The Harper government’s plan for reforming the law for people deemed to be not criminally responsible is a reasonable response to concerns in the community there is not enough oversight and accountability in the present system.
The proposed amendments to the Criminal Code would grant the courts an expanded role in managing the cases of people who are too sick to be tried as ordinary criminals, but potentially too dangerous to be set free without extensive treatment and observation.
Under the current system, provincial review boards can release offenders from psychiatric institutions with or without conditions. There is no requirement for judicial oversight.
Under the proposed new system, however, the courts would be given the power to designate an NCR patient as high risk, which would automatically prevent review boards from releasing patients without going back to court and asking that the designation be lifted.
The practical effect may be no different in the sense that judges in most cases are likely to accept the recommendations of experts, but it would add a layer of oversight and independent scrutiny to the process.
Critics say adding judicial oversight could clog the court system.
Mental health experts say the designation “high risk” ought to refer to an offender’s risk of going off their medication or not responding to treatment, as opposed to the notoriety of their crimes.
But an individual who commits inexplicable, explosive acts of extreme violence does constitute a risk to the community, and the goal of the legislation is to ensure the risk has been treated and the conditions of release are adequate.
The legislation would also allow for mandatory patient reviews to be extended to once every three years, as opposed to just one year, but it properly leaves the decision in the hands of review boards. The reviews are used to determine if the offender should be released, with or without conditions, or held in custody.
Troubling, however, is the complete elimination of unescorted passes and the severe restriction of escorted passes for high-risk offenders. Such passes are usually granted as part of a patient’s treatment and assessment, and not as time off for good behaviour.
The Harper government wants to remove this therapeutic tool, which apparently plays well with the public but likely will not serve patients very well.
A court, however, could remove the “high-risk” designation if it was interfering with treatment.
The bottom line is the legislation is more restrained than it was made to seem, both by Prime Minister Stephen Harper, who said it closed a “glaring gap” in the law, and by critics who claim it punishes the mentally ill.
The case of Vince Li, who beheaded a man on a bus east of MacGregor, and other cases across Canada have drawn attention to the way NCR cases are managed, which had not been evaluated by government for decades.
There will never be a perfect system when it comes to dealing with the mentally ill, but the process for dealing with mentally ill offenders has operated in the shadows and without adequate oversight for too long.
The new system will provide additional assurances that public safety is a priority without compromising the ability of offenders to heal and ultimately rejoin society.