The Right Honourable Chief Justice Beverley McLachlin braved a prairie blizzard to speak to an enthusiastic audience on mental health and the law on March 6, 2017 as part of the McKercher Lecture series. While optimistic about the progress Canada has made in the field of mental health, the Chief Justice also stressed the work still remaining to be done. Her comments are timely given recent events. Just days after the talk, the Manitoba Criminal Review Board granted Will Baker, formerly Vincent Li, an absolute discharge. Baker was involved in the gruesome murder of a fellow passenger on a Greyhound bus in late 2008.1
Chief Justice McLachlin emphasized the need to recognize that mental illness is still illness. The illness creates the condition (or the criminal act); remedying the illness acts as a solution for avoiding the condition in the future. In addition, the unique nature of mental illness requires appropriate legal structures that accommodate that uniqueness. The conventional approach is counter-productive. Imprisonment only isolates individuals who are struggling with illness and denies them the care they need. This approach is logical in a system that prioritizes punishment, but can it be justified if we want a system that reduces crime?
The Chief Justice advocated for better public education about mental illness. This point recurred throughout the evening. Lack of education on mental illness and its nuances is an unfortunate reality, and is a major setback with regard to properly addressing mental illness today. Lacking a proper understanding of a problem denies one arguably the most important tool toward remedying that problem. In addition to education, McLachlin C.J.C. urged the creation of a multi-pronged response to legal issues surrounding mental illness. While the legal system deals intimately with mental illness, a proper appreciation of the problem illustrates that that we can engage and remedy the issue at an earlier stage, before an individual finds himself or herself in a courtroom. An appropriate response to mental illness requires collaboration between different actors: the education, medical, and legal systems must work together.2
Lastly, the Chief Justice spoke of the need for special attention to mental illness and how it affects our Indigenous communities. While mental illness affects all of Canadian society, the effect is amplified in the Indigenous context, given the historical discrimination that Indigenous communities have faced for many years.
The compassionate view of the Chief Justice toward mentally ill offenders is rooted in a long career in the legal system. Though her expertise is without question, her views on this issue are not uncriticized, particularly in the context of mentally ill offenders who commit violent crimes.3 Enter s. 16 of the Criminal Code,4 the statutory basis for the "not criminally responsible by way of mental disorder" verdict. Section 16 was the provision that recently led to Will Baker’s absolute discharge by the Manitoba Criminal Review Board.
Under s. 16, an accused who can establish they suffer from a disease of the mind that would preclude them from understanding the consequences of their actions lacks the mental element of the offence they committed. There is a legal presumption against this defense and the burden to demonstrate the applicability of the provision is on the accused. Section 16 is based on a foundational principle of criminal law: Only an individual who possesses the requisite mental element of the offence they have allegedly committed should be convicted.5
A common criticism against s. 16 is that it allows an otherwise guilty individual to avoid conviction. However, this interpretation misconceives the legal mechanism that the provision engages. An individual that is found not criminally responsible due to a mental disorder is subject to a regulatory regime that could lead to a potentially indeterminate period of detention.6 In fact, prior to R. v. Swain,7 an individual could have been held indefinitely if they were found not criminally responsible by way of mental disorder, “without a hearing and with no criteria to authorize [the] detention.”8 The Supreme Court found that this potential fate violated ss. 79 and 910 of the Canadian Charter of Rights and Freedoms11 and could not be saved under s. 1.12 The government responded with a series of amendments to the Criminal Code. Among the amendments, an independent board consisting of a judge and two mental health professionals is now required to review the disposition of each case where the not criminally responsible by way of mental disorder verdict is in play.13 Only if the board concludes that the individual does not pose a “significant threat to the safety of the public” are they are instructed to grant an absolute discharge.14
Section 16 and its corresponding regulatory regime attempt to strike a balance between public safety and foundational criminal law principles of fairness and culpability, so it is unsurprising that they have created controversy. Public safety is an important concern and a persuasive basis on which laws should be made. However, the words of the Chief Justice are instructive. If the criminal justice system is based solely on punishment, the criminal law should punish violent offences uniformly regardless of nuance. On the other hand, if we reframe the purpose of criminal law as rehabilitation with the aim of reducing crime, such an argument becomes less persuasive. A nuanced view of mentally ill offenders correctly illustrates that a condition precedent for their offences is the illness itself. As such, mental illness should be remedied at an earlier stage, before it becomes manifest in crime that engages the legal system. What is needed is a concerted investment in mental health initiatives in the education, medical, and legal systems or, as the Chief Justice aptly stated, a multi-pronged approach to the problem of mental illness.
* BA (University of Saskatchewan), JD Candidate (University of Saskatchewan).
1 Steve Lambert, “Freedom Granted to Man Who Beheaded Greyhound Bus Passenger”, The Star (10 February 2017), online: <https://www.thestar.com/news/canada/2017/02/10/freedom-granted-to-man-who-beheaded-passenger-on-greyhound-bus.html>, archived: <https://perma.cc/M2ZR-LEVG>.
2 See also Jim Bronskill, “‘Limited Programs’ in Criminal Justice System for Aboriginal People, Mentally Ill: Report”, CBC News (11 April 2016), online: <http://www.cbc.ca/news/indigenous/limited-programs-in-criminal-justice-system-for-indigenous-1.3530177>, archived: <https://perma.cc/S74M-B3EL>.
3 See e.g. Tom Brodbeck, “Board Should Deny Baker Discharge Request”, Winnipeg Sun (6 February 2017), online: <http://www.winnipegsun.com/2017/02/06/board-should-deny-baker-discharge-request>, archived: <https://perma.cc/R9LK-QGTJ>.
4 RSC 1985, c C-46.
5 See Winko v British Columbia (Forensic Psychiatric Institute),  2 SCR 625 at para 31, 175 DLR (4th) 193.
6 See generally Kent Roach, Criminal Law, 6th ed (Toronto: Irwin Law, 2015) at 291-94.
7  1 SCR 933, 4 OR (3d) 383 [Swain cited to SCR].
8 Roach, supra note 6 at 291-92.
9 Swain, supra note 7 at 984-86.
10 Ibid at 986-87.
11 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
12 Swain, supra note 7 at 988-89.
13 Roach, supra note 6 at 292.
14 Ibid, citing Criminal Code, supra note 4, s 672.45.