• Lewis Waring

The NCRMD Defence - Bob Smith

A judgment of not criminally responsible on account of mental disorder (“NCRMD”) is strictly concerned with the mental state of the accused at the time of the offense. Unfortunately, although the individual’s mental state may improve after the offense, the stigma of the NCRMD judgment can follow them for the remainder of their lives. As we will see shortly, it can lead to a lifetime of restrictions even when research indicates that the rates of recidivism for NCRMD individuals is lower than regular offenders who were convicted and found guilty. While the following case is a step forward in the way NCRMD individuals are treated, there is much work to be done before true equality can be reached between those found NCRMD and regular offenders under our criminal law system.


Ontario (Attorney General) v. G


The Supreme Court of Canada’s (“the Court”) decision in the case of Ontario (Attorney General) v. G (“G”) seems to be a step in the right direction. This is a case where there was a distinction between sexual offenders found NCRMD and regular convicted sex offenders in relation to their registration in the Ontario Sex Offender Registry. While regular offenders had a mechanism to potentially get their information removed from the registry, no one found NCRMD can be removed from the registry. The law creating this distinction in Ontario is Christopher's Law (Sex Offender Registry) (“Christopher’s Law”), which held that those convicted or found NCRMD of a sexual offense must report and have their information added to the province’s sex offender registry, update it once a year, and update it whenever information changes. On the other hand, those who are found guilty of sex offenses can get their information removed in several ways, including by receipt of a free pardon, a criminal record suspension, or a discharge; no such options exist for those found NCRMD. Those found NCRMD “must report upon discharge by a provincial review board or court, without exception, no one found NCRMD can ever be removed from the registry, and no one found NCRMD can ever be exempted from reporting”.


Now, to get a flavor of the intrusive nature of the registry established under Christopher’s Law, note that it contains the names, date of birth, addresses, personal and business numbers, employers, descriptions, and photographs of those found NCRMD. Furthermore, registrants must present themselves physically at police stations once a year for 30-60 minutes as a part of their reporting obligations. Information in the registry can also be disclosed to police forces outside Canada for crime prevention purposes. Finally, Christopher’s Law requires the police to attempt to verify the offender’s address, which can include paying a visit to the registrant’s house. Not only are some of these restrictions humiliating, imagine a police officer dropping by your house while you are having a barbeque with friends to ask if you are the sex offender in the registry. These requirements are a clear restriction of the liberties of these individuals for their entire lives.


The Case


In this case, the claimant, G, who was found NCRMD of two sexual offenses in 2002, was subsequently absolutely discharged and has not had any offense added to his record in the 19 years since. Regardless, thanks to the distinction that Christopher’s Law draws, he must continue to report for the rest of his life and can never be taken off of the Ontario Sex Offender Registry, even after he dies. G, who was in full remission, and admittedly “[not] a significant risk to the safety of the public,” was simply unable to put his manic episode and unstable past behind him thanks to this legislation. On this basis, G brought an application challenging the constitutionality of Christopher’s Law as it related to those found NCRMD and who were absolutely discharged. He argued that Christopher’s Law violated sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms (“the Charter”).


The Court’s Decision


While the section 7 claim was not analyzed in detail, the Court decided that Christopher’s Law creates a distinction based on mental disability in a discriminatory fashion, violating section 15 of the Charter. It stigmatized those found NCRMD as being permanently dangerous and never changing. With that, the Court reaffirmed the appellate court’s decision to declare that “Christopher’s law is of no force or effect insofar as it applies to those found NCRMD of a sexual offence and granted an absolute discharge”.


Analysis


This case shows us that Charter claims, whether it be section 15 as in this case or even section 7 in other scenarios, are a way for those found NCRMD to attempt to dispel the stigma surrounding their conditions. In an article, former Justice Iacobucci made an important point that Charter litigation is often prohibitively expensive, especially at an individual level. So what G did in this case is not always an option, but it does highlight that there needs to be a change in how NCRMD individuals are treated in our criminal law system and how they are perceived. Unfortunately, Christopher’s Law is not the only way in which those NCRMD individuals are severely restricted. As Brodsky notes, those found NCRMD can have their liberties “affected far more effectually than by a prison sentence”. For example, an NCRMD individual may find themselves “subject to a Review Board for many years for a trivial offence”. This is unfortunate because research indicates that the possibility of recidivism for those NCR is 7.5%, while the recidivism rate for those found guilty or convicted is 40% at some point after release. This indicates that recidivists are more likely to be those who were convicted.


The case of Vincent Li, who killed a fellow passenger on a Greyhound bus during a schizophrenic episode in 2008, offers another example of how the stigma against those found NCRMD can lead to unfair results in our criminal law system. In early 2010, the Criminal Code Review Board allowed Li to take escorted walks on the grounds of the mental health facility he was residing in. In June 2010, Manitoban Justice Minister Andrew Swan suspended this decision, noting that it is “contrary to the interests of public safety”. This decision was condemned by a group representing over 4000 Canadian psychiatrists, stating that it is “the worst kind of political pandering and fear-mongering” and “a shocking lack of knowledge and understanding of mental illness”. Unfortunately, a significant portion of the public leaned towards supporting the Justice Minister’s decision. This clearly shows how the perception of these mentally ill individuals leads to them being viewed as perpetually dangerous and in need of restriction, even when science says otherwise.


Conclusion


The reality is that, when a person is found NCR, it is because they are, as the name of the defence suggests, not criminally responsible. According to the second part of the test set out in R v Bouchard-Lebrun, it needs to be established that the effect of the said mental illness is that it made it so the accused was incapable of knowing that their act or omission was wrong. The focus therefore should be on treating these individuals, not punishing them even worse than the offenders who deliberately carried out their wrong actions. What the above situations of G and Vincent Li show is that the extremely negative perception of NCRMD individuals leads to fear mongering as well as unnecessary and unfair criminal laws. While admittedly, the courts can do away with or amend a lot of these unfair laws if Charter claims are brought forward and succeed, it is an impractical method. Educating the populous would be a better starting point to ensuring that, rather than fearing NCRMD individuals, they are understood and laws such as Christopher’s Law never come into being in the first place. With a focus on treatment rather than baseless fear and punishment, those NCRMD individuals who pose no danger to the public can possibly get the lives back that they lost thanks to mental illness.



Check out the Robson Crim MLJ
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