POLITICS

An in-depth look at not criminally responsible through the eyes of a patient

04/19/2013 10:05 EDT | Updated 06/19/2013 05:12 EDT
When the stranger with wild hair and even wilder eyes plunged a knife into a young woman's chest outside a Wal-Mart, screaming as he continued stabbing even after she fell to the ground, she thought she was going to die.

In that terrifying moment, the 22-year-old who only wants to be identified as Julie didn't know much about mental illness or the delusions that had whipped Sean Clifton, one of the local oddballs in Cornwall, Ont., into a violent frenzy.

When Clifton was found not criminally responsible and sent to a mental hospital, those close to Julie wanted to know why he wasn't going to prison.

She has an answer for them now: "He was very ill."

"I can't imagine in a daily life having to go through all that," she said in a recent interview.

"So I understand that that day why that happened to me was because he was sick. It wasn't personal, it was just being there at the wrong place at the wrong time."

While Julie no longer lives in fear every time she leaves her house, enough trauma lingers from the attack 13 years ago that she does not want her last name used.

Remarkably, though, she doesn't feel any anger toward Clifton. In fact, she feels empathy for the man who caused her so much pain. She is angry, however, at his illness and at the mental health system that failed to catch him on his downward spiral.

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"I had a crazy compulsion"

Julie has been given a glimpse into the life and mind of her mentally ill attacker in a way that most victims, let alone the general public, rarely get to see.

Clifton, 46, is at the centre of a new documentary, "NCR: Not Criminally Responsible," which illustrates an oft-misunderstood system now under close scrutiny due to some high-profile cases and changes proposed by the Conservative government.

The film, from Emmy-winning Canadian director John Kastner, shows the process Clifton and others go through from the time of an NCR finding to their eventual release into the community.

In an interview with The Canadian Press, Clifton reflected on his life before and after the night of the stabbing, on his anxieties about how he will come across in the film and on the politics of not criminally responsible. He hopes the documentary helps destigmatize mental illness.

Clifton was sent to the Brockville Mental Health Centre in Ontario in 2000 after his NCR finding, which meant his mental illness rendered him incapable of knowing what he did was wrong.

With a dual diagnosis of obsessive compulsive disorder and schizophrenia, Clifton was one of the most ill patients the staff had ever encountered, they say in the documentary.

After years of treatment he is capable again of rational thought, of reflection and of remorse. With the fog of psychosis clear he has rediscovered old interests and is an avid CBC radio listener, eager to discuss the news of the day.

Today he lives in the community in Brockville, closely monitored under strict conditions from the hospital. He says he's no threat.

"I had a crazy compulsion," Clifton says. "It was a...break with reality, but I think I'm getting back to where I was before I went insane, with the help of the medication, I guess."

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"Out here living amongst us"

Clifton wants to debunk the misconception that not criminally responsible verdicts flood the streets with the criminally insane soon after their trials.

"I have not been released overnight," he says.

"It's been a very slow, gradual process. They've been very cautious. I have not shown any violence since my index offence, but every review board I have they mention I'm a threat to society or something."

Once someone like Clifton is found not criminally responsible they are managed by review boards — independent tribunals made up of at least five people, including at least one psychiatrist.

Each year people in most NCR cases go before their province's review board. It can order that the person remain detained in a hospital, with varying levels of privileges, it can release the person on a conditional discharge or order an absolute discharge.

Absolute discharges are granted only when the board finds the person is not a "significant threat" to public safety.

Few NCR cases get an absolute discharge at the first hearing, according to a government-commissioned study of review boards in Canada between 1992 and 2004.

About 35 per cent of people in NCR cases spend more than 10 years in the system, the study found.

Clifton is one of them. At his last hearing the review board noted the significant progress he has made in 13 years, but still opted to keep him on a tight leash. He is under a detention order but allowed to live outside the hospital in an apartment.

He doesn't have "sufficient insight" to be able to recognize early symptoms of deterioration, the board found.

The review board system lets NCR people into the community — once they're deemed ready — for short periods of time under close supervision to see how well they can cope. If they do well, they can be granted more privileges at subsequent hearings, step by step. If they don't fare well, the review board pulls the reins of supervision a little tighter.

