Background of Canadian Criminal Justice Association

Transcription

1 BRIEF TO THE SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY SENATE OF CANADA 41 st Parliament, 2nd Session AN ACT TO AMEND THE CRIMINAL CODE AND THE NATIONAL DEFENCE ACT (NOT CRIMINALLY RESPONSIBLE REFORM ACT) BILL C-14 Presented by the Canadian Criminal Justice Association January, 2014 Background of Canadian Criminal Justice Association The Canadian Criminal Justice Association (CCJA) welcomes the opportunity to present this brief to the Senate Committee on Social Affairs, Science and Technology regarding Bill C-14, the Not Criminally Responsible Reform Act. Our Association has some suggestions and concerns regarding Bill C-14. We outline them here and look forward to your questions and comments. The CCJA is one of the longest serving non-governmental organization of professionals and individuals interested in criminal justice issues in Canada, having begun its work in 1919 and having testified before this and other committees on numerous occasions. Our Association consists of over 600 members and publishes the Canadian Journal of Criminology and Criminal Justice, the Justice Report, and the Justice Directory of Services. We also organize the Canadian Congress on Criminal Justice every second year. History & Relevant Issues Pertaining to Bill C-14 Nowhere does the test of humanity become more apparent than in how we treat those with mental illness. In the past we have abused our obligations to the mentally ill, who are often defenseless, through treatments which were tainted by approaches resulting in isolation, medical experimentation, and even death.

2 No doubt, the task at hand is challenging. We strive for a reasoned response to those who are not able to fully appreciate the nature of their actions, the mentally ill, and for those who inadvertently become their victims. We understand and appreciate the uncertainty, fear and anger that mentally ill offenders can evoke especially for victims. In this regard, we ask how we promote a sense of justice for those affected by such crimes and to ensure the future safety of others. Over the past number of years those assessed as lacking the capacity to appreciate the nature of their actions due to mental disorder and thus not criminally responsible, fall under the jurisdiction of provincial or territorial mental health review boards. These boards are mandated to decide upon release of an individual on an absolute or conditional discharge, or have the individual detained in a mental health facility indefinitely. Traditionally Board members were political appointees with limited expertise and thus exerted overly cautious views on whether to grant releases. Most recently, review boards have evolved in their composition and now include individuals with considerable expertise regarding mental illness and the risks for remedial outcomes. With few exceptions, present day mental health review boards have functioned well and have met the test for public safety and the need to treat high-risk mentally ill offenders. This is best reflected in the typical absence of expressed public concern and/or demonstrated evidence that decisions of the review boards have jeopardized public safety. To the contrary, the intervention of quality mental health treatment has aptly demonstrated that high-risk persons can be managed in the community without further endangering anyone. Except for the misrepresentation of a few high profile cases (Vince Li & Allan Schoenborn), the community has generally been satisfied with the work of the review boards and has not expressed a need for change. Without any sign that a problem exists, Bill C-14 shifts to a perspective that will do little to alleviate the pain of victims and/or the restoration of the mentally ill. Current Proposal (Bill C-14) Under Bill C-14, those found not criminally responsible for a serious offence but who present a substantial likelihood of reoffending or whose acts were of such a brutal nature as to indicate a risk of grave harm to the public would be designated high risk. This aspect raises the question whether public safety is not already always considered by review boards across Canada. What evidence is there that review boards have ignored an offender s likelihood to reoffend and/or risk of grave harm to the public in their decisions? In the Vince Li and Allan Schoenborn cases the wisdom of the decisions of the review boards has yet to be disproven and if their decisions are correct, what would be the need for a mandatory waiting period? The federal government has stated their interest to appropriately treat high-risk accused persons found not criminally responsible on account of mental disorder. Yet, sound medical evidence has the appearance of being ignored at the cost, yet again, of unfounded and

