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Scrutiny heightens on NCR findings

Focus on Criminal Law
|Written By Shannon Kari
Scrutiny heightens on NCR findings
Joseph Neuberger says the criminal justice system has to deal with more potential NCR cases because of a lack of mental health resources and untreated individuals.

Two high-profile criminal proceedings in Toronto have again put a spotlight on the issue of defendants who are found not criminally responsible as a result of mental illness and what needs to be shown before this finding is accepted.

For lawyers who are experienced in dealing with these kinds of cases, they say there should be more education about how this process actually works and that the safety of the community is always of paramount concern.

“Society has to treat these individuals in a fair way. Twenty-five years in prison is not that way. The media should understand that this is not a technicality,” says Toronto defence lawyer Joseph Neuberger.

A finding of not criminally responsible means the individual did not have the necessary “guilty mind” at the time they committed their illegal act, he says.

“It is no different than someone who has suffered a stroke and lost control while driving,” adds Neuberger, who heads Neuberger & Partners LLP in Toronto.

Dean Embry, a Toronto-based defence lawyer, agrees.

“What gets lost in the public perception is that this is a very narrow defence. It is very hard to make out that a person is truly not criminally responsible,” he says.

Last month, a Superior Court judge accepted a joint submission by the Crown and defence, based on psychiatric evidence, that Rohinie Bisesar suffered from a serious mental disorder in December 2015 when she stabbed Rosemarie Junor to death at a drugstore in downtown Toronto.

 “Because of the schizophrenia, she was incapable of knowing the killing was morally and legally wrong,” said Justice John McMahon in court in explaining his decision. The judge heard that Bisesar suffered from hallucinations and delusions as a result of her mental illness.

In another closely watched criminal proceeding, Christopher Husbands is currently on trial and charged with murder in the 2012 shooting deaths of two men in the food court of the Eaton Centre in Toronto.

The jury was told by the defence in opening arguments that it will hear evidence that Husbands suffered from post traumatic stress disorder and suffered auditory and visual hallucinations at the time of the incident. The Crown is arguing that the shooting was an attack of revenge for a past attack on Husbands.

In the trial of Bisesar, despite the psychiatric findings and the fact it was a joint submission by the Crown and defence, there was still public criticism of the verdict.

One daily media outlet asked the question “justice or #fail” on its website. Junor’s family also raised the prospect of Bisesar being released from a secure mental health facility when she is still a risk to the public.

Neuberger says it is very understandable that the family members of a victim will have concerns about an NCR verdict. “For those who suffer the tragic loss of a family member, they will always feel pain,” he says.

Such a finding, though, he stresses, is not easily accepted by a court.

“You will have to marshal compelling psychiatric evidence that, at the time of offending, the individual was truly suffering from a major mental illness,” says Neuberger, who has also been a member of the Ontario Review Board for several years.

Unfortunately, he says, the criminal justice system has to deal with more potential NCR cases because of a lack of mental health resources and untreated individuals.

“As a defence lawyer, you will know during the first meeting with a client if the person might need a psychiatric assessment. It will come out very quickly,” Neuberger says.

The other concern that is often expressed by the public and media is that an individual found to be NCR after having committed a serious act of violence will not be punished properly and will be released quickly into the community by the review board.

Embry frequently acts for individuals at review board hearings and he says this belief is not factually accurate.

“Once you are in the system, you can be stuck for a very long time,” he says, adding that it is not unusual for people in a secure mental health facility to be held there longer than they would be held in jail if originally convicted of the criminal offence.

The board is required to hold a hearing annually for anyone who is under its jurisdiction. According to its website, about 1,500 people in the province are currently in this position, although the board adds that this number is increasing. Five-person panels, made up of board members, will decide after a hearing whether someone can be released into the community and the conditions of any release.

The evidence at these hearings, says Embry, often consists only of the testimony of the treating physician.

“The reality is the board usually goes with the opinion of the doctor. They are very cautious. They err on the side of moving slowly. Everyone is very aware of giving too much liberty too quickly,” Embry says.

Even if there is a decision to release someone under the jurisdiction of the board, there has to be a follow-up plan. “What transitional supports are there? Resources are definitely a struggle. You see it most starkly in the lack of supportive housing spots,” says Embry. “It would be worthwhile if the provincial government would try to do more to educate the public in this area.”

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