Bill for mentally-ill offenders could hurt public safety, groups say

The federal government's tough stand on mentally ill offenders likely won't reduce crime and could have just the opposite result, say leaders of the country's forensic mental health organizations who are drafting a letter to express their concerns.

The Canadian Forensic Mental Health Network hopes to submit the letter in the coming weeks to the Parliamentary committee now weighing the changes to the Not Criminally Responsible provisions of the Criminal Code, in an effort to have the legislation revised before it becomes law.

Dr. Johann Brink, co-chairman of the network and head of the forensic psychiatric program at the University of British Columbia, said members are unanimous in their concerns.

"In terms of public safety, we are not convinced that this legislation will necessarily achieve its intended result," Brink said. "It may indeed, perversely, result in an outcome that may increase the risk to the public."

'In terms of public safety, we are not convinced that this legislation will necessarily achieve its intended result. It may indeed, perversely, result in an outcome that may increase the risk to the public'  — Dr. Johann Brink, University of British Columbia

The centrepiece of the reforms is a "high-risk offender" designation. Those offenders could not be discharged until a court lifts the designation; they would not be eligible for unescorted passes into the community and could have their review period extended from one year up to three years.

Brink and his colleagues believe the changes would prompt defence lawyers to start avoiding the not criminally responsible defence and opt for a definitive jail term in the mainstream justice system.

"This will likely result in increased numbers of mentally ill persons in jails and prisons, with the result that they may be released ultimately, ... untreated and still dangerous or perhaps even more dangerous," said Brink.

It may also overburden hospitals forced to house offenders as punishment, rather than treatment, he said.

It was the 2008 killings of 10-year-old Kaitlynne, eight-year-old Max and five-year-old Cordon Schoenborn by their father, along with the 2008 murder of Tim McLean by Vincent Li and the 2009 deaths of five-year-old Olivier and three-year-old Anne-Sophie Turcotte at the hands of their father that sparked a public outcry.

Julie Di Mambro, spokesperson for Justice Minister Rob Nicholson, said the legislation addresses concerns raised by victims and provincial governments.

"Victims are concerned that their safety is not being specifically taken into consideration by review boards when they make a disposition," Di Mambro said in an email response to questions.

Few offenders are found not criminally responsible, and even fewer would be deemed "high-risk," she said.

"Although it could apply to a small number of accused persons, the government still needs to ensure that these individuals are treated appropriately and that appropriate measures are taken to ensure the protection of victims and the public," Di Mambro said.

Misperception vs. science

Dr. Sandy Simpson, chief of forensic psychiatry at the Centre for Addiction and Mental Health and co-chairman of the 

'Although it could apply to a small number of accused persons, the government still needs to ensure that these individuals are treated appropriately and that appropriate measures are taken to ensure the protection of victims and the public' — Julie Di Mambro, spokesperson for Justice Minister Rob Nicholson

Forensic Mental Health Network, said the amendments are based on public misperception, not science.

"We would hope that the government and opposition parties might listen to these concerns and there might be some amendments to the proposals," Simpson said.

The revisions do not reflect the reality, said Richard Schneider, a former defence attorney and judge who is now chairman of the Ontario Review Board.

"Data should normally be driving policy and it would appear to me and other observers that there is a real misalignment between the data which shows that things are working quite well and the desire to change the statutory regime," said Schneider, who shares the concerns of the mental health network that the changes will ultimately channel the mentally ill away from the review board system.

An unpublished report submitted to Justice Canada this month found that the recidivism rate for offenders found not criminally responsible was about 10 per cent during an eight-year study.

It's difficult to compare, but the relapse rate for federal offenders is in the range of 41 to 44 per cent, according to Public Safety Canada.

Only eight per cent of offences committed by people found not criminally responsible are serious violent offences such as murder, attempted murder or sexual assault, says the unpublished report obtained by The Canadian Press.

Schneider is also concerned about an already over-burdened forensic psychiatric system.

"In Canada forensic hospital beds are a very, very scarce and expensive commodity," he said. "You're squandering hospital beds and using them effectively as jails to house mentally ill people who perhaps don't need to be there."

Kevin Love, a staff lawyer with the Community Legal Assistance Society in B.C., said legislation perpetuates the stereotype that mentally ill people are violent.

"And it perpetuates what I consider to be a misconception that the review board is somehow, without due process, is just setting people free into the community," he said.

Love, whose organization represents mentally ill offenders at about 350 criminal and review board hearings a year, said the money could be better spent.

"The resources on the front-end to prevent people from getting into the system in the first place aren't sufficient," he said.

Di Mambro said the federal government has established the Mental Health Commission and invested more than $376 million in mental health research.

"Our government takes the issue of mental health seriously," she said.