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On February 4, 1992, significant changes were made to the mental disorder provisions contained in the Canadian Criminal Code following the introduction of Bill C-30 (1). These amendments were proclaimed into force after the Supreme Court of Canada declared—in R v Swain (2)—that the Criminal Code sections pertaining to the automatic detention of individuals deemed not guilty by reason of insanity (NGRI) were in violation of sections 7 and 9 of the Canadian Charter of Rights and Freedoms (3). While some of the changes have been characterized as being “largely cosmetic” (4), the entire set of amendments was undoubtedly a monumental, and progressive, shift away from the pre-1992 legislation. Indeed, the enactment of Bill C-30 affected many aspects of the forensic system in Canada. The contents of the Bill and the accompanying changes to the Criminal Code have been thoroughly reviewed elsewhere (5–8), and some of the highlights include 1) codifying a definition and procedures to be used to determine fitness to stand trial, 2) limiting the duration of remand assessment orders, 3) replacing the Lieutenant Governor advisory boards with independent Review Boards, 4) extending jurisdiction to Review Boards for making dispositions concerning the accused, and 5) making a broader range of disposition options available for the Courts and Review Boards. In addition, under the new legislation, defendants who are found to have committed an offence, but are exempt from criminal responsibility under section 16 (1) of the Criminal Code, are now considered to be not criminally responsible rather than not guilty. Several studies have examined how the implementation of Bill C-30 has affected Canada’s forensic psychiatric system, most of which have concentrated on issues surrounding forensic psychiatric assessments (that is, fitness and criminal responsibility). In general, studies have found that the number of psychiatric assessments decreased immediately after the amendments to the Criminal Code were proclaimed into force but then increased 2 and 3 years afterwards (9–14). Even though certain provisions contained in Bill C-30 were intended to reduce the amount of time that a defendant is remanded for a forensic psychiatric assessment, growing evidence suggests that these particular provisions have not achieved their desired effect (10–17). Another line of research has focused specifically on Canada’s not criminally responsible on account of mental disorder (NCRMD) population; however, there is still a dearth of empirical research in this area. A contributing factor why little research exists on this population may be due to the fact that the NCRMD defence is rarely employed successfully (13,18). In Alberta, the number of persons found NCRMD was reportedly increasing prior to and up to 1 year following Bill C-30’s introduction, but the numbers decreased in the second and third years after the Bill’s implementation (19). In Ontario, the number of forensic assessments increased between 1993 and 1994, but the disposition outcome remained stable across the 2 years (14). Studies from British Columbia indicate that the number of persons receiving NCRMD findings substantially increased after the implementation of Bill C-30 (20,21), and that the numbers of psychiatric recommendations that are supportive of a NCRMD finding also increased in the 1993–1994 fiscal period compared with the previous year (12). In terms of describing the composition of the NCRMD population, one study conducted in Quebec revealed that most subjects who were found NCRMD were diagnosed with a psychotic-spectrum disorder and that a person’s criminal history had an impact on decisions pertaining to criminal responsibility (13). Results from a study conducted in British Columbia indicated that individuals who were found NCRMD had been charged with a broad range of index offences and that the proportion of serious charges for which the defence was raised was lower than in previous NGRI populations (20). Other studies that examined the dispositions of BC Courts and Review Boards revealed that, during a 1-year period following the Criminal Code amendments, only 25% of persons who were found NCRMD were given an immediate conditional discharge by the courts (15). Moreover, it appears that the initial hearing of the BC Review Board most often results in a conditional discharge (67%) and rarely results in an absolute discharge (0.9%) (20). The current literature pertaining to persons who were found NCRMD contained a small number of studies that described the population’s characteristics and very little information regarding what happened to individuals after they were discharged to the community. Another limitation of the above studies is that their data collection did not extend beyond 2 to 3 years after the implementation of Bill C-30; consequently, the long-term effects of the Bill remain unknown. It is generally recognized that the Courts require a period of time to adjust to the implementation of new legislation, and research has yet to uncover data related to an NCRMD population that extends beyond the anticipated adjustment period. Indeed, a Parliamentary Standing Committee recently noted that there is a “relatively small volume of Canadian research” on issues surrounding the mental disorder provisions of the Criminal Code and that “more research is required and more hard data has to be collected” (22). The present article addresses this research gap by describing the results of a long-term follow-up study of individuals who were