Canada's new mental disorder disposition provisions: A case study of the British Columbia Criminal Code Review Board

International Journal of Law and Psychiatry

Volumn 20, Issue 4, 1997, Pages 419-443

  Grant, Isabel ^a  

^a 1822 East Mall   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

CANADA; CRIME; CRIMINAL LAW; GENDER; HUMAN; MENTAL DISEASE; REVIEW;

EID: 0031453384     PISSN: 01602527     EISSN: None     Source Type: Journal    
DOI: 10.1016/S0160-2527(97)00020-4     Document Type: Article

References (76)

1. Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, hereinafter the Charter.
2. Joudrie, who shot her estranged husband six times with a semi-automatic handgun, raised the defence of sane automatism, which, if successful, would have resulted in an absolute acquittal. The jury brought in a finding of not criminally responsible on account of mental disorder (n.c.r.m.d.), a verdict that might be described as a compromise between conviction and acquittal.
3. The Globe and Mail (June 29, 1996) at A-1 and A-3.
4. See, for example, The Globe and Mail (June 20, 1996) at A-6 and (June 25, 1996) at A-3. Charles was found not responsible by a judge sitting alone on August 2, 1996. The Vancouver Sun (August 3, 1996) at A-5.
5. See, for example, The Globe and Mail (June 20, 1996) at A-6 and (June 25, 1996) at A-3. Charles was found not responsible by a judge sitting alone on August 2, 1996. The Vancouver Sun (August 3, 1996) at A-5.
6. May 10, 1996, at A-1.
7. This is particularly telling given that Joudrie was ultimately ordered held in custody by the Criminal Code Review Board in Alberta. She has since been granted a conditional discharge.
8. Supra, note 3. This confusion probably stemmed from the fact that the trial judge held that the defendant had committed the elements of attempted murder but that he was not criminally responsible.
9. [1991] 1 S.C.R. 933.
10. Sheilagh Hodgins, Christopher Webster, & Jean Paquet, ANNUAL REPORT YEAR 3 CANADIAN DATABASE: PATIENTS HELD ON LIEUTENANT GOVERNORS' WARRANTS (1991). (Hereinafter cited as Webster).
11. See, also, for example, Lee J. Baldwin, Anthony A. Menditto, Niels C. Beck, & Sara M. Smith, Factors Influencing Length of Hospitalization for NGRI Acquittees in a Maximum Security Facility J. PSYCHIATRY & L. 257 (1992), where the authors found a strong relationship between the severity of the index offence and the length of hospitalization.
12. The study by Webster, supra, note 9, provided some support for this intuition. It was found that almost half those held on a lieutenant governor's warrant had originally been charged with homicide (generally murder) or attempted murder. Their figures were 30% for homicide and 17% for attempted murder. The study included all persons under a lieutenant governor's warrant (including those found unfit to stand trial). The fact that those charged with more serious offences were likely to be detained longer could make comparisons difficult.
13. Supra, note 8.
14. Section 7 provides Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
15. Section 9 provides that "Everyone has the right not to be arbitrarily detained or imprisoned."
16. When this objective could not be attained within that period, the Department of Justice applied for and received a 6-month extension. For more details on Swain and the legislative response, see Simon N. Verdun-Jones, The Insanity Defence in Canada 17 INT'L J. L. & PSYCHIATRY 175 (1994).
17. Bill C-30, An Act to amend the Criminal Code and to amend the National Defence Act and the Young Offenders Act in consequence thereof (assented to 1991, c. 43, s. 4, proclaimed in force February 4, 1992).
18. For a description of the history of the new legislation, see Edwin A. Tollefson & Bernard Starkman, MENTAL DISORDER IN CRIMINAL PROCEEDINGS 1-12 (1993).
19. The former s. 542(2). It was this part of the regime which was found to be unconstitutional.
20. Section 672.47(3).
21. Re Hillairet and the B.C. Review Board (May 14, 1992).
22. Orlowski v. B.C. (Attorney General) (1992), 16 B.C.A.C. 204, 28 W.A.C. 204, 75 C.C.C. (3d) 138.
23. In R. v. Winko (1977), 112 C.C.C. (3d) (B.C.C.A.), a majority of the court held that s. 672.54 imposed no burden of proof on either party and hence that it did not violate the Charter. The dissenting judgment of Williams J.A. held that the section was tantamount to imposing a burden of proof on the accused and that the negative test of "not a significant threat" in s. 672.54 violated s. 7 of the Charter and was not a reasonable limit under s. 1. He held that a less intrusive and yet effective option would be to require the Board to make a finding of significant threat before denying an absolute discharge.
