Stigma surrounding NCRMD? - by Gavin LeBeau
In order for a defence of not criminally responsible on account of mental disorder (NCRMD) to succeed, the court must be satisfied that the accused is suffering from a disease of the mind prevents the accused’s capacity to appreciate the consequences of their actions at the time of the offence, or to know that their conduct is wrong. 1 A verdict of NCRMD is not synonymous with a finding of not guilty or an acquittal. Rather the verdict simply articulates that the court has ruled that the accused is not criminally responsible for their actions at the time the offence is committed. 2 It would be a mistake to presume that this type of judgment is equivalent to a “free pass” or escaping justice. An accused that successfully raises a NCRMD defence may still be held in custody in a psychiatric facility or if released, under a conditional discharge, where they would be supervised in the community. 3 The ensuing discussion will focus on how the stigma surrounding NCRMD and more generally, accused who suffer from mental illness can have substantial negative effects.
Allowing for the relatively safe assumption that the average person abstains from browsing articles published in medical or psychology journals, it would be safe to state that information disseminated on mental illness derives from the media. And it seems like the only time the news is discussing mental illness or mental well-being is after a horrific incident involving someone who is mentally ill. While based on facts/truth, these incidents are usually an outlier rather than the norm. However, if the only source of information available to the public on mental illness is linked with extreme or violent actions, inaccurate inferences may be made that all individuals living with mental health conditions behave in a similar fashion.
Unfortunately, people with mental health issues are often depicted as one-dimensional, dangerous, and unpredictable hazards to avoid. 4 The global reach of news ensures sensationalize violent acts perpetrated by a person with mental illness are typically featured in the headlines. However, in reality, that only represents a small fraction, as a study found that only 8.1% of NCRMD accused had committed a serious violent offence. 5 Distorting the picture even more is the fact that there is an insignificant amount of news that highlights positive stories of individuals with mental illness who recover and become active and productive members of society. 6 This inflated emphasis makes it easy to perpetuate a warped opinion that the government or judiciary system needs to “get tough” on these dangerous criminals.7
Public perception of mental illness can have substantial consequences, especially if it plays a role in enacting rash legislation that panders to public outcry. Contrary to empirical studies, the public seems to have an unrealistic idea that offenders with mental illness are bound to a life of violence and criminal activity. 8 However, studies have shown that NCR accused are “no more likely than their convicted counterparts to commit any offence, let alone a violent offence upon release”. 9 In fact, recidivism rates for NCRs are actually considerably lower than rates from criminal released from correction facilities. 10 Therefore, if one of the primary objectives of criminal law is rehabilitation, there should be no objection for an accused to plead the defence of NCR and be placed in mental health systems.
However, misinformation and fear mongering has fueled a shift towards a more restrictive model of NCR. An example is Bill-C-54, which introduced the category “high-risk”. 11 This designation places arbitrary restrictions on an NCR accused on the assumption that if they committed one serious offence, they would do so again. 12 This is in direct contradiction with Justice McLachlin’s comments in Winko, which states that a “past offence committed while the NCR accused suffered from a mental illness is not, by itself, evidence that the NCR accused continues to pose a significant risk to the safety of the public”. 13 Not only is this legislation unnecessary, but counterproductive as an accused with mental illness may opt for jail time rather than plea NCR, simply because the consequences are less severe. 14 Ultimately, the net result is an increase in mentally ill individuals languishing in the prison system as they fail to receive proper treatment that could potentially assist them in reintegrating back into society.
Given that the association between violence and mental illness is substantially less than other relevant factors, such as: poverty, substance abuse, victimization, and personality traits, it seems detrimental to public safety to place a vulnerable person in a position that fosters those factors. 15 Individuals with mental illness are already at a disadvantage in a plethora of activities that most people take for granted, strictly as a result of coping with the symptoms of their illness. Adding stigma and discrimination to their list of difficulties only widens that divide and increases the possibility of placing them in situations that are significantly correlated to criminal activity.
Even the term “mental illness” can fuel misconceptions because it can lead to oversimplifying a complex issue by grouping together all the various range of mental health conditions, instead of treating each one individually with a particular set of symptoms and experiences. Despite all the myths, symptoms of acute mental illnesses tend to be episodic, surrounded by periods of mental well-being.16 People who suffer from any type of mental affliction are fully capable of returning to live a normal life in spite of a diagnosis of mental illness and NCR verdict, and society should provide a pragmatic opportunity to allow an NCR accused to obtain treatment and re-enter society.
1 Simon N. Verdun-Jones, Criminal Law in Canada: Cases, Questions, and the Code, 6 th ed (Toronto: Nelson Education, 2010) at 203.
2 Ibid at 204.
3 Ibid 215.
4 Kismet Baun, “Stigma Matters: The Media’s Impact on Public Perceptions of Mental Illness”, Ottawa Life Magazine (February 2009) at 2, online (pdf): <ontario.cmha.ca/wpcontent/files/2012/07/olm_stigma_matters_200902.pdf>. 5 Lisa Grantham, “Bill C-14: A Step Backwards for the Rights of Mentally Disordered Offenders in the Canadian Criminal Justice System” (2014) 19 Appeal 63-81 at para 42.
6 Baun, supra note 4, at 2.
7 Grantham, supra note 5 at para 42.
8 The Canadian Bar Association, “Bill C-54 – Not Criminally Responsible Reform Act” ( March 2013) at 9, online (pdf):www.cba.org/CMSPages/GetFile.aspx?guid=a205a9cc-d37f-4331-8572-e0852123c591 [Bar].
10 Dan Lett “Making sense of NCR”, Winnipeg Free Press (3 March 2014) at 1 online: <www.winnipegfreepress.com/opinion/columnists/making-sense--of-ncr-247992421.html>.
11 Bar, supra note 8 at 8.
13 Winko v British Columbia (Forensic Psychiatric Institute),  2 SCR 625 at para 60, SCJ No 31.
14 Grantham, supra note 5 at para 42.
15 Bar, supra note 8 at 9.
16 Nicolas Rusch, Matthias C. Angermeyer & Patrick W. Corrigan, “Mental Illness Stigma: Concepts, Consequences, and Initiatives to Reduce Stigma” (2005) 20:8 J European Psychiatry 529 at 530.