Changes to mentally ill law could mean fewer opt for treatment: review board

  • February 14, 2013

Source: Times Colonist

VANCOUVER - It was a horrific crime, so grotesque that Allan Schoenborn, the B.C. father found not criminally responsible for killing his three children, became the poster boy for reforming the federal law to keep mentally ill offenders in detention for longer periods of time.

But Schoenborn is still entitled to an annual hearing before the B.C. Review Board, a hearing scheduled to take place Friday at the Forensic Psychiatric Hospital he now calls home.

And some wonder if the amendments announced last week won't actually have the opposite of the desired effect, by discouraging plea bargains that see mentally ill offenders opt for treatment.

"You're going to have a lot more mentally disordered people who have gone to jail for a period of time, have been untreated, and are back on the street untreated. So in that sense it doesn't really make people much safer," said Bernd Walter, chairman of the B.C. Review Board.

Policy decisions are the purview of the federal government but the Not Criminally Responsible Reform Act is "quite unclear in terms of how it will work," said Walter, who is also the chairman of the B.C. Human Rights Tribunal.

Walter said many of the approximately 260 cases under the jurisdiction of the board were resolved by agreement between the defence and the Crown that the offender is so mentally ill that they did not understand their actions to be criminal.

Defence lawyers may be less inclined to enter a plea of not criminally responsible by reason of mental disorder if the result is a three-year minimum sentence under the new law, he said.

"Nobody was at risk with the previous system from the review board process. Recidivism is much lower than for the convicted population, and they're already spending three- to five-times longer indoors, so the question becomes what is it that we're trying to fix here?" Walter said.

The last time Schoenborn faced a B.C. Review Board hearing, he was severely beaten afterwards by another patient. Hospital officials believe the assault was brought on by his notoriety.

There may be little in the way of public sympathy for Schoenborn, but former Liberal justice minister Irwin Cotler said he's concerned the reforms are based on rare, high-profile cases: Schoenborn, Vincent Li, who killed Tim McLean aboard a Greyhound bus, and Guy Turcotte, the Quebec doctor found not criminally responsible for killing his two children.

"Responding to these three high-profile cases — which were gruesome, which were horrific — that's not the way you make law for all Canadians in a situation like this," Cotler said Thursday.

Schoenborn was found not criminally responsible by reason of mental disorder of the 2008 killings of 10-year-old Kaitlynne, eight-year-old Max and five-year-old Cordon. He testified at his trial that he killed them to protect them from an imagined threat of sexual abuse.

A spokeswoman for Justice Minister Rob Nicholson said there is public concern about high-risk mentally disordered accused.

"Our intention is to strike a better balance between the need to protect society against those who pose a significant threat to the public and the need to treat mentally disordered accused appropriately," Julie Di Mambro said in an email response to questions.

The reforms would create a "high-risk" designation for not criminally responsible offenders. Those offenders could not be granted a discharge until a court lifts the designation; they would not be eligible for unescorted passes into the community and could have their review period extended from one year up to three years — at the discretion of the review board.

The Canadian Bar Association, the B.C. Civil Liberties Association and the Mental Health Commission of Canada all declined comment, saying they are studying the legislation. Canadian Defence Lawyers association did not return calls and the Canadian Psychiatric Association said they are trying to determine the consequences — intended and unintended — of the bill.

The association supports improved public safety and increased sensitivity towards victims and their families, said president Dr. Suzane Renaud.

"At the same time it’s important to remain vigilant to ensure a balance between community safety, victim needs and the recovery of those with mental illness involved with the law so they may safely and productively re-enter the community," Renaud said.

A Justice Canada study of almost 8,700 review board cases from 1992 to 2004 in seven provinces and territories — for both Not Criminally Responsible and Unfit to Stand Trial — found homicide offences accounted for 6.4 per cent and attempted murder 5.2 per cent. Almost one–quarter of the offenders spent at least 10 years under review board jurisdiction and some "significantly longer," it said.

Walter wondered whether there will be increased pressure on already-taxed forensic psychiatric facilities.

Cotler wants to know if it is even legal.

"I've asked the minister of justice ... whether the legislation that is proposed has what I call the good-housekeeping seal of charter compliance?" Cotler said.

"Otherwise, we're going to invite unnecessary litigation and unnecessary costs to the taxpayer."