In recent weeks, the failure to care for “offenders” struggling with mental health problems has been at the heart of discussions in the public sphere.
Posted at 11:00 a.m.
While these discussions attempt to expose flaws in our medico-legal system, they are above all marked by disturbing misinformation about the regime of not criminally responsible on account of mental disorder. This disinformation often invites the public to conclude that there is too much legal permissiveness with regard to persons declared not criminally responsible on account of mental disorder (hereafter “not criminally responsible persons”). However, the reality is quite different. Let’s demystify how this regime works and the true fate it reserves for the people under its aegis.
In Canadian criminal law, an accused person who has been shown to be incapable of judging the nature or quality of the act committed due to a mental health disorder may be subject to a verdict not criminally responsible on account of mental disorder. This verdict prevents this person from being sent to the prison system, which is considered inadequate for them. However, in addition to not being easy to obtain, this verdict is far from “clearing” the person not criminally responsible and putting an end to the legal proceedings. Quite the contrary, unlike persons found guilty of their crime whose sentence has a fixed term, persons found not criminally responsible are automatically given an indeterminate sentence.
Increased Supervision of NCR Persons
In fact, a person who is not criminally responsible is instead taken in charge, for an indefinite period, by the Review Board of his province. This specialized court – whose judges are lawyers, psychiatrists, psychologists and social workers – must assess the significant risk that this person represents for the safety of the public. Based on this assessment, the Review Board will choose whether to detain that person in a psychiatric setting, release them with conditions, or release them without conditions. As long as he represents a significant risk to public safety, the person cannot be released unconditionally and must remain under the supervision of the court, which will review his case every year. The duration of the supervision of a person not criminally responsible by the judicial system therefore depends entirely on the risk analysis carried out by the Review Board and by the treatment team, which formulates its recommendations. This supervision can therefore last six months, six years or… a lifetime!
An accommodating diet, really?
Many suggest that the officers responsible for enforcing the NCR regime – judges, lawyers and the treatment team – are failing in their duties by releasing dangerous people into society. But do those not criminally responsible really receive favorable and accommodating treatment? The results of a recent study1 contradict these beliefs and demonstrate, in fact, the exact opposite. Indeed, for an offense of the same seriousness, persons found not criminally responsible are five times more likely to undergo detention and are nearly three to four times less likely to be quickly released from detention or any judicial supervision. than people who have been found guilty and have been dealt with by the traditional penal system. This study concludes that [l]he perceptions that declared individuals [non criminellement responsables] escape without consequences and are released quickly are therefore refuted by these results which rather illustrate a greater control experienced by these defendants” 2.
This means that, contrary to popular belief, accused persons with mental health issues are treated more harshly than other accused persons who can judge the nature of their actions.
Urgency to rectify the speech
Supporting the idea of a medico-legal system that is too permissive of those not criminally responsible is unfounded and seriously undermines thinking about the management of mental health problems which, according to many experts, , is based on prevention rather than relentless litigation. Need we remind you that, for several years, our society has made the conscious choice to under-invest or to disinvest massively in health and social services? While public safety certainly pays the price for this choice, it is clear that it is above all people struggling with mental health problems who suffer the consequences on a daily basis.
1.Sandrine Martin, Not criminally responsible on account of mental disorder: Comparing the oversight practices of Review Boards to sentencing in the penal systemMaster’s thesis in criminology, University of Montreal, 2019.
2. Ibidp 93