantha Allen, Executive Managing Editor

Posted By Katarina Daniels

What is the best part of your role as Executive Managing Editor of the MJLH?

I really enjoy working with a broad range of students, who become a great team, on topics that are important from an interdisciplinary perspective; this is truly what has brought me back to the MJLH year after year. The breadth of talent that the students on this Board bring to the journal is inspiring, and it has really helped me grow both as a law student and as a person.  The challenge of bringing so many bright ideas to fruition over the course of the year, and being a part of the team responsible for fostering dialogue at so many Faculty events, is what makes this job so rewarding. As Executive Managing Editor, I now have more responsibility to ensure that our Board members’ ideas are fully developed so that we continue to enhance the visibility of health law issues on a large scale. I am really looking forward to overseeing our team’s ever growing success, but it would not be possible to do without the contributions of each and every member of the Management Board. Being a part of this team is by far the best part of my role.

What did you do this summer?

This past summer I worked full-time at Stikeman Elliott’s Montreal Office. It was a great opportunity to sharpen some of the basic skills that will be of use to me as a lawyer in the future.

Quelles sont vos ressources préférées pour les nouvelles de la santé?

The MJLH blog of course! It is always refreshing to be able to see what our Online Board members’ perspectives are on a variety of important issues. The posts are always very thought-provoking. I encourage you to check it out!

What attracted you to join the MJLH?

As a first year, the journal’s focus on health law was a big draw for me. I had a lot of experience in health policy as an undergraduate student, and I was curious to see how I could continue to pursue my interest in health issues as a law student.

Quels sont vos festivals d’été préférés de Montréal?

The Comedy Fest- hands down. I love catching one of their many themed shows. There is nothing better than spending an evening laughing.

Getting to Know the MJLH, vol 9: Jennifer Anderson, Editor-in-Chief

Posted By Katarina Daniels

What is the best part of your role as Editor-in-Chief of the MJLH?

As trite as this may sound, the best part is the wonderful executive team with whom I get to work! I am constantly amazed at – and grateful for – their talent, creativity, enthusiasm, and drive! We have a busy and challenging year ahead of us, but I can’t imagine a better group of people to take it on. Although in this position I’ll have less direct interaction with our members than in the past, their phenomenal contributions to the MJLH cannot go unmentioned.

Apart from the “human factor,” being Editor-in-Chief means overseeing many exciting projects in law and health: our Colloquium and other events, our blog posts, and of course the fascinating journal articles we publish in every issue.

What did you do this summer?

To kick off the summer, I had the privilege of being one of 10 McGill law students – along with Kat Daniels, the MJLH Executive Online Editor – chosen to participate in a joint summer course in China, at Shantou University Law School in Guangdong Province. It was a truly amazing and eye-opening experience! After returning to Montreal, I spent the rest of the summer working as a research assistant completing various MJLH projects, both to close out my previous position as Executive English Editor and to prepare for my current role.

Quelles sont vos ressources préférées pour les nouvelles de la santé?

La page de la RDSM apparaît dans mon « newsfeed » de Facebook (, donc j’y reçois toujours des actualités de droit de la santé! Autrement, je lis l’actualité liée à la santé dans les médias généraux, par ex. le Globe and Mail, le Guardian, etc. C’est un sujet très vaste, et je trouve que beaucoup de gens partagent les articles en ligne portant sur la santé; invariablement, ce genre de « post » attire mon intérêt!

What attracted you to join the MJLH?

I came to McGill with the hope of participating in one of the journals, but without a clear idea of what options were available. While I had developed an awareness of health policy through working in medical school administration before coming to law school, I was a bit worried about not having enough of a science background for the MJLH – but I quickly learned that this is not a barrier, since all students with an interest in health and law are welcome to apply! At Clubs’ Day in my first year, I met the Executive English and French Editors, and their description of the role and enthusiasm convinced me that the MLJH was the right choice. Our journal offers students an opportunity to work on a fascinating array of topics, engage with new research, and develop important research and critical appraisal skills… right from first year!

Quels sont vos festivals d’été préférés de Montréal?

Honnêtement, je ne suis pas vraiment une grande enthousiaste de festivals d’été. Mais cette année j’ai assisté au concert de Woodkid au JazzFest – c’était une expérience formidable!

What R v Hutchinson means for consent: an examination of the majority and minority opinions

Posted By Katarina Daniels

On Friday, March 7th, 2014, the Supreme Court of Canada unanimously dismissed Craig Hutchinson’s appeal, holding that Hutchinson did in fact sexually assault his partner when he decided to poke holes in his condoms in order to get his partner pregnant. Immediately, the media responded. Headlines included:

“Supreme Court upholds sexual assault conviction in condom sabotage case” (Mike Blanchfield, The Canadian Press, in the Montreal Gazette)

“Condom Piercer Faces Jail For Sexual Assault” (Sky News)

“Condom case reaffirms the ability to make meaningful choices” (Angela Campbell, The Globe and Mail)

Very few news outlets, however, noted the serious distinction between the majority and minority opinions in how they understand consent. How far does consent reach in the context of sexual relations? Does “voluntary agreement… to… the sexual activity in question” only include the specific physical act or does it extend to how the intercourse takes place? Specific to this case: is sexual intercourse with a condom and without one the same “sexual activity”?

