Not Criminally Responsible Reform Act Brief

Brief submitted by

Brett Batten

London, Ontario

with regard to

BILL C-54

Act to Amend the Criminal Code and the National Defence Act (Mental Disorder)

“Not Criminally Responsible Reform Act”

 

Introduction. 3

Problems with Bill C-54. 3

‘Brutality’ as Problematic Concept 4

Likelihood to Re-Offend. 4

Victims’ rights. 5

Discouraging progress. 6

Likely Outcomes of Bill C-54. 6

Human Cost 7

Financial Cost 8

Conclusion: Rehabilitative vs. Retributive Justice. 8

Recommendations. 9

Studies Cited. 10

Introduction

“Criminal responsibility and punishment are appropriate only when the ‘actor is a discerning moral agent, capable of making choices between right and wrong.’”

  • Brett Batten
  • 2012 Mental Health Champion Award from St. Joseph’s Health Care Foundation and the Canadian Mental Health Association
  • Speaker at major conferences on mental health as well as universities and hospitals
  • Lived experience within the Forensic and Correctional Systems

Mentally disordered offenders present special challenges to the law, mental health care, and social service systems, as well as to the community. They remain the most disadvantaged and marginalized of populations. Many inmates in jails and prisons have mental health disorders, often untreated – this is an indictment of society’s values and understanding of mental health disorders.  When people with treatable mental health disorders fall into the criminal justice system, it serves neither society nor the individual.

When it comes to offenders who are found Not Criminally Responsible (NCR) by the courts, we need to reconsider the ‘tough on crime’ model and come to terms with the fact that these individuals are not deserving of punishment.  Their prolonged incarceration is neither effective nor compassionate, and if such treatment is seen to be suitable for those found NCR due to a mental health issue, we must also recognize that the same “just desserts” may fall at the feet of any of us.

Bill C-54 is flawed at the most fundamental level because it allows for arbitrary judicial action, subscribes to an incorrect understanding of risk, and would pave the way for abuses of the human rights of NCR offenders.  It disregards medical and psychiatric knowledge, basing its provisions on myths about mental illness rather than tangible evidence.  This government’s insistence on championing such a perception at the cost of effective and compassionate treatment for NCR individuals will have grave consequences for its most vulnerable citizens, and for the broader Canadian society.

Problems with Bill C-54

As written, Bill C-54 allows for a court to apply designations such as “high-risk” and “brutal” to an NCR accused and his or her crimes:

672.64 (1) On application made by the prosecutor before any disposition to discharge an accused absolutely, the court may, at the conclusion of a hearing, find the accused to be a high-risk accused if the accused has been found not criminally responsible on account of mental disorder for a serious personal injury offence, as defined in subsection 672.81(1.3), the accused was 18 years of age or more at the time of the commission of the offence and (a) the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person; or (b) the court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person

Given that a prosecutor is unlikely to apply for an absolute discharge in cases where a medical or psychiatric professional has determined there is any threat to public safety, this section essentially grants the court veto power based whenever a crime is deemed to be ‘brutal’.  There are three problems with this notion: first, the determination of ‘brutality’ is subjective; secondly, the perceived ‘brutality’ of a crime is not useful in determining if an NCR accused poses a threat to society; and thirdly, this determination allows little space for progress in treatment.

‘Brutality’ as Problematic Concept

The current Bill gives no definition of the term, which begs the question, where is the line that defines an act as brutal? The same accused may be deemed high risk by one court but not another, and thus ‘brutality’ cannot be fairly or accurately applied to individual patients.

A variety of factors affect the perception of ‘dangerousness’ or ‘brutality’ in an individual:

  • The age or sex of the accused
  • The age and sex of the victim
  • The location or duration of the offence
  • The age, sex, or number of witnesses

The subjective nature of determining ‘brutality’ has also been addressed in psychiatric studies:

[U]nless they are on guard, clinicians may unwittingly ‘construct dangerousness’ in the course of completing evaluations and that evaluations can also be subject to sex and other biases.

