Ontario v G: Not Criminally Responsible by Reason of Mental Disorder, Uncertainty, and Potentially Indefinite Consequences
Rachel Allen, 3L, Volume 80 Senior Editor
Introduction
Ontario (Attorney General) v G, 2020 SCC 38 (CanLII) (Ontario v G) represents a step forward on the path to justice for those declared not criminally responsible by reason of mental disorder (“NCRMD”), while simultaneously highlighting the systemic stigmatization and long-term consequences of being declared NCRMD. Since Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625, 1999 CanLII 694 (Winko), the Supreme Court of Canada has been creating a framework around those declared NCRMD with the goals of both reducing stigma towards mental illness and preventing the unjust punishment of those who are not morally responsible for their actions. While courts do comply with the regime set out in Winko, the facts underlying Ontario v G show that the NCRMD regime still falls short of its purported policy objectives and presents challenges for persons with mental illnesses. Ultimately, people found NCRMD face the possibility of lifelong stigmatization and uncertain long-term consequences, such as conditional release, indefinite detention, and/or mandated treatment.
Background
Historically, being found not guilty of a crime due to a mental illness has resulted in arbitrary detention. Prior to R v Swain, [1991] 1 SCR 933, 1991 CanLII 104 (Swain), an accused found “not guilty by reason of insanity” would be placed into indefinite custody “until the pleasure of the Lieutenant Governor [was] known” (Swain at para 140). The Lieutenant Governor was not required to make a decision within any time limit, and the power was discretionary (Swain at para 140). Swain caused Parliament to reconsider the rights of those with diagnosed mental illnesses. The resulting push towards equity culminated in Winko. Winko interpreted Part XX.1 of the Criminal Code as declaring that a person found NCRMD should be granted the least onerous sentence possible, and that that sentence should be an absolute discharge unless a Review Board found that they were a significant risk to the public (Winko at paras 47, 55). This declaration had a clear ameliorative effect. In 2006, the Department of Justice commissioned a report which found that Winko had led to an increase in absolute discharges from 10% to 15% of cases (see Jeff Latimer and Austin Lawrence, “The Review Board Systems in Canada: An Overview of Results from the Mentally Disordered Accused Data Collection Study” at 31). Undoubtedly, Winko created a more just and humane regime. Winko should have been the first step towards understanding and treating those found NCRMD without stigma. Instead, attempts to improve the lives of those found NCRMD seemed to stop with Winko.
NCRMD Long-Term Consequences
Under the current criminal justice system, someone declared NCRMD may face more long-term and severe consequences than someone found guilty of the same crime. As set out in s. 672.47 of the Criminal Code, the fate of a person declared NCRMD is determined by a Review Board in the event a court does not order an absolute discharge or renders no disposition whatsoever. The Review Board will grant that person either an absolute or conditional discharge, or detain them in custody in a hospital (see s. 672.54). Both a conditional discharge and detention in custody involve supervision of the person found NCRMD. Winko sets a high standard for detaining a person in custody, and s. 672.81 of the Criminal Code mandates an annual review of dispositions that are not absolute discharges. However, the system still allows for the possibility that someone found NCRMD may be subject to supervision for the rest of their life.
If someone is found guilty under the Criminal Code, the sentence has an end point. The only exception that allows for an indeterminate sentence is the dangerous offender regime under s. 753 of the Criminal Code. Dangerous offender sentences are subject to rigorous, statutorily mandated preconditions and procedural requirements. The burden is on the Crown to show the necessity of such extraordinary measures. In contrast, being declared NCRMD and thus subjected to supervision of an indeterminate length can be based upon a single incident involving the accused and a Review Board’s subsequent assessment of a person’s character.
