Reducing Stigmatization of Mental Illness and Furthering Equality - Jodi Plenert

With the rising awareness of the prevalence of mental disorders, society has started to emphasize the importance of mental health. However, individuals living with mental illness still bear the burdens of stigmatization and discrimination. The general public continues to view and treat individuals living with mental disorders as menacing, under-developed, and less-than-human. Furthermore, individuals with mental disorders who commit criminal acts are seen by society as inherently dangerous and incapable of rehabilitation. However, many individuals with mental disorders who commit criminal acts have never been treated or medicated for their disorder. A “not criminally responsible due to mental disorder” defence (“NCRMD”) aims to rehabilitate convicted individuals with mental disorders through psychiatric care rather than through the prison system. Similarly to the general public, the legal system can stigmatize and discriminate against individuals with mental disorders. However, the recent Supreme Court of Canada (“the Court”) case Ontario (Attorney General) v. G (“G”) furthered equality rights by addressing the discriminatory treatment of individuals found NCRMD for sexual offences.

STIGMATIZATION OF MENTAL DISORDERS

Media and entertainment often depict individuals with mental disorders as dangerous, violent and unpredictable. News articles and headlines sensationalize the violent acts of those living with mental disorders. This stereotyping contributes to the fearful and uneducated public perception of mental illness and stigmatizes those living with mental disorders, creating a negative perception of mental illness. Society commonly perceives individuals with mental disorders as fearful, irresponsible, and childlike. This stigmatization leads to prejudice towards those with mental disorders, endorsing the negative stereotype, and this prejudice ultimately leads to the discrimination of individuals with mental disorders. This discrimination manifests in many ways, including ostracization, oppression, and patronization. Discrimination of individuals with mental disorders is prevalent in society’s interactions with individuals with mental disorders, as well as in the legal system. However, there are mechanisms in the criminal law system aimed at rehabilitating those with mental disorders, such as the NCRMD defence.

NCRMD DEFENCE

Individuals who commit criminal acts due to a mental disorder can use a special defence of NCRMD. Individuals found guilty of a criminal charge possess the requisite voluntariness and mens rea of the criminal act, unlike those who commit the criminal act due to a mental disorder. An individual that commits a criminal act due to their mental disorder lacks the requisite mens rea: their actions are a result of their mental disorder. The mental disorder causes the individual to act involuntarily or renders them incapable of understanding the nature and inherent wrongness of the act. Therefore, the legal system provides the defence of NCRMD.

There are stringent criteria to be met in order to be eligible for the NCRMD defence. Section 16(1) of the Criminal Code (“the Code”) says “[n]o person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong”. To engage the NCRMD defence, an individual must establish that at the time of the incident they were suffering from a disease of the mind that deprived them of the capacity to appreciate the nature and quality of the act or omission or to know the conduct was wrong. This defence excludes self-induced intoxication or fleeting mental conditions. A successful NCRMD defence acknowledges that the accused committed the crime but that they are not criminally responsible for their actions. However, a successful NCRMD defence does not find that the individual did not commit the criminal act nor does it result in an acquittal. An NCRMD defence is not a “free pass”. The accused, after being found NCRMD, are not imprisoned but they are typically either held in custody in a mental health facility or are continually monitored in the community.

The Canadian criminal system is built on the premise that individuals should not be convicted of criminal acts unless they deliberately chose to participate in the criminal act. The NCRMD defence supports this premise, however, those who use the NCRMD defence are subjected to the legal system’s and society’s stigmatization and discrimination of mental illness. This was illustrated in G, a recent 2020 decision by the Court, addressing an Ontario statute discriminating against individuals found NCRMD of sexual offences.

ONTARIO (ATTORNEY GENERAL) v. G

In 2001, G was found NCRMD of two sexual offences: one count of unlawful confinement and one count of harassment. G, with no previous history of mental illness, experienced a manic episode. He abruptly resigned from his position as the marketing vice-president at a software company, began sleeping less, started drinking excessively, and became paranoid. On September 21, 2001, G, intending to have sex with his wife, kept her from leaving the house and forced her upstairs. A few days later, G and his wife had sex, which he believed to be consensual, but in actuality was not: G’s wife only complied to the sex to not agitate G or cause him to become aggressive. These two incidents led to G being charged with the two sexual offences (unlawful confinement and harassment). At trial, G was found not criminally responsible on account of mental disorder on both accounts.

In July 2002, a month after being found NCRMD, G received a conditional discharge from the Ontario Review Board (“the ORB”). Then, in August 2003 the ORB granted G an absolute discharge, deeming him to not pose a significant risk to the safety of the public. In the nineteen years since his absolute discharge, G has

• refrained from subsequent criminal activity;

• adhered to treatment;

• experienced no symptoms of his mental disorder;

• maintained stable employment; and

• kept good relationships with his family.

G has been on the provincial and federal sex offender registries for over sixteen years, and has fully complied with all of the reporting obligations.

