In ALG Blog

March 21, 2013    *UPDATED June 25, 2014

Criminal lawyers get to see many persistent prejudices up close.  None is more enduring than fear of the mentally disordered.  Rooted in centuries-old beliefs about “madness,” fear of the different is, well, a crazy way to see the world.

It makes sense that the federal government, having run out of non-existent criminal law problems to solve, would turn its sights on people with mental illness.  The Not Criminally Responsible Reform Act is a classic example of ignorance and stigma driving public thinking. It is going to punish people for being mentally ill.

If it was predictable that politicians would exploit fears about random violence, it was surely not forgivable that thoughtful media would jump on the bandwagon.

Of course the media is entitled to support the government’s attempt to tighten the screws on the mentally disordered. But it would make for more pleasing reading if it got its facts straight. No reasonable member of the medical community thinks that psychosis is untreatable. The editorial is wrong to imply otherwise.  No reasonable member of the medical community thinks it is “breathtaking” for Justice Schneider to state that the current system protects the public. If the judge is so wrong and our safety is at risk under the existing law, what’s the evidence? The Globe doesn’t refer to any, except the random opinion of a single doctor. If it examined the facts before excoriating Justice Schneider, it would learn that the review board program is one of the success stories of the justice system. It is careful, evidence-based and focused on public safety. The Supreme Court has repeatedly told review boards to put public safety first — and by all objective measures, they do.

You don’t have to go far back to see what the new law is going to give us. Before the current system was established, mentally ill offenders had no incentive to plead not criminally responsible. Pleading not guilty by reason of insanity meant the offender could spend years in hospital without release, detained under unknowable criteria. Many defendants avoided the hospital system entirely, choosing fixed-term jail sentences. They fell into a sad cycle: psychosis-crime-jail and repeat – an endless loop of misery for offenders and victims. The public was not safe under this arbitrary regime.

Parliament changed the rules in 1992, establishing a review board system. It put public safety first. It gave mentally disordered offenders a reason to participate in therapy and treatment programs. Review boards developed a careful, evidence-based approach to their work.  Every offender’s case is reviewed annually. And the board gets it right. Discharged individuals have a recidivism rate of three to seven percent. This is an astonishingly successful figure.

Is there evidence the new law will make us safer? No. Is there evidence that individuals who commit lurid crimes while psychotic would be released under the present law if they pose a danger to the public? No.

Is there evidence that the mentally disordered continue to face stigmatization? A lot. Last week, the Ontario Human Rights Commission released a comprehensive policy aimed at preventing discrimination based on mental health disabilities. Even today, people with mental illnesses face persistent discrimination and are reluctant to disclose their disabilities or seek help because of the “extreme stigma.”

Parliament and other opinion leaders should be helping to reduce discrimination based on irrelevant personal characteristics. We do not need to go backward to fear of mental disorder.


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