3 arbitrary treatment of the mentally ill. Is public fear and anger the best prescription for those with a mental illness? Are the courts really better equipped to evaluate the risks rather than members of knowledgeable review boards? Those designated as high risk would no longer be eligible for an absolute or conditional discharge, and such designation could only be removed by a court following a recommendation from a review board. This procedure will replace a health problem currently reviewed by professional experts by redefining mental illness as a criminal problem for the courts. While re-criminalizing mental illness, the proposed legislation ignores the outstanding success rates of the review boards; one that at 90% is much higher than the criminal justice system with a 55-60% rate in dealing with offenders, protecting the community and bringing about the independence and self-reliance of individuals, while providing the requisite supports. The substitution of incarceration as a response to a medical problem contradicts centuries of experience, differentiating and treating those with mental illness from those with criminal behaviours. Neither our current approach nor that being proposed by Bill C-14 will do little to change the reality of what victims of violent offences experience. A decision to incarcerate will further victimize those with a mental illness but, will not provide any concrete relief to the victims of crime. Victims of crime of all types (property or more violent crimes, etc.) must be afforded the services they need without returning to costly, ineffective incarceration strategies for the mentally ill. No one questions the reality of victim survivors and the trauma they experience however, more money will be invested in incarceration of the mentally ill rather than for a better understanding of how to rebuild the lives of the victim and the offender. The real trauma of victims is not being resolved and justice is not being achieved under the proposed changes. The new Bill extricates responsibility from the review boards with the option of waiting for up to three years to review cases, instead of the current annual review. Victims will still be re-victimized every three years, to re-live their trauma, to tell their story, to personify the mentally ill offender as evil, as criminal rather than ill. It is widely recognized by experts of victimology that story telling is a keystone to reconciling the profound loss that victims experience. This story telling is only healthy however, in the context of reconciliation and recognition not retaliation. It may be argued that the proposed changes in Bill C-14 will enhance the safety of the victim and society. Should the State however, systematically incarcerate and victimize a group of people, who through no design of their own, are themselves victims of mental illness? This approach is by our estimation unconscionable, especially when one chooses to recognize the already burgeoning correctional system, ill equipped and poorly trained to intervene with those that have mental health conditions. The outcome of this approach is self-evident; the Ashley Smith case comes to mind. Her case already challenges our notions on how we sanction those offenders with a mental disorder; creating more victims in a system not designed to produce better mental health.

4 Research undertaken by Anne Crocker at Montreal s McGill University in November 2012 and commissioned by the federal Department of Justice found that in the provinces of B.C., Ontario and Quebec, less than 10% of not criminally responsible offenders had committed violent crimes. She goes on to state that within that group, less than 15 per cent went on to reoffend after three years of release. Her research further indicated that such offenders are less likely to reoffend now because of better access to mental health services (Douglas Quan, Postmedia News, March 1, 2013). Reviewing the above information, one must question the kind of information victims of violent offences have been offered. Are victims of violent offences offered an opportunity to reconcile their loss with the illness of the offender? There appears to be a substantial disconnect between meeting the needs of victims and that of the mental ill offender as if somehow, these are competing and disparate interests. In this respect, quality information for victims of violent behavior would serve to reduce their trauma, reconcile the profound harm they experience and enable their gaining a renewed sense of themselves and their lives. This is only one avenue and must be considered in the light of a complex of issues related to mentally ill offenders and their victims. We should consider victims first, and not respond spontaneously to fear and anger with incarceration. Therapeutic services based on sound victimological evidence should guide our response. It has been demonstrated over and over again that if we put our trust in those who have the knowledge and skills in a particular area of human endeavor, our best results are likely to occur. This is true in the medical treatment of physical illness as it is for mental illness of our citizens. The first principle of medical ethics has always been, Primum non nocere, "first, do no harm". To do otherwise is irresponsible. Recommendations We would recommend that: 1) Bill C-14 not be pursued as drafted; 2) That the Government follow the Strategic Directions drafted by the Mental Health Commission of Canada, including, Priority 2.4: Reduce the over-representation of people living with mental health problems and illnesses in the criminal justice system and provide appropriate services, treatment and supports to those who are in the system. And Priority 6.2: Improve mental health data collection, research, and knowledge exchange across Canada.

5 3) The Government needs to invest in and promote an educational push all across Canada to better inform our citizens about the true nature of mental illness in Canada It is worth repeating the words of the Commission again: Priority 1.1: Increase awareness about how to promote mental health, prevent mental illness and suicide wherever possible, and reduce stigma. 4) That the mandate of the Ombudsman office for Victims of Crime in Canada include a requirement that all victims of crime be afforded the opportunity to receive therapeutic services. 5) That the review boards across Canada be afforded on-going access to education and training in relation to their responsibilities. 6) That the review boards across Canada be encouraged and funded to form a National Mental Health Review Board Association that will work to enhance the mental health review process for those found to be Not Criminally Responsible. 7) That failing the above and prior to any changes being made regarding mental health issues with those deemed to be Not Criminally Responsible, that the Mental Health Commission of Canada and the mental health community be consulted and respected as the qualifying source for change.