24. The Court did not elaborate on the circumstances in which a threat to the public safety would not be significant. In Chambers v. British Columbia (A.G.) (1997), 116 C.C.C. (3d) 406, the Court of Appeal held that the threat must relate to criminal conduct.
25. Davidson v. British Columbia (A.G.) (1993), 31 B.C.A.C. 111, 50 W.A.C. 111.
26. D.H., supra, note 22.
27. Section 672.55 (1).
28. Supra, note 21, at 146 C.C.C.
29. Id.
30. When the capping provisions were first introduced in 1986, they were described by a government news release as being "in keeping with the Charter." News Release, Minister of Justice and Attorney General of Canada, June 25, 1986.
31. In R. v. Lepage (1995), 40 C.R. (4th) 43 (Ont. Ct. (Gen. Div.)) Mr. Justice Howden rejected the accused's argument that the failure to proclaim the capping provisions constituted a violation of s.7 of the Charter. The Court held that there is no constitutional right to capping within a certain period of time and there is no authority for saying that failing to proclaim a legislative provision is contrary to the Charter. This decision, which also found that the disposition provisions of the new regime violate the equality guarantees of s. 15 of the Charter by discriminating against mentally disordered accused persons, is under appeal.
32. Absolute discharges, when granted by a court, are not reviewed by the Review Board.
33. See J. Peay, TRIBUNALS ON TRIAL: A STUDY OF DECISION-MAKING UNDER THE MENTAL HEALTH ACT 1983 (1989).
34. See, for example, Robert Menzies, Dorothy Chunn, & Christopher Webster, Female Follies: The Forensic Psychiatric Assessment of Women Defendants 15 INT'L . J. L. & PSYCHIATRY (1992) 179, and P. Coontz & E. Mulvey, Gender and the Assessment of Dangerousness in the Psychiatric Emergency Room, 17 INT'L. J. L. & PSYCHIATRY 369 (1994).
35. See, for example, Robert Menzies, Dorothy Chunn, & Christopher Webster, Female Follies: The Forensic Psychiatric Assessment of Women Defendants 15 INT'L . J. L. & PSYCHIATRY (1992) 179, and P. Coontz & E. Mulvey, Gender and the Assessment of Dangerousness in the Psychiatric Emergency Room, 17 INT'L. J. L. & PSYCHIATRY 369 (1994).
36. The first case of an accused found n.c.r.m.d. after the amendments were proclaimed in February 1992 was heard by the Review Board in May 1992.
37. There were other variables that would have been helpful but were not revealed in enough of the decisions to undertake a systematic analysis. For example, psychiatric history, criminal record, and various demographic information about the accused were not consistently referred to by the Board. Nor was it always clear from the reasons what the psychiatric evidence about the accused recommended.
38. James R. P. Ogloff, THE USE OF THE INSANITY DEFENCE IN BRITISH COLUMBIA: A QUALITATIVE AND QUANTITATIVE ANALYSIS (1991).
39. Supra, note 9.
40. Stephen Golding, Derek Eaves, & Andrea Kowaz, The Assessment, Treatment and Community Outcome of Insanity Acquittees: Forensic History and Response to Treatment, 12 INT'L. J. L. & PSYCHIATRY 149 (1989). See also Robert M. Wettstein & Edward P. Mulvey, Disposition of Insanity Acquittees in Illinois, 16 BULL. AM. ACAD. PSYCHIATRY L. 11 (1988), who found that 48% of their sample of n.g.r.i.'s had been charged with murder or attempted murder. See also Robert A. Nicholson, Steve Norwood, and Charles Enyart, Characteristics and Outcomes of Insanity Acquittees in Oklahoma, 9 BEHAV. SCI. & L. 487 (1991).
41. Stephen Golding, Derek Eaves, & Andrea Kowaz, The Assessment, Treatment and Community Outcome of Insanity Acquittees: Forensic History and Response to Treatment, 12 INT'L. J. L. & PSYCHIATRY 149 (1989). See also Robert M. Wettstein & Edward P. Mulvey, Disposition of Insanity Acquittees in Illinois, 16 BULL. AM. ACAD. PSYCHIATRY L. 11 (1988), who found that 48% of their sample of n.g.r.i.'s had been charged with murder or attempted murder. See also Robert A. Nicholson, Steve Norwood, and Charles Enyart, Characteristics and Outcomes of Insanity Acquittees in Oklahoma, 9 BEHAV. SCI. & L. 487 (1991).