Clifton was in the most secure ward of the mental hospital for several years. Eventually he was granted the privilege of going into the yard escorted by two staff members. Then he was allowed to leave the grounds with a staff member. Later he got the privilege of going downtown by himself for an hour, then for as many hours as he wanted.

One year Clifton didn't take his medication for a few weeks and at his next review board hearing he was granted no new privileges.

Thousands of people have already gone through the review board system and are living in our cities and towns after getting absolute discharges, says Chris Summerville, CEO of the Schizophrenia Society of Canada.

"People talk like these people must be hidden in some institution somewhere," he says.

"(They're) out here living amongst us and you're not reading about them every day in the paper. What you're reading about are the high-profile cases."

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Rates of reoffending starkly lower

The federal government introduced the Not Criminally Responsible Reform Act in the wake of some of those cases. Bill C54 seeks to create a "high-risk" designation for people found NCR in cases of serious personal injury.

The Crown would apply to the court for such a designation, and it could only be lifted by a court. "High-risk" people would not be allowed to leave their hospital unescorted and could go three years between review board hearings.

It would affect a very small number of people, Justice Minister Rob Nicholson said in an interview.

"We're making changes that are all reasonable to ensure that public safety is the paramount consideration when a decision is being made with respect to whether an individual will be released," he said.

"We're adding the extra protection for everyone involved by a high-risk designation and...we are responding to what victims have told us."

Review board officials and mental-health organizations say the bill is a politicized, "knee-jerk" response to three specific and particularly reviled high-profile cases: Vince Li, who beheaded Tim McLean on a Greyhound bus in Manitoba, Allan Schoenborn, who killed his three children in B.C., and Guy Turcotte, a Quebec cardiologist who killed his two children.

But rates of reoffending are starkly lower for those released by a review board in NCR cases than those released from jails and prisons.

For people released from the penal system the recidivism rate is about 40 per cent, according to various government statistics.

Three years after an NCR verdict, about 10 to 14 per cent of those people had reoffended, fewer violently, according to research recently submitted to the Department of Justice.

The Trajectory Project, led by Anne Crocker, a psychiatry researcher and professor at McGill University, tracked 164 people over several years who were found NCR for serious violent offences, which included murder, attempted murder and sexual offences.

That represents about eight per cent of the total NCR population in that time.

The study authors said their results should be interpreted with caution. But the findings are in line with the government-commissioned study, which discovered that 90 per cent of people found not criminally responsible had no previous NCR verdict.

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"The jails are our biggest mental hospitals"

However, the study found, more than half of those people had a prior criminal conviction. Many mentally ill people cycle through the correctional system for years, not getting the treatment they need.

"The jails are our biggest mental hospitals," says B.C. Review Board chairman Bernd Walter.

Clifton himself had a couple of assault and mischief convictions before his attack on Julie. He has not been violent since then.

No stranger to psychiatric care, Clifton once spent several months in a psychiatric ward after his obsessive compulsive disorder spun out of control. His brother had found him holed up in a hotel room, where he had become so afraid of germs that he didn't eat or drink for six days.

After he was discharged from the psychiatric ward, Clifton was sent to a "rest home," a care facility for people who can't look after themselves.

Clifton's OCD behaviours about stairs particularly controlled him. He would have to practice climbing each stair, he says. Sometimes he would crawl on his hands and knees to try to circumvent some of his rituals. A trip to the bathroom in the middle of the night could take 45 minutes. Sometimes he would just wet the bed.

"It was just too much," he says. "I couldn't do anything else."

He tried to get help just hours before he attacked Julie, feeling reality slipping away, but was told the psychiatrists were too busy to see him that day, he says.

It's not people who have been treated and deemed well enough to be released back into their communities who pose the highest risk to the public, says mental health lawyer Anita Szigeti.

She says it's people currently in the community who are not receiving proper help and support for their mental illness.

Walter of the B.C. Review Board says people tend to spend much more time in review board custody than they would have with a jail sentence and are fully released only after experts have deemed them well enough.

"If the regular criminal system releases an offender when their time is done, the individual may still pose a threat to the public, given that they were presumably of sound mind and intended the act," he says.

"The government's own research indicates that (NCR) rate of reoffending and recidivism is a fraction of what it is for those people who do the time and come back out on the street after jail. So to me it sounds like the system is working."

