Government of Canada Reinstates Legislation Proposing a Safer Regime for Dealing With Accused Persons Found Not Criminally Responsible on Account of Mental Disorder

OTTAWA, ONTARIO--(Marketwired - Nov. 25, 2013) - The Honourable Peter MacKay, P.C., Q.C., M.P. for Central Nova, Minister of Justice and Attorney General of Canada, together with the Honourable James Moore, Minister of Industry, and accompanied by Senator Pierre-Hugues Boisvenu, today announced the reinstatement of the Not Criminally Responsible Reform legislation, consistent with the commitment made in the recent Speech from the Throne. The Act would ensure that public safety comes first in the decision-making process with respect to accused persons found Not Criminally Responsible on Account of Mental Disorder (NCR). The proposed legislation would also enhance the safety of victims and promote greater victim involvement when they choose to be involved.

"The safety and well-being of Canadians is of paramount importance to our Government. The legislation reinstated today will put public safety first, protect Canadians from the most high-risk individuals, and enhance the rights of the victims," said Minister MacKay. "Through the creation of a new high-risk designation process, we will ensure that those accused who meet the NCR higher risk threshold are no longer a threat to their victims or Canadian communities."

"Our Government is strongly committed to protecting the safety of Canadians while ensuring that victims have a greater voice in our justice system," said Minister Moore. "The safety of the general public and concern for the victims should be the most important considerations so that high-risk accused found not criminally responsible are not released into our communities."

The Not Criminally Responsible Reform Act, which addresses concerns raised by victims of crime as well as provinces and territories, has three main components:

• Putting Public Safety First - the legislation would explicitly set out that public safety is the paramount consideration in the decision-making process relating to accused persons found to be NCR.

• Creating a High-Risk Designation - the legislation would create a new designation to protect the public from high-risk NCR accused. Upon being designated by a court as high-risk, an NCR accused would be held in custody and would not be released by a review board until their designation was revoked by a court. The other consequences of being designated as a high-risk NCR accused would include a possible extension by the review board of the period between reviews (up to three years), unescorted passes could not be granted to such individuals, and escorted passes could only be granted in narrow circumstances and subject to sufficient safeguards to protect public safety.
  

• Enhancing Victims Rights - the legislation would enhance the safety of victims by ensuring that they are specifically considered when decisions are being made about accused persons found NCR, ensuring they are notified when an NCR accused is discharged and where they intend to reside, and allowing non-communication orders between an NCR accused and the victim.

"Victims want to be better informed and be more involved in the process," said Senator Boisvenu. "This Bill will help our Government fulfill our commitments under our plan for safe streets and communities, including standing up for victims and ensuring fair and efficient justice."

The proposed reforms would not affect access to treatment for any NCR accused person.

Reinstatement of this legislation is consistent with the commitment in the Speech from the Throne 2013 to support victims of crime and protect our communities.

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Backgrounder

Not Criminally Responsible Reform Act

The Government of Canada is committed to standing up for victims of crime and making streets and communities safer for Canadians. The Not Criminally Responsible Reform Act would ensure that public safety comes first in the decision-making process with respect to accused persons found Not Criminally Responsible on Account of Mental Disorder (NCR). It would enhance the safety of victims, and promote greater victim involvement in the Criminal Code mental disorder regime.

Overview of the Current Criminal Code Mental Disorder Regime

The Criminal Code mental disorder regime applies to a very small percentage of accused persons. Under Canadian criminal law, if an accused person cannot understand the nature of the trial or its consequences, and cannot communicate with their lawyer on account of a mental disorder, the court will find that the person is "unfit to stand trial." Once an accused becomes fit to stand trial, they will then be tried for the offence with which they were initially charged.

If a person is found to have committed the act that constitutes an offence, but lacked the capacity to appreciate what they did or know that it was wrong due to a mental disorder at the time, the court makes a special verdict of "Not Criminally Responsible on Account of Mental Disorder" (NCR). They are neither convicted, nor acquitted.

A person found either unfit to stand trial or NCR is referred to a provincial or territorial Review Board, which decides on a course of action. Under the current law, a Review Board can make one of three possible decisions:

• If the person does not pose a significant threat to public safety, an absolute discharge (only available for a person found NCR);

• A conditional discharge; or,

• Detention in custody in a hospital.

This Bill proposes to amend the mental disorder regime which deals with accused persons who were found unfit to stand trial or NCR.

Proposed Amendments to the Mental Disorder Regime

Putting Public Safety First

The legislative amendments to the mental disorder regime of the Criminal Code, proposed in the Not Criminally Responsible Reform Act, would explicitly make public safety the paramount consideration in the court and the Review Board decision-making process relating to accused persons found to be NCR or unfit to stand trial, as set out by the Supreme Court of Canada, most recently in R. v. Conway.

In addition, the proposed reforms would codify the meaning of the phrase "significant threat to the safety of the public," which is the test stated by the Criminal Code to determine whether the Review Board can maintain jurisdiction and continue to supervise a mentally disordered accused. Consistent with the Supreme Court of Canada's interpretation, the phrase means a risk of physical or psychological harm to members of the public, resulting from conduct that is criminal in nature but not necessarily violent. The codification aims to ensure more consistency in the application of this test.

Creating a High-Risk Designation

The legislation would amend the Criminal Code to create a process for the designation of NCR accused persons as high-risk where the accused person has been found NCR of a serious personal injury offence and there is a substantial likelihood for further violence that would endanger the public. A high-risk designation could also be made in cases in which the acts were of such a brutal nature as to indicate a risk of grave harm to the public. Those designated as high-risk NCR accused persons would not be granted a conditional or absolute discharge, and the designation could only be revoked by the court following a recommendation of the Review Board. This designation would apply only to those found NCR and not to persons found unfit to stand trial.

The proposed legislation outlines that a high-risk NCR accused person would not be allowed to go into the community unescorted; escorted passes would only be allowed in narrow circumstances and only if a structured plan is in place to address any undue risk to public safety. Also, the Review Board may decide to extend the review period to up to three years for those designated high-risk, instead of annually. The high-risk NCR designation would not affect access to treatment by the accused.

Enhancing Victims' Involvement

The legislation will enhance the safety of victims and provide them with opportunities for greater involvement in the Criminal Code mental disorder regime by:

• Ensuring they are notified, upon request, when the accused is discharged and providing them with information regarding the intended place of residence of the accused;
• Allowing non-communications orders between the accused and the victim; and,
• Ensuring that their safety is considered when decisions are being made about the accused person.

Provisions in the proposed legislation would also help ensure consistent interpretation and application of the law across the country. These proposed reforms would not change the existing Criminal Code eligibility criteria for the exemption from criminal responsibility on account of mental disorder. The Bill also amends the National Defence Act to ensure consistency in the mental disorder regime in the military justice system.

Department of Justice Canada

November 2013