Vincent Li’s killing of Tim McLean on a Greyhound bus in July 2008 is one of the most widely-publicized crimes in recent Canadian history. Mr. Li, then a 40-year-old in an undiagnosed psychotic state, stabbed and beheaded Tim McLean, a stranger beside him on the bus. Mr. Li was found not criminally responsible on account of mental disorder (NCR) and came under the supervision of the Manitoba Review Board.
Nine years later, on February 10, 2017, Mr. Li received an absolute discharge from the Board. A flurry of commentary has ensued. Rona Ambrose, Conservative Party leader, has called Mr. Li (who has since changed his name to Will Baker) a “free man” and said the Board’s decision “doesn’t seem right.” She calls on “Justin Trudeau [to] put the rights of victims before the rights of criminals” (https://t.co/Af7PK8Bz03).
In fact, the Conservative government amended the Criminal Code during its last term. Those amendments, then called Bill C-14, were touted by Ms. Ambrose’s party as strengthening victims’ rights in the NCR system. As such, the Board, in absolutely discharging Mr. Li, applied the legal tests enacted by the Conservatives.
The NCR system stems from concepts that are centuries old, dating back to England in the middle-ages. On the one hand, our society believes it is unethical to convict a person who did not understand that his or her behaviour was wrong. On the other hand, because the person may still be a danger to others, the NCR accused is remanded to a psychiatric hospital and placed under the supervision of a Review Board.
An NCR defence is not a get out of jail free card
An NCR defence is not a get out of jail free card. Review Boards are tasked with conducting individualized assessments of an accused and crafting a disposition that protects the public while supporting the rehabilitation of the accused. As in Mr. Li’s case, the Board usually grants incremental increases in liberty, in order to test the accused’s compliance, insight, and ability to cope successfully with more freedoms. If and when an accused person has been rehabilitated to the point that he or she no longer poses a significant risk to the safety of the public, the accused receives an absolute discharge and the Board’s role is over. For many NCR accused, however, the time they spend under the Board’s jurisdiction is much longer than they would have served if convicted for the offence.
Review Board hearings consider many points of view, not only the perspective of the accused. The detaining hospital is a party, and the accused person’s treating psychiatrist typically gives evidence about minute details of the accused’s life, including any ongoing public safety risk. As well, the Crown participates in review board hearings, typically to advocate for the protection of the public. Victims can attend and may present victim impact statements. Board hearings are open to the public.
When an absolute discharge is on the table, there is always
a plan for continued treatment in the community
When an absolute discharge is on the table, there is always a plan for continued treatment in the community. That plan is sure to include a psychiatric team that will monitor ongoing compliance. If any psychiatric patient falls away from treatment and poses a risk, remedies are available in the civil commitment laws (as opposed to criminal laws). For instance, in Ontario, police have the power to detain individuals for the purposes of an assessment under the Mental Health Act. The Mental Health Act also contains provisions to force treatment in the community. Physicians can also trigger civil committal of their non-compliant or dangerous patients. Given Mr. Li’s history, it is difficult to imagine any scenario where he would not be assertively managed if he decided he no longer wanted to comply with his treatment.
Re-offence rates for NCR accused are well below
the rates for those convicted of crimes
This system works, in that re-offence rates for NCR accused are well below the rates for those convicted of crimes. In fact, people with mental illnesses are more likely to be victims of violence than perpetrators (http://www.cbc.ca/firsthand/m/features/canadian-study-yields-surprising-insights-about-people-found-not-criminally).
For a bit of perspective on what happens in the NCR system, check out the documentary NCR: Not Criminally Responsible. A trailer for the film is available here: https://youtu.be/HkTRlZtArf