The Inadequacies of an NCRMD Defense For Offenders with a Mental Illness - Seth Lozinski

Mentally ill offenders currently account for an estimated 73-79% of incarcerations in Canada.[1] This is in juxtaposition with the fact that between 2005 and 2012, 0.08% of accused received a verdict of not criminally responsible on account of mental disorder.[2] It is clear that the over-representation of incarcerations involving mental illness is not mitigated by the availability of an NCRMD defense. The criminal justice system is failing to support offenders with mental health issues. In this writing, I will look at a recent Manitoba case concerning NCRMD and explore the discrepancy in these statistics.

R v D.A.B.

The case of R v D.A.B. demonstrates the inadequacies of an NCRMD defense. The accused had a history of schizophrenia and was charged with sexual assault.[3] He was prescribed medication but had been neglecting to take it at the time of the offense. In 2019, a psychiatric assessment was done, and the accused was deemed unfit to stand trial.[4] A second psychiatric assessment confirmed that at the time of the offence, the accused was likely suffering from symptoms of psychosis, including delusional beliefs and auditory hallucinations.[5]The evidence of mental disorder was initially a key part of the accused’s defence, and the use of NCRMD was explored.[6]

NCRMD Requirements:

NCRMD is a verdict that is meant to ensure that individuals found guilty of an offense have the capacity to understand the wrongfulness of their actions.[7] In practice, however, this defense is only beneficial for an accused in very specific circumstances, mainly those facing a severe sentence. The reason for this is that an NCRMD defense requires that a narrow criterion be met, and it places substantial restrictions on the offender.

The first step to utilizing an NCRMD defense is meeting the legal standard for mental disorder. A diagnosis is required, although evidence of mental illness alone is not sufficient. It must be established that the accused had a mental disorder which deprived them of the capacity to appreciate the nature and quality of the act or omission or to know that it was morally wrong.[8] This is established through psychiatric assessment. Access to timely psychiatric assessments is integral to successfully utilizing an NCRMD defense. In order to accurately verify the mental state of an accused at the time of an offense, the assessment must take place as close to the offence as possible. In reality, it could be years before an assessment takes place. This is extremely concerning as mental health symptoms can vary greatly in a short period of time. The doctor in R v D.A.B. confirmed this, stating that a delay would impede the ability to do a proper assessment. [9]

Restrictions Imposed by NCRMD:

Even when the criteria for NCRMD are met, there are considerations for the accused in utilizing the defence. A principle concern is that NCRMD necessitates an admission of guilt. This is problematic, as the presumption of innocence is a protected right in Canada.[10] An accused should not be in the position of assuming guilt in order to access healthcare supports for a diagnosed illness. An NRCMD defense also limits the freedom of the accused by imposing an indefinite placement in a medical facility. An accused’s release is reliant on improvement of their condition, which could take years to stabilize. Given that a mental health disorder is difficult to treat in ideal circumstances, under the threat of limited freedom, it will be even more challenging to alleviate symptoms of an acute disorder.

This means that for a minor infraction, pleading NCRMD could result in longer detainment in a medical facility than would be required for a fixed sentence of incarceration. The imbalance in these two options strips an accused of agency, compelling them to choose between earlier release from an institution or support to manage their health issues. Until receiving an absolute discharge, an accused will be under the authority of a Review Board, and further restrictions may be imposed after release from a psychiatric facility. The most common restrictions are to reside in a particular facility such as a group home, continue with prescribed medical treatments, abstain from drugs and alcohol, submit to urinalysis, and report to a designated person on a regular basis.[11] These impositions further undermine an accused’s freedom. This is an especially undesirable result, as the restrictions are unrelated to the nature of an accused’s offence but rather due to their health issues.

Each of these factors may deter an accused from using an NCRMD defence. This does not support the purpose for the defence. Individuals who may be unable to grasp the wrongfulness of their actions may risk being found guilty of a crime because it is a preferable than the restrictions imposed by an NCRMD defense. Ultimately, this is what occurred in R v D.A.B. The accused elected not to use an NCRMD defense, stating that he did not want to be found not criminally responsible because that suggests that he did something wrong.[12] This demonstrates the lack of options for accused persons with mental health concerns. It is unacceptable that an accused with acute symptoms of mental illness does not find it a beneficial to seek psychiatric support when otherwise facing incarceration.