42. Stephen Golding, Derek Eaves, & Andrea Kowaz, The Assessment, Treatment and Community Outcome of Insanity Acquittees: Forensic History and Response to Treatment, 12 INT'L. J. L. & PSYCHIATRY 149 (1989). See also Robert M. Wettstein & Edward P. Mulvey, Disposition of Insanity Acquittees in Illinois, 16 BULL. AM. ACAD. PSYCHIATRY L. 11 (1988), who found that 48% of their sample of n.g.r.i.'s had been charged with murder or attempted murder. See also Robert A. Nicholson, Steve Norwood, and Charles Enyart, Characteristics and Outcomes of Insanity Acquittees in Oklahoma, 9 BEHAV. SCI. & L. 487 (1991).
43. M.S. Phillips, T. Landau, D. Sepejak, & C. Osborne, The Advisory Review Board and Characteristics of Patients on Warrants of the Lieutenant Governor of Ontario, 13 BULL. AM. ACAD. PSYCHIATRY L. 373 (1985). This study combined those found n.g.r.i. with those found unfit to stand trial.
44. Marnie E. Rice & Grant T. Harris, The Predictors of Insantiy Acquittal, INT'L. J L. & PSYCHIATRY 217 (1990). See also Michael S. Phillips, Tammy Landau, & Catherine Osbourne, Persons Discharged from Warrants of the Lieutenant Governor, 32 CAN. J. PSYCHIATRY 343 (1987).
45. Marnie E. Rice & Grant T. Harris, The Predictors of Insantiy Acquittal, INT'L. J L. & PSYCHIATRY 217 (1990). See also Michael S. Phillips, Tammy Landau, & Catherine Osbourne, Persons Discharged from Warrants of the Lieutenant Governor, 32 CAN. J. PSYCHIATRY 343 (1987).
46. For the purpose of this study, each accused was categorized based on the most serious crime committed. Many accused, in fact, had multiple charges against them.
47. Other offences categorized as public order offences include being unlawfully at large, breach of probation, driving while prohibited, and causing a disturbance.
48. Seven murders, two manslaughters, and one infanticide. One of the two manslaughters actually involved an accused charged with three counts of manslaughter resulting from the deaths of three children after the accused set fire to a house that he believed to be unoccupied at the time.
49. Although see Jeffrey L. Rogers, Joseph D. Bloom, & Spero M. Manson, Oregon's New Insanity Defense System: A Review of the First Five Years, 1978 to 1982, 12 BULL. AM. ACAD. PSYCHIATRY L. 383, (1984) at 388 where only 10% of the accused had been charged with murder or attempted murder and 26% of the sample had committed only misdemeanor crimes.
50. Data on ethnicity, marital status, employment and education, previous hospitalizations and criminal record, some of the variables examined by other studies, were not consistently available in the decisions.
51. Supra, note 38, at 378. See also Wettstein & Mulvey, supra, note 37, where 18.2% of their sample of n.g.r.i.'s were female, Jeffrey L. Rogers, William H. Sack, Joseph D. Bloom, & Spero M. Manson, Women in Oregon's Insanity Defence System 11 J. PSYCHIATRY & L. 515 (1983), and Sheilagh Hodgins, Jacques Hébert, & Rosanna Baraldi, Women Declared Insane: A Follow-up Study 8 INT'L. J. L. & PSYCHIATRY 203 (1986). Steadman notes that women tend to be overrepresented in n.g.r.i. populations as compared to penal populations, although the percentages he cites are markedly lower than found in the present study. Henry J. Steadman, Insanity Defense Research and Treatment of Insanity Acquittees 3 BEHAV. SCI. & L. 37, 39 (1985). For a study of sex differences in persons found n.g.r.i., see Howard V. Zonana, Roxanne L. Bartel, James A. Wells, Josephine Buchanan, & Marjorie Getz, Sex Differences in Persons Found Not Guilty by Reason of Insanity: Analysis of Data from the Connecticut NGRI Registry, 18 BULL. AM. ACAD. PSYCHIATRY L. 129 (1990).
