New rules for mentally ill offenders could backfire, experts warn

Justice Minister Rob Nicholson and Public Safety Minister Vic Toews began meetings with victims of crime for input on the Canadian Victim's Bill of Rights. MANDEL NGAN/AFP/Getty Images

The federal government’s new rules for mentally ill offenders, meant to make public safety paramount, could do the opposite, critics charge – endangering public safety by putting sick people back on the street without the treatment they need.

“It’s incarceration for incarceration’s sake, whether it’s necessary for public safety or not,” said Bernd Walter, chair of British Columbia’s Review Board – the body that evaluates offenders deemed not criminally responsible.

Even those speaking on behalf of victims, the legislation’s ostensible target, aren’t sure the law will make people safer.

“Currently the review board system works really well. … They have really low rates of recidivism,” said Heidi Illingworth, head of the Canadian Resource Centre for Victims of Crime.

“I don’t know if it’ll change anything.”

And while Illingworth supports measures to give victims more involvement in the review process, she isn’t so sure about the new “high-risk” designation for people whose crimes are especially severe. “We’ll have to see how that unfolds.”

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Walter and his counterparts argue Ottawa’s legislation seeks to solve a problem that doesn’t exist: There is no epidemic of recidivism among people deemed not responsible for their crimes. According to Ottawa’s own statistics, people who’ve been through the traditional prison system are four times more likely to reoffend.

But the federal government points to high-profile cases involving people found not criminally responsible after committing heinous crimes and say they’re working to appease victims who feel criminals are getting off the hook.

“There’s a perception that because they come into this verdict, not criminally responsible, and are held in a hospital, that somehow they’ve gotten away with it,” Walter said. But “people who get this verdict … are actually spending far more time in detention.”

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The justice department said it consulted its provincial counterparts before bringing forward Bill C-54, which goes to committee Monday.

“The measures contained in our legislation are designed to apply to the most dangerous and egregious of cases (i.e. murder, sexual assault),” Julie Di Mambro, spokesperson for Justice Minister Rob Nicholson, said in an email. “We believe these measures are responsible and carefully crafted.”

Di Mambro wouldn’t provide details on what experts recommended or endorsed the bill.

The BC government, which has backed Ottawa on its crime agenda, said it participated in “national analysis” on the review board system; Justice Minister Shirley Bond said earlier this year she’s “pleased” with the bill.

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Ontario’s Attorney-General said it was not consulted.

Making it tougher for someone declared not criminally responsible to get out of detention could mean one of two things (or a bit of both): More people taking up beds in forensic hospitals, or more people with severe mental illness in the regular prison system.

Forensic hospitals across the country are at or near capacity: Ontario’s were at about 103 per cent earlier this year. New Brunswick has 52 forensic beds and 20 for assessments, but is housing 98 people deemed not criminally responsible or unfit to stand trial.

And the federal justice department has already made clear it has no intention of giving provinces cash for additional beds.

This could mean putting inmates in overflow accommodation not designed for mentally ill offenders. Or, as hospitals try to free up scarce space, focusing on the severity of an offender’s crime rather than his or her risk of reoffending could backfire: “Hospitals may feel under pressure to release people with relatively less serious index offences but who at the same time present current dangers to the public,” said Joe Wright, counsel for Ontario’s Review Board.

“If they’re ordered to hang on to somebody they may be put in the unpalatable position of releasing somebody whom they normally might, for good clinical reasons, have kept in the hospital.”

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But Walter suspects defence lawyers will just opt not to plead not-criminally-responsible at all if they think the sentence will be onerous.

That means people with serious mental health issues would go through the regular penal system, instead.

“We’re going to bump up the prison population by even more mentally ill people,” Walter said. “And the prisons are already Canada’s largest mental hospitals.”

Statistics indicate those with mental illness are increasingly overrepresented in Canada’s prisons. And while there are clinicians available, the nature of their work and unpredictability of prison routine can make for patchwork treatment that may not continue when a person’s released.

“It’s ironic and paradoxical but I think it’ll actually make things worse from a public safety point of view,” Wright said

“Mentally disordered offenders will, for lack of a better word, fly under the radar: They’ll get convicted in the normal fashion, they’ll go to jail, they’ll serve their sentence – which is typically much shorter … and they’ll get released with no follow-up, no support and no treatment.”

“If they had been found NCR,” Wright added, “their reintegration into society would be carefully regulated. And the public is better protected.”

Update: The Department of Justice responded to a Global News query by email Monday afternoon, saying discussions regarding the new legislation are “confidential.”

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Watch: Justice Minister Rob Nicholson on new laws for mentally ill offenders

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