Brian Rose could be in prison right now. He could be languishing behind bars, his mental health spiralling downwards, his needs attended to by guards instead of psychiatrists and nurses.
Rose, 37, has paranoid schizophrenia. He killed his grandmother in 2010, while delusional and in a state of psychosis.
But a court found the Oshawa resident “not criminally responsible” for the death “by reason of mental disorder.” Now, after spending time in a forensic psychiatry hospital unit, Rose is stable and leading a relatively normal life.
“I live on my own ... I’ve got my own job, I have my own autonomy again,” he said.
Finding someone not criminally responsible, or “NCR,” is a way for the courts to acknowledge that, although a person has committed a crime, they have a mental illness or developmental delay that prevented them from understanding that their actions were wrong at the time.
The NCR ruling is an opportunity for people with serious mental health issues to get psychiatric help in a hospital instead of being warehoused in a jail or prison where, experts say, they are far less likely to get adequate care or be rehabilitated.
But lawyers and advocates argue that a broad definition of “criminal responsibility,” and lingering misconceptions that NCR is a “get out of jail free” card, are keeping the ruling out of reach for many people who deserve it.
“The threshold to be found to be criminally responsible is very low,” Sen. Kim Pate told the Star.
“It’s very difficult (to be found NCR) ... even if everybody who deals with the individual says ‘How on earth did this person end up in jail?’ because they are so clearly dealing with significant mental health issues,” added Pate, who from 1992 to 2016 was executive director of the Canadian Association of Elizabeth Fry Societies, an advocacy group for women in the justice system.
The Ontario Ministry of the Attorney General said 152 people were ruled NCR in Ontario courts last year. According to Statistics Canada, over 150 adults on average were ruled NCR in Ontario in the years between 2005-2006 and 2011-2012.
Having a diagnosed mental illness is no guarantee of an NCR ruling. Even people who commit a crime directly as a result of their mental illness can be found criminally responsible, said Erin Dann, a lawyer who specializes in mental health cases.
“Our law is quite restricted,” Dann added. “If you maintain the ability to assess that your actions are morally wrong, then you’re still criminally responsible, even if you wouldn’t have committed that offence if you were well.”
In other words, a person with mental health issues might know it’s wrong to take a life, but think they need to kill someone because, while in a delusion, they heard God tell them to do it. That person would likely be found criminally responsible and go to prison.
“Mentally ill people are overrepresented in the criminal justice system because we are charging people for things that are clearly connected to their illness but we’re not helping them while they’re (incarcerated), so when they get out they get into more trouble,” lawyer Jessyca Greenwood said.
There are “ongoing concerns about the overuse of segregation and discrimination in the treatment of people with mental health disabilities in Ontario’s corrections facilities,” the Ontario Human Rights Commission said this month, as it called for the province to implement mental health reforms in prisons.
By contrast, forensic psychiatry units, where people ruled NCR can receive secure in-patient treatment, employ specialists including psychiatrists, psychologists, social workers and substance abuse counsellors to provide patients with long-term rehabilitation and “manage the risk” of reintegrating them into the community, said Dr. Karen De Freitas, medical director of the forensic program at the Ontario Shores Centre for Mental Health Sciences in Whitby.
“The NCR was a positive thing because I could finally get the help that I needed,” Rose said of his time in the forensic unit at Ontario Shores.
“You have doctors on call if you ever need them and nurses at hand all the time,” added Rose, who was granted a conditional discharge in 2016 and now checks in with staff at Ontario Shores once a week. “You’ve got so much help, and therapy groups, exercise. They teach you skills, and you learn to (re-enter) the community.”
There is a popular belief that an NCR ruling is an easy way out of trouble for people accused of a crime, but the reality is it can result in years of state supervision, Dann said.
A person ruled NCR is placed under the authority of a five-person provincial tribunal called a review board, which is chaired by a judge and must include at least one psychiatrist. The Ontario Review Board typically includes two psychiatrists, a lawyer and a member of the public.
Review boards create a plan called a “disposition” for a person found NCR, which often includes treatment at a forensic psychiatry facility. The person remains under the authority of the review board until they are deemed well enough to safely return to the community full time.
“In cases where a long prison term could be imposed, I think there is hesitancy sometimes . . . if you are the Crown because the person has some motivation to potentially malinger and pretend to be mentally ill and go to a hospital instead of prison,” Dann said.
On the other hand, in less serious cases where the accused will almost certainly spend more time under the supervision of the review board than they would spend in prison if found guilty, it’s the defence that may fight it, she added.
“In a perfect world . . . it shouldn’t matter what the offence is, it should really be whether the evidence supports NCR or doesn’t,” Dann said.
“But sometimes, I think, those other factors come into play. It’s ‘How does the state have more control over the person?’”
Peter Goffin
Toronto Star
Sep 29, 2017