03/01/2013 12:22 EST | Updated 05/01/2013 05:12 EDT

Policy Should Not Mistake the Mentally Ill for Criminals

a closeup of a jail door with a ...
a closeup of a jail door with a ...

Today the House began debating C-54, the Not Criminally Responsible Reform Act. From the Prime Minister's recent announcement of the legislation, one could easily get the impression that Canada is overrun with dangerous psychopaths and that Canadians should be fearful.

Yet, the available evidence indicates that very few mentally-ill people commit violent acts, even fewer are found not criminally responsible (NCR), and only a miniscule percentage of those found not criminally responsible (NCR) reoffend after treatment. Indeed, while high-profile cases of horrific acts have attracted much media attention, the reality is that these cases are exceptionally rare and these reforms have more to do with public perception than public safety.

We can all agree that the safety of the public -- and the well-being of victims and their families -- must be of primary importance in our justice system. For that reason, as Minister of Justice in 2005, I introduced reforms to the NCR regime which, among other measures, provided victims with the opportunity to give impact statements at review board hearings. These reforms were passed unanimously by Parliament, and we should remain open to further fine-tuning of the system if it is warranted, but such refinement must be based on the facts.

And the facts are as follows: According to a report prepared for Canada's Department of Justice, in 2004 -- the last year studied -- only 0.18 per cent of all criminal cases resulted in a finding that the accused was either NCR or unfit to stand trial for reasons of mental incapacity. Further, a Canadian study from 2003 puts the recidivism rate for people who have been found NCR, treated, and released, at just 7.5 per cent. In short, this bill focuses on less than 10 per cent of a group that is less than one per cent of those criminally accused. By contrast, those who are not NCR and serve in Federal prisons have a reconviction rate greater than 40 per cent.

Moreover, this bill misses the crux of the problem altogether. Rather than making largely unnecessary -- and potentially counter-productive -- changes to the way we deal with mentally-ill people who have committed violent acts, we would do far more to protect the public by intervening to prevent such violence in the first place.

It is in this respect that our system needs reform. According to the Schizophrenia Society of Canada, the most effective way of preventing violence by people with mental illness is early identification, intervention and treatment. To that end, we could take measures such as expanding the reach of First Episode Psychosis Clinics, institutions specifically designed to help young patients and their families deal with mental illness in its early stages. Regrettably, too many people wait years before receiving treatment, either because their symptoms go unrecognized, or because they fear the stigma associated with mental disease.

By overstating the problem of violence by the mentally ill -- and by understating or ignoring the potential effectiveness of treatment -- the Government contributes to that stigmatization. Far from protecting Canadians, this may make people with mental illnesses more reluctant to get help.

In addition, by tripling the time period between reviews -- among other measures -- the NCR reforms in bill C-54 may cause NCR inmates to remain in custody even after successful treatment. Apart from raising Charter concerns with respect to arbitrary detention, this could result in people with mental health problems being less likely to plead NCR, and more likely to end up in jail. When such people are returned untreated into society after serving a prison sentence, they will undoubtedly be a significant public safety risk.

The realities of public safety, however, appear far less important to the Government than those of public perception; indeed, Kerry-Lynne Findlay, the Parliamentary Secretary to the Minister of Justice, has all but admitted as much. Appearing on CBC, she said with respect to the recidivism rates of NCR accused, "I'm not aware that there are any particular statistics available on that; I'm not sure that's what this is about." Yet, if legislation is to protect the public against a particular threat, information regarding the extent of that threat is fundamental. Otherwise, we are legislating based on fear and gut instinct. For that reason, I have asked the Government for the most recent data in its possession about the treatment of people found NCR, and the way they are dealt with in our justice system.

Simply put, all the available statistics indicate that mental illnesses are treatable, review boards are thorough, and recidivism rates are low. As a matter of public safety, therefore, Bill C-54 would appear to be unnecessary, potentially counter-productive, and an open invitation to Charter challenges.

Rather than letting fear and stigma rule the day, let us seek evidence-based and effective legislation -- Canadians deserve no less.

Irwin Cotler is the Liberal Justice and Human Rights Critic and the former Minister of Justice and Attorney General of Canada. He is a Professor of Law (Emeritus) at McGill.

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