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Not Criminally Responsible Reform Act

Q & A with Eric Gottardi


The CBA is taking a close look at issues emerging from the Not Criminally Responsible Reform Act (Bill C-14) tabled by the Conservatives last November.

As the CBA prepares its position on the issues, Eric Gottardi, a partner at Peck and Company and chair of CBA’s National Criminal Justice Section, sheds light on: inappropriate release, the impact on forensic facilities, the high risk designation and the bill’s constitutionality.

National:  How much of a problem is the inappropriate release and recidivism of people found NCR of a violent offence?

Eric Gottardi:  It is a non-existent problem.  It is a make-believe problem.  Some critics of the NCR regime point to certain high-profile cases, which involved an in ordinate amount of violence, to suggest that when these people are deemed safe for any kind of supervised release, that such release is “inappropriate”.  This view often stems from a perception that some sort of injustice arises from the fact that the mentally ill offender is somehow “getting off lightly” for their crime. This perception is based on a fundamental misunderstanding of the law and how the law treats those that suffer from a mental illness that is so severe that they are found not criminally responsible – they are not morally blameworthy in the eyes of the law.  Just as we do not punish people from suffering from the flu, we do not criminally punish the truly sick – such as those with mental illness.

N:  How will the changes in the Bill impact forensic facilities, and their treatment of patients?

EG:  The Bill creates a dangerous situation where mentally ill offenders may be kept incarcerated for much longer than is necessary to treat their mental illness. Such forced incarceration, may indeed prove detrimental to their recovery.  The full and complete recovery (or successful treatment and management) of these individuals is, and should be, in the best interests of society itself. Medical decisions and the treatment of mentally ill patients, should be left to doctors – not politicians.

N: What are some of the anticipated impacts of the high risk designation in the Bill?

EG:  It is difficult to predict what impact the high risk designation will be.  Given that one the routes to this finding for a judge is a subjective assessment if the crime itself was of a “brutal” nature, this aspect of the law amounts to a vague and likely overbroad legislative sweep.  This aspect of the law is ill-conceived and will likely be found constitutionally infirm.  There is no viable, rational connection between the nature of the violent act itself (committed, by definition, when the person is not able to appreciate the illegal nature of their actions) and the patient’s risk to re-offend and the appropriate treatment regime. 

N: What are some of the anticipated impacts of removing the “least onerous and least restrictive” requirements?

EG: The removal of the “least onerous and least restrictive” principle could be the key factor in a constitutional challenge to the legislation.  That principle of restraint was the main reason why the Supreme Court of Canada upheld the constitutionality of the whole NCR regime, in a case called R. v. Swain. Its removal could ring the death knell for the whole legislative framework, or at the very least the most recent piece of legislation.