Conservative “anti-crime” measures have been the object of significant criticism from lawyers, corrections practitioners and generally folks who know how the system works.
A case in point is Bill C-54, the proposed Not Criminally Responsible Reform Act.
The legislation contains the same major flaws of most previous criminal justice measures imposed by the government:
- it significantly restricts rights of individuals based on a category of behaviours rather than the case-by-case assessment of risk or of potential for safe reintegration to the community
- it does so without a reasonable justification that is intended to address some clear and pressing need, as demonstrated by forensic research and statistics
- it caters to the attitudes of the conservative core electorate without promoting significant discussion based upon informed values and the rights of those impacted by the Bill
Again, as with previous measures, the Bill is presented as addressing a public safety need that is disclosed by public perception of crime and an imbalance in retribution (imprisonment) for offences. The public attitude to be addressed is primarily based on notorious examples that have pricked public sensitivity in this case the need to ensure that persons adjudged not criminally responsible (“NCR”) for particularly bloody and repellant crimes do not “walk” after an unreasonably short period in mental health facilities.
The legislative response is to create a perceived reasonable approach to the problem that purports to ensure public safety by applying special treatment to a defined group – irrespective of the specific needs of the individuals who make up the group. The public is assured, in government publications, that its new restrictions apply only to a small group, for whom the need for restrictions, on its face, is clear.
The Bill would permit three-year periods between review of certain cases for NCR cases where the court that made the NCR Order determines that the perpetrator is a “high-risk accused” (HRA). The criteria for this are:
“672.64 (1) ………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.”
In making the determination the Bill provides the following guidelines:
(2) In deciding whether to find that the accused is a high-risk accused, the court shall consider all relevant evidence, including
(a) the nature and circumstances of the offence;
(b) any pattern of repetitive behaviour of which the offence forms a part;
(c) the accused’s current mental condition;
(d) the past and expected course of the accused’s treatment, including the accused’s willingness to follow treatment; and
(e) the opinions of experts who have examined the accused.
Note that the Bill permits the court to consider the nature of the offence already committed in deciding whether the HRA designation applies.[see 672.64(1) (b), above] The nature ( one might say the inflammatory aspect) of the acts that constituted the offence is sufficient grounds for a designation. The Court need not consider the future potential for violence [672.64(1)(a)]. In fact, seemingly, the HRA designation could follow even if the danger of future offences was considered low.
Once the designation is in place, subsequent reviews by the administrative expert tribunals who conduct these are hamstrung by the designation. Special criteria apply. Undue delays in assessing readiness for release will certainly occur.
This legislative approach will be implemented despite there being scant evidence that the vast majority of NCR accused will re-offend violently. It will occur, as well, despite the very good record of review boards in assessing risk and determining the continued custody of NCR designees. Moreover, the review boards’ expertise in mental illness is significantly greater than that of the Courts.
As Liberal M.P. and Law Professor Irwin Cotler expressed it:
The realities of public safety, however, appear far less important to the Government than those of public perception; indeed, Kerry-Lynne Findlay, the Parliamentary Secretary to the Minister of Justice, has all but admitted as much. Appearing on CBC, she said with respect to the recidivism rates of NCR accused, “I’m not aware that there are any particular statistics available on that; I’m not sure that’s what this is about.” Yet, if legislation is to protect the public against a particular threat, information regarding the extent of that threat is fundamental. Otherwise, we are legislating based on fear and gut instinct. For that reason, I have asked the Government for the most recent data in its possession about the treatment of people found NCR, and the way they are dealt with in our justice system.
Simply put, all the available statistics indicate that mental illnesses are treatable, review boards are thorough, and recidivism rates are low. As a matter of public safety, therefore, Bill C-54 would appear to be unnecessary, potentially counter-productive, and an open invitation to Charter challenges.
So, lets curry favour by combatting a perceived problem rather than a real one. [It is interesting that Mr. Cotler has tabled a long series of questions in the House of Commons seeking empirical evidence of the need for and effectiveness of the proposed Act.]
Beyond the weakness of the policy behind the Bill, however, lurks an even more serious problem. The Bill may well cause more violent incidents rather than reducing their number. This is because, as mental health organizations have pointed out, the prospect of extended review periods and the stigma of being labelled a “high risk accused”, will have a chilling effect on people’s’ willingness to consider or to consent to NCR verdicts. There could be circumstances the accused will choose to risk conviction for a violent act rather than be labelled and spend long periods incarcerated, irrespective of the treatment that they receive and its success.
The result – individuals with untreated mental conditions will either be at large or may spend long periods in the pressure cookers of our penitentiaries without effective responses to their pathology. Bigger time bombs endangering the safety of institutions. Bigger time bombs re-entering society.
Nobody will deny the need to keep dangerous people out of the community. This Bill, though, has little to do with that objective because there is little factual evidence that it will achieve that purpose . Rather it appears that inflammatory events and resulting perceptions suffice – and consequences outside the ballot box be damned.