The Hill Times
by Dr. J. Paul Fedoroff
The federal government has championed Bill C-54, now reinstated as Bill C-14 in the Senate, as legislation that enhances victims’ rights. So why are the victims and agencies devoted to helping them not cheering? The answer? Bill C-14 only deals with the Not Criminally Responsible Act. It does nothing about the majority of violent crimes. It does nothing to prevent crime. It does nothing new to help victims. It does nothing to support the families of individuals with a mental illness who seek help before tragic events occur. In fact, Bill C-14 may harm victims. Here is why.
People who commit violent crimes fall into two groups: people who intended to commit the crime (criminals), and those who did not (NCR accused). The second group consists of men and women who could not appreciate the nature and consequences of what they were doing because of severe symptoms caused by a mental disorder. After a finding of NCR by a judge, they receive care, often for the first time, by specialized teams of mental health professionals. The amount of freedom permitted to NCR accused is determined by Provincial Review Boards (PRBs) that already follow strict criteria designed to ensure the safety of the public. The re-offence rates of NCR accused are significantly lower than the re-offence rates of criminals who are found guilty and sent to prison.
Bill C-14 will change current legislation in several harmful ways. First, it will create a special group of “high risk” NCR accused. “High risk” will be determined by a judge based on the nature of the crime instead of the mental state of the accused, as assessed by expert treatment teams and verified by the PRB. NCR accused that are designated “high risk” will be detained, ineligible for eventual release by a PRB until a court revokes the “high risk” designation. This is worrisome. It means judges, whose expertise lies in sentencing criminals, not in assessing mental illness, will need to make decisions about the mental states of NCR accused. It also means that detention in custody will be independent of mental status.
Currently, PRBs make decisions that are not needlessly restrictive but which ensure public safety. The proposed legislation changes this. Bill C-14 will extend the time by which PRBs are required to review decisions from one year to three years. This means “high risk” accused may get less, rather than more, intensive and focused treatment. In addition, Bill C-14 will prevent “high-risk” NCR men and women from exercising unescorted passes, which are an essential component of any progressive but cautious reintegration program. It is important to note that Bill C-14 does nothing to protect the public from dangerous offenders. Dangerous offenders, criminals who knowingly and persistently harm victims, are not NCR accused.
Advocates for Bill C-14 claim it will enhance victim involvement by ensuring they will be notified when NCR accused are discharged (they already are), allow non-communication orders between an NCR accused and the victim (this is already permitted) and ensure the safety of victims is considered (which it already always is, together with the safety of the public in general). In short, Bill C-14 does nothing new to enhance victim involvement.
Most people with mental disorders are law abiding. Some intentionally commit (usually minor) crimes and are correctly held responsible. However, there is a small sub-group of people who were suffering from impaired thinking due to an involuntary disorder of mental health so severe they literally did not know what they were doing. Statistically, those most at risk of being harmed by an NCR accused are close family members. Most of these victims do not want their mother, father, sister, brother, spouse or child to be treated like a criminal. Instead they want them to receive the effective care they need and deserve. They know that their personal safety is enhanced when their relative is treated instead of punished.
Attempting to enhance victims’ rights by focusing on people who are not responsible due to mental disorders makes no sense, is counterproductive and stigmatizing. Interventions that slow or prevent the reintegration of the ill back to the community are harmful to everyone. Victims deserve better than what Bill C-14 provides.
J. Paul Fedoroff is staff psychiatrist, The Royal president, Canadian Academy of Psychiatry and the Law Board member, Canadian Psychiatric Association Head, Division of Forensic Psychiatry at the University of Ottawa.