Is the New NCR Defense Law Too Little, Too Late?

Murder in Shoppers Drug Mart

An apparently random stabbing amid the hustle and bustle of Christmas shoppers and downtown professionals stunned the City of Toronto. Rosemarie Junor was making a quick midday stop at a Shoppers Drug Mart when she was brutally attacked by an unknown assailant who left a grave knife wound through her heart. Beloved by many, Ms. Junor, a 28-year-old newlywed, clung to her life for several days before succumbing to her injuries. She was laid to rest on December 22, 2015.

In short measure, the Toronto Police Service identified the suspect as 40-year-old Rohinie Bisesar. In the weeks that have since passed, a complicated picture has developed of Ms. Bisesar—who is now charged with second-degree murder. First, it was believed that the two women must have known one another and the attack stemmed from a domestic dispute. However, those rumours have been silenced with new information that the victim and suspect were complete strangers. Instead, there is reason to believe that Ms. Bisesar is an untreated schizophrenic and it was this that led to the slaying of the victim.

If the reports of Ms. Bisesar’s mental disorder are true, there is a strong likelihood that even if the Crown is able to prove that she plunged the knife into victim, Ms. Bisesar may be found not criminally responsible (NCR) by reason of mental disorder. In other words, due to her psychological condition, she could not form the necessary mens rea to be held responsible for her otherwise criminal act.

Stories like this are an obvious cause for concern and raise questions about how the criminal justice system handles mental health-related crimes.

The NCR Defense

In 2014, the federal Conservative government passed legislation to amend the Criminal Code of Canada, RSC 1985, c C-46 and the National Defense Act, RSC 1985, c N-5 to include new stipulations on the NCR defense. This legislation, the Not Criminally Responsible Reform Act, SC 2014, c 6 [NCR Reform Act], includes several important changes in the law. For example, one major change is that public safety must be the foremost concern of an administrative body reviewing a case involving an accused relying on the NCR defense (NCR Reform Act, s. 9).

Another critical change created by the law is a new legal designation by the courts called “high risk” NCR (s. 2(2)). Individuals given this label can be held in a mental health facility indefinitely unless the courts rescind the designation. This label would only be given to people that commit the most serious and violent offenses. In addition, the effect of being classified as “high risk” NCR means that a review board can extend the period of time between reviews to three years (s. 15).

Yet another important element of this law is that it formally establishes that a victim has a right to be notified when an accused who successfully relies on the NCR defense is released with or without conditions, and a right to be told where that person will live once released. Victims are also provided with an opportunity to prepare a statement once the court delivers an NCR verdict (s. 10).

Public Safety and the Rights of the Accused

A key criticism of the NCR Reform Act argues that it prioritizes public safety above the rights of mentally disordered accused. The law essentially emphasizes a punitive rather than a rehabilitative focus in managing an accused who relies on the NCR defense. Hospitalization of the accused, and the potential denial of a right of review for up to three years, is viewed by some as unjustifiably harsh. Presumably, such criticism is concerned with the fact that in some situations, an accused who successfully relies on the NCR defense may see substantial improvements in his or her mental health in less than three years—but will still have to wait the entire three years for a review. In essence, such an individual would remain hospitalized despite the fact that their improved condition would otherwise merit prompt re-evaluation.

Related to this concern regarding the fairness of the law is the possible result it could have on an accused’s decision to rely on the NCR defense in the first place. Since the repercussions of falling under the new NCR regime are much more stringent than before, more accused persons may instead choose to risk incarceration rather than be labelled “high risk” NCR—in order to avoid the unpredictability that comes with that designation. In a scenario where an accused could possibly receive a long sentence, choosing to not rely on the NCR defense allows the accused to better manage expectations—instead of being hospitalized under the NCR status and waiting indefinitely for a court to remove the “high risk” label. Moreover, additional challenges may arise with respect to the transparency of the process behind removal of the “high risk” label.

Another criticism of the new law is that victims are already typically notified when an accused relying on the NCR defense is up for review or about to be released. Therefore, legislating this practice is redundant.

Too Little, Too Late?

One of the broader concerns with the NCR Reform Act is that it truly does not address the fundamental concern of mental health challenges in the criminal justice system. That is, how do we prevent, instead of simply react to, tragic scenarios of mentally disordered individuals causing harm to themselves or others? Is this law truly progressive in impeding disturbing crimes like the slaying of Ms. Junor?

Even if the apparently mentally disordered Ms. Bisesar does not commit a similar act again, the troubling thought is that while some reports indicate her peers knew something was wrong, no one could foresee her illness would lead her to commit such an act in the first place. The reality is that such laws do nothing to anticipate the actual public safety concern as it unfolds in real time. There is no workable plan for identifying and managing serious mental health threats from certain individuals. Some people, like Rohinie Bisesar, will simply fall through the cracks.

In theory, the new legislation may seem like a logical response to violent acts committed by those with mental illnesses, but it may be shortsighted due to its inability to prevent these incidents in the future.