52. Supra, note 38, at 378. See also Wettstein & Mulvey, supra, note 37, where 18.2% of their sample of n.g.r.i.'s were female, Jeffrey L. Rogers, William H. Sack, Joseph D. Bloom, & Spero M. Manson, Women in Oregon's Insanity Defence System 11 J. PSYCHIATRY & L. 515 (1983), and Sheilagh Hodgins, Jacques Hébert, & Rosanna Baraldi, Women Declared Insane: A Follow-up Study 8 INT'L. J. L. & PSYCHIATRY 203 (1986). Steadman notes that women tend to be overrepresented in n.g.r.i. populations as compared to penal populations, although the percentages he cites are markedly lower than found in the present study. Henry J. Steadman, Insanity Defense Research and Treatment of Insanity Acquittees 3 BEHAV. SCI. & L. 37, 39 (1985). For a study of sex differences in persons found n.g.r.i., see Howard V. Zonana, Roxanne L. Bartel, James A. Wells, Josephine Buchanan, & Marjorie Getz, Sex Differences in Persons Found Not Guilty by Reason of Insanity: Analysis of Data from the Connecticut NGRI Registry, 18 BULL. AM. ACAD. PSYCHIATRY L. 129 (1990).
53. Supra, note 38, at 378. See also Wettstein & Mulvey, supra, note 37, where 18.2% of their sample of n.g.r.i.'s were female, Jeffrey L. Rogers, William H. Sack, Joseph D. Bloom, & Spero M. Manson, Women in Oregon's Insanity Defence System 11 J. PSYCHIATRY & L. 515 (1983), and Sheilagh Hodgins, Jacques Hébert, & Rosanna Baraldi, Women Declared Insane: A Follow-up Study 8 INT'L. J. L. & PSYCHIATRY 203 (1986). Steadman notes that women tend to be overrepresented in n.g.r.i. populations as compared to penal populations, although the percentages he cites are markedly lower than found in the present study. Henry J. Steadman, Insanity Defense Research and Treatment of Insanity Acquittees 3 BEHAV. SCI. & L. 37, 39 (1985). For a study of sex differences in persons found n.g.r.i., see Howard V. Zonana, Roxanne L. Bartel, James A. Wells, Josephine Buchanan, & Marjorie Getz, Sex Differences in Persons Found Not Guilty by Reason of Insanity: Analysis of Data from the Connecticut NGRI Registry, 18 BULL. AM. ACAD. PSYCHIATRY L. 129 (1990).
54. Supra, note 38, at 378. See also Wettstein & Mulvey, supra, note 37, where 18.2% of their sample of n.g.r.i.'s were female, Jeffrey L. Rogers, William H. Sack, Joseph D. Bloom, & Spero M. Manson, Women in Oregon's Insanity Defence System 11 J. PSYCHIATRY & L. 515 (1983), and Sheilagh Hodgins, Jacques Hébert, & Rosanna Baraldi, Women Declared Insane: A Follow-up Study 8 INT'L. J. L. & PSYCHIATRY 203 (1986). Steadman notes that women tend to be overrepresented in n.g.r.i. populations as compared to penal populations, although the percentages he cites are markedly lower than found in the present study. Henry J. Steadman, Insanity Defense Research and Treatment of Insanity Acquittees 3 BEHAV. SCI. & L. 37, 39 (1985). For a study of sex differences in persons found n.g.r.i., see Howard V. Zonana, Roxanne L. Bartel, James A. Wells, Josephine Buchanan, & Marjorie Getz, Sex Differences in Persons Found Not Guilty by Reason of Insanity: Analysis of Data from the Connecticut NGRI Registry, 18 BULL. AM. ACAD. PSYCHIATRY L. 129 (1990).
55. A crime that rarely leads to incarceration on conviction. See Isabel Grant, Christine Boyle, & Dorothy Chunn, THE LAW OF HOMICIDE (1994) at ch. 7.5 Numerous studies suggest that female n.g.r.i.'s are more likely than male n.g.r.i.'s to have committed crimes against family members, particularly spouses, children and parents. See, for example, Steadman, supra, note 45, at 39.
56. In 1994, 81% of the charges brought against women were for nonviolent crimes. In that year, women were accused of a total of 8,897 crimes against the person, 25,088 crimes against property, and 13,053 other Criminal Code offences. Statistics Canada, Canadian Crime Statistics (1994). Of course, men commit a greater percentage of property crimes than crimes of violence as well although the difference is smaller. In 1994, men were charged with 59,243 violent crimes, 116,561 property crimes, and 60,765 other Criminal Code offences. (These numbers exclude driving offences.)
