An unprecedented view into the life of a man found not criminally responsible for a death almost 20 years ago is fuelling debate around the issue of what happens to these offenders once they are released.
Jeffrey Arenburg was found not criminally responsible on account of mental disorder for the death of Ottawa TV sportscaster Brian Smith in 1995. He told his story for the first time to the fifth estate host Bob McKeown.
“Okay, I shot Brian Smith,” he says. But he adds that he also has “a right to have a life without everybody being told what to think” about him because of the NCR label. After spending nine years in a mental health care facility, he was found to have recovered and he eventually returned to live in his hometown in Nova Scotia, with no conditions for ongoing treatment. Arenburg is no longer taking medication, because he says the voices that once haunted him – prompting him to violence - are gone.
Smith’s widow, Alana Kainz, has lobbied to change mental health laws to include prolonged monitoring of patients like Arenburg.
“That scares me. That’s hurtful and that tells me that he doesn’t care what he’s done,” she told McKeown. “He’s not willing to take medication, he’s not willing to be a better man as a result. That says something about him.”
After several high profile NCR cases, the federal government tabled legislation in 2012 to reform the section of the criminal code that allows people who commit violent acts, but lack the capacity to know what they are doing, to be found not criminally responsible or ‘NCR’. The changes create a ‘high-risk’ category of NCR offenders who would face a longer period of mandatory custody, with up to three years between reviews instead of one year.
Ottawa criminal lawyer Lawrence Greenspon, who has been involved in a number of NCR cases, calls the bill a “knee-jerk response” that is not based on science or statistical evidence. Despite a series of much-publicized incidents, the number of offenders found NCR is not increasing, and relatively small number of those accused of violent crimes in Canada avoid time in prison with NCR verdicts.
He says if these changes aim to improve public safety, they should address what happens to offenders found NCR after they are released.
“That really is the issue: to what extent can society ensure that an individual who clearly needs medication and treatment, to what extent can we force that, monitor it, ensure they get treatment and for how long? Because ultimately, even if somebody goes to a mental health facility for 10, 15, 20 years, at some point, they’re gonna get out.”
The death of Brian Smith
In 2006, almost a dozen years after he shot and killed Smith, Arenburg went to live with his brother in northern Ontario. He failed to lay down roots there and ended up back in his hometown in Nova Scotia.
He is struggling to start a business, surviving off disability cheques. He feels that he is stigmatized by the label ‘NCR’.
“I’m getting slapped in the face, trying to be a civilized person - whether I take pills or see a psychiatrist, that’s got nothing to do with my personal case,” he told McKeown.
Arenburg began to hear voices in his early 30s, after suffering an accident that broke his back and left him temporarily unable to walk. He says the voices were always in the background, telling him what to do. He also believed his own thoughts were being transmitted by local radio stations, and a movie studio was making films about him, sharing his secrets with the world.
Arenburg tried many ways to get the voices to stop, including attempting to enter the Parliament buildings to persuade the prime minister to use his influence to halt the broadcasts of his thoughts. He threatened radio stations with violence, and was convicted of assault for attacking a station employee.
Arenburg also disrupted court proceedings, demanding that judges order the voices to be stopped, and warning that he might have to kill someone if they did not.
On Aug. 1, 1995, Arenburg decided to take action. He says he wanted to tell the world about the voices controlling his life and make them stop.
At 7 p.m., he was waiting outside the CJOH television station with a 22-calibre rifle he brought back from his latest trip to the Maritimes. When Smith stepped out of the building, Arenburg recognized him as a member of the media, and shot him in the forehead.
“[I had] no beef with his family. He just happened to be in the wrong place at the wrong time.”
Smith died the next day, when he was taken off life support.
The same day, Arenburg turned himself in to the Ottawa police. He was charged with first degree murder, but the judge, prosecutors and defence all agreed that he did not have the mental capacity to comprehend the violent act he’d committed, or understand that it was wrong. Arenburg was found not criminally responsible and spent nine years in a psychiatric facility, receiving medication and treatment.
Smith’s widow, Kainz, says she cannot feel sympathy for Arenburg, though she has empathy for his illness.
“This is a man who stole a great man from me,” she said. “He ripped a hole through my soul. So how do you forgive that? How do you think about that? But at the same time, I understand it was a mental illness and hopefully he’s on the right road now and he’s not hurting anyone else.”
Recent NCR cases
Several other recent high-profile incidents have prompted public debate around the use of NCR.
Guy Turcotte became a household name in Quebec in 2009, after he killed both his children. The cardiologist was in the process of divorcing his wife when he tried to commit suicide by drinking a litre of windshield washer fluid. He then stabbed his three-year-old daughter and five-year-old son a total of 47 times.
