Focus: Critics worried about NCR changes

A proposed high-risk accused designation for those declared not criminally responsible could put a greater demand on already-scarce judicial and medical resources as well as increase risks to the public, mental-health and legal practitioners suggest.

The government introduced the not criminally responsible reform act in an attempt to respond to victims and emphasize public safety. Justice Minister Rob Nicholson’s spokeswoman Julie Di Mambro says there’s a need for the new law.

“Our government makes no apologies when it comes to supporting victims and enhancing their role in the criminal justice system. We are all too pleased to introduce the reforms contained in the not criminally responsible reform act which will enhance their safety, ensure that they are considered in the decision-making process, allow non-communications orders, and ensure that they are notified when an NCR accused is discharged,” says Di Mambro.

With a court-assigned high-risk label, those deemed not criminally responsible wouldn’t be eligible for release until a court revokes their designation following a recommendation by a review board. The high-risk label also means those found not criminally responsible could go without a review for up to three years and could only get escorted passes in narrow circumstances.

The designation also includes a provision to involve victims by ensuring notification upon discharge of someone declared not criminally responsible.

“This piece of legislation is little more than a knee-jerk reaction with little thought and almost absolutely no meaningful evidence behind it. It appears to be a reaction to the recent notorious murder cases which resulted in findings of NCR,” says Toronto criminal defence lawyer Tushar K. Pain.

It was the case of Allan Schoenborn that Prime Minister Stephen Harper referred to when announcing the changes in February. Schoenborn was found to be not criminally responsible in relation to the death of his three children in Merritt, B.C., in 2008. He was eligible for escorted visits, but the decision was reversed following community outrage.

Vincent Li and Guy Turcotte are two others found to be not criminally responsible after high-profile murders. Li attacked and beheaded a man on a bus in Manitoba in 2008. He was later granted unescorted passes. Earlier this year, the Crown obtained leave to appeal Turcotte’s case in connection to the 2009 deaths of his two children in Montreal. Turcotte, a former cardiologist, was released after spending 18 months in a psychiatric hospital.

The Canadian Psychiatric Association insists there’s no evidence to suggest current policies put the public at undue risk. It notes the available evidence suggests that the recidivism rate of those found not criminally responsible is five to six times lower than those found criminally responsible and managed in the regular corrections system.

“The Canadian Psychiatric Association and the Canadian Academy of Psychiatry and the Law are also concerned about victims, so we’re starting at the same place,” says Dr. Paul Fedoroff, a member of the association’s board and president of the academy.

The most likely victims of those declared not criminally responsible are relatives and people who are close to them. Their preference, he adds, is often treatment over jail. The organizations also worry that as a result of the change in legislation, those relatives who are victims will be less likely to encourage the designation.

Society has a long history of not holding people with severe mental illness responsible while instead putting them on a course for treatment in a less restrictive environment. But the new legislation, according to Fedoroff, adds an element of punishment based on the brutality of the crime they committed. That would be a fundamental shift in the law, he suggests.

“We’re concerned that the law might actually have a paradoxical effect” that would result in less treatment and more victims, says Fedoroff. “The field is unanimous in its concerns.”

Adds Pain: “The proposed legislation will supposedly offer the public more protection. Yet there seems to be little evidence regarding the recidivism rates of mentally ill offenders following release by the review board from a psychiatric facility. Without this information, this legislation seems a little like closing the barn door after the horses have already trotted off. Wouldn’t it make more sense to pour resources into the front end to bring greater awareness to the issue of mental illness and provide greater resources for treatment before such tragedies occur?

“Moreover, unnecessarily delaying the release of mentally ill offenders will put a greater strain on already-limited resources within the system. Is the government also willing to pay for more hospital beds?”

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