(Bloom, Webster, Hucker and DeFeitas 2005)

To interpret an act as ‘brutal’ – and to allow that interpretation to affect a disposition– assigns a degree of responsibility from which the accused has already been, by definition, excused.  Should we place such value judgements on acts wherein the accused had no capacity to understand the nature of the crime?  For an act to be considered ‘brutal’, does there need to be intent? Are we interested in rehabilitating the accused, or in assigning blame where it doesn’t belong?

If ‘brutality’ is to have any meaning at all, it must be defined and clearly articulated in this Bill. As written, Bill C-54 can and will be challenged, as it goes against the Charter of Rights and Freedoms.  The Charter guarantees that no one should be arbitrarily detained, and as written, this Bill provides for an arbitrary definition and enforcement of the notion of ‘brutality’.

Likelihood to Re-Offend

Secondly, the nature of the act already committed cannot predict future risk in the accused.  On the surface, brutality may suggest risk, but despite what Canadians are led to believe, the seriousness of the crime committed does not equate to the likelihood for the offender to reoffend – nor even to his or her ability to improve his or her mental health state and live a normal, healthy life. There is no credible evidence to suggest that the brutality of a crime correlates to future risk.

There is an unfounded public misconception that an association exists between mental illness and dangerousness, and this misconception can often shape how we treat individuals with mental health problems, particularly when a crime has been committed.  This understanding of NCR offenders as ‘dangerous’ and likely to reoffend has been refuted in a number of scientific studies and also in court:

Individuals who were identified as patients but who were not currently suffering from psychosis were at no greater risk for violence than the average community control population. They also cautioned that the risk for violence correlated to mental illness in their sample was less than the risk correlated to young age and male sex.

(Norko and Baranoski 2005)

Severe mental disorder did not predict the probability of arrest or the number of arrests for violent crime. These findings held even after controlling for prior violence and age. The findings do not support the stereotype that mentally ill criminals invariably commit violent crimes after they are released.

(Teplin, Abram and McClelland 1994)

A past offence committed while the NCR accused suffered from a mental illness is not, by itself, evidence that the NCR accused continues to pose a significant risk to the safety of the public.

(Winko v. British Columbia 1999)

Future risk should not be based on or subject to individual judgement, nor should it be predicted on a perceived risk.  It should be the result of consultation with medical and psychiatric professionals.  I find the fact that this government is disregarding the discretion and authority of psychiatrists, psychologists, and a list of other professionally-trained mental health practitioners and replacing it with court authority to be blatantly political.

Victims’ Rights

The current bill also makes reference to victims’ rights in a way that is not conducive to rehabilitation of NCR accused:

672.541 If a verdict of not criminally responsible on account of mental disorder has been rendered in respect of an accused, the court or Review Board shall (a) at a hearing held under section 672.45, 672.47,672.64, 672.81 or 672.82 or subsection 672.84(5), take into consideration any statement filed by a victim in accordance with subsection 672.5(14) in determining the appropriate disposition or conditions under section 672.54, to the extent that the statement is relevant to its consideration of the criteria set out in section 672.54

Allowing victims’ statements to take on undue influence in judicial and disposition procedures goes against the principles of our judicial system, which is founded on the acknowledged expertise of judges and the neutrality of juries.  In the case of NCR accused, there is no place for vengeance or retribution, and courts must guard against unjustifiable weight being given to victims’ accounts, regardless of the nature of the crime committed, as no guilt has been assigned (see Karen 2010).

Discouraging Progress

This Bill also places undue emphasis on determinations made at the time of a disposition, rather than at subsequent evaluations, and does not provide for regular re-assessments by trained and authoritative mental health professionals:

(1.32) The Review Board may, after making a disposition, extend the time for holding a subsequent hearing under this section to a maximum of 36 months […]

This provision goes against the notion that all penal sentences undertaken in Canada, and most especially those given to NCR accused, are meant to serve the rehabilitation and reintegration of individuals into society.