Under Ontario’s Christopher’s Law (Sex Offender Registry) (“Christopher’s Law”), all of those convicted or found NCRMD of a sexual offence are placed on the sex offender registry and must comply with the registry requirements. If a person convicted of a sexual offence receives a free pardon or criminal record suspension, they are removed from the registry and are no longer required to comply with the requirements. However, a person found NCRMD is ineligible to receive a free pardon or criminal record suspension. Therefore, an individual found NCRMD of a sexual offence has no opportunity for an exemption, they remain on the registry and are required to fulfill the reporting requirements for a full ten years or for life, depending on the situation. Unlike convicted offenders, individuals found NCRMD of a sexual offence are offered no off-roads from the sex offender registry. G was found NCRMD of two sexual offences by the court and was subsequently granted an absolute discharge by the ORB. Regardless of his nineteen years of spotless adherence to the registry requirements and lack of subsequent offences, G has no opportunity to be removed from the registry and will be considered a registered sex offender for his entire life.

DECISION OF THE COURT

The Court found the discrepancy of treatment between individuals convicted of sexual offences and individuals found NCRMD of sexual offences in Christopher’s Law to be discriminatory and in violation of section 15(1) of the Canadian Charter of Rights and Freedoms (“the Charter”). Section 15(1) of the Charter guarantees equal rights to every individual without discrimination, “in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”. The Court used a two-part test to determine whether s. 15(1) had been infringed. The test asks

• whether the law (on its face or in its impact) draws a distinction based on an enumerated or analogous ground); and

• if the distinction is discriminatory, whether it imposes burdens or denies benefits in a manner that reinforces, perpetuates, or exacerbates disadvantage.

In the application of the test, the Court used a substantive equality approach rather than a formal equality approach. A substantive equality approach to a section 15(1) infringement analysis maintains a connection to lived experiences by focusing on the concrete and material impacts of the law on an individual or group rather than focusing on the identical treatment of all individuals. By using a substantive equality approach, the Court acknowledged that the identical treatment of all individuals does not necessarily produce equality. Upon applying the section 15(1) test, the Court found that Christopher’s Law made a distinction on an enumerated ground as it provided those found guilty of sexual offences with mechanisms offering opportunities to be removed, exempted, or relieved from the sex offender registry, whereas the same mechanisms were not provided to those found NCRMD. The Court subsequently found that the distinction was discriminatory as it presumed those found NCRMD to be inherently dangerous and unable to be rehabilitated, further stigmatizing and perpetuating the negative stereotypes around mental illness.

The Court then applied the test from R v Oakes (“the Oakes test”) to determine whether the infringement in Christopher’s Law was justified. The Oakes test asks

• if there is a pressing and substantial objective; and

• whether the infringing measure disproportionately interferes with the protected Charter right in furtherance of the objective.

In G, the Court found Christopher’s Law’s purpose of assisting in investigating and preventing sexual offences to be pressing and substantial. The second part of the Oakes test contemplates three aspects:

• whether the infringement is rationally connected to the objective;

• whether the means chosen to further the objective interfere as little as possible with the Charter right; and

• whether the benefits of the infringing measure outweigh its negative effects.

The Court found the infringement to be rationally connected to the objective but it found Christopher’s Law failed at the minimal impairment stage; Christopher’s Law did not impair the section 15(1) right as minimally as possible. The Court determined that Christopher’s Law must include mechanisms exempting or removing those found NCRMD from the sex offender registry to minimally impair the section 15(1) Charter right. The Court found that this inclusion would also significantly increase the overall effectiveness of the sex offender registry as its focus would remain on those posing the greatest risk to the community.

EFFECT OF THE DECISION

As mentioned above, society stigmatizes mental illness, leading to the discrimination of individuals living with mental disorders. The legal system, as illustrated by Christopher’s Law, can similarly stigmatize mental illness and discriminate against those with mental disorders. One of the goals of an NCRMD defence is to supply an individual with the psychiatric help they require to prevent them from reoffending. An NCRMD defence aims to treat the mental disorder and rehabilitate the individual so they no longer pose a threat to public safety, resulting in the individual’s return to society. An NCRMD defence provides the individual with the treatment and medication they require to return to society without the dangerous side-effects of their mental illness, and therefore, without stigmatization and discrimination.

Society also stigmatizes sexual offenders. Under Christopher’s Law, individuals found NCRMD of a sexual offence are rehabilitated in a psychiatric facility. However, this treatment fails to reduce the stigmatization of (and therefore discrimination against) the individual as they are subsequently subjected to the stigmatization of the sex offender label. The individual deemed not criminally responsible for their actions, who is subsequently treated by medical professionals and deemed by a review board to no longer pose a threat to the public, will continue to face stigmatization. The individual may no longer experience stigmatization due to their mental disorder, but they will face the subsequent stigmatization ascribed sex offenders. Some of the individuals found NCRMD for a sex offence would have forever borne the sex offender stigmatization as, under Christopher’s Law, they would lack the opportunity to be removed from the sex offender registry even though they had been found not criminally responsible for the offence. The act the Court deemed the individual to not be criminally responsible for would forever label them, causing lifelong stigmatization and discrimination.

The Court’s finding that Christopher’s Law unconstitutionally discriminated against individuals found NCRMD of sexual offences is a triumph for those living with mental disorders and for the Canadian criminal system. This decision provides individuals found NCRMD of sexual offences the possibility of living a stigma-free life. Mental illnesses lie on a spectrum, ranging from severe to mild, all with a varying degree of treatability. The mental disorder which causes an individual to commit a sexual offence may be treatable, and treatment may keep the individual from reoffending. Individuals with mental disorders should be provided the opportunity to be rehabilitated into society without the stigmatization and resulting discrimination of mental illness, and without the stigmatization of the act they were found criminally responsible for. Everyone should have the ability to live without stigmatization and discrimination, and the decision in G was a step in that direction.