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This article was published 23/2/2016 (1635 days ago), so information in it may no longer be current.
As Will Baker, who has changed his name from Vincent Li, went before the Manitoba Criminal Code Review Board on Monday for another decision on whether the facts and law require loosening restrictions on his liberty, questions again were being raised about the legal regimen for people found not criminal responsible (NCR) on account of mental disorder.
The tragic killing of Tim McLean on a Greyhound bus while Baker was in the throes of a psychotic episode captured the attention of Canadians. To anyone familiar with the law and the evidence in the case, the NCR verdict (to which the Crown agreed) was inevitable. Baker was suffering from an untreated mental illness that rendered him incapable of appreciating the nature and quality of his act.
The evidence is also clear Baker, who was held in a secure psychiatric unit for seven years before being transferred to a group home last year, has responded extremely well to treatment. By all accounts, he is a model patient. When he went before the Criminal Code Review Board last summer, it was the considered opinion of the board that any minimal risk he posed could be effectively managed in a group-home setting. The board is composed of psychiatric and legal experts who are required by law to give paramount consideration to public safety. Research shows such boards across the country are risk-averse. They very carefully consider easing restrictions, and they require significant evidence before making such a decision. People found NCR often spend more time in secure psychiatric custody than they would if they were found guilty and sentenced to jail time.
Canadians are rightly concerned about public safety, but the evidence with respect to people found NCR and public safety is clear on at least three fronts.
First, recidivism by people found NCR is very low. While it is never possible to reduce the risk to zero, we know violent acts committed by people who are in the community under the NCR system are extremely rare. The National Trajectory Project, which recently studied more than 1,800 NCR cases in Canada, found people whose NCR verdict involved a serious violent offence had a very low recidivism rate of less than one per cent for new violent offences.
Second, many people who are mentally ill are in the corrections system, where they generally get little treatment and are substantially more likely to reoffend on release than those found NCR. The Canadian Psychiatric Association says those with mental illness are five to six times more likely to reoffend when they have gone through the prison system than when they have been in the NCR system.
Third, these tragic, high-profile cases involving NCR accused generally involve people who tried to access mental health care in the community and who did not get the care they required. Numerous reports, including those by the national Mental Health Commission, show mental health services in the community are inadequate and putting resources there is the road to prevention of harm.
A further problem is the inordinate attention and misinformation surrounding these cases feed the very stigma that may prevent people from getting the help they need.
Responding to public fear fuelled by misinformation, the previous federal government passed legislation injecting a punitive element that has no principled place in the NCR process and limiting rights of review in a manner that may well violate the Charter of Rights and Freedoms.
The unfortunate thing about seeking further limits on when and how a person found NCR in a high-profile case might be released is it does nothing to prevent similar tragic deaths. The real need is with those who are not getting adequate treatment in the community before they have a serious episode such as the one experienced by Baker. In his and other high-profile cases, the warning signs were there and attempts to seek appropriate treatment in the community were unsuccessful.
What Tim McLean’s family has endured is unthinkable. If we care about preventing future tragedies like this, we will prioritize the improvement of mental health care in the community.
Debra Parkes is an associate professor in the faculty of law at the University of Manitoba.
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