Patrick Baillie is a Calgary-based forensic psychologist and lawyer
Long before Zhebin Cong used the privilege of a day pass to flee Canada earlier this month, long before Vincent Li killed Tim McLean on a Greyhound bus in July, 2008, and even before Daniel M’Naghten tried to kill British Prime Minister Robert Peel in January, 1843 – indeed, well over 2,000 years ago – Plato commented that a person “either in a state of madness or when affected by disease” while committing a criminal offence should face no penalty beyond possible compensation.
And so the verdict of not criminally responsible on account of mental disorder (NCRMD) has been part of the legal lexicon for millennia. It underlines the concept that criminal penalties should apply only when the offender knew what he or she was doing, knew that doing it was wrong and chose to do it anyway. We do not, for instance, incarcerate a driver who has proven to have suffered a heart attack and so fatally collides with a young cyclist. What NCRMD does have, thanks to so-called M’Naghten rules providing structure to the judicial process, is a mechanism by which there must be evidence of a mental disorder and of how the mental disorder left the individual “incapable” of knowing what they were doing, or of knowing that the act was morally wrong, so as to overcome the legal presumption of sanity.
This may feel unjust. Locking them up and throwing away the key may be a popular sentiment as the best way to protect the public. But the reality – backed by data – is that the modern criminal-justice system is not and has never been the place to address offences committed as a result of someone experiencing the delusions and hallucinations that are part of their serious mental illness. NCRMD is not a “get out of jail free card,” it is not an easy designation to fake, and it does not put society at a greater risk of further violence – and such myths risk doing us all harm.
Here’s what really happens once an individual is found NCRMD in Canada: An independent evaluation regime overseen by a judge, in the form of provincial review boards, is assigned the responsibility of determining how to address public safety while placing the least onerous and least restrictive conditions on the patient. The criminal process is no longer involved. Public safety is the paramount concern, guiding every decision made by review boards. Permanent restrictions are not an option the review boards can deploy.
In fact, such an option isn’t supported by research. A large majority of individuals found NCRMD have, for years prior to the incident bringing them before the courts, been known to civil mental-health programs, with research showing that approximately half of them were hospitalized during the 12-month period before the incident. Thorough assessments, usually done in hospital, are part of the NCRMD process, conducted by skilled professionals who are always mindful of the potential for faking. And recidivism rates for individuals found NCRMD are much lower than for individuals coming out of jails and penitentiaries, and much, much lower than for inmates with mental-health problems whose sentences end. Heighten the restrictions on individuals found NCRMD, and some, through their lawyers, will opt just to do shorter jail time and get out – markedly reducing public safety.
Another myth about NCRMD is that the defence is most commonly used in cases of homicide or other serious violent offences. But comprehensive research across Canada has shown that less than 10 per cent of NCRMD cases involve serious violence, and in many of those assaults and homicides, the victim was a relative or close associate of the patient, with strangers being only very rarely the targets of such serious violence. And living with the knowledge of what one has done is, for many people found NCRMD, a strong motivation to continue to participate in treatment, thus reducing the risk of future harms.
Perpetuating the mistaken belief that mental illness causes violent behaviour only demeans the excellent work of review boards and further stigmatizes individuals who, through no fault of their own, face symptoms that impair their thinking and their choices. It’s only by ensuring prompt access to treatment, building stronger community supports, promoting adequate housing, medical care and nutrition, and continuing to monitor individuals found NCRMD that community safety can be best protected. We’re all better served if we defend, rather than undermine, the legal precept that refuses to penalize someone who, to summon again ancient words, this time from St. Augustine, some 1,600 years ago, “does not know what he has done.”
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