In forensic populations, patients can never shed their historical risk factors. Thus any approach to risk assessment that relies exclusively on these factors will deprive patients and their clinicians of hope for recovery.

(Norko and Baranoski 2005)

The court or Review Board may have recourse to a broad range of evidence as it seeks to determine whether the NCR accused poses a significant threat to the safety of the public.  Such evidence may include the past and expected course of the NCR accused’s treatment, if any, the present state of the NCR accused’s medical condition, the NCR accused’s own plans for the future, the support services existing for the NCR accused in the community, and the assessments provided by experts who have examined the NCR accused.  This list is not exhaustive.

(Winko v. British Columbia 1999)

It is widely accepted that recovery works best in the community, where an individual can receive the support of family and friends.  These studies show that determinations made at the time of a disposition have little influence on the individual’s actual mental state, future prospects, or likelihood to reoffend.  Bill C-54 places far too much importance on determinations made at the time of a disposition to allow for real progress or improvement in the course of an NCR accused’s treatment.  To incapacitate the accused while they are rehabilitated may be necessary, but to incapacitate them despite any progress they make is unconstitutional.

Likely Outcomes of Bill C-54

Bill C-54 will not lower crime rates, which have already been declining for the past 20 years:

Increased prison sentences do not decrease recidivism. This finding is demonstrated by two meta-analyses conducted in Canada. Gendreau, Goggin, and Cullen (1999) analysed 50 studies involving more than 300,000 offenders. The authors found that increased prison sentences were associated with increased recidivism.

(Alana and Roesch 2012)

The large financial and human cost to this Bill should also not be overlooked. Early intervention, prevention and rehabilitation are far more beneficial in reducing crime in the long term and more cost effective. Improvements in general mental health services are key to decreasing events leading to forensic mental health interventions.

Human Cost

Bill C-54 denies “high-risk accused” the conditions necessary for treatment, rehabilitation, and general well being.  The current system is rehabilitative rather than retributive; Bill C-54, on the other hand, is not and cannot be supported by an objective assessment:

(3) If the court finds the accused to be a high-risk accused, the court shall make a disposition under paragraph 672.54(c), but the accused’s detention must not be subject to any condition that would permit the accused to be absent from the hospital […] 

While waiting for my annual review, I was not to be absent from hospital for a year, and can assure you it was in no way therapeutic. I became suicidal and depressed. I was ordered to sit under a lamp when all I could see outside was sunshine. In part due to client-staff ratios, I was not walked around the hospital as was my right for a whole year. In a situation where 25 clients are cared for by 6 staff, access to humane conditions is often suspended. Most dogs are walked daily, I was not.

As noted above, the current Bill C-54 would also allow for dispositions of up to three years, without annual review hearings, and confine individuals exclusively to hospital.  This government has decided that incarceration of the severely mentally ill is preferable to rehabilitation. To deny the accused an annual hearing to determine the best outcome – for society and for the accused – is punitive and in no way rehabilitative, when an individual’s best chance of recovery is through reintegration into their communities and their social networks of family and friendship. Thirty-six months is not an opportunity for treatment, rehabilitation, and reintegration if one is limited solely to the confines of an institution.

Restrictions on his or her liberty can only be justified if, at the time of the hearing, the evidence before the court or Review Board shows that the NCR accused actually constitutes such a threat.

(Winko v. British Columbia, 1999).

In addition to the safeguards of the NCR accused’s liberty found in s. 672.54, Part XX.1 further protects his or her liberty by providing for, at minimum, annual consideration of the case by the Review Board.

(Winko v. British Columbia 1999)

The accused’s mental health a year or more after a hearing may not justify restrictions of the accused’s liberty, and thus three years without review of present conditions and the present state of the accused is not appropriate.  Patients are at risk of being confined more extensively than can be justified.

