Amber Neumann (3L)
Vincent Li. Allan Shoernborn. Richard Kachkar. Luka Magnotta? The drill is almost routine by now. A shocking act of violence occurs. A trial is held. The court finds that the accused committed the act, but is not criminally responsible (NCR) because of mental illness. The person is detained in a forensic psychiatric facility for treatment and, as they are granted even minor liberties as part of their treatment, public discourse responds with impassioned arguments that the penalty is too short. For some, it feels like an NCR sentence allows the accused to get away with murder. The reaction is easy to understand, but it’s uninformed about the basic principles that underpin an NCR disposition. It’s also entirely unhelpful if our goal is to improve the outcomes for people with mental illness while also protecting public safety.
What is NCR?
NCR is defined in s. 16 of the Criminal Code, and its administration is governed by s. XX.1 of the same legislation. It can be raised by either the defence or the prosecution, and the onus of establishing it is on the party who raises it. The finding is based on an existing ‘mental disorder’, as determined by expert evidence. It must be found that the symptoms of the illness were present at the time of the act. These symptoms must be such that they rendered the accused either incapable of appreciating the nature and quality of the act, or of knowing the act was wrong. As the label suggests, the person is understood to bear no legal responsibility for an act committed out of illness. As such, the function of an NCR disposition is not to punish the accused, but to ensure treatment and to protect public safety.
An NCR finding leads to what is essentially an indefinite sentence, subject to periodic review by the Ontario Review Board. The ORB is an independent tribunal. A lawyer, a psychiatrist, and a layperson sit at each hearing. They use assessments provided by the accused’s psychiatrist to determine what level of supervision is appropriate for the coming year. Case law has long established that the person’s treatment needs must be balanced with concerns for public safety (see Winko, SCC, 1999), but recent amendments to the Criminal Code have made concern for public safety the “paramount consideration”.
Ridiculous Outcomes
NCR is available to any offence under the Code, and is not limited to the extreme types of cases we read about in the media. For every Li or Kachkar case, there are others who remain detained under the forensic system for years as a result of what are essentially minor offences. I am aware of a case in which a woman with a history of substance addiction and mental health issues was found NCR on a charge of breaching probation. Without the NCR finding, she was looking at a maximum of two years in jail. But as a result of the NCR, she has now been detained in the forensic system for more than six years and there’s no sign of release on the horizon. In another example, taken from Canada’s leading case on capacity to consent to treatment, the accused was charged with uttering death threats. This is an offence under s. 264.1 of the Code, and carries a maximum sentence of five years. The man was detained in the forensic system for fifteen years before being granted a conditional discharge. (See Starson v. Swayze, SCC, 2003)
A Disjointed System
I think it’s fair to say that such ridiculous outcomes are often rooted in a place of genuine human concern. They are a reflection of our disjointed mental health care system, and our inadequate, if often well-intentioned, attempts to make it work. It can be very hard to get people connected to the treatment and services they need in the best of circumstances, and it can be even harder when someone is poor, marginalized, and without a social and family structure to advocate on their behalf. It can be with the best of intentions that people working within the system try to use whatever legal tools they can to help keep someone in treatment. But it simply should not be the role of a psychiatrist, or any other health care provider, to decide whether or not a person is subject to criminal detention. The law provides civil psychiatric mechanisms to hospitalize someone against their will for the purpose of psychiatric assessment and, where appropriate, treatment. A doctor and a judge have different objectives, and no one’s best interest is served when they try to do each other’s jobs.
Time for a Radical Departure?
I am increasingly convinced that we need something radically different from the approach we have. It’s time to at least consider imposing the same sentencing guidelines on someone found NCR as apply to anyone else, and to focus the differentiation inherent in an NCR finding on treatment rather than length of time. A hospital should not be a substitute prison and, if a person found NCR has completed the maximum amount of time for the offence as determined by the Criminal Code, they should be free to go. If there remains genuine concern as to their mental state, they should be assessed under the civil criteria and held or treated using the civil psychiatric mechanisms available under the Mental Health Act.
*This article is an expansion on ideas initially presented in a reflection paper submitted for a clinical legal education course at Downtown Legal Services.
