This is my most recent column in my firm’s “Right to Know” series about the criminal justice system. This column appeared in today’s Ottawa Citizen.
Changes to law concerning those found ‘not criminally responsible’ must be driven by evidence
SOLOMON FRIEDMAN, OTTAWA CITIZEN
The bill purported to address certain shortcomings in the present Criminal Code scheme for dealing with those individuals who are found to be “not criminally responsible” (colloquially known as “NCR”) by reason of mental disorder.
While Canadians may have some passing knowledge of the “insanity defence” frequently portrayed in Hollywood — usually part of some diabolical scheme by a clever defendant to escape prosecution — many are unaware of the principles underlying the Canadian legal framework.
It is a basic principle of our criminal law that the morally blameless ought not to be punished. This is also linked to the requirement of criminal intent. As Sir Edward Coke, the famous Elizabethan jurist, put it: “An act does not make a person guilty, unless his mind is also guilty.”
In Canada, the issue of a mental disorder can impact an individual’s status before the courts in two distinct ways.
First of all, an accused person can be found unfit to stand trial, by reason of mental disorder. In addition, an accused can raise the defence of “not criminally responsible.”
Both of these options present unique challenges to the criminal justice system and also carry their attendant procedures and remedies.
With respect to the issue of fitness to stand trial, a person may have been sane when the crime was committed but subsequently suffer from a sufficiently severe mental disorder so as to render him or her “unfit” to stand trial.
An individual will be found unfit where a mental disorder prevents him from meaningfully conducting a defence. This includes the person’s ability to understand the nature, purpose or consequences of the trial. It also includes the accused’s ability to communicate with defence counsel.
Courts have found that the threshold for “fitness” is a low one. Provided that the accused has the “limited cognitive capacity to understand the process and to communicate with counsel,” he or she will be found fit to stand trial.
Aside from the issue of fitness to stand trial, an accused person can argue that he cannot be convicted because, at the time of the offence, he was suffering from a mental disorder that rendered him incapable of “appreciating the nature and quality” of the offence or of knowing that it was wrong. This requirement addresses the ability of the accused to measure or foresee the consequences of the conduct in question. In other words, where an individual, by reason of mental disorder, cannot appreciate the physical consequences of his actions, he will be found NCR.
Notably, this definition does not include individuals who cannot emotionally comprehend the effect of their actions on the victim. The law is concerned with the accused’s understanding of the physical effects of the act, not whether he feels remorse or guilt for his conduct.
What does it mean for an accused to not know that his conduct was wrong? There has long been a debate in Canadian law as to whether this provision applied to persons who knew that their actions were legally “wrong” but, due to the their mental disorder, believed that the conduct was morally right.
In the infamous Landry case, the NCR defence was held to apply to a person who suffered from delusions that he was God killing Satan; he had in fact killed a man. The accused knew that murder was a crime but believed that the act was necessary in order to fulfil his divine mission. Nonetheless, the NCR finding was upheld by the Supreme Court.
Where an accused person is found to be either unfit to stand trial or not criminally responsible, the person will be referred to a provincial or territorial review board — in Ontario, the Ontario Review Board — for a disposition.
The review board is composed of judges, lawyers, psychiatrists, psychologists and other members of the public, appointed by the provincial government. The task of the board is to annually assess the status of individuals found unfit or not criminally responsible.
In general, the board can make one of three determinations. First, where the person has been found not criminally responsible and does not pose a “significant threat to public safety,” an absolute discharge can be granted. Second, the board can grant a discharge subject to certain conditions. Third, the board can order that the individual be detained in custody in a hospital or other mental institution.
Alternatively, where an individual has been found to be unfit to stand trial and the board is of the opinion that the person is unlikely to ever become fit and does not pose a significant threat to public safety, the board can order that the charges be permanently stayed.
Bill C-54, if passed by Parliament, would create a new “high-risk” designation for accused found not criminally responsible. Individuals determined by a court to be “high-risk” would be held in custody until their designation was revoked by a court on the recommendation of the review board.
In addition, “high-risk” NCR accused persons would be prevented from going into the community unescorted. Finally, the board would be permitted to extend the review period to a maximum of three years, instead of annually, for “high-risk” individuals.
The recent high-profile cases of the Greyhound bus killer Vince Li and Quebec physician Guy Turcotte have brought the issue of NCR to the forefront of the public consciousness and, through Bill C-54, to Parliament’s legislative agenda.
It is essential, however, when crafting criminal law policy, that changes are driven by evidence and a sound understanding of the law. It remains to be seen whether Bill C-54 will address underlying concerns with the NCR system or if it will be remembered as another hollow victory of symbolism over substance.
Solomon Friedman is a criminal defence lawyer with Edelson Clifford D’Angelo LLP. He can be reached at firstname.lastname@example.org or 613-237-2290. Follow Solomon on Twitter at twitter.com/firearmslaw or at his website, www.affordabledefence.com.