How were mentally ill people who committed crimes in Canada treated before 1992?
The Criminal Lunatics Act of 1800 was incorporated into the British Criminal Code and then adopted by Canada in 1892. During that time, defendents could plead a verdict of ‘not guilty by reason of insanity’. If successful, the individual was deemed criminally insane and automatically detained without a hearing to assess his or her dangerousness. All decisions regarding release were decided by the Lieutenant Governor and his decisions did not require input from an advisory review board. In 1991, a landmark Supreme Court decision (R vs Swain) declared the law to be in conflict with the Charter of Rights and Freedoms and ordered the government to fix it. The result was Bill C-30, the NCRMD (not criminally responsible on account of mental disorder - NCR for short) defense which became law in 1992 .
Mentally ill people are generally not violent. They are 2.5 – 4 times more likely to be the victims of violence than the rest of the population.
What does NCR mean?
A person is not found Not Criminally Responsible just because they are suffering from a mental illness at the time of the commission of the crime; it must also be proven they did not have the capacity to appreciate their actions, know right from wrong at the time of the offence, or if they were not in control of their behaviour because of their mental illness. The defence must prove the accused is NCR on the ‘balance of probabilities’ or more likely than not . Only 2 in 1000 cases end up with an NCR verdict. And of those, charges of serious violence only account for 8.1% of NCR cases overall.
What happens after someone is designated NCR?
With the new legislation, the goal became rehabilitation. Once someone is found NCR they are managed by review boards – independent tribunals made up of at least five people, including a psychiatrist. Each year most cases are heard by the board which can order that the person remain detained in a hospital with varying levels of privileges, released on a conditional discharge or ordered to be released on an Absolute Discharge. In conditional discharges, individuals are allowed into the community where they have substantial freedom and relatively light conditions. Absolute discharges mean that they are free without any supervision and are granted only when the board finds the person is not a ‘significant threat’ to public safety. Few cases get an absolute discharge at the first hearing.
Does NCR system work?
The NCR program appears to be working. Recent studies show that three years after an NCR verdict about 10% of those people had reoffended, compared to 40% from the general penal system.
Changes to NCR in Bill C54
In an effort to be tough on crime and meet the concerns of victims, the Harper government made changes to the NCR legislation in Bill C54 which came into force in July 2014. The Not Criminally Responsible Reform Act created a ‘high risk’ designation for people found NCR in cases of serious personal injury, called NCRMD. These people can't leave the hospital, even with an escort, except for medical emergenices and could go three years between review board hearings. The Crown applies for the designation and it will only be lifted by a court. Notification of victims is mandatory once NCR individuals are released.
About 35% of people deemed NCR spend more than 10 years in the system.
Reaction from the mental health community to Bill C54
Opposition and mental health advocates including the Canadian Psychiatric Association feel that the legislation is unnecessary, counter-productive, and costly. It’s widely felt that the NCR system is working and that Bill C54 only applies to a tiny number of accused (read the latest stats). Furthermore, some legal advocates feel that the legislation could be challenged under the Charter of Rights and Freedoms. There are concerns that the new law will prompt psychiatric patients who commit serious acts of violence to choose prison over proper therapy in forensic psychiatric hospitals under NCR designation only to emerge from prison untreated and 5 or 6 times more likely to reoffend.