found NCRMD after the 1992 Criminal Code amendments. The purpose of the present study is to describe the characteristics of a post–Bill C-30 NCRMD population and to track their movement after adjudication and subsequent to community discharge. MethodsPersons found NCRMD between February 4, 1992, and February 4, 1998, in British Columbia, Canada, were included in the current study. The individuals who were immediately granted an absolute discharge by the Courts were difficult to identify in a reliable fashion and, consequently, were not included in the present study; however, this number is believed to be quite small. Profile information pertaining to the NCRMD cohort was gathered through a comprehensive review of files of the Forensic Psychiatric Hospital (FPH), Port Coquitlam, BC. In addition to the profile data, information was gathered on each subject during their stay at the hospital and for a 24-month period following their discharge to the community. The follow-up period ended August 30, 2000. The data were obtained through a review of the files of FPH and the 6 regional forensic community clinics. Collateral information concerning criminal justice contacts was extracted from the RCMP and BC Corrections databases. Since subjects who receive an absolute discharge are not required to have regular contact with forensic psychiatric services, the follow-up data available for these subjects was limited to criminal justice or forensic contacts incurred subsequent to their absolute discharge. ResultsProfile Data Social and Psychiatric History. Information pertaining to marital status indicated that 62.3% of the NCRMD cohort was never married; 25.6% was divorced or separated from their spouse; and only 11% was married (either legally or common-law). In addition, of the 182 files containing pertinent information, 51.1% indicated that people in the sample had no biological children; 40.6% had between 1 and 3 children; and the remaining 8.2% had 4 or more children at the time of the index offence. In terms of level of education, 68.7% of the cohort had attained grade levels 10 to 13. Further, 11.2% of individuals in the NCRMD cohort had received a vocational or technical certificate, 2.9% received a college diploma, and 2.9% completed a university undergraduate degree. Only 5.7% of the cohort was employed (part- or full-time) at the time of the index offence; concomitantly, 68.9% were financially supported primarily through social assistance or pension, and 10.5% had no means of financial support. It was also reported that, during childhood, 29.4% of the total cohort were physically abused; 14.9% were sexually abused; and 12.3% were placed in a foster home. With regard to their psychiatric history, 76.5% of the cohort had been treated in a psychiatric inpatient facility prior to the index offence. This is comparable with the finding of an earlier study that 78.7% of persons who had been found NGRI experienced psychiatric hospitalization at least once prior to their NGRI adjudication (23). Moreover, 51.8% had been admitted to a general psychiatric facility on 4 or more occasions, and 31.5% were previously admitted to a forensic psychiatric inpatient facility. Thirty-eight percent of the cohort had a documented history of suicidal threats or ideations, and 33.0% had a history of attempting suicide. Of the total NCRMD cohort, 32.2% and 43.1% had a history of psychiatric hospitalization and substance abuse difficulties within their immediate (biological) family, respectively. Criminal Justice History. Almost two-thirds (63.0%) of the cohort had been involved with the criminal justice system prior to their NCRMD adjudication. In terms of the number of prior convictions, 33.8% had 1 to 4 convictions, 13.8% had 5 to 9 convictions, and 15.4% were convicted of 10 or more offences. Thirty-seven percent of individuals in the cohort were previously convicted of offences against persons; 34.4% had prior property-related convictions; 21.9% were convicted of noncompliance offences; 21.2% were convicted of motor vehicle offences; 16.0% had prior drug-related convictions; and 5.9% were convicted of weapons offences. Of the offences against persons, 81.4% were violence-related, such as physical assaults; 7.6% were sexual-related, such as sexual assaults; and 11.0% were for other offences, such as threats and intimidation. Further, 21.0% of the cohort was reported to have previously committed an offence while under the influence of alcohol or nonprescription drugs. Criminological Aspects of NCRMD Offences
A total of 360 victims were involved in the index offences, with 25.1% of the total charges involving one victim and 39.5% involving multiple victims. Victims were defined as those people who suffered some form of interpersonal harm or whose well-being was threatened; a maximum of 3 victims were coded for each index offence. Only victims of offences against persons (for example, assault, kidnapping, and murder) were included in this study. In terms of the victims’ relationship with the accused, 26.7% were strangers, 21.1% were acquaintances, 16.4% were family members, and 13.1% were professionals (for example, police officers and mental health staff). During the commission of the index offence(s), 22.1% of the subjects were reported to have been under the influence of alcohol or nonprescription drugs. Antecedent Fitness Assessments NCRMD Assessment and Adjudication After making an NCRMD finding, the Courts deferred their disposition to the Review Board in 82.2% of the cases. Of the cases that were deferred, only 18.6% were immediately released to the