01/17/2014 05:00 EST | Updated 03/18/2014 05:59 EDT

Jeffrey Arenburg's story fuels not-criminally-responsible debate

An unprecedented view into the life of a man found not criminally responsible for a death almost 20 years ago is fuelling debate around the issue of what happens to these offenders once they are released.

Jeffrey Arenburg was found not criminally responsible (NCR) on account of mental disorder for shooting Ottawa TV sportscaster Brian Smith in 1995. He told his story for the first time to the fifth estate host Bob McKeown in an interview that will air Friday at 9 p.m. ET on CBC television.

Arenburg says that while Canada’s legal system determined he was not responsible for his actions, it has been difficult to move on with his life.

“Okay, I shot Brian Smith,” he says. But he adds that he also has “a right to have a life without everybody being told what to think” about him because of the NCR label.

Arenburg case

Arenburg began to hear voices in his early 30s. He also believed his thoughts were being transmitted by local radio stations, and that a movie studio was making films about him, sharing his secrets with the world.

Arenburg tried many ways to get the voices to stop, including attempting to enter the Parliament buildings to persuade the prime minister to use his influence to halt the broadcasts of his thoughts. He threatened radio stations with violence, and was convicted of assault for attacking a station employee.

On Aug. 1, 1995, Arenburg decided he wanted to tell the world about the voices controlling his life and make them stop. At 7 p.m., he was waiting outside the CJOH television station with a 22-calibre rifle. When Smith stepped out of the building, Arenburg recognized him as a member of the media and shot him in the forehead.

“[I had] no beef with his family. He just happened to be in the wrong place at the wrong time,” Arenburg says.

Smith died the next day, and Arenburg turned himself in to the Ottawa police. He was charged with first degree murder, but the judge, prosecutors and defence all agreed that he did not have the mental capacity to understand that the violent act he’d committed was wrong. Arenburg was found not criminally responsible.

After spending nine years in a mental health care facility, he was found to have recovered and eventually returned to live in his hometown in Nova Scotia, with no conditions for ongoing treatment. Arenburg is no longer taking medication, because he says the voices that once haunted him – prompting him to violence - are gone.

“That scares me. That’s hurtful and that tells me that he doesn’t care what he’s done,” Smith’s widow, Alana Kainz, told McKeown. “He’s not willing to take medication, he’s not willing to be a better man as a result. That says something about him.”

Legal reform

Kainz is among those who have lobbied to change mental health laws to include increased monitoring of patients like Arenburg in an effort to prevent tragedies.

Other recent high-profile incidents have contributed to the public debate around the use of NCR.

Vince Li beheaded a 25-year-old carnival worker, Tim McLean, on a Greyhound bus heading to Winnipeg in the summer of 2008. Li was found to be suffering from paranoid schizophrenia, and was deemed NCR.

Guy Turcotte became a household name in Quebec in 2009, after the cardiologist stabbed his two children, aged 3 and 5, to death. Though he had never been diagnosed with a mental illness, he was very inebriated after consuming windshield wiper fluid, and expert witnesses disagreed on whether or not Turcotte understood what he was doing.  The jury found him not criminally responsible for the deaths of his children.

Turcotte was released in December 2012, after 18 months in a Montreal psychiatric hospital. Last November, the Quebec Court of Appeal overturned the ruling that found him NCR, and ordered a new trial to be held. Now Turcotte’s lawyer is asking the Supreme Court of Canada to consider the case.

Turcotte’s wife, Dr. Isabelle Gaston, says her husband should not have been found NCR.

“I think it’s unfair of someone that is really psychotic, okay, going to jail,” she said. “But the thing is that we didn’t think that people are so intelligent that they could manipulate the law and get this verdict when they should not have it.”

In the wake of these cases, Justice Minister Peter MacKay tabled Bill C-54, the Not Criminally Responsible Reform Act, in 2012. It proposed to reform the section of the criminal code that deals with people who commit violent acts, but lack the capacity to know what they are doing. Parliament was prorogued in September 2013 before the bill could be passed into law, and the government reintroduced it as in Bill C-14 last fall.

The bill would create a “high-risk” designation for people found NCR in cases of serious personal injury. These offenders would not be allowed to leave their care facility without an escort, and instead of the current single year, they could wait three years between review board hearings.

That high-risk status would be determined by a court, rather than a review board.

Montreal psychiatrist Louis Morissette was one of the medical experts who recommended that Turcotte be discharged.  He calls these changes a “sad reaction” that ignores the facts and research around mentally ill people who commit crimes.

According to mental health experts, a relatively small number of those accused of violent crimes in Canada avoid time in prison with NCR verdicts.  

Ottawa criminal lawyer Lawrence Greenspon, who has been involved in a number of NCR cases, calls the bill a “knee-jerk response” that is not based on science or statistical evidence. He says the number of offenders found to be not criminally responsible is not increasing.

“The population has the perception that there’s more and more people using not guilty by reason of mental illness,” adds Morissette. “It’s not true. The rate for violent crime is about 0.5 per cent. Less than half a per cent of offenders use that route are found not criminally responsible.”

And the recidivism rate for people found NCR is relatively low.  Recent studies suggest that three years after an NCR verdict, about 7 to 10 per cent of those people had reoffended, compared to about 34 per cent from the general penal system. For mentally ill inmates in the mainstream prison system, recidivism rates are 69 per cent.

Greenspon says if these changes aim to improve public safety, they should address what happens to offenders found NCR after they are released.

“That really is the issue: to what extent can society ensure that an individual who clearly needs medication and treatment, to what extent can we force that, monitor it, ensure they get treatment and for how long? Because ultimately, even if somebody goes to a mental health facility for 10, 15, 20 years, at some point they’re gonna get out.”

He says there should be some way to require continuing treatment for NCR offenders who are released, without violating their civil liberties.

“Ultimately I think it’s going to come down to would you be prepared in very serious cases, in murder cases and things of that nature, would you be prepared to look at that person being followed and having to check in once every two weeks, effectively for the rest of their life, in order to ensure the safety of the community?” he said.

Stigmatized by NCR

While the debate over reforming the legislation continues, Arenburg is back in his hometown in Nova Scotia, and he says he is no longer mentally ill. He is struggling to start a business and surviving off disability cheques, but feels that he is stigmatized by the NCR label.

“I’m getting slapped in the face, trying to be a civilized person - whether I take pills or see a psychiatrist, that’s got nothing to do with my personal case,” he told McKeown.

Local police chief Jim Collier says there is some concern in the town about his presence. “Taking someone’s life is one of the big taboos in our society and basically it’s a small town. People know who he is and know what he’s done and they’re concerned.”

Arenburg says he feels like he is constantly being watched and judged by those around him. He showed the fifth estate a file of restraining orders barring him from places like the department of motor vehicles and the government office where he gets his disability cheque. He told McKeown that he never acted violently in one of those places, though he may have raised his voice.

The police did ask mental health officials for an evaluation of Arenburg. They concluded he is not a threat to public safety.

Smith’s widow, Kainz, says she cannot feel sympathy for Arenburg, though she has empathy for his illness.

“This is a man who stole a great man from me,” she said. “He ripped a hole through my soul. So how do you forgive that? How do you think about that? But at the same time, I understand it was a mental illness and hopefully he’s on the right road now and he’s not hurting anyone else.”

Arenburg isn’t voicing his views on the NCR debate. He says he just wants to be left alone.

“Because I had that episode don’t mean I have paranoid schizophrenia every second after I’m found that way, every second of every day, even until now.”