It is, however, understandable that an accused would not consider an NCRMD defence. NCRMD could be especially dangerous for offenders with existing medical trauma, as forced psychiatric care would further strain their mental health. In such cases, the offender’s well-being would be even more at risk upon release, as they may neglect to seek health care when needed. Given the potential ramifications, it is wholly unjust to prescribe restrictions on account of a diagnosed mental illness. This further stigmatizes mental health issues in Canadian society by forcing different standards based on an illness which is outside of the accused’s control. Agency is already a problem when it comes to health issues, particularly mental health. An accused may feel hopeless and afraid based on the symptoms they are experiencing. Someone who is struggling with mental health deserves compassion and appropriate care to improve their quality of life, not measures which feel restrictive and punitive.

Effects on the Criminal Justice System:

This leaves very vulnerable and unwell offenders at the mercy of the criminal justice system. It also places a strain on the legal system, as general penal institutions are not equipped to provide adequate mental health supports. Without proper support, Offenders won’t be able to get well, and their mental health will likely deteriorate. This not only puts offenders’ well-being at risk, but that of the other incarcerated individuals, the institutional staff, and the public.

R v D.A.B. illustrates this, as the accused’s symptoms of schizophrenia were exacerbated while in custody between the offence and his trial. Over an eighteen-month period, the accused was assaulted and had to be put into solitary confinement for his own safety.[13] Not only was the accused not receiving proper support, but he experienced further trauma and isolation while in custody. The measures taken to protect him physically caused him mental harm at a point where his mental health was already so precarious as to be found unfit to stand trial. This demonstrates that the environment for offenders with mental health issues is not supportive and potentially dangerous. Placing vulnerable individuals at such risk is unacceptable, and of no benefit to society.

This is a direct counter to the justice system’s goal of ensuring public safety by protecting society from those who violate the law. [14] This goal is not advanced when mentally ill offenders elect to go to prison rather than face the added consequences of seeking psychiatric aid. In these cases, incarceration alone will not protect society. Without proper supports, it is very likely for an accused to experience a decline in mental health while incarcerated. In that case, there is little hope for rehabilitation for an offender. The current system will leave the accused and the public more vulnerable upon release. Individuals will be leaving an institution in a state of worse mental well-being and therefore an increased likelihood to reoffend. Less restrictive access to mental health resources will better achieve the goals of increased public safety. This will also lessen the strain on institutions that aren’t equipped to support offenders experiencing mental health crises.

As evidenced by R v D.A.B., it is clear that NCRMD does not provide the accused with the necessary treatments to support their well-being, nor does it reduce the number of incarcerations involving mental illness. Consequently, an alternative verdict to NCRMD is needed, particularly for minor offenses. This alternative should provide accused persons with a real chance at healing, while reducing the chance of their reoffence and increasing public safety. Individuals with mental health disorders deserve a solution that addresses their health concerns while prioritizing their agency, dignity, and their chance at rehabilitation. Without an alternative which imposes fewer restrictions, offenders with mental health issues will continue to be disadvantaged by the criminal justice system.

[1] “Mental Health and the Criminal Justice System: ‘What We Heard’ Evidence Summary Report” (2020) at 1, online (pdf): Mental Health Commission of Canada <www.mentalhealthcommission.ca/wp-content/uploads/drupal/2020-08/mental_health_and_the_law_evidence_summary_report_eng.pdf>. [2] “Verdicts of not criminally responsible on account of mental disorder in adult criminal courts, 2005/2006-2011/2012” (Nov 2015), online: Statistics Canada <www150.statcan.gc.ca/n1/pub/85-002-x/2014001/article/14085-eng.htm#archived>, [3] R v DAB, 2021 MBQB 6 at paras 1, 5. [4] Ibid at para 5. [5] Ibid at para 6. [6] Ibid. [7] RSC, 1985, c C-46. [8] Ibid. [9] R v DAB, 2021 MBQB 6 at para 7. [10] Canadian Charter of Rights and Freedoms, s 11(d), Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [11] “The Review Board Systems in Canada: An Overview of Results from the Mentally Disordered Accused Data Collection Study” (Jan 2015), online: Department of Justice <https://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr06_1/p1.html>. [12] R v DAB, 2021 MBQB 185 at para 20. [13] R v DAB, 2021 MBQB 185 at para 19. [14] “Correctional Service Canada: At the Heart of Criminal Justice – Module” (Sept 2009), online: Correctional Service Canada <https://www.csc-scc.gc.ca/educational-resources/005005-2010-eng.shtml>.