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.
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.
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.
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.
The legislation will enhance the safety of victims and provide them with opportunities for greater involvement in the Criminal Codemental 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.
-30-
Department of Justice Canada
November 2013