Once detained in custody, people often struggle to improve their circumstances. Two separate Manitoba cases involved men who believed that their freedoms were more restricted in the hospital than they would be in a penitentiary. Both desired a transfer to a penitentiary. Neither were able to obtain that transfer (see G Greg Brodsky, “Proceed with Extreme Caution: The Not Criminally Responsible Defence” at 93-95). In R v Conway, 2010 SCC 22 (CanLII) (Conway), Conway argued that his living situation violated the Canadian Charter of Rights and Freedoms. He claimed that the Review Board should grant him an absolute release or grant him a treatment order despite finding him ineligible for a release. The Supreme Court held that the Review Board could not grant either remedy to Mr. Conway (Conway at paras 100-101). Essentially, once the Review Board decided he needed to remain detained in custody, the Review Board could not help him. Furthermore, while Review Boards consist of experts who are well-meaning and intelligent, the Review Boards lack a structured risk assessment system. A lack of structure in how risk is assessed can lead to inconsistent determinations regarding release, either conditional or absolute [1]. The result is that someone detained for being NCRMD faces an uncertain future that they have little control over and minimal options to improve. Even those individuals who are granted a conditional release will be monitored, possibly indefinitely.
Overall, being declared NCRMD triggers the risk of consequences that are arguably more restrictive and potentially indeterminate than those that arise from being found guilty of the same crime.
Where Ontario v G Fits In
The facts in Ontario v G exemplify how being found NCRMD can lead to more long-term consequences than being found guilty of the same crime. In Ontario, Christopher’s Law (Sex Offender Registry), 2000 mandates the placement of those found guilty of or found NCRMD for a sexual assault on the sex offender registry. Those convicted of a sexual offence with a maximum sentence of less than ten years will be taken off the registry after ten years have passed. Those convicted of a sexual offence with a maximum sentence greater than ten years will remain on the registry for life, but may have the opportunity to be removed from the registry based on an individualized assessment (Ontario v G at para 4). Prior to Ontario v G, those found NCRMD of a sex offence had no opportunity to be removed from the registry. G was found NCRMD of a sex offence in 2002, and granted an absolute discharge in 2003. In 2004, he was placed on the registry (Ontario v G at paras 8-9). G claimed that his inability to be removed from the registry violated his ss. 7 and 15(1) rights under the Charter (Ontario v G at para 10).
The application judge found that Christopher’s Law was not overbroad because those found NCRMD are as likely to reoffend as those convicted (G v Attorney General for Ontario et al, 2017 ONSC 6713 (CanLII at para 105) (G v Ontario (2017))). The application judge based this finding on one expert witness’ evidence that people found NCRMD have higher NCRMD recidivism rates than others who spontaneously commit crimes (G v Ontario (2017) at paras 102 and 106). The problem with relying on recidivism as the key analytical factor is that G was granted an absolute discharge in 2003. Instead of being viewed as if he was not guilty of a crime, he was subjected to an assumption about his likelihood of recidivism based solely on his mental illness.
The Supreme Court agreed that G’s s. 15(1) rights were violated. A discriminatory distinction was clearly being made between the treatment of those found NCRMD and those found guilty (Ontario v G at para 70). The Supreme Court repeated its observation from Winko that mental illness is often stigmatized, and that that stigmatization leads to discrimination (Ontario v G at para 63). Due to finding that the s. 15(1) violation was unjustifiable under s. 1 of the Charter, the Supreme Court did not discuss G’s s. 7 claim (Ontario v G at paras 77-78).
The Supreme Court decision reduces the stigma faced by those found NCRMD of sexual offences in Ontario. However, the factual situation that motivated the decision reveals the stigmatizing consequences for those found NCRMD, even if they are granted an absolute discharge. As noted above, Ontario v G is only one piece of a larger puzzle. In context, Ontario v G is representative of the justice system’s stigmatization of those found NCRMD.
What Comes Next
Ontario v G is undoubtedly a strong declaration from the Supreme Court that those found NCRMD are protected under the Charter. The Supreme Court clearly stated that discrimination on the basis of mental illness against those found NCRMD exists, and that such discrimination is unacceptable.
In the long term, the effects of Ontario v G are less clear. Ultimately, the decision was narrowly tailored to whether a specific aspect of Christopher’s Law infringed G’s Charter rights, and did not address the overall NCRMD regime. In the time since Winko, those found NCRMD have continued to face stigma and uncertainty. Ideally, Ontario v G’s strong declaration in support of those found NCRMD will spark a conversation about their rights and generate further scrutiny over the current regime. This will be an important step in the ongoing societal effort to consistently and actively combat stigma and discrimination.
[1] See Catherine M Wilson et al, "Factors Associated with Review Board Dispositions following Re-Hospitalization among Discharged Persons found Not Criminally Responsible" (2016) 34:2-3 Behav Sci & L 278 at 279-80.