Justice Minister Rob Nicholson’s plans to amend the Criminal Code early next year to make it harder for mentally ill offenders to be released from custody will not make Canadians safer.
Recent cases have brought to light the issue of how mentally ill offenders are punished, including the murder of 22-year-old Tim McLean, who was beheaded on a Greyhound bus in 2008 by Vince Li. Li was eventually declared “not criminally responsible” for reasons of insanity.
The fact that Li can now rejoin society under supervision on temporary passes angers the victim's mother, who publicly supports Nicholson’s plans.
“I sympathize with the victims’ family members and understand the psychological trauma they go through,” says Chris Summerville, head of the Schizophrenia Society of Canada. “But I think the announcement is based on fear, not facts.”
Summerville is in regular contact with mentally ill offenders, some of whom were involved in high profile criminal cases. He says that the re-offending rate among these mentally ill offenders is around four per cent, and not a huge cause for concern.
Offenders labelled not criminally responsible can face more lax treatment than those confined to prison.
Nicholson’s plans are in sync with the Tories’ tough-on-crime agenda and purport to make public safety the “paramount factor” for review boards that decide whether an offender can be set free.
Summerville says that the re-offending rate among those who are not mentally ill is around 47 per cent, compared with four per cent among the mentally ill.
In other words, the fear that these offenders are being let go too early, thus endangering the public, is a myth and not supported by the evidence. The statistics show that the review system is working, but that the sprawling penal system designed to deal with sane criminals needs reform. Nicholson and the Tories have it backwards.
“Rather than have a decision based in the way the system actually operates and in existing Charter law, the minister is playing to popular prejudice against this particular group of people,” says Jennifer Chambers, a co-ordinator at the Centre for Addiction and Mental Health, a national mental health and wellness organization.
Both Summerville and Chambers note that lobbying by victims’ family members and victim advocacy groups probably had an effect on the Tories, who are always keen to maintain a tough-on-crime reputation.
Summerville and Chambers both say that the review boards already take public safety seriously and politicians don’t need to get involved. Public safety is already paramount in the review boards’ decision-making processes,they say.
“The reality is that people found not criminally responsible are almost always held in custody considerably longer than if they were found guilty and went to jail, and research shows that most are also less likely to recidivate,” Chambers says.
The proposed amendment is an attempt to consolidate the Tory image as the law-and-order party, unwilling to risk public safety simply because a psychiatrists such as Summerville bases his conclusions on evidence and science.
“The Tories care about votes from the families members of victims,” Chambers says. “They obviously don’t care whether they have the support of mentally ill people.”
Nicholson’s announcement was made on Nov. 22 and did not give a detailed account of what the proposed legislation will look like, which makes it hard to pick apart the ways in which the amendment will affect existing legal structures.
“One reason that this announcement is tough to comment on is because it’s so vague,” says Karen Monaghan, a media officer at the Royal Ottawa Mental Health Centre. “There just isn’t all that much out there right now.”
However, Summerville, among others, has stressed that Nicholson’s proposals may very well be subject to a constitutional challenge.
The Supreme Court of Canada ruled in the leading 1999 decision Winko v. British Columbia that giving review boards the power to decide whether or not to release mentally ill offenders is not unconstitutional.
This means that an amendment to the Criminal Code that attempts to upset the review board system is in itself a direct challenge to this legal ruling.
This significant attempt to change the legal understanding of mentally ill offenders would hardly be possible if the Conservative Party didn’t have a majority in the House of Commons.
The pain of losing a family member or friend due to senseless acts of violence is not something to be taken lightly.
Instead of carefully integrating the victims’ families and relatives into the legal process in a nuanced way while being fair to those with mental illnesses, the Tories have once again shown themselves adept at reducing complex problems into wedge issues in order to consolidate power and win votes.