The Mentally Ill: How They Became Enmeshed in the Criminal Justice System and How We Might Get Them Out

4. Adding to the Picture

Further to all of the above, in the wake of a landmark decision from the Supreme Court of Canada in 1991, Bill C-30 was proclaimed on February 5, 1992. Bill C-30 (An Act to Amend the Criminal Code (Mental Disorder)) forms for the most part what we now know as Part XX.1 of the Criminal Code of Canada and provides a relatively complete procedural code for dealing with the mentally disordered accused. A new jurisdictional threshold was established based upon “significant threat to the safety of the public” rather than upon “substantial recovery”. All accused must be reviewed upon the verdict and thereafter within at least every twelve months. The Bill C-30 amendments also modernized some of the language which had been used in the Criminal Code for over 100 years. “Not guilty by reason of insanity” was changed to “not criminally responsible”. The terms “natural imbecility” and “disease of the mind” were removed (NB: nevertheless, “mental disorder” is defined in s. 2 of the Code as “disease of the mind”).

Automatic “strict custody” was eliminated. Instead, the court is now able to hold a disposition hearing immediately following the verdict and may make its own disposition for the accused. Court-made dispositions are all reviewed by the Review Board.

It is fair to say that since the proclamation of Bill C-30, travelling down the path of “not criminally responsible” has become a more attractive option for defence counsel and their clients. Certainly, when I first started practice as a criminal lawyer raising an insanity defence for anything but the most serious of offences was viewed as tantamount to negligence. You feared that your client would be tossed into a dungeon perhaps never to see the light of day again. He could spend decades locked in a hospital for the most minor of offences. This perception was based upon more fiction than fact. In reality the disposition options under the old legislation were virtually identical to the present scheme. The significant changes came with the mandatory creation of the Review Boards, the changed jurisdictional threshold [substantial recovery / significant threat], and the time limit within which an accused must be reviewed “post-verdict”. Nevertheless, the perception is that the “new system” is less harsh - more “defence friendly”. Therefore, this explanation has it that the new legislation is itself attracting more customersFootnote 4.

Perhaps the most significant change in the Criminal Code so far as the bar is concerned relates to the jurisdictional threshold. While under the previous scheme (pre-1978) jurisdiction was “recovery-based”, now it is maintained only so long as the accused remains a significant threat to the safety of the public. Understandably, if “recovery” was what was required to escape the clutches of the state one could expect that the stay at “Her Majesty’s Pleasure” could be lengthy, particularly given that there are no cures for mental illness, only treatments that work to varying degrees in attenuating the most dramatic symptomatology. Recoveries would be few and far between.

Maintenance of jurisdiction over an accused in the new schemeFootnote 5 requires a positive finding that the individual is a significant threat to the safety of the public. This bears no necessary relationship to “recovery”. It is well known now that the mentally disordered are no more dangerous as a population than the general population. “Significant threat” is obviously a more elevated concern than “threat simpliciter”. Some say therefore, that one’s prospects for release are very much better under the new legislative scheme. There is a real probability that you may be released in a much shorter period of time than if you had been convicted and sentenced.