A federal plan to allow judges to designate some mentally ill offenders as "high risk" might not affect notorious killers like Vince Li or Allan Schoenborn, the head of Ontario's review board says.
Justice Richard Schneider, chair of the Ontario Review Board, which handles the release of offenders found not criminally responsible for crimes, said the chance that people like Mr. Li or Mr. Schoenborn will commit another violent act is so low that many would not be candidates for the new designation.
His comments raise questions about the purpose of the planned changes, which the government says are needed to keep the public safe and to reduce strain on victims and their families.
The high-profile cases of Mr. Li, who decapitated a passenger on a Greyhound bus, and Mr. Schoenborn, who killed his three children in Merritt, B.C., have brought renewed attention to the way the cases of people found not criminally responsible are handled.
Under Canadian law, individuals who lacked the capacity to know what they were doing when they committed an offence can be found not criminally responsible on account of a mental disorder. They may be detained in a hospital, and are released once they are no longer considered a significant threat to the public.
The new legislation would allow judges to apply a "high risk" designation to a small number of violent offenders who have been found not criminally responsible. Bill C-54 would increase the time between reviews of those individuals' detention and prevent them from being considered for release at all until a judge decides they are no longer a threat.
The high-risk label could be applied only to those who committed a violent offence and have either a significant risk of re-offending or who might do something after their release that could cause grave physical or psychological harm. But Dr. Schneider said very few violent offenders who have been found not criminally responsible would qualify as a risk after receiving treatment.
"Most would not be captured, in my view, based on the way the legislation is written," he said. "Assuming there was a real problem with the current scheme, the proposed amendments completely miss the target."
Dr. Schneider said there is no evidence to suggest the current system isn't working, pointing to significantly lower rates of re-offending among those who go through the not-criminally-responsible system. He said the changes seem counterintuitive to the government's stated goal of improving public safety.
A spokeswoman for Justice Minister Rob Nicholson said the legislation aims to improve public safety as well as address concerns that provincial review boards were not listening to the victims of those found not criminally responsible for violent crimes.
"Victims are concerned that their safety is not being specifically taken into consideration by review boards when they make a disposition," Julie Di Mambro wrote in an e-mailed response. She said victims have also expressed fear that they could accidentally run into an individual without being prepared for the encounter.
Anne Crocker, a researcher at McGill University's Douglas Institute who studies the not-criminally-responsible system, has compared statistics on the likelihood an individual will commit another crime in the three years after they are released.
The rate for those found not criminally responsible is just below 20 per cent, compared to 33.5 per cent of inmates in the regular criminal justice system, according to initial results from a study led by Dr. Crocker that focused on Quebec.
Mentally ill inmates released from prisons are significantly more likely to reoffend than those released from hospitals after being found not criminally responsible.
Mental health experts and lawyers have expressed concern that the new legislation could prompt some mentally ill offenders to go through the regular criminal justice system rather than taking their chances with a "high risk" designation.