The majority opinion: the sexual activity in question was sexual intercourse

The majority of the Court, led by the Chief Justice and Cromwell J, limited s.273.1(1) of the Criminal Code’s definition of “the sexual activity in question” in consent to the physical act, the sexual nature of the activity, and the identity of the partner. According to the majority, the physical act does not include “conditions or qualities of the physical act” (para 55) but only the “specific physical act,” which includes: “kissing, petting, oral sex, intercourse, or the use of sex toys,” for example (para 54, emphasis in the original).

For its part, this limited definition suggests that, for the purposes of defining the “physical act”, sex without a condom is no different than sex with a condom. The majority makes clear that consent to sexual intercourse, at this first stage of the consent analysis, is consent to any action falling “somewhere within the generic category of what the complainant agreed to” (as described by Abella and Moldaver JJ, para 87). By using this narrow definition of “physical act”, the majority is able to find consent at the first stage of the analysis. A finding of consent, even initially, where the plaintiff insists that there was none, in fact contradicts the headline of Professor Campbell’s article in The Globe and Mail, which reads: “Condom case reaffirms the ability to make meaningful choices”.

Apparently unperturbed by the irony of telling a woman that she has consented to something she argues she has not, the majority moves on to the second stage of the consent analysis – reasons to vitiate consent. Under s.265(3) of the Criminal Code, consent may be vitiated through a number of conditions, including fraud (s.265(3)(c)). Under the test set forth by the Supreme Court of Canada in Cuerrier, a finding of fraud requires: 1) a dishonest act, and 2) that the dishonest act had “the effect of exposing the person consenting to a significant risk of serious bodily harm” (Cuerrier,para 128).

The problem here is that using this line of reasoning creates of a “problematic analogy” between pregnancy and bodily harm. The majority awkwardly holds that harm “includes at least the sorts of profound changes in a woman’s body… resulting from pregnancy” (para 70). The majority must make this uncomfortable statement in order to find fraud, which in turn allows the majority to hold that consent has been vitiated per s.265(3)(c) of the Criminal Code. As a result, Mr. Hutchinson was found guilty of sexual assault under s.265(1) of the Criminal Code.

The minority opinion: the sexual activity in question was sexual intercourse with a condom

In contrast to the majority opinion, the minority opinion, led by Abella and Moldaver JJ, defines the sexual activity in question as sexual intercourse with a condom, as opposed to simply sexual intercourse. Because of this framing, they could find an absence of consent under s.273(1) without relying on fraud and the Cuerrier test, thus coming to the same result as the majority.

Abella and Moldaver JJ rely heavily on R v Ewanchuk, a seminal case outlining the framework for sexual assault findings. In particular, they rely on the following passage: “Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy” (Ewanchuk, para 28).

The minority pounces on the latter element of “how” to justify their definition of “sexual activity” under s.273.1(1). For the minority, this inclusion of the term “how” in Ewanchuk implies that “sexual activity” at s.273.1(1) must be broader than the “specific physical act” and must include the way in which that activity is carried out – in this case, with or without a condom. To hold otherwise would be “[to extinguish] the right of a person to decide whether to give or withhold consent to the sexual activity” (para 86), undermining Ewanchuk’s most basic principles.

Following Ewanchuk, Abella and Moldaver JJ propose a two-part test to analyse consent under the actus reus of sexual assault:

“Under s.273.1(1), has the complainant consented to the identity of her sexual partner, the sexual nature of the touching, and the manner in which the sexual touching was carried out?

If so, are there any circumstances that vitiate the complainant’s consent under s.265(3)?” (para 92)

While the majority suggests that the “how” may be too confusing for judges to apply, resulting in over-criminalization, the minority notes that their approach is the only one that truly gives meaning to the term “consent”. According to the minority, the majority approach would deny individuals who do not risk pregnancy the legal right to demand the use of a condom during sexual intercourse, so long as they agreed to the general activity of sexual intercourse.[1] This is because the majority proposes no other new “harm” under the fraud requirement aside from the “harm” of pregnancy. Per Cuerrier, without serious bodily harm, there can be no fraud.

Concluding thoughts

“All individuals must have an equal right to determine how they are touched, regardless of gender, sexual orientation, reproductive capacity, or the type of sexual activity they choose to engage in” (Abella and Moldaver JJ, para 98).

The majority decision – that is, the ruling decision in this case, the current state of the law – seems to hold otherwise. In relying on vitiation of consent, the majority limits an individual’s right to make meaningful choices for him or herself. This sets a dangerous precedent, and also creates confusion for lower courts in identifying harm under the fraud principle. Media attention must be brought to the actual reasoning of the case, instead of simply the result, as it is the reasoning that will be applied to future cases and continue to shape the laws of consent in Canada.

Note: This blog post does not necessarily reflect the attitudes or opinions of the McGill Journal of Law and Health.

[1] Unless there are concerns about infectious diseases or other legally recognized concerns.