Financial Cost

“As correctional populations increase as forecasted, we are also reminded that corrections is complicated and expensive. Federal expenditures on corrections are growing annually, and CSC‘s budget can be expected to significantly increase as the full slate of criminal justice and sentencing reforms comes into effect. We may also have to build expensive new prisons to manage the expected population surge. The annual average cost of keeping a federal inmate now exceeds $100,000 per year (or just over $275.00 per day), up from $83,000 per year in 2003–04. It is even more costly to incarcerate women offenders, averaging over $180,000 per offender annually. By contrast, offenders supervised in the community cost considerably less—about one-eighth that of keeping them in prison. We need to think clearly about how best to safeguard the community and how to ensure the best return on this public investment.”

Office of the Correctional Investigator Canada. Annual report of the Office of the Correctional Investigator 2009-2010 [Internet]. Ottawa (ON): Office of the Correctional Investigator Canada; 2010 Available from: http ://www.oci-bec.gc.ca/ft/annft/annrpt2 009201 0-eng.aspx.

 

Conclusion: Rehabilitative vs. Retributive Justice

Rather than assessing their historically based risk, we should instead ask more often about the rehabilitative tasks to be undertaken.

(Norko and Baranoski 2005)

If an opinion of brutality alone is sufficient, then we have no need for psychiatry or its practices of evidence-based assessments. If opinion is given precedence, what need is there of science?  Risk should not be predicted on a perceived risk of violence.  The severity of the crime in the past does not imply a threat in the present, following treatment.  Contrary to public perception, NCR individuals are only released with a mental health aftercare plan involving substantial treatment in the community.  The public is made safe through treatment, not through opinions of risk.

It is imperative that this government uphold the existing reliance on decision-making by medical professionals.  Let us not forget that psychiatric treatment effectively reduces risk for violence associated with clinical symptoms.  With treatment, a person’s prognosis can change in a matter of weeks, particularly as psychiatric research advances, and should be addressed regularly.  Furthermore, a patient’s likelihood of progress is greatly increased when he or she is embedded in their community.  The disappearance of social networks from the life of the mental patient is seen as a major obstacle to reintegration. To be institutionalized for three years will dissolve families, friendships, and other essential supports.

We owe to these vulnerable individuals a defensible, professionally-sound judgment about risk that is relevant and based on well-established principles. The therapeutic needs of these mentally disordered offenders need to be addressed so as to mitigate risk and promote recovery, for themselves and for society at large.  To serve them and to serve Canadian society, we need to consider the need to protect the public from dangerous persons alongside and in conjunction with the mental condition of the accused, his or her reintegration into society, and his or her other needs.

The accused has a fundamental right to be considered as an individual, equally entitled to the concern, respect and consideration of the law.

(Winko v. British Columbia 1999)

[…] NCR accused are entitled to sensitive care, rehabilitation and meaningful attempts to foster their participation in the community, to the maximum extent compatible with the individual’s actual situation.

(Winko v. British Columbia 1999)

In a legal setting where we allow even those deemed to be dangerous offenders to receive hearings on a biannual basis (see Bonta, Zinger, Harris and Carriere 1998), a three-year exclusion from unbiased assessment for NCR individuals is nothing more than discrimination.  It is the prejudicial treatment of an individual based on their membership to a disability, and every individual is entitled to an equal share of the law’s concern and respect.  The denial of an up-to-date assessment and hearing is nothing more than a retributive sentence which flies in the face of the understanding, previously accepted by Parliament, that criminal sentencing principles should not be applied to NCR accused.

Our government re-writes laws in the guise of public safety, but in so doing disregards the evidence.  In supporting Bill C-54 as written, this government is subscribing to popular misconceptions about mental illness, pandering to public opinion and to the poorly-conceived ‘tough on crime’ mentality, in a way that is founded neither in the established record nor in informed medical opinion.

