An unpublished study by the Justice Department is critical of a recent Harper government measure that allows further restrictions on the freedom of people who've been found not criminally responsible of serious crimes, usually because of mental illness.

The $6,000 study was commissioned in March from Justice Richard D. Schneider, Canada's foremost expert on the legal troubles faced by mentally ill Canadians. It was obtained by CBC News under the Access to Information Act.

The document, "The Mentally Ill: How They Became Enmeshed in the Criminal Justice System and How We Might Get them Out," is a departure from recent departmental research, which has often focused on victims and the cost of crime, rather than on perpetrators and prisoners.

Schneider, who once presided over a special court in Toronto for mentally ill offenders, offers a broad view of the rapidly increasing number of convicts with mental illness who filled up Canada's jails and prisons as provinces closed psychiatric facilities over the last two decades.

Alarming rate

"The numbers of mentally ill individuals in the criminal justice system is on the rise," Schneider writes. "Since the early 1990s, this population has been growing at the alarming rate of up to 10 per cent or more per year.

'The Criminal Code of Canada has emerged as the Mental Health Act of last resort.' - Justice Richard D. Schneider

"The Criminal Code of Canada has emerged as the Mental Health Act of last resort. … I am of the view that we should not continue to expand the role of the courts and the criminal justice system as principal dispensers of mental health care."

The report is particularly critical of Bill C-14, known as the Not Criminally Responsible Act, which became law on July 11, 2014. Its aim was to "put public safety first," Justice Minister Peter MacKay said at the time.

That legislation was largely seen as a response to high-profile criminal cases involving mentally ill offenders, such as that of Vince Li, who was found not criminally responsible (NCR) for the 2008 beheading of 22-year-old Timothy McLean on a Greyhound bus. ​Li, who had untreated schizophrenia at the time, was moved into a Winnipeg group home in May this year, sparking protests.

Vincent Li

Vincent Li, who heard voices telling him to kill a fellow passenger on a Greyhound bus in 2008, spent years in a mental health facility in Manitoba after being found not criminally responsible. His case was part of what prompted Bill C-14, which allows courts to impose further restrictions on mentally ill offenders. (Canadian Press)

Schneider's study says harsher treatment of NCR offenders designated as "high risk" is likely to encourage defence lawyers to ensure their mentally ill clients are prosecuted under regular justice system rules, where they receive no court-ordered treatment and can be back on the streets sooner.

The effect could therefore be to undermine public safety rather than enhance it, Schneider writes — an argument he has also made in opinion pieces and before parliamentary committees.

The irony, he concludes, is that with Bill C-14, the overrepresentation of individuals with mental illness in the criminal justice system is likely to get worse.

Schneider is also calling for a Federal Mental Health Act to ensure criminal law that affects the mentally ill is made uniform across Canada, rather than the current patchwork system that varies by province, even though such legislation would intrude on provincial jurisdiction.

'De facto psychiatric asylums'

Part of the problem is that provinces have not been providing adequate health care for mentally ill Canadians, thereby turning prisons into "de facto psychiatric asylums," Schneider said in an interview.

Mr. Justice Richard D. Schneider

Justice Richard D. Schneider, an expert on the mentally ill in the criminal justice system, wrote the report calling for changes to keep mentally ill offenders out of prison, but the report was never published. (www.irwinlaw.com)

"We as a society have victimized them through our inadequate civil mental health care," he said.

Howard Sapers, currently the Correctional Investigator for Canada, says the problem is getting worse as provincial health care systems fail to intervene in mental health crises.

"Many people are getting their first or most sustained mental-health interventions once they become enmeshed in the criminal justice systems," Sapers said in an interview.

He, too, thinks the impact of Bill C-14 may reduce public safety.

An Ottawa police officer in the force's mental-health unit, which deals with many of the force's 5,000 cases each year involving mentally ill individuals, says links with a local hospital team are helping police divert people to the health system rather than into jail cells.

"We need more prevention; we need more programs," said Sgt. Nicole St. John. "We're doing better jobs … but it's not getting at the root of the problem.

"The justice system is not the place for these individuals."

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