57. See, for example, Rice and Harris, supra note 39; Webster, supra, note 9, and Golding et al., supra, note 37. Most of the previous studies rely on much more extensive diagnostic information than the present study and should thus be taken as more reliable. However, it is nonetheless possible that the changes in the mental disorder provisions have provided an incentive for persons with less serious mental disorders to raise the defence.
58. While there are no reported cases in British Columbia involving absolute discharges granted by judges following an n.c.r.m.d. verdict, the author did not undertake a comprehensive search of unreported decisions. Thus it is possible that courts are playing a role in meting out absolute discharges.
59. This disposition was given to a young man charged with mischief and theft. He was allegedly suffering from a drug-induced psychosis at the time of the offence, but the Review Board found that he did not have any significant mental disorder at the time of the hearing.
60. In British Columbia (Forensic Psychiatric Institute) v. Johnson, [1995] B.C.J. No. 2247, the Court held that this form of disposition was not authorized by the Criminal Code provisions. All individuals for whom this order was originally made were entitled to have the decision reviewed. However, since that review might have occurred up to 2 years after the original illegal order was made, the revised dispositions were not included in the pool of initial dispositions.
61. Conversations with lawyers for persons before the Board confirm that this appears to be the trend after Johnson. The Board is now ordering many more persons be held indeterminately in custody and attaching conditions allowing for leaves to be taken.
62. As was discussed in note 51, this hybrid form of conditional discharge has since been held to be illegal by the B.C. Court of Appeal.
63. This makes the first categorization of offences the equivalent of those used by Sheilagh Hodgins, A Follow-Up Study of Persons Found Incompetent to Stand Trial and/or Not Guilty By Reason of Insanity in Quebec, 6 INT'L. J. L. & PSYCHIATRY 399 (1983). Hodgins used violent vs. nonviolent crimes. The categories of public order and crimes against property were merged because it was not possible to rank the categories as to seriousness.
64. Many other authors rank all homicides together. This was deliberately avoided, given that the punishment and the constitutional dimensions of murder set it aside from other forms of homicide.
65. I also ran a regression using the category of NODIAG for all those for whom the Review Board did not mention a diagnosis, but the results were not significant.
66. Six of the decisions not raising the matter were before the decision in Orlowski. Of the five after Orlowski, three received conditional discharges and two received conditional discharges with custody conditions.
67. For a description of the categories, see supra, text at note 54.
68. This was a case that received a great deal of media attention involving an accused who killed his wife allegedly in a state of insane automatism. Re Sullivan and the B.C. Review Board (March 8, 1994).
69. If murder is excluded, of the 73 accused charged with other crimes against the person, a total of 21 (28.77%) custody orders and 23 (31.5%) conditional discharges with custody condition were granted. The remaining 29 (39.73%) were given conditional discharges.
70. These findings raise issues, beyond the scope of this paper, about the respective roles of the (federal) criminal justice system and the (provincial) mental health system regarding the appropriateness of the criminal justice system detaining those who are a danger to themselves but do not present a significant threat to others. See R. E. Turner, Warrants of the Lieutenant Governor, 32 CAN. J. PSYCHIATRY 337 (1987). Note that since this paper went to press, the B.C. Court of Appeal has held that the significant threat must relate to a threat of criminal activity. See Chambers, supra, note 23.
71. These findings raise issues, beyond the scope of this paper, about the respective roles of the (federal) criminal justice system and the (provincial) mental health system regarding the appropriateness of the criminal justice system detaining those who are a danger to themselves but do not present a significant threat to others. See R. E. Turner, Warrants of the Lieutenant Governor, 32 CAN. J. PSYCHIATRY 337 (1987). Note that since this paper went to press, the B.C. Court of Appeal has held that the significant threat must relate to a threat of criminal activity. See Chambers, supra, note 23.
72. As neither variable was significant, the regression results have not been included.
73. Re Poole and the B.C. Review Board (June 2, 1992). The Board relied on s. 672.47, which requires the Review Board within 90 days to "make a disposition."
74. This finding has implications for lawyers representing clients at trial. For example, ample attention should be given to developing arguments regarding bail and regarding release pending the Review Board hearing.
75. Re Eskenazy and the B.C. Review Board (March 1, 1993).
76. Supra, note 22.