·       Recommendations

  1. Part of the solution is outside the justice system: incarceration would not be the only solution if prevention programs were available that tackle problems long before someone gets in trouble with the law.
  2. We need more mental health and substance abuse treatment in the community rather than in the criminal justice system. Improvements in general mental health services are key to decreasing events leading to Forensic Mental health.
  3. If brutality is to be a measure of risk it should be defined and clearly articulated in Bill C-54. A court’s opinion of brutality may prove incapable of making an adequate assessment of risk. There should be more reliance on empirical evidence to justify decisions regarding the lives of those found Not Criminally Responsible. If an opinion of brutality is sufficient we have no need for psychiatry or it`s practices of evidence based assessments.
  4. Patients can never shed their historical risk factors; as such we need the continued reliance on mental health professionals to advise the courts about how future risk considerations should figure into the rehabilitative and incapacitation aspects being imposed by the courts.
  5. The therapeutic needs of these mentally disordered offenders need to be addressed so as to mitigate risk and promote recovery. It is imperative that this government uphold the traditional reliance on decision-making by medical professionals. We owe it to these vulnerable individuals a defensible, professionally sound judgment about risk that is relevant and based on well-established principles.
  6. We need to uphold the use of an annual hearing to determine the best outcome for society and the accused. There are often significant changes in a patient’s prognosis within a year and medical advancements do not follow a thirty-six month schedule. To protect the liberty of the accused and to allow for progress in treatment a yearly review at minimum is absolute. Patients are at risk of being confined more extensively than can be justified with Bill C-54. Individuals found Not Criminally Responsible may be in need of maximum security for varying periods. In order to rehabilitate and reintegrate these individuals, permission to be absent from the hospital itself should be based on specific needs rather than on the basis of a finding of brutality. Restrictions on liberties should not be an absolute and we need to safeguard them with an annual hearing. There are limitations to any approaches to risk assessment; this being so, a gradual approach to the release of accused persons with mental disorders is usually the safest and supports their individual rights.

8.    There need to be safeguards put in place regarding victim impact statements.

9.   There needs to be a fuller inclusion of patients themselves as we continue to modify the kind of protocols that play such a large role in determining their fates.

Any government owes it to their citizens to make informed decisions based on evidence. The public may always be susceptible to headlines and the stigma that arises from them but it is incumbent on our leaders to remain apolitical and make ethical decisions whether they are popular or not.

Studies Cited

Alana, N. C. and Roesch, R. (2012) “‘Tough on Crime’ Reforms: What Psychology has to Say about the Recent and Proposed Justice Policy in Canada,” Canadian Psychology, 53(3), 217-225.

Arboleda-Flórez, J. (2008) “Social Inclusion of People with Mental Illness,” Canadian Journal of Psychiatry, 53(1), 70-71.

Bloom, H., Webster, C., Hucker, S., and De Freitas, K. (2005) “The Canadian Contribution to Violence Risk Assessment: History and Implications for Current Psychiatric Practice,” Canadian Journal of Psychiatry, 50(1), 3-11.

Bonta, J., Zinger, I., Harris, A., and Carriere, D. (1998) “The Dangerous Offender Provisions: Are They Targeting the Right Offenders?” Canadian Journal of Criminology, 40(4), 377-400.

Karen, M. K. (2010) “Opposing Scales of Justice: Victims’ Voices in the Sentencing Process,” Canadian Criminal Law Review, 14(2), 181-230.

MacDonald, N., Hucker, S. J., and Hébert, Paul C. (2010) “The Crime of Mental Illness,” Canadian Medical Association Journal, 182(13), 1399-1399.

Norko, M. A., and Baranoski, M. V. (2005) “The State of Contemporary Risk Assessment Research,” Canadian Journal of Psychiatry, 50(1), 18-26.

Rubin, Eugene H. and Zorumski, Charles F. (2003) “Psychiatric Education in an Era of Rapidly Occurring Scientific Advances”, Academic Medicine, 78(4), 351-354.

Teplin, Linda A., Abram, Karen M., and McClelland, Gary M. (1994) “Does Psychiatric Disorder Predict Violent Crime among Released Jail Detainees? A Six-Year Longitudinal Study,” American Psychologist, 49(4), 335-342.

Winko v. British Columbia (Forensic Psychiatric Institute), (1999) 2 S.C.R. 625.

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