February 9, 2013
Former John Howard Society Canada Executive Director
Graham Stewart on C-54 and the Not-criminally Responsible (NCR)
Here are a few initial thoughts about the Prime Minister’s Press Conference regarding the Not Criminally Responsible on Account of Mental Disorder legislation.
According to the announcements of the federal government, the planned changes to the law will make the safety of the public paramount. According to the web site of the Justice Canada, the following already applies:
In 1999, the Supreme Court of Canada, in R. v. Winko, provided guidance on section 672.54 and ruled that if the accused does not pose a significant threat to the safety of the public, the court or Review Board must order an absolute discharge. This decision reflects the basic principle that the only rationale for using the state’s criminal law power to impose restraints on an individual who has been found not criminally responsible for his or her actions is the need to secure the safety of the public.[4]
The Supreme Court of Canada further clarified in R. v. Winko that Section 672.54 does not create a presumption of dangerousness. In other words, while the protection of society is paramount, there must be clear evidence of a significant risk to the public before a court or Review Board can maintain control over an accused through the imposition of a conditional discharge or detention order.
It appears, one, Public Safety is already the only reason that justifies detention in the first pace and is of paramount importance, and two that the Supreme Court has already ruled that a person must not be detained beyond the point where the person is not “a significant threat to the safety of the public”.
One might suspect that the arbitrary and substantial change to the period between hearings as well as a presumption of dangerousness might run into Charter issues – especially considering recent charges that Justice Canada uses a very low standard for determining constitutionality of proposed legislation.
The proposed legislation will require that a court, not the Board alone, must approve any release of temporary absence for those determined to be high risk at the time of the trial. As it stands the panels must be “chaired by a judge, or an individual qualified for a judicial appointment, and comprised of at least four other members, one of which must be entitled under the laws of the particular province to practice psychiatry.”
Perhaps most importantly, it is a fundamental principle of the Canadian criminal justice system that an accused must possess the capacity to understand that his or her behaviour was wrong in order to be found guilty of an offence. According to section 16 of the Criminal Code:
The announcement also emphasized that new legislation will authorize the imposition of restriction on individuals release into the community such as a prohibition to go certain places or contact victims. The Justice Canada site states the following:
If the court or Review Board orders a conditional discharge, the accused is supervised in the community through the imposition of restrictions on his or her liberty. Typical conditions ordered by a court or Review Board during a conditional discharge specify that the NCRMD accused must:
– reside in a particular place (e.g., group home);
– abstain from illegal drugs and/or alcohol;
– submit to urinalysis testing for prohibited substances;
– abide by a specified treatment plan;
– report to a designated person (e.g., psychiatrist) on a scheduled basis; and
– refrain from possessing weapons.
Although these represent some of the most common conditions, Section 672.54 (b) states that the accused may be discharged subject to any conditions the court or Review Board considers appropriate.
These quotes and other interesting information regarding the Review Board System in Canada can be found on the Justice Canada web site here: http://www.justice.gc.ca/eng/pi/rs/rep-rap/2006/rr06_1/p1.html
CBC News
Tories introduce new bill for mentally ill offenders
Known as Bill C-54, Harper says that the bill will create a new and stringent “high- risk non-criminally responsible” category. The bill will prevent day passes for those convicted as NCR and will delay competency hearings from every year to every three years. http://www.cbc.ca/news/politics/story/2013/02/07/pol-harper-mental-health-criminal-code.html Government Press conference: (11 ½ minutes) http://www.cbc.ca/player/News/Politics/ID/2333269809
National Post – Tobi Cohen
Emotional Stephen Harper tears up over controversial bill to keep mentally ill murderers in prison longer
Cohen fears a “knee-jerk reaction” to a few sensational, albeit rare cases as a motivation for the proposed C-54 legislation. There are concerns as well that the legislation may be applied retroactively. http://news.nationalpost.com/2013/02/08/emotional-stephen-harper-tears-up-over-controversial-bill-to-keep-mentally-ill-murderers-in-prison-longer
The News Herald (Panama City, FL) – Jessica McCarthy
Author to talk about restorative justice
Author Agnes Furey knows about real hurt and pain. After losing both her daughter and grand-daughter to murder, she began to correspond with the killer, Leonard Scovens who is still serving a life sentence. Later, in 2012, Furey co-authored a book of poetry and reflection about the experience with Scovens called Wildflowers in the Median. Scovens is the founder of an RJ program in the Florida Department of Corrections called Higher Grounds. http://www.newsherald.com/news/author-to-talk-about-restorative-justice-1.92619
Jamaica Information Services –
Restorative Justice Practices for Schools
Jamaica has been rolling out an RJ approach within the justice system since February 2012. Now the Ministry of Justice and the Ministry of Education are jointly endorsing and setting up a RJ program throughout the schools of Jamaica. http://www.jis.gov.jm/news/leads/32950