A government bill aimed at protecting the public from a small number of mentally ill offenders could deter others from seeking the treatment they need, mental health organizations are warning.
Under Canadian law, offenders who committed a crime but lacked the capacity to know what they were doing can be found not criminally responsible on account of a mental disorder. They are detained in a hospital for treatment until a review board decides they should be released.
The new legislation would allow judges to designate some of those individuals "high risk," a label that would increase the time between reviews from one year to as long as three and prevent them from being considered for release at all until a judge decides they are no longer a threat. The "high risk" designation would also eliminate unescorted passes and significantly limit escorted passes away from a hospital.
The government says the changes are designed to help keep the public safe and spare victims and their families the strain of participating in annual review hearings. But mental-health experts worry the new "high risk" category could deter some offenders from pleading not criminally responsible to avoid the possibility of prolonged or indefinite detention in a hospital.
Patrick Baillie, a Calgary-based lawyer and forensic psychologist, said that could result in more mentally ill people ending up in provincial and federal prisons. "That creates the potential for mentally ill individuals to be back in the community [after detention] without having been able to access treatment," he said.
Dr. Baillie was in Ottawa last week to meet with justice and public safety officials, part of a push by mental health professionals and advocacy groups to explain their concerns with the legislation before it goes to a parliamentary committee for further study.
A small fraction of criminal cases – close to 0.2 per cent or 1,000 a year, according to Dr. Baillie – result in a not-criminally-responsible plea, and less than 10 per cent of those involve a serious injury. Individuals found not criminally responsible are also less likely to reoffend than those convicted in a criminal court, researchers say.
A spokeswoman from Justice Minister Rob Nicholson's office said the legislation would not affect the majority of people found not criminally responsible.
"Few individuals are found NCR and not all would be considered 'high-risk,'" Julie Di Mambro wrote in an e-mailed response. "Although it could apply to a small number of accused persons, the government still needs to ensure that these individuals are treated appropriately and that appropriate measures are taken to ensure the protection of the public."
The cases of Vince Li, who beheaded a passenger on a Greyhound bus, and Allan Schoenborn, who stabbed his three children to death, have both brought added attention to the not criminally responsible verdict. When Mr. Li was granted the right to escorted trips into town last year, the family of his victim, Tim McLean, expressed outrage at the decision.
Chris Summerville, who heads the Schizophrenia Society of Canada, said there is no evidence of problems with the current system. The society has brought together eight mental health organizations that have concerns with the bill and is asking, in part, that high-risk offenders continue to be allowed out of the hospital on temporary passes if it will help them access treatment programs.
The Canadian Bar Association said it is still working to finalize its position on the bill. But Eric Gottardi, a Vancouver lawyer and vice-chair of the association's national criminal justice section, said there are concerns about the constitutionality of the bill in its current form.
The proposed legislation puts a reverse onus on a "high risk" individual to prove he is not dangerous before he can be considered for release, which, "could put the whole regime at risk, constitutionally," he said.
Louise Bradley, president of the Canadian Mental Health Commission, said she is concerned that too much emphasis on high-profile cases will give people a misleading picture of violence and mental illness.
"The vast majority of people with mental illness are never violent and do not commit any crime," she wrote in an e-mail. "However, the more mental illness is stigmatized, the harder it is to get people to seek and stay in treatment."