Legislation introduced by Stephen Harper to amend the Criminal Code to protect the public from those found not criminally responsible for their acts (Bill C-54) is overly simplistic. It is an effort to bring about changes in how we deal with violent behaviour on the part of a very small percentage of those suffering from serious mental illness and it is doomed to failure.
The bill proposes establishing a high risk, not criminally responsible category and to seemingly delay release by holding review board hearings every three years rather than annually for this group. Reforms in the treatment and accessibility of psychiatric care are needed but Harper is going about it the wrong way. The problem is not the Criminal Code (Federal legislation) but rather the Mental Health Acts and the administration of health care for those with serious psychiatric disorders both of which are under Provincial and not Federal Jurisdiction.
The government's knee-jerk reaction is focused to a large extent on the case of Vince Li, the Greyhound Bus beheader of 2008. As an aside, the number of people with serious mental illness who do commit violent acts is small. Violence is typically committed by those not being treated and who are also abusing alcohol and/or drugs as pointed out in an earlier blog post. And in the Li case, he was not being treated despite at least one earlier encounter with the police. Li first began experiencing psychotic episodes in 2003. In 2005, he was picked up by the police in a psychotic state while walking down busy Highway 401 in Toronto believing that he was following the sun. He was taken to hospital but was discharged when he refused treatment or to even admit he had an illness (a common condition with those with psychosis called anosognosia).
Had the health care system been able to put him on a Community Treatment Order (CTO) when he refused hospital treatment, he would likely not have deteriorated to the point where he believed that his seatmate on the bus was a "force of evil" about to execute him unless he attacked first.
Having him, and a few others, declared high risk solves little. What would help is to bring the various mental health acts in Canada and the use of CTOs into line with the rest of the world. The flaws in our current legislation are exemplified in a recent paper called "Reforms to Ontario's Mental Health Act: Lessons from the story of the man who killed Brian Smith" by Richard O'Reilly, Robert Solomon and John E Gray of Western University in London, Ontario.
Brian Smith was the Ottawa sportscaster killed by Jeffrey Arenberg in 1995. Arenberg has schizophrenia and that killing led to the introduction of Brian's Law establishing CTOs in Ontario. Arenberg had a history of psychotic episodes in his native Nova Scotia and in Ontario. In 1994, he was convicted of assaulting a radio staff person in Nova Scotia who he thought was broadcasting his thoughts. He was given probation as the court assumed he would be getting psychiatric care. They assumed wrong.
He moved to Ottawa with a rifle which he then used to kill Smith. After treatment in the Royal Ottawa Hospital, he was deemed fit to stand trial in 1997, found not criminally responsible, and sent to the psychiatric hospital in Penetang, Ontario. During that time, he was effectively treated with anti-psychotic medication and then released to a group home in 2003. In May of 2005, he was conditionally discharged. Although a psychiatrist testified in 2006 that if he stopped his meds, his psychosis would return within weeks or months, he was granted an absolute discharge despite objections from the Crown Attorney.
A year later, Arenberg was arrested after assaulting a U.S. border guard while trying to cross the border at Buffalo and seemingly in psychosis, based on his statement to the court that MGM Studios was hiding the drug trade in his name through radio stations. He then questioned witnesses about secret broadcasts which he called the microwave channel. He was sentenced to two years in prison to be followed by deportation to Canada and he returned to Ontario in September 2009.
Despite this history, Ontario law does not allow him to be placed on a CTO to ensure that he remains on medication. Nor would Brian's Law have ensured that he was placed on a CTO prior to his killing Smith. Before the killing, he was only hospitalized once in Ontario and the law calls for two hospitalizations. His hospitalizations in Nova Scotia do not count and, he was only hospitalized for 26 days rather than the required 30 days. The legislation in Ontario, Saskatchewan, Nova Scotia and Newfoundland and Labrador all require that these conditions be met. Only Alberta allows for someone to be given a CTO for recurrent behaviour that is likely to cause harm to others. Similarly, none of the eight states in Australia, most of the 44 states in the U.S. with CTOs or New Zealand require prior hospitalizations.
Presently, when a person receives an absolute discharge, there are no mechanisms to ensure that the person continues treatment. Without treatment, there is considerable likelihood that they will regress back into psychosis. The proposed changes do not ensure that follow up will take place.
Given these facts, how are the proposed changes to the Criminal Code going to protect anyone and ensure that those who are too ill to realize they are ill get necessary treatment? The Western University authors cited above suggest that committal is also dependent on the availability of psychiatric beds which are being reduced thanks to the long standing policy of deinstitutionalization. There are not enough resources to provide treatment for those who need it.
If the Harper government was truly concerned about the need for people to be treated and to protect the public, they would sit down with the provincial health ministers. They could attempt to get sufficient hospital and community resources to provide proper treatment and mental health acts that respond to the real issues of people who are ill and are likely to deteriorate but whose illness prevents them from understanding this.
While Mr. Harper is well intentioned and sympathetic to the victims of untreated mental illness, he is not going to achieve his intent with these proposed changes.