Get-tough policy for not criminally responsible offenders unnecessary, studies find

Steve Mertl
The mother of Tim McLean, who was stabbed and beheaded by Li in 2008, is 'horrified' by freedoms granted to him

New studies that suggest a lot of success from programs for people found not criminally responsible for offences they commit due to mental illness have done nothing to sway federal policy makers on how they should be treated by the justice system.

Four studies and an overview that are part of what’s known as the National Trajectory Project were published this week in the Canadian Journal of Psychiatry.

Among other things, researchers found the recidivism rate for patients classed as not criminally responsible due to mental defect (NCRMD) was 17 per cent, about half the rate of reoffending by prisoners released from Canadian prisons.

The rate for NCRMD patents who committed the most violent offences was even lower, 0.7 per cent of the 1,800 cases examined from B.C., Ontario and Quebec.

And yet there remains a perception, based largely on media coverage of the most shocking offences, that NCRMD patients are time bombs who shouldn’t be released back into society or are feigning mental illness to escape prison.

Section 16 of the Criminal Code spells out NCRMD: No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

In mounting that argument, the onus is on the accused to prove they were not criminally responsible.

Greyhound killer Vince Li likely to get unescorted passes from psychiatric hospital

Allan Schoenborn: a psychiatrist’s view on patients’ risks of re-offending

The Conservative government passed Bill C-54 in 2013, toughening the review process for releasing NCRMD patients and creating a new class of high-risk accused who would have a harder time being released.

High-profile crimes skew public perception of NCRMD

The legislation came on the heels of two high-profile crimes.

In 2008, Vincent Li stabbed, decapitated and ate parts of Tim McLean while both men were riding aboard a Greyhound bus in Manitoba. Li, a schizophrenic, was found not criminally responsible and confined to a forensic psychiatric hospital. Doctors there say he’s responded well to treatment and has gradually been given more freedom, including unescorted day passes from the facility.

Allan Schoenborn also received an NCRMD verdict in a 2009 trial for killing his three young children. He’s been petitioning the B.C. Review Board for more escorted leaves from the hospital where he’s being held, but a psychiatrist said he still remains a high risk to escape and commit more violence.

In both cases, relatives of the victims have strongly opposed the men’s freedom, however limited. They and victim’s rights groups have argued it’s not worth the risk to society to allow men like Li and Schoenborn supervised freedom.

Patrick Baillie, a lawyer and psychologist with Alberta Health Services, said that position by and large has federal government backing.

“We have already had conversations with the government about these results,” he told Yahoo Canada News. “We had meetings with some of the folks in Justice and I would say some were receptive to the data, but this is an issue of policy, not science.”

Baillie, who supports the studies’ findings, said Bill C-54 is an example of politics trumping science. Keeping NCRMD patients deemed high risk in hospital longer prevents them from getting access to community-based programs that would ease their transition back into society.

“Those are decisions that are made at a policy level,” he said. “So even if there is responsiveness to the science, the people who are making the decisions at those higher levels are making them for whatever reasons they see as being politically expedient.”

Dr. Anne Crocker, one of the lead researchers in the studies, is a little disappointed Ottawa hasn’t embraced the project’s findings.

Research hopes study results will have impact

“Of course you want to see that the research you put forth can actually be helpful,” said Crocker, an associate professor at McGill University’s department of psychiatry and director of innovation and knowledge integration at the Douglas Institute.

Crocker said she hopes the results will make an impact at the provincial level, where treatment of NCRMD patients is delivered, and that there is more interprovincial co-operation to reduce the disparities between provincial systems.

Baillie, who wrote an editorial for the journal issue featuring the studies, said this is also about educating the public about NCRMD verdicts.

“So while it may not have a significant influence on the government, there are lots of other people who are interested in this information.”

The data in the studies demonstrates that it’s wrong for the public to define NCRMD by the worst cases. Of the 1,800 cases studied, only 13 of the worst offenders committed more violence once released.

“Understandably cases like Vincent Li and Allan Schoenborn are going to get coverage because they are outliers.”

Baillie said most cases of NCRMD fall into the category of chronic offences that are more likely to be labelled a public nuisance.

“The study shows less than 10 per cent of NCR verdicts are coming in cases that involved serious personal violence.

“One of the biggest values that I see in the research is that it’s able to address the myths that fuel public anxiety about NCR.

“So this isn’t faking mental illness to get away with something. We know that NCR isn’t typically used for serious personal violent offences.”

NCRMD patients spend longer time in custody than prison inmates

Baillie said NCRMD patients on average spend longer in custody than conventional prison inmates.

“We know that individuals spend a longer period of time in the hospital than if they’d simply pleaded out and been sentenced to the regular system, so it isn’t a get-out-of-jail-free card.”

The research revealed Quebec had a higher than average recidivism rate, about 22 per cent, but Crocker said one reason could be that NCRMD is used more often there for lower-level offences. It acts as a kind of diversion program, streaming people into treatment by health services rather than jailing them.

Baillie said justice systems have always recognized offenders who lack the intent to commit a crime or have a mental illness should not face the same punishment as ordinary criminals.

But it remains difficult to convince people that NCRMD verdicts should not be punitive.

“So if somebody takes the view that if you do the crime you do the time, then they’re going to view NCR as being unacceptable,” said Ballie.

“It doesn’t matter what data you give them, they still believe these are individuals who should be held accountable.”