A tough on crime agenda becomes a tough on mental illness agenda when we are dealing with Not Criminally Responsible offenders. In these instances the crime and mental illness are intertwined. You cannot set the accused aside and apply retribution for the crime without also being retributive to a mental disorder. Should we sentence symptoms?
The Harper government passed into law the Not Criminally Responsible Reform Act. There are several faults to the Act but my focus is on the designation of a high risk offender based on an arbitrary value of brutality and the implementation of a three year review rather than an annual review.
This Act allows crime scene evidence to be the stand alone predictor of present risk; indefinitely. On the same level treatment and rehabilitative interventions will be based on the dimensions of a delusion itself. Should we apply criminal sentencing protocols to medicine?
This new law will base the application of more restrictive measures for certain patients on the severity of the offence and or who happens to have certain delusions. Someone who is hallucinating is able to control their hallucination in the same way a cancer patient controls tumor growth. They don’t because they can’t. If psychosis is not a choice then what power does the individual being affected have in determining the width and breadth of the delusion it creates? The individuals in these tragedies are not making choices; they are being pulled in directions designed by delusions.
It is difficult for many to reconcile illness with atrocity. It needs to be kept in mind that without the illness there may have been no crime. We recognize the accused but we cannot see the culprit. The culprit is mental illness.
The Not Criminally Responsible Reform Act is being tested in British Columbia. The Supreme Court there has ruled that as written by the Harper government, the designation of high risk offender can apply to people entering the forensic mental health care system and existing patients. Fair enough. If we are somehow protecting the public this law should include. We might consider that this reach may eventually apply even further.
I have had an absolute discharge for near a decade. What influence do the circumstances of my crime have on my present risk? If the mechanics of the crime scene influence at 6 months can they at 16 years? This law puts all individuals impacted by mental illness in a susceptible position depending on political powers. It is my hope that in reviewing the laws the Harper government pushed through with ideology in place of evidence that the Minister of Justice will take note of the Not Criminally Responsible Reform Act.
“High-risk offenders” are detained indefinitely and do not have access to the public as the law was. To label certain patients high risk offenders may be fine but on what is it based? With the NCR Reform Act it can be based on an opinion of the court “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.” This opinion can result in confinement of the patient for a three year term. The progress of the patient will be ignored. A court can decide a patients future mental health care based on measurements and opinion of a delusion or hallucination. Which delusions bring about disqualification? Is it not more logical to use qualitative measures rather than an opinion of brutality?
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?
I do not clearly see how what anyone does at a point in time implies risk of repetition. This is clearly blurry when we are dealing with an instance of severe symptomatology. If the act was a result of a symptom we increase safety and security by progressively dealing with the illness from which it manifests.
If we are going to punish mental illness is it ethical to do so during recovery? If we are going to punish an individual for circumstances they were delusional for should we not have them fully rehabilitated so they can gain whatever effect said punishment is believed to have?
I am not arguing that certain events haven’t been utterly traumatizing. If you can find the guilt then the individual responsible should have a sentence. This Act piggy backs a finding of neither guilty nor innocent. It is worded as Not Criminally Responsible which as it sounds finds the accused from that moment on indefinitely excused from sentencing principles. We do not sentence anyone under any of our laws without first finding guilt. The finding of Not Criminally Responsible is not a finding of guilt.
If the law finds an individual Not Criminally Responsible it has also been found that it would be an injustice to punish or sentence in any way the individual in who the mental disorder at that time resided. As it stands we annually review the progress of the patient and re-examine risk and public safety. It seems in Canada these yearly reviews have become a public debate on the verdict. We seem to think that as citizens we should be making the calls on safety, security, rehabilitation, psychiatry, the courts and more.
We cling to our ignorance because it is safe, familiar and requires no effort. I don’t have to access or disseminate information. I don’t have to think, change or challenge old perceptions and I do not need to find opposing information or views. To be the king of incorrect is to rule none the less and we all want to issue creeds even if they are not credible.
We are competent in our incompleteness. Though in reality, we are complete in our incompetence. It is easier to remain self-righteous and defend what is incorrect than to journey into the difficult work of rearranging perceptions, presumptions and past efforts.
We could totally remove the Not Criminally Responsible provisions found in the criminal code. If we do that we have a clear path to punishing mentally ill people. The only unfortunate part for all of us as Canadians is that none of us are immune to mental illness. Further, none of us is born with any kind of ability to influence the unfolding or duration of a delusion or hallucination. That’s risk.