Dr. Stanley Yaren, past president of the Canadian Psychiatric Association and a current member of its board, said his biggest concern with Bill C-54 is its creation of a new "high-risk accused" category.
Only a court could give and revoke the designation to someone found NCR for a personal injury offence, not the provincial review boards that currently assess risk and decide whether someone is ready to be released from the hospital.
A high-risk accused would not be allowed out of the hospital unless necessary for treatment or medical reasons and the maximum time between review board hearings could be extended from one to three years.
"One of the most important tools that we use to monitor people's recovery and apply appropriate treatment is to observe, carefully observe, in a graduated way, their response to increasing degrees of liberty," Yaren said in an interview.
Walks around the hospital property, for example, can be granted with and later without staff escorts and eventually visits into the community can be granted by review boards.
"It's a way that we can assess their ability to take responsibility for their behaviour in a careful and a metered way and at the same time it has a therapeutic value to the person because of course it starts to normalize their life and their adaptation to re-entering the community. If everything is put on hold for three years there's no way of assessing that," said Yaren.
Victims lobbying for changes
Last month, a review board granted more privileges to Li, who was an undiagnosed schizophrenic at the time of the attack on McLean in 2008. Yaren has treated and assessed Li and like other psychiatrists who have dealt with him, puts him at a low-risk of re-offending.
But the Li case and others like it prompt emotional debates and on Wednesday, the justice committee studying Bill C-54 will hear from McLean's mother and other crime victims. Carol de Delley has said that she wants Li permanently locked up and has lobbied for changes to the NCR system. She argues that it doesn't respect the rights of victims and that they need better protection.
The government has said it is standing up for victims like de Delley with the bill and that it better balances the need for public safety and the need to treat people with mental illness. Justice Minister Rob Nicholson said the provinces are supportive of the measures and that he received a lot of input from them and from victims.
To decide if someone is high-risk the court would have to consider the brutality of the offence, the accused's mental condition, opinions of experts, and other criteria.
Yaren and others have said considering the nature of the offence undermines the legal principle that the NCR system is based on – the person could not appreciate their actions because of mental illness – and that there is no basis for using that criteria.
Public safety would be 'paramount'
"There is simply no evidence to indicate that brutality of the offence is a major determinant of risk," said Yaren.
If it weren't for considering the brutality of the offence, he wonders whether Li would fit the criteria for a high-risk designation.
Yaren and other mental health experts question why the high-risk designation is necessary because they say the current legislation already protects the public. In many cases, people found NCR are detained in a hospital longer than they would have been detained if they had gone to jail.
Currently, when a review board is deciding whether to release someone, release them with conditions or keep them in a hospital, they must take public safety, the person's mental condition, reintegration into society and other needs of the accused into consideration.
Bill C-54 rewrites the language of the Criminal Code so that public safety is the "paramount" concern.
Yaren is concerned that restricting someone under the high-risk designation could mean they regress in their treatment.
"They become warehoused rather than treated. I'd like to remind people that mental health facilities are not jails," he said. Bill C-54 would allow for people designated high-risk to basically be in a jail situation, he said.
He and other mental health advocates say the label could reinforce the stigma associated with mental illness and perpetuate the myth that people with mental illness are dangerous.
According to the Mental Health Commission of Canada, the majority of people found NCR do not commit serious violent crimes and have low recidivism rates. The commission also says that the focus on a small number of cases paints an inaccurate picture of violence and mental illness.
Nicholson has said he doesn't think the bill will fuel stigma and that the designation would only apply to a very small group of people.
He is urging all-party support for the bill and places heavy emphasis on what it does for victims of crime. It includes measures such as a requirement for review boards to notify victims about a person's release and allows for non-communication orders between the accused and victim.
Yaren said everyone is on side with supporting victims but that in his experience victims say what they need is more services to help them cope.
"You wonder whether the money would be better spent providing counselling services and support for families and victims," he said.