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"He ate my son's heart and his eyes. Why would I think it's a good idea for him ever to be free?"

That doesn't sit well with Carol de Delley, whose son was beheaded by Li in 2008.

"If he's released into the public I will be afraid. I will be very afraid," she says.

"I don't trust that this man should be released...Why would I? He ate my son's heart and his eyes. Why would I think it's a good idea for him ever to be free?"

A public outcry erupted when Li was granted escorted passes into the community last year. He committed such a terrible act, people said, why should he get such privileges so soon after?

People were similarly outraged after Turcotte was released after spending only 18 months in psychiatric care. Combined with the time he spent in jail awaiting trial, Turcotte was released after less than four years in custody.

And when Richard Kachkar was found not criminally responsible for killing the Toronto police officer, unsatisfied members of the public complained he got away with murder. Even Toronto's mayor called in to a radio show to decry that the defence seemed to be trying to "justify" the officer's death.

De Delley doesn't think not criminally responsible verdicts should exist since the system left no one responsible for the horror inflicted on her son. She thinks someone who commits as violent an act as Li should be locked in a secure facility for the rest of his life.

Schizophrenia, as Li has, is treatable with medication, but isn't curable. De Delley worries about what would happen if Li does well enough on medication to be released, then stops taking it because he is feeling better.

"We know what he is capable of doing when he's not in treatment," she says. "We may not know what he's going to do in the future, but we know what he has done in the past."

She does hope Li gets better. It will be easier for the psychiatric hospital staff to manage him. She just wants him to stay there.

"I hope that he comes to a place in his mind where he can understand the devastation he wreaked upon another family," she says.

"I don't know how he lives with that, but he has to live with that. I have to live with that."

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"Least onerous and least restrictive"

It's true, says Walter, that the only way to guarantee 100 per cent safety from people with mental disorders is to lock them all up indefinitely.

"But we have a constitution and a charter of rights," he says.

The goal of the not criminally responsible system is rehabilitation, not punishment. But de Delley says she is appalled that people found NCR have so many rights.

"The system concentrates its efforts and resources and funding on the rehabilitation of the offender and the victim is left to themselves," she says.

It's an exercise that leaves de Delley feeling like the horror her family experienced goes unacknowledged.

"The entire focus becomes on how to best meet the needs of the offender and the victim is forgotten," she says.

Nicholson says that's why the government wants to bring in enhanced provisions in the system for victims.

"It's certainly consistent with our program over the last seven years that we've been in government and that is to make sure that victims' concerns are heard and that they're represented."

The bill would let victims know, if they wish, when an NCR person is discharged. It would also ensure victims' safety is considered by review boards and allow for non-communication orders between the NCR person and victims.

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"The pain I have caused you and your family"

For Sean Clifton and Julie, communication has helped them both move forward with their lives. In a watershed moment in the documentary Clifton writes a letter of apology to Julie and her family.

"I want you to know how deeply sorry I am about what I did to Julie and for the pain I have caused you and your family," he writes.

"I accept that I have a mental illness. I know I need medications. I know I will have to take them for the rest of my life."

Julie, now a married mother of three, not only accepted his apology, but decided to write one in return, after watching the documentary.

"I can't begin to imagine all that you have suffered through this mental illness but commend you for the way you have turned this around," she wrote.

"I do appreciate the letter of apology and the way you have helped me understand why this had happened. I wish nothing but the best for you in your recovery and hope that you will continue to take your medication."

Clifton was pleased to receive Julie's note.

"I care, you know, that I hurt somebody, and it's not something I take lightly," he says.

"I'm sorry for what I did. Maybe some people found NCR are too mixed up to feel they're sorry, but I've been scratching and clawing my way back to mental health. I've rediscovered old interests and things, things I couldn't care about while I was climbing up the stairs on my hands and knees at the rest home in Cornwall.

"I did a terrible thing. I hurt somebody really bad. But I am capable of leading a peaceful, quiet, somewhat normal life."

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"NCR: Not Criminally Responsible" is showing at Hot Docs, the Canadian international documentary festival on April 28, April 30 and May 5. It is also set to air on CBC's "Doc Zone" and on the Documentary Channel in early fall.