In 2012, he was charged with first degree murder. Though he had never been diagnosed with a mental illness, he was inebriated from consuming the washer fluid, and expert witnesses disagreed on whether or not Turcotte understood what he was doing. The jury found him not criminally responsible for the deaths of his children.
His wife, Dr. Isabelle Gaston, says her husband should not have been found NCR.
“I think it’s unfair of someone that is really psychotic, okay, going to jail,” she said. “But the thing is that we didn’t think that people are so intelligent that they could manipulate the law and get this verdict when they should not have it.”
Turcotte was released in December 2012, after just 18 months in a Montreal psychiatric hospital.
Last November, the Quebec Court of Appeal overturned the ruling that found him NCR, and ordered a new trial to be held. Turcotte turned himself in to police the same day, and was charged with two counts of first degree murder.
Now Turcotte’s lawyer is asking the Supreme Court of Canada to consider overturning that ruling. It will take Canada's highest court at least a few months to decide whether to hear the case.
In another notorious NCR case, Vincent Li beheaded a 25-year-old carnival worker, Tim McLean, on a Greyhound bus heading to Winnipeg in the summer of 2008. Li was found to be suffering from paranoid schizophrenia, and was deemed NCR. He is now housed at a mental health centre outside Winnipeg, where he’s been described as an ‘ideal patient’.
By law, his condition is reviewed annually. When he is found to be recovered, he would be released with no conditions or criminal record.
McLean’s mother, Carol De Delley, says she will keep fighting to toughen NCR legislation and to keep Li in a secure facility for as long as possible.
“He should be held responsible. Whether he was in his right mind or not, he did it. He committed the act. There was no one else on that bus slicing up my child.”
Widely publicized cases like these prompted some public concern over the use of NCR, and in 2012 Justice Minister Peter MacKay tabled Bill C-54, the Not Criminally Responsible Reform Act. Since Parliament was prorogued in September 2013 before the bill could be passed into law, the government reintroduced it as in Bill C-14 last fall.
The bill would create a “high-risk” designation for people found NCR in cases of serious personal injury. These offenders would not be allowed to leave their care facility without an escort, and instead of one year, they could wait three years between review board hearings. That high-risk status would be determined by a court, rather than a review board.
Montreal psychiatrist Louis Morissette was one of the medical experts who recommended that Turcotte be discharged. He calls these changes a sad reaction that ignores the facts and research around mentally ill people who commit crimes. According to mental health experts, only a handful of those accused of violent crimes in Canada avoid time in prison with a not criminally responsible verdict.
“The population has the perception that there is more and more people using not guilty by reason of mental illness. It’s not true. The rate for violent crime is about 0.5 per cent. Less than half a per cent of offenders use that route are found not criminally responsible,” Morrissette said.
And the recidivism rate for people found NCR is relatively low. Recent studies suggest that three years after an NCR verdict, about 7 to 10 per cent of those people had reoffended, compared to about 34 per cent from the general penal system. For mentally-ill inmates in the mainstream prison system, recidivism rates are 69%.
Lawyer Greenspon says the new law should address conditions for NCR offenders when they are released. He says there should be some way to require continuing treatment for NCR offenders who are released, without violating their civil liberties.
“Ultimately I think it’s going to come down to would you be prepared in very serious cases, in murder cases and things of that nature, would you be prepared to look at that person being followed and having to check in once every two weeks, effectively for the rest of their life, in order to ensure the safety of the community?” he said.
Stigmatized by NCR
In 2006, the review board that monitors NCR cases in Ontario ruled that Arenburg no longer posed a threat and ordered him released, on the condition that he cannot have access to guns.
Just one year after his release, Arenburg ended up in a U.S. federal prison for two years after he assaulted an American border guard for patting him down while taking a bus trip to Buffalo.
Now he is back in his hometown in Nova Scotia, and he says he is no longer mentally ill. Local police chief Jim Collier says there is some concern in the town about his presence.
“Taking someone’s life is one of the big taboos in our society and basically it’s a small town. People know who he is and know what he’s done and they’re concerned.”
The police did ask mental health officials for an evaluation of Arenburg. They concluded he is not a threat to public safety.
Arenburg says he feels like he is constantly being watched and judged by those around him.
He showed the fifth estate a file of restraining orders barring him from places like the department of motor vehicles and the government office where he gets his disability cheque.
He told McKeown that he never acted violently in one of those places, though he may have raised his voice.
Now Arenburg says he just wants to be left alone.
“Because I had that episode don’t mean I have paranoid schizophrenia every second after I’m found that way, every second of every day, even until now.”