Backgrounder: Not Criminally responsible reform Act
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The Government of Canada is committed to standing up for victims of crime and making streets and communities safer for Canadians. The Not Criminally Responsible Reform Act would ensure that public safety comes first in the decision-making process with respect to accused persons found Not Criminally Responsible on Account of Mental Disorder. It would enhance the safety of victims, and promote greater victim involvement in the Criminal Code mental disorder regime.
Overview of the Current Criminal Code Mental Disorder Regime
The Criminal Code mental disorder regime applies to a very small percentage of accused persons. Under Canadian criminal law, if an accused person cannot understand the nature of the trial, or its consequences, and cannot communicate with their lawyer on account of a mental disorder, the court will find that the person is "unfit to stand trial." Once an accused becomes fit to stand trial, they will then be tried for the offence with which they were initially charged.
If a person is found to have committed the act that constitutes an offence, but lacked the capacity to appreciate what they did, or know that it was wrong, due to a mental disorder at the time, the court makes a special verdict of "Not Criminally Responsible on Account of Mental Disorder" . They are neither convicted, nor acquitted.
A person found either unfit to stand trial or Not Criminally Responsible (NCR) is referred to a provincial or territorial review board, which decides on a course of action. Under the current law, a review board can make one of three possible decisions:
- An absolute discharge – if the person does not pose a significant threat to public safety (only available for a person found NCR);
- a conditional discharge; or
- detention in custody in a hospital.
This Bill proposes to amend the mental disorder regime which deals with accused persons who were found unfit to stand trial or NCR.
Proposed Amendments to the Mental Disorder Regime
Putting Public Safety First
The legislative amendments to the mental disorder regime of the Criminal Code, proposed in the Not Criminally Responsible Reform Act, would explicitly make public safety the paramount consideration in the court and the review board decision-making process relating to accused persons found to be NCR or unfit to stand trial, as noted by the Supreme Court of Canada in R v. Conway.
In addition, the proposed reforms would codify the meaning of the phrase "significant threat to the safety of the public," which is the test stated by the Criminal Code to determine whether the review board can maintain jurisdiction and continue to supervise a mentally disordered accused. Consistent with the Supreme Court of Canada’s interpretation, the phrase means a risk of physical or psychological harm to members of the public, resulting from conduct that is criminal in nature, but not necessarily violent. The codification aims to ensure more consistency in the application of this test.
Creating a High-Risk Designation
The legislation would amend the Criminal Code to create a process for the designation of NCR accused persons as high-risk. This designation would be applied where the accused person has been found NCR for a serious personal injury offence and there is a substantial likelihood for further violence that would endanger the public, or in cases in which the acts were of such a brutal nature as to indicate a risk of grave harm to the public. Those designated as high-risk NCR accused persons would not be granted a conditional or absolute discharge, and the designation could only be revoked by the court following a recommendation of the review board. This designation would apply only to those found NCR and not to persons found unfit to stand trial.
The proposed legislation outlines that a high-risk NCR accused person would not be allowed to go into the community unescorted; escorted passes would only be allowed in narrow circumstances and only if a structured plan is in place to address any undue risk to public safety. Furthermore, the review board may decide to extend the review period to up to three years for those designated high-risk, instead of annually. The high-risk NCR designation would not affect access to treatment by the accused.
Enhancing Victims' Involvement
The legislation will enhance the safety of victims and provide them with opportunities for greater involvement in the Criminal Code mental disorder regime by:
- ensuring they are notified, upon request, when the accused is discharged;
- allowing non-communications orders between the accused and the victim; and
- ensuring that the safety of victims be considered when decisions are being made about an accused person.
Provisions in the proposed legislation would also help ensure consistent interpretation and application of the law across the country. These proposed reforms would not change the existing Criminal Code eligibility criteria for the exemption from criminal responsibility on account of mental disorder. The Bill also amends the National Defence Act to ensure consistency in the mental disorder regime in the military justice system.
Since the introduction of the Federal Victims Strategy in 2007, the Government of Canada has responded to the needs of victims of crime, in an effort to give them a more effective voice in the criminal justice system. Funding is being provided to projects and activities that:
- enhance victim assistance programs across Canada;
- promote access to justice and participation in the justice system and the development of law, policies, and programs;
- promote the implementation of principles, guidelines and laws designed to address the needs of victims of crime and articulate their role in the criminal justice system;
- contribute to increased knowledge and awareness of the impact of victimization, the needs of victims of crime, available services, assistance and programs, and legislation; and
- promote, encourage and enhance governmental and non-governmental organizations' involvement in the identification of victim needs and gaps in services, and in the development and delivery of programs, services and assistance to victims, including capacity building within non-governmental organizations.
Department of Justice Canada
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