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Violent Offenders Found Not Criminally Responsible Deserve Help, Not Jail

Contrary to what Doug Ford seems to suggest, such mental health patients aren't criminals.

Ontario Premier Doug Ford has said that people living with mental illness and found not criminally responsible (NCR) of violent offences should be incarcerated rather than hospitalized in order to protect the public. “We have to have tougher laws in this country, we have to put these people away,” he said. “And if they have mental health issues they can be dealt with in jail. Simple as that.”

Ford’s comments were in response to the recent case of Zhebin Cong, who was found NCR of killing his roommate in 2014. Cong fled to China last month after legally being allowed out in the community on a day pass, unsupervised, while residing at the Centre for Addiction and Mental Health in Toronto. Ford went as far as calling Cong a “nutcase.”

Ontario Premier Doug Ford.
Ontario Premier Doug Ford.

But what Ford doesn’t understand about being found NCR is that it’s not a get-out-of-jail-free card for the two out of 1,000 cases that meet the strict criteria. In some ways, NCR can be more restrictive than a jail sentence. In addition, Ford’s suggestion that people found NCR belong in jail just furthers the stereotype that people with mental illness are dangerous.

Under the Criminal Code, people found NCR by a criminal court judge are put under the jurisdiction of a provincial review board, which has the power to decide if the accused should be hospitalized and what privileges (such as being allowed into the community) they should be entitled to.

When sentenced to a period of incarceration, an accused’s time behind bars is a fixed term. Assuming they aren’t found guilty of further crimes, an accused knows when they will be released back into the community from the moment they’re sentenced. For somebody found NCR, their reintegration is considerably less certain. It all comes down to the opinions of their treatment team, how well they’re adapting to treatment and, of course, the decision of the review board.

“As a society, we need to ensure that being overseen by a review board is not about punishing individuals.”

These review boards put public safety before the needs of the accused — including their reintegration back into society — when making these decisions. This can result in situations where an accused is confined longer in hospital than they would have served a sentence in prison.

In 2014, Brandon Mott was found NCR of theft under $5,000 after removing a cigarette and lighter from the complainants’ home as they slept. The Criminal Code says this crime carries a prison term of up to two years, but Mott has been hospitalized since 2015. In fact, Mott has been institutionalized twice as long as he would have been imprisoned.

In a June 2019 appeal to the Court of Appeal for Ontario, based on Mott’s October 2018 annual disposition, Mott was found to continue to pose a “significant threat to public safety” based on his history of mental illness, substance abuse and a lengthy criminal record, among other things. He could remain hospitalized indefinitely.

In 1984, Paul Conway was found NCR for the 1983 “brutal” sexual assault of his aunt. In a July 2019 appeal to the Court of Appeal for Ontario regarding his December 2018 annual disposition, the Court noted Conway’s “[hospitalization] has been marked by unmanageable behaviour, sexually inappropriate conduct, outbursts leading to property damage and threats to staff.” The Court also noted “the traumatizing effect he has on staff” and upheld that Conway should remain hospitalized.

Under the Criminal Code, the maximum sentence for sexual assault is 14 years. Conway has spent 21 more years hospitalized and confined than had he been sentenced to the maximum term of imprisonment.

The fact of the matter is that people found NCR could be hospitalized indefinitely for the most minor of offences under the Criminal Code to the most egregious. More than 35 per cent deemed NCR spend 10 years or more in the system, which is difficult to reconcile given that people living with mental illness are more likely to be victims of violence themselves than perpetrators.

Based on my experience of being institutionalized as a young adult, I believe it is in the best interest of people with mental illness, and also the public, that individuals deemed NCR are guaranteed the opportunity to reintegrate back into the community within a reasonable period — with the safety of all always top of mind. In Alberta, a study of people found NCR for major violent offences found that fewer than five per cent experienced recidivism within 30 years.

This is preferable to them receiving a fixed term of incarceration, and then released without any supports or supervision, or the alternative sentence of an unreasonably long hospital stay.

For example, in 2013 Brian Rose was found NCR of the 2010 death of his grandmother. He was transferred to hospital care to treat his schizophrenia after spending three years in jail. Rose was eventually reintegrated into his community starting with day passes and, as of 2018, is an outpatient who lives without the oversight of the review board. He is now a well-known mental health advocate working to help others like him.

Contrary to what Ford seems to suggest, an accused found NCR is not a criminal. As a society, we need to ensure that being overseen by a review board is not about punishing individuals by restricting their freedom and tearing them from their community, but rather about ensuring the accused receives the correct treatment for their mental illness.

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