community. The Courts granted conditional discharges to 13.1% of the NCRMD cohort, and the remaining 4.7% received custody orders. Only 66.7% of those that received a conditional discharge were immediately released to the community. At the first Review Board hearing following the Court’s NCRMD adjudication, 49.3% of the individuals were granted a conditional discharge, 41.7% were given a custody order, and 2.5% were granted an absolute discharge. The conditions most often attached to the custody orders by the Review Board hearing were that the accused was 1) under the general direction and supervision of the Director, 2) required to keep the peace and maintain good behaviour, and 3) required to reside at FPH. While the first 2 conditions were also commonly attached to conditional discharge dispositions, the Courts frequently articulated other conditions for which the accused must comply, including 1) to report to a specified forensic or mental health outpatient clinic, 2) to abstain from the use of alcohol or nonprescription drugs, and 3) to reside in a supervised setting deemed appropriate by the Director. Length of Hospitalization after NCRMD Adjudication
Community Tenure Living Conditions. During their first community discharge, the primary living arrangement for 47.7% of the sample was an independent situation (for example, apartment or hotel), 19.6% were living in a supervised arrangement (for example, group home), and 19.6% were living with a family member. In terms of the stability of their living arrangements, 43.2% of the sample had no change of address, 51.4% had 1 to 3 address changes, and 5.5% had 4 or more changes of address. Of those who were discharged into the community, 61.4% were supported primarily through government assistance (that is, welfare or disability pension), and 9.1% were supported primarily through employment. In total, 42.0% were employed during their first release to the community, with 29.8% of the subsample working sporadically, 27.4% working part-time, and 20.2% maintaining full-time employment. Criminal Justice Contacts. Data extracted from RCMP and BC Corrections databases revealed that 36 subjects (18.0% of persons discharged) faced a combined total of 92 new criminal charges during the 24-month follow-up period. Of the total charges, 32.6% were theft-related, such as theft or robbery; 29.3% were public order–related, such as harassment or failure to appear; 15.2% were assault-related, such as common assault or aggravated assault; and 6.5% were for sexual assault–related offences. Twenty-six of the subjects facing new charges were detained in a remand centre, of which 73.1% were remanded for 1 to 5 days. The longest time for which an individual was remanded was 78 days for charges relating to 2 counts of common assault. Only 15 (7.5%) of the individuals who were discharged to the community were ultimately convicted of an offence, of which 4 were convicted after having been absolutely discharged. Three subjects were sentenced to spend time in custody and served an average of 20.3 days. Rehospitalization. Of the 94 people (47% of those who were discharged) who experienced rehospitalization during the 24-month community follow-up period, 48.9% were rehospitalized on 1 occasion, 42.6% were rehospitalized 2 or 3 times, and 8.5% were rehospitalized on 4 or more occasions. The average length of time between discharge to the community and first rehospitalization was 7.7 months (234.3 days), with a median of 195 days and a range of 2 to 696 days. The average length of the first rehospitalization for this subsample was 4.3 months (130.4 days): however, the median was 35.5 days, and the range was 1 to 703 days. The 79 subjects who eventually returned to the FPH spent an average of 7.8 months (236.5 days) in the community before they were first readmitted and most frequently returned to FPH because their mental state was deteriorating (45.8%) or because they breached the Review Board conditions (36.2%). Table 3 presents a summary of the location and circumstances surrounding the subjects’ first and second rehospitalization.
DiscussionThe present follow-up study of a post-1992 NCRMD population has yielded several interesting results that support the contention that the Bill C-30 amendments have made the NCRMD defence a more appealing option for defendants and legal counsel. One piece of evidence for this argument is the fact that a substantially greater number of individuals were found NCRMD in BC during the 72 months after the proclamation of Bill C-30 (n = 276) compared with the number of persons found NGRI in the same province between November 1975 and January 1, 1984 (n = 188) (23). While some authors attribute the growth of the NCRMD population to an increased success rate (12), other observers postulate that the increase is likely a consequence of more persons choosing to raise the defence (20). Additional research is required to discern the correctness of these arguments. The present study reveals that the growth of the post-1992 forensic population is attributable to new clients being attracted to the BC forensic psychiatric system. For example, while only 43% of the NGRI cohort did not have previous contact with the forensic psychiatric system, 68.5% of the NCRMD cohort did not have contact with the forensic system prior to their NCRMD adjudication (23). In addition, the results suggest that the post-1992 forensic psychiatric system is serving a segment of the population that may not fit within the traditional mental health and criminal justice systems (9,25). This assertion is supported by