Mentally Ill are Unlikely to Re-offend; So Why is Canada Toughening Rules for Them, Researcher Asks

Douglas Quan
Edmonton Journal, Mar. 1, 2013

Justice Minister Rob Nicholson’s Bill C-54 flies in the face of the Conservative government’s promise to fight the stigma associated with mental illness, mental health organizations say.

A McGill University researcher says a bill introduced by the Harper government toughening rules for violent offenders deemed “not criminally responsible” due to mental illness left her a bit baffled: Didn’t federal officials bother to look at the data she had collected for them?

Anne Crocker, a professor of psychiatry, told Postmedia News that the data she turned over to the Justice Department’s research division in November showed that this group of offenders is among the least likely to reoffend.

“I would say there’s no current evidence indicating the need for changing the way things are being done at the moment,” she said. “You wonder why you commission reports if you’re not going to use them.”

Several mental health organizations, meanwhile, have formed an alliance to push for changes to the bill, which is due for second reading Friday. They say the government’s messaging goes against earlier pledges to fight the stigma associated with mental illness.

“The main concern is it perpetuates the myth that these mentally ill are a risk to society and they’re going to be violent,” said Chris Summerville, CEO of the Schizophrenia Society of Canada, and the alliance’s facilitator. “The mental health community was completely disregarded.”

Julie Di Mambro, press secretary to Justice Minister Rob Nicholson, said Thursday “the government has heard from Canadians – from all corners of the country – concerned with this issue.

“As a government and as legislators, this is a reality we cannot ignore. The legislation we put forward is reasonable and strikes a better balance between the need to protect society against those who pose a significant threat … and the need to appropriately treat high-risk accused persons found not criminally responsible on account of mental disorder.”

Currently, if someone commits a crime but lacked the capacity to appreciate their actions due to mental disorder, a judge can find the person “not criminally responsible.”

Once a person receives that designation, they are referred to a provincial or territorial review board. These boards can release the individual on an absolute or conditional discharge, or have that person detained in hospital.

Under Bill C-54, those who are 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” could be designated “high risk,” according to the government’s briefing papers.

Those with this new designation would no longer be eligible for conditional or absolute discharge, and the designation could only be lifted by a court following a recommendation by a review board.

Further, “high risk” individuals would not be allowed into the community unescorted and escorted passes would be limited. Review boards would also have the option of waiting for up to three years to review their cases, instead of the current annual review.

Prime Minister Stephen Harper has said the bill is meant to address “glaring gaps” in how the justice system deals with violent offenders and makes public safety “paramount” in all review board decisions.

But Crocker said public safety is already “front and centre” when review boards assess cases, and those detained in hospital tend to be held longer than if they had been found guilty and sent to prison. Further, the seriousness of a crime does not necessarily indicate one’s likelihood to reoffend.

According to Crocker’s examination of “not criminally responsible” offenders in B.C., Ontario and Quebec, less than 10 per cent had committed violent crimes. Within that group, less than 15 per cent went on to reoffend after three years of release. Within the whole population of “not criminally responsible” offenders, the recidivism rate after three years of release was less than 20 per cent, she said. By comparison, offenders who go through the regular criminal justice system reoffend at a rate of 20 to 40 per cent, according to various studies.

Crocker acknowledged that almost half of individuals deemed “not criminally responsible” in her study had a prior criminal history. But they are less likely to reoffend now because of better access to mental health services.

“The review boards are doing their jobs in knowing when to release because the recidivism rates seem to be relatively low,” she said.

Crocker added that the new restrictions could clog the hospital system if beds are taken up by individuals who don’t need to be there. Mentally ill offenders might also be less motivated to seek treatment if they know their next review won’t happen for three years.

“There are a series of questions that need to be explored,” she said.

The Mental Health Commission of Canada – which the Harper government formed in 2007 to “lead a national campaign to erase the stigma attached to mental illness” – has so far been silent on Bill C-54, saying only that it is reviewing the legislation.

However, those with knowledge of the commission say it is working behind the scenes to try to persuade the government to amend the bill.

Records obtained under access-to-information laws show commission president Louise Bradley wrote to the justice minister in November.

As the government’s “trusted adviser” on mental health issues, she wrote, the commission would be “pleased to provide the government with options to consider for ensuring the safety of the public through strong treatment regimes and evidence-based approaches to reducing recidivism.”

Patrick Baillie, a psychologist and former chair of the commission’s advisory committee on mental health and the law, says he has been asked to take part in meetings on Parliament Hill next week and is eager to share his views.

“There was no evidence the review boards were screwing up in the first place. What are we trying to fix?” he said.

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