Mentally ill offenders failed by justice system: report
Vince Li appears in a Portage La Prairie, Man. court Tuesday, August 5, 2008. (John Woods / THE CANADIAN PRESS)
Published Tuesday, December 14, 2010 6:36AM EST
VANCOUVER - By now, Vince Li was supposed to get out for some fresh air.
The man who beheaded and cannibalized another man on a Greyhound bus in 2008 was given the privilege months ago.
But his walks were delayed after Manitoba's attorney general ordered that beefed up security needed to be in place, following a countrywide public outcry. The upgrades were finished sometime in the past month, though officials won't say if Li has actually had his walk.
Yet it's not while patients like Li are under psychiatric care that people should be concerned, say victims and even advocates for mentally ill offenders. It's after their medication takes effect and the fog of psychosis lifts, when many are released from custody without supervision or monitoring.
Most offenders like Li, who are declared not criminally responsible by reason of mental disorder, do return to society at some point, after they have received treatment and been deemed stable enough to release back into the public by a provincial review board.
An investigation by The Canadian Press has found the vast majority resume their normal lives without any supervision at all.
Someone who's been convicted of murder and given a life sentence in Canada spends their life being monitored by the parole system. But an absolute discharge from a review board is just that -- people aren't followed and they don't have to report to anyone.
It's a fact that outrages the mother of Li's victim.
"It's astounding to me," said Carol de Delley, whose son Tim McLean was killed by Li.
"Of course they should be monitored. This man ate my child's eyes and ripped him to shreds on a bus, and they're going to say he's not responsible?"
Alana Kainz has spent the last 15 years since her sportscaster husband was gunned down at an Ottawa television station trying to understand her husband's killer and the mental health system in charge of rehabilitating him.
She, too, is concerned by the lack of supervision.
"He killed my husband and he needs to be watched," Kainz said of Jeffrey Arenburg, who spent 11 years in an institution before being released in 2006.
"What's wrong with a social worker coming in once a month to check in on him, know where he is and what he's up to?"
A decision of not criminally responsible on account of a mental disorder isn't an acquittal or a finding of innocence. It means the court recognized that person committed the crime, but wasn't capable of knowing it was illegal at the time.
On average, those found not criminally responsible and sent to an institution to serve an indefinite sentence are usually freed into the community after about 10 years, according to statistics compiled by the Justice Department.
Even some in the mental health field say more caution is needed. The federal government has had a look at the issue, but no change appears to be on the horizon.
"Predicting human behaviour hasn't been a resounding success," said Bernd Walter, chairman of the B.C. Review Board, one of the provincial boards tasked with the legally required annual reviews of NCRMD cases.
The chances of getting an absolute discharge after being declared not criminally responsible vary wildly across provinces -- 18 per cent of cases in British Columbia in 2008-2009 versus only five per cent in Ontario.
The variance has been noticed by the Justice Department. No one there would comment on whether changes are in the works, however, the department is interested enough in the issue to have commissioned a national survey.
Results of that survey released last summer found that almost 90 per cent of Canadians polled believe offenders found either unfit to stand trial or not criminally responsible because of a mental disorder should remain under supervision indefinitely for public safety reasons.
De Delley has launched a petition asking Parliament to change the Criminal Code to ensure that those found not criminally responsible for murder serve a minimum period of time. She's calling it "Tim's Law."
The polling commissioned by Ottawa should not be taken as any indication the government is ready to make that change, said an official.
"Public opinion research is not used by the department to test-run government of Canada intentions/directions," Carole Saindon, spokeswoman for the Justice Department, replied in an email when asked if the department was considering changes.
Under the law, everyone found unfit to stand trial or NCRMD must have an annual review of their status while they remain institutionalized.
But Canada's review boards interpret conditions for release differently across the country and their decisions can sometimes depend on the mental health services where the patient is being released.
For example, B.C.'s annual report in 2008-2009 -- the most recent available -- says 74 people were given absolute discharges that year. They represented about 18 per cent of the cases the board heard.
In Ontario, however, only five per cent of the cases heard that year -- 90 people -- ended with absolute discharges.
Quebec's board held 2,130 annual hearings and closed 447 cases, but the board's statistics don't single out how many of those cases were absolutely discharged.
The provincial and territorial review boards have no control over a patient once he or she is given an automatic discharge. Those found NCRMD are given all the freedoms of someone who has never been convicted of a crime.
But Walter, with the B.C. review board, said someone sentenced to jail or prison will likely spend less time there than someone with an NCRMD designation will spend in an institution. And the time in a psychiatric facility isn't just for serious offences, but can be for lesser offences such as assault or threatening.
"Everybody thinks when you get an NCRMD verdict you got away with murder, you're free, you're not in jail, blah, blah, blah," said Walter.
"And that's just so wrong."
One of the few studies on the Review Board system in Canada, done by the Justice Department, found the recidivism rate for those found not criminally responsible is under 10 per cent. A 2002 Statistics Canada report says offenders who reoffend in the normal justice system reached 60 per cent for those aged 18 to 25.
For more than a decade, a ruling by the Supreme Court of Canada has led those who ultimately decide whether a mentally ill offender can be released to weigh the risks in favour of the patient.
The so-called Winko decision, named after British Columbia psychiatric patient Joseph Winko, forces the boards to give patients an absolute discharge if the accused doesn't pose a "significant or real risk to the community should the NCR accused be released."
The latest Justice Department figures up to 2004 show the number of absolute discharges doubled from 10 per cent to 15 per cent and those given conditional discharges also increased after boards started reviewing cases with the Winko decision in mind.
A Justice Department report predicts the number of NCRMD cases will grow to 4,500 Canada wide by 2015.
Walter said Winko plays a large role in decisions from their board. The high court decision makes it clear that there must be a significant possibility of harm to others in order to continue incarceration and, if in doubt, the benefit of the doubt goes to the patient.
Once given an absolute discharge, the patients are "off on their own," Walter said.
"Hopefully to get ongoing treatment from the community or civil mental health system, which are the purview of each province."
But Saskatchewan's Review Board chairman said absolute discharges don't have to be the norm.
While Ontario, Quebec and B.C. release dozens found unfit or not responsible, Saskatchewan's review board is much more cautious, said Peter Foley.
The Court of Queens Bench judge said the board prefers to allow people out in the community on conditional discharges so it can monitor issues such as substance abuse and failure to take prescribed medicines.
Foley said there's nothing too onerous about a conditional discharge.
"You have to be able to reel them back," he said, noting the board has no control if the accused is given an absolute discharge. "I see nothing detrimental in being very, very cautious."
And there is good cause to be careful.
In 1967, Victor Hoffman, then 21, killed nine members of one family, including seven children, in Shell Lake, Sask. Hoffman had been released from a mental hospital just weeks before the shootings.
Foley said the treatment team evaluating an accused is seldom prepared to say there is no risk to giving a person an absolute discharge.
"Usually it's 'there is no risk, we think, if the person stays on medication.' We'll that's an if," Foley said.