06/27/2013 05:43 EDT | Updated 08/27/2013 05:12 EDT

Not Criminally Responsible? The Conservatives Are Not Interested

Certain policies and pieces of legislation are inevitably divisive, and unavoidably create camps of passionate advocates and opponents. In and of itself, this is not a bad thing. Canadians have disagreed vehemently about some of the most important political projects in our country's history, and these grand national debates have enabled us to hash matters out in a way that tip-toeing around the issues would not have allowed.

But Canadians should not be pitted against each other unnecessarily. Policy-makers have a duty to seek consensus or acceptable compromise, and to resort to contentious measures only when no alternative exists. They must consult widely, and not only with people whose views they are likely to share. Regrettably, the Government's approach to Bill C-54, the Not Criminally Responsible Reform Act -- and to the entire question of mentally ill accused -- has been a paragon of needlessly divisive legislating.

The bill in question was proposed in response to several recent high-profile cases in which individuals were found not criminally responsible (NCR) of serious violent offences on account of mental disorder. The Liberal Party voted against it, while the NDP criticized it profusely but voted for it just the same.

The first of the bill's two main components enhances the notification of victims about changes in the accused's status, and provides for no-contact orders between victim and accused when the latter is released. This part of the bill has enjoyed widespread support.

However, the second component of C-54 is far more controversial. It allows certain NCR accused to be designated "high-risk" on the basis of criteria that mental health and legal experts have largely denounced, and it subjects these "high-risk" individuals to greater restrictions and longer intervals between reviews of their condition.

The Government has argued that these changes are simply "common sense," and they may well seem intuitive at first glance. However, many professionals who work in the NCR system -- and who were not consulted on the legislation -- argue that the new "high-risk" category is a solution in search of a problem, and that it will only increase the risk to the public; hence the importance of consulting a variety of sources. Bolstering their claim, a study published earlier this year found that just 7 per cent of NCR accused of serious violence reoffend after release, which indicates that the Review Boards charged with evaluating NCR cases are generally capable of determining who poses a threat and who does not.

Naturally, the rarity of recidivism is no comfort to those who are victimized, but if we are to make significant changes to a system that works 93 per cent of the time, we must take great care to ensure that the changes we make do not have unintended negative effects. Regrettably, there are reasons to expect that Bill C-54 will do precisely that.

First, with more people institutionalized longer, treatment facilities may become overcrowded, making them more dangerous and less medically effective. Second, more mentally ill offenders are likely to end up in prison, both because NCR accused are often incarcerated while waiting for scarce hospital beds to become available, and because mentally ill offenders will be more inclined to take their chances by pleading not guilty if the NCR system becomes more punitive than therapeutic.

Finally, by using rare occurrences as justification for significant reforms -- and by designing these reforms so as to limit the role of medical expertise -- the Government overstates the problem of violence by the mentally ill, and understates the potential effectiveness of treatment. This contributes to the stigmatization of mental illness that makes so many people with mental health problems reluctant to seek treatment, and an individual whose severe mental illness goes untreated is a far greater public safety risk than an NCR accused who has been treated and discharged.

These are precisely the kinds of concerns that could and should have been addressed early in the legislative process in the course of routine consultations. In fact, had the Government treated mental health and legal groups as partners rather than adversaries, it would not only have produced a bill with less potential for unintended consequences, but it might even have developed a comprehensive approach to deal with some of the larger related issues, such as preventive intervention for individuals in the early stages of mental illness.

Instead, the Government insulated itself from alternative viewpoints until after the bill was unveiled. Moreover, by depicting critics of C-54 as uncaring toward victims, the Government stifled meaningful debate. The Conservatives even hid the results of the above-mentioned study for three months, rather than confront empirical evidence that contradicts their approach.

Perhaps it would not have been possible to craft a bill that victims and mental health and legal professionals all agree will improve the NCR system and enhance public safety. However, it is clear that the Government did not even try. At the Justice Committee, the bill's opponents expressed genuine compassion for victims, and its supporters acknowledged the importance of mental healthcare, including for NCR accused. It appears, therefore, that common ground exists on this matter between all concerned, if only the Government had endeavoured to find it.

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