Winnipeg Free Press - PRINT EDITION

Just treatment for mentally ill offenders an old idea

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They are society's last bogeymen.

Imaginary monsters hiding in the recesses of our ignorance.

In general, "they" are the mentally ill, but more specifically, they are the demonstrably mentally ill, the ones who wander the streets talking to invisible others. Or, in the worst cases, hearing voices that tell them to harm others that their chemically imbalanced brains portray, ironically, as monsters. And, in Vince Li's case, an alien out to harm him on a Greyhound bus bound for Winnipeg four summers ago.

This week, Vince Li -- who gruesomely killed young Tim McLean on that bus -- reportedly took a few more supervised steps beyond the Selkirk Mental Health Centre, and presumably toward his regulated reintegration into the community. Given the hideous and sensational nature of the case, it's understandable that some people are apprehensive about the prospect of Li's eventual release into the community, even under strictly monitored circumstances.

But, for some of the still apprehensive and unsatisfied, there's more at stake than one man's future. If they have their way, Li -- and others judged not criminally responsible for murder -- would never take a step outside a prison-like forensic hospital unit.

"Tim's Law," as its proponents have named it in memory of the victim, would impose life sentences on people such as Li.

So far, I haven't heard any lawmaker -- not even Public Safety Minister Vic Toews -- introducing lock-'em-up-and-throw-away-the-key amendments to the Criminal Code. Perhaps that's because Toews understands fundamental legal realities that are rather enlightening. Particularly enlightening if you start in Britain at the dawn of the 19th century. The 1800 case of the King vs. Hadfield involved a man named James Hadfield who was found not guilty by reason of insanity after he discharged a shot at King George III. Even back then, Britain's chief justice understood there were only two options for Hadfield's disposition, and neither seemed right.

Wrote Lord Kenyon:

"... This is a case which concerns every man of every station, from the King upon the throne to the beggar at the gate; people of both sexes and all ages may, in an unfortunate frantic hour, fall in sacrifice to this man, who is not under the guidance of sound reason; and therefore it is absolutely necessary for the safety of society that he should be properly disposed of, all mercy and humanity being shown to this most unfortunate creature. But for the sake of the community, undoubtedly he must somehow or other be taken care of, with all the attention and all the relief that can be afforded him... For the present we can only remand him to the confinement he came from."

For Hadfield, that meant prison.

The Hadfield case, which had obviously got the king's attention, resulted in the passage of the Criminal Lunatics Act, which led to the confinement of mentally ill offenders to hospital instead of prison; for treatment, instead of punishment.

Considering there was no medication in 1800 to treat psychotic patients, that decision was as fair, just and caring as one might expect for the time. Canada adopted the British law in 1892, but its own legal enlightenment wouldn't dawn until 100 years later with a Supreme Court decision that sought to balance public safety with individual liberty.

The country's highest court found the Criminal Code, as it related to not-criminally-responsible dispositions, breached two of the Charter of Rights and Freedoms' most fundamental sections, including "the right not to be arbitrarily detained or imprisoned."

In other words, not to be sentenced to a prospect of life in confinement without there being a mandatory means of being assessed for release.

It's as a result of that decision that Manitoba and other provinces have review boards tasked with annually assessing NCR patients to determine if they can be released in a way that's safe for the public and the patient.

The review board can choose from three dispositions during its reviews: continued custody, an absolute discharge and a conditional discharge. Vince Li appears destined, at least in the short term, for a conditional discharge, which would result in close monitoring of his medication and his mood. If he should not take his medication, or demonstrate signs of relapsing, the board has the power to have him returned to custody.

In any event, the Supreme Court's decision that invoked the charter all but guarantees there will be no medieval lock-'em-up-and-throw-away-the-key Tim's Law.

But it doesn't mean people like Vince Li won't serve a different kind of life sentence. One imposed by biology, not the law; by his birth, and in Li's case, by another man's death.

A death for which he will always feel responsible. No matter what the law says.

Republished from the Winnipeg Free Press print edition May 26, 2012 B1

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