the fact that a large number of persons in the NCRMD cohort have had previous involvement with the criminal justice and mental health systems prior to coming into contact with the forensic psychiatric system. Further, compared with the NGRI cohort, a greater number of the NCRMD cohort were charged with relatively minor index offences, such as assault- and nuisance- type, and fewer individuals were charged with more serious index offences, such as murder and attempted murder (see Table 1). In terms of how the mental disorder provisions have impacted legal decision making, our results reveal that the Courts now regularly defer the disposition to the Review Board (82.2% of the cases) and that most individuals continue to be detained in custody following the Court’s NCRMD adjudication. At the initial Review Board hearing, almost equal numbers of individuals were granted detention and conditional discharge dispositions (41.7% and 49.3%, respectively). While only 2.5% of initial Review Board hearings resulted in an absolute discharge, 28.3% of the NCRMD cohort was eventually granted an absolute discharge during the study period. These results provide evidence that the Review Board is, in actual fact, utilizing the various dispositions that were introduced with the proclamation of Bill C-30. The manner in which the Review Board utilizes its disposition options will continue to vary as the case law evolves through the appellant courts. Even though 49.3% of the NCRMD cohort received a conditional discharge at the initial Review Board disposition hearing, those who were granted conditional discharges prior to the case of R v Johnson (26) were commonly detained in custody under the authority of the Director (note 1). In fact, 72.1% of the present NCRMD cohort who received a conditional discharge at the original Review Board hearing was held in custody following the disposition. Of these, only 70.0% were subsequently released to the community during the study period. As predicted, the Review Board granted 29.5% fewer conditional discharges and 38.4% more custody orders in the 2 years following the R v Johnson decision compared with the previous 2 years (26). Finally, the present study demonstrates that the average length of hospitalization for the NCRMD cohort (9.8 months) is substantially shorter than the duration of initial hospitalization for the NGRI cohort (49.9 months) (23). In addition, the average duration of community tenure prior to absolute discharge is substantially shorter for the NCRMD cohort (13.6 months) than the NGRI cohort (47.7 months) (23). While very few individuals were convicted of new criminal offences or committed serious critical incidents following their discharge to the community, almost one-half (47.0%) of the subsample required psychiatric inpatient care—primarily at FPH. These results suggest that the 1992 Criminal Code amendments have contributed to reducing the length of time that a person is initially detained in custody; however, a substantial proportion of the subsample experience lengthy rehospitalizations after being conditionally discharged. AcknowledgementsThe authors gratefully acknowledge the invaluable support of the management and staff of the BC Forensic Psychiatric Services Commission. Note1. “…an unrestricted delegation to the Director of the authority to determine the place in the Province of British Columbia in which a conditionally discharged accused shall reside, where such discretion implicitly includes the power to direct that the accused ‘reside’ indefinitely in the Forensic Psychiatric Institute, is incompatible with an order that the accused be discharged conditionally into the community. As a matter of law, such an order cannot be made.” (26) References1. Bill C-30, An Act to amend the Criminal Code and to amend the National Defence Act and the Young Offenders Act in consequence thereof (assented to 1991, c. 43, s. 4, proclaimed in force February 4, 1992). 2. R. v Swain (1991), 63 C.C.C. (3d) 481. 3. Charter of Rights and Freedoms. Part 1 of the Constitution Act (1982), being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11. 4. Grant I. Developments in substantive criminal law: the 1998–99 term. Supreme Court Law Review 2000;11:233–306. 5. Eaves D, Ogloff JRP, Roesch R, editors. Mental disorders and the Criminal Code: legal background and contemporary perspectives. Burnaby (BC): Mental Health, Law, and Policy Institute; 2000. 6. McIntyre J. Amendments to the Criminal Code (Mental Disorder): Bill C-30 and Review Boards. Canadian Journal of Administrative Law and Practice 1992–1993;6:157–86. 7. Swaminath RS, Norris PD, Komer WJ, Sidhu G. A review of the amendments to the Criminal Code of Canada (Mental Disorder). Can J Psychiatry 1993;38:567–70. 8. Verdun-Jones SN. The insanity defence in Canada—setting a new course. Int J Law Psychiatry 1994;17:175–89. 9. Smith J, Grant F. Amendments to the Criminal Code of Canada: impacts on inpatient psychiatric remands. J Forensic Psychiatry 1993;4:355–60. 10. Stuart H, Arboleda-Florez J, Crisanti AS. Impact of legal reforms on length of forensic assessments in Alberta, Canada. Int J Law Psychiatry 2001;24:527–38. 11. Arboleda-Florez J, Crisanti A, Holley HL. The effects of changes in the law concerning mentally disordered offenders: the Alberta experience with Bill C-30. Can J Psychiatry 1995;40:225–33. 12. Roesch R, Ogloff JRP, Hart SD, Dempster RJ, Zapf PA, Whittemore KE. The impact of Canadian Criminal Code changes on remands and assessments of fitness to stand trial and criminal responsibility in British Columbia. Can J Psychiatry 1997