The Not Criminally Responsible Reform Act

The federal government says it is committed to standing up for victims of crime. It now wants the Senate the pass into law the Not Criminally Responsible Reform Act, which would amend the mental disorder regime currently in place under the Criminal Code.  But lawyers are warning – as is the Canadian Bar Association – that the new law risks attracting a several constitutional challenges

Bill C-14 is the fulfillment of a long-held Conservative promise to cut down on freedom for accused offenders who were found not fit to stand trial. Its previous iteration, C-54, was killed when the House of Commons was prorogued in September.

The bill amends the Criminal Code and the National Defence Act, creating a new designation of ‘high risk’ for those found not criminally responsible — a designation that, if applied, would disqualify the offender, deemed unfit to stand trial or not criminally responsible, from conditional or absolute discharge — the latter of which is used only if the board believes that the accused poses no threat to public safety. The court could further make it so that the designation is subject to three-year reviews, instead of the standard one year.

As things stand, a provincial or territorial review board has the power to free the offender entirely, oversee and supervise rehabilitation, or remand the offender into the custody of a hospital.

The ‘high risk offender’ provision alone has raised concerns both among mental health and legal experts. But that’s not the only part of the bill that’s raising eyebrows.

When previously introduced last Spring, Bill C-54 made its way through the House of Commons Justice Committee in just a matter of weeks. One NDP-led amendment, supported by every member of the committee, passed without debate, and it’s that amendment that’s raising concerns from the Canadian Bar Association. The amendment changed the wording around how victims are notified of the accused’s release conditions. The way the bill was originally written, the court would have been required to inform the victim of the offender’s release, and of any conditions applied to it. With the NDP’s amendment, the court would have to inform the victim of the accused’s “intended place of residence.”

Ian Carter, a partner at Bayne Sellar Boxall and member of the executive for the Criminal Justice Section of the Canadian Bar Association, told Senators this month that the change opens up various privacy and safety concerns. Not least of which, he said, “we have raised the potential for vigilante justice.”

In a letter sent to the Senate, the CBA argues that the provision could fundamentally compromise the accused’s integration into society. The Association worries that the language is vague and doesn’t stipulate if the court must provide the accused’s physical address, or whether it requires the accused only to report it. Further, it is unclear whether the court must notify the victim every time the accused moves.

“You’re adding this punitive-type provisions onto someone who hasn’t been convicted of a crime when other individuals, convicted sex offenders, are not even subjected to those onerous provision,” Carter told the committee at a March 5 meeting.

“The new legislation will likely hamper the treatment and reintegration of [not criminally responsible] accused, which in turn will do nothing to assist public safety. In addition, it is open to constitutional challenge which will introduce unnecessary litigation into a system currently operating effectively,” Carter told National.

Anita Szigeti, the Toronto Area Director for the Criminal Lawyers’ Association and a specialist in mental health law, says the bill might invite a number of constitutional challenges.

“As a lawyer dealing with constitutional issues in mental disorder and criminal law there are some amendments we do some hand-wringing about, wondering whether or not they would survive Charter scrutiny,” Szigeti told the committee. “In this case, I don’t have that kind of doubt. It’s my respectful opinion that this bill, these amendments, would not survive a charter challenge. And I say that for this reason: Anything that’s in the mental disorder provisions in the existing Criminal Code that makes it survive Charter challenges to date is being taken out by this bill.”

To that end, C-14 removes provisions in the Criminal Code that instruct the review boards to take the “least onerous and least restrictive” action, where the accused does not pose a threat to public safety. When this bill becomes law, the safety of the public will become the “paramount” consideration. Yet, the Supreme Court, especially in Winko v. British Columbia, has held the soon-to-be-axed provision to be a safeguard for the Criminal Code’s constitutionality.

“If Parliament eliminates the ‘least onerous and least restrictive’ requirement, as it proposes, it may well expose the legislation to successful constitutional challenges,” the CBA warned in its March 2013 report.

As a defence lawyer, Szigeti says she would advise a client not to enter a plea of not criminally responsible if she expected they would be deemed ‘high risk.’ As such, she says, they could be sent to prison, where they would get no treatment, but have a better chance of release. That, she says, really could pose a danger to the public.

“When they come out again, they will pose as great a danger, if not a greater danger than they did when they went in,” she said, noting that recidivism rates for those deemed not criminally responsible are much lower than for those who were convicted of a crime.

Justice Minister Peter MacKay, appearing before the committee, dismissed that idea.

“On balance, we will meet that test, and we will defend this legislation if necessary, in the courts,” he said.

Szigeti, on the other hand, is just as committed to striking down the changes:

“We certainly would try, and we would certainly succeed. Whether at the board, Superior Court, Court of Appeal, or in the Supreme Court of Canada. At the end of the day, we will succeed. So the question is not when, but for how long are we going to subject anyone to the seriously prejudicial affects of this legislation.”