Tories’ 'high risk' law fuels prejudice for mental illness

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The Conservative government is re-introducing the Not Criminally Responsible Reform Act.

The proposed legislation has two principal provisions:

• 1. It would allow for psychiatric patients who have been judged not criminally responsible (NCR) for actions that would otherwise be considered criminal acts to be labelled “high risk” to delay or prevent their discharge from treatment;
• 2. It would allow for victims and their families to oppose the release of these patients and to be informed of their whereabouts when they are released.

Or, if you prefer the more formal and loaded language of Bill C-14 itself : "This enactment amends the mental disorder regime in the Criminal Code and the National Defence Act to specify that the paramount consideration in the decision-making process is the safety of the public and to create a scheme for finding that certain persons who have been found not criminally responsible on account of mental disorder are high-risk accused. It also enhances the involvement of victims in the regime and makes procedural and technical amendments."

This is public policy making at its worse: A law that panders to and fuels prejudice, criminalizes mental illness and creates more problems than it solves.

It is a well-established principle of law that people cannot be found guilty of a crime if they lack the capacity to understand their actions. That is the case with children, those with severe intellectual disabilities and people suffering from severe mental illness, in particular, those experiencing psychosis.

In Canada, accused can be found not criminally responsible for their crimes. They don't get off scot-free; they are detained in a psychiatric facility and treated until a review board deems they are no longer a threat to themselves or the public. This can take months, years, or a lifetime.

The system works well. The recidivism rate is about 7 per cent – a fraction of the rate of re-offending among those released from prison.

So why the new law?

There are two reasons: Vince Li and Guy Turcotte. Most readers will recognize the names of these two men who committed barbarous killings from the headlines.

Mr. Li, who suffered from untreated schizophrenia, decapitated and cannibalized a fellow passenger on a Greyhound bus in July 2008, during a psychotic episode in which he thought he was slaying the devil. Dr. Turcotte, in the midst of a bitter divorce, guzzled antifreeze and stabbed his two young children to death in February 2009.

Both were found by a judge to be not criminally responsible for their actions and sent to secure psychiatric facilities rather than prison.

Mr. Li has been in hospital for more than five years; he is responding well to treatment and feeling terrible remorse. He has received day passes and, at some point, will likely be released.

Dr. Turcotte spent 46 months in a psychiatric hospital before being released. But his case was appealed and he has been charged again with first-degree murder, and is now in jail awaiting trial.

These cases are exceptional but, if anything, they demonstrate that the current system works well.

Mr. Li is getting the care he needs, something that would not have happened in prison. He will be released when he is deemed to no longer be a threat and that release will come with conditions, notably that he take his medication.

There is no need for a parallel process to determine if he is "high risk" to re-offend. That is the role of the review board. Nor is there a need to contact families and tell them where a former patient is living after release.

The provisions of the new law do not promote justice, they reek of persecution.

The case of Dr. Turcotte is something else entirely. If there was a mistake there, it was not with the review panel process but with the trial judge who declared him NCR. But, with the appeal process underway, justice is running its course.

These two cases aside, most crimes committed by the severely mentally ill are banal – shoplifting, public urination, groping, disturbing the peace. If anything, the NCR provision is underused.

Are jails are overflowing with people suffering from mental illness. The vast majority are not killers; they are incarcerated for petty crimes that result from their odd behaviours.

Regardless of their offences, it is unjust, not to mention costly and counter-productive, to warehouse the sick rather than treat them.

Contrary to popular belief, criminals don't pretend to suffer mental illness to avoid jail. That's because those declared NCR tend to spend a lot more time in mandatory treatment than they would in criminal custody.

The new law will discourage the use of the NCR provisions because of the possibility that someone declared "high risk" could be held in a psychiatric hospital indefinitely, even if they have been treated successfully. That will lead those charged with crimes to opt for a criminal trial, fixed sentences and jail rather than taking the curative NCR route.

Vince Li committed a heinous act because he suffered from severe untreated mental illness. Branding him and others in his predicament with the "high risk" scarlet letter will do nothing to make Canada safer.

If the government truly wants to protect the public, they should invest in improving the mental health system, in reaching out to the tortured souls with untreated mental illness who suffer from delusions and psychosis.

They are not criminals who need punishment, they are patients who need treatment.

André Picard is The Globe's health columnist.