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

Posted By Sabrina Mach & Katarina Daniels

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

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

Important changes brought by the Not Criminally Responsible Reform Act

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

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

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

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

Merits and Pitfalls of the Not Criminally Responsible Reform Act

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

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

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

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

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

Alternate paths of reform

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

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

What to expect?

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

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

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

Posted By Sabrina Mach

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

Important change brought by Bill C-14

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

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

Criticisms of the high-risk offender provisions

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

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

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

Conclusion

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

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

The SCC Revisits the Right to Die in Carter v Canada (Attorney General)

Posted By Sabrina Mach

Twenty-one years after upholding a criminal prohibition on physician-assisted suicide (Rodriguez 1993), the Supreme Court of Canada must once again consider the constitutionality of s. 241(b) of the Criminal Code in Carter v Canada (Attorney General). Under s. 241(b), anyone that “aids or abets a person to commit suicide” is guilty of an indictable offence and liable to imprisonment for up to fourteen years. Lee Carter and Gloria Taylor joined with others in bringing this claim challenging the constitutionality of s. 241(b) of the Criminal Code, as well as ss. 14, 21, 22, 222, and 241(a), which collectively, with s. 241(b), prohibit physician-assisted suicide in Canada. Ms. Carter’s mother and Ms. Taylor both suffered from intractable and degenerative diseases.

The Supreme Court heard the Carter case on October 15th, 2014. An overview of the main points in the lower court decisions indicates that the Supreme Court’s decision could radically change the state of assisted suicide in Canada.

Trial Court Decision

The main hurdle for Justice Smith was to assess whether or not Rodriguez was binding precedent. In Rodriguez, the Supreme Court held that s. 241(b) was constitutional because it complied with s. 7 and s. 15 of the Charter. If Rodriguez were binding, then the civil claim would fail. However, Justice Smith found that the emergence of different social facts and legal principles since the 1993 decision allowed her to re-evaluate the constitutionality of s. 241(b). She noted that the right to “life” in s. 7 was not considered in Rodriguez. Neither were the principles of fundamental justice of overbreadth and gross disproportionality. Additionally, Justice Smith found that a violation of s.15, the equality provision, was never properly found in Rodriguez; rather, it was simply assumed to have occurred and was then justified under s. 1.

With respect to s. 7 of the Charter, Justice Smith held that the right to life was engaged because the prohibition had the effect of causing some people to end their lives sooner than they would have if physician-assisted suicide were available. With respect to s. 15, Justice Smith found that the impugned provisions created a distinction on the basis of physical disability. It did so by denying physically disabled individuals access to physician-assisted suicide, which was necessary for them to commit suicide, while able-bodied individuals had no legal restrictions to committing suicide. These violations could not be saved by s. 1. The trial judge declared impugned provisions to be of no force or effect due to their violations of ss. 7 and 15 of the Charter. The declarations of constitutional invalidity were suspended for one year to allow Parliament sufficient time to draft and consider new legislation.

With regards to the risks of physician-assisted suicide, Justice Smith suggested that sufficient safeguards could be put into place, such as employing properly qualified and experienced physicians to assess the competence of patients seeking physician-assisted death, identifying inappropriate influences on the patient’s decision, as well as assessing informed consent.

Court of Appeal

The majority found that the trial judge was bound by stare decisis to apply Rodriguez. Consequently, for the most part of the judgment, the court reaffirmed the findings established in Rodriguez.

With respect to s. 7, the court held that “life” was already considered in Rodriguez in relation to liberty and security of the person. The ability to make personal decisions regarding one’s body fell under “security of the person”, which made it unnecessary for Justice Smith to consider the right to “life” under s. 7. As for s. 15, they accepted Justice Smith’s finding of a violation, but concluded that it was justified under s. 1 of the Charter. The Court applied the same s. 1 analysis as in Rodriguez, emphasizing that s. 241(b) clearly had a pressing and substantial legislative objective grounded in the need to protect human life, and that it was rationally connected to its purpose. Thus, the provision is constitutionally valid.

Although the Court of Appeal upheld the prohibition, they did suggest that the legislature should consider adding a constitutional exemption where warranted. This exemption might be in favour of “those who are clear-minded, supported in their life expectancy by medical opinion, rational and without outside influence, and protected by a court process” (para 333).

Supreme Court of Canada hearing

The Supreme Court has yet to release its own decision regarding the constitutionality of s. 241(b) and the other impugned provisions. Nevertheless, following the hearing on October 15th, many media sources have already commented on the direction the court will take:

“Government’s stance on assisted-suicide runs into skepticism from Supreme Court” (Sean Fine, Globe and Mail)

“A tough day at the Supreme Court for supporters of a ban on assisted suicide” (Emmett Macfarlane, Maclean’s)

The Supreme Court has a big decision ahead of it – to follow Rodriguez or distinguish from it. Earlier this year, Quebec became the first province to legalize physician-assisted suicide by passing Bill 52, An Act respecting end-of-life care. With the changing political and social climate regarding assisted suicide in Canada, the Supreme Court has a lot to consider. The Harper government may have to brace itself for another tough loss at the Supreme Court.