03/31/2015 05:51 EDT | Updated 06/01/2015 05:59 EDT

Harper's Change To The Criminal Code Serves No Value to the Mental Health System

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Color Day Production via Getty Images
old man with hat portrait

Two years ago in Huffington Post, I wrote that Prime Minister Stephen Harper's amendments to the Criminal Code for those found Not Criminally Responsible by way of Mental Defect (NCRMD) were too simplistic. I was referring to Bill C-54 which came into force in July 2014. That bill's central focus was based on the belief that the public needed greater safety from mentally ill offenders. As a consequence, the bill created a new category of NCRMD for those deemed high risk. These high risk offenders would only be allowed to have their cases reviewed by an Independent Review Board every three years instead of the traditional annual review. And the bill allowed for the involvement of victims in the decision-making process.

The introduction of these changes likely stemmed from a few rare but highly publicized cases such as that of Vince Li, the Greyhound Bus beheader and from the government's law and order beliefs. Now, rationally, before you introduce changes, you should do the research so that you can justify through evidence that the changes are needed and will be of benefit. The evidence that was available when this new law was introduced demonstrated that all crime in Canada was going down and that the crime rate in 2013 was the lowest since 1972. Serious crime was also very low.

Research on those found NCRMD was only just released in late March, almost 18 months after the legislation was implemented. And that research suggests that there was no need to change the law.

The Canadian Journal of Psychiatry published the results of a study carried out in British Columbia, Ontario and Quebec on those who have been found NCRMD called the National Trajectory Project. A total of 1800 people in BC, 222 in Quebec and 1094 in Ontario were enrolled between May 2000 to April 2005 and then followed to the end of 2008. The results are presented in the Canadian Journal of Psychiatry with two guest editorials and five evaluation papers.

The first guest editorial points out that the legislation was changed because of a perception that most NCRMD cases involve serious personal violence and that people use this defense to get off. They serve a short period in a hospital, are released and then reoffend. The editorial writer, Dr. Patrick Baillie, who is both a psychologist and a lawyer, says that "What stood out most in the debate about the bills was the near-complete lack of discussion of any data addressing the key elements of the legislation." An NCRMD defense is only used in 1.8 out of 1000 criminal cases.

The second guest editorial states that "there is a firmly established legal doctrine in criminal justice systems around the world that recognizes that it is inappropriate to punish people who do not have the capacity to form criminal intent at the time of an offence." And the editorial authors also say that this tough on crime approach can actually increase recidivism,is unstable and lacks any evidence.

The findings from this extensive study suggest that Harper's legislation was unfounded.

"Contrary to public perception, severe violent offenses such as murder, attempted murder or sexual offences represent a small proportion of all NCRMD verdict offences." Causing or attempted death and sex offences accounted for less than 10 per cent of the sample. Assaults and/or threatening or offenses against the person were the two largest categories at 53.9 per cent. In only 22.7 per cent were the victims strangers with the majority of victims being professionals (police, mental health workers) or families.

Recidivism turned out to be very low at only 17 per cent. Interestingly, those who were involved in the more violent offences had a lower rate of recidivism than did those involved in less serious offenses.

What is of particular interest and something that I've mentioned before, is that almost three-quarters of those in the study had at least one psychiatric hospitalization prior to being found NCRMD. In fact, the authors point out that mental health services are so difficult to obtain that families feel compelled to report criminal acts to the police in order to obtain care for their family member. "The criminal justice system has become a major gateway to mental health services for people with SMI" (serious mental illness).

"In Canada, the number of forensic clients entering the system has been growing. This so-called forensication transforms mental health systems into de facto forensic systems."

Not only was Harper's change to the Criminal Code of no value but the real problem is one that he and many provincial governments refuse to acknowledge or rectify. Far too much mental health care in this country is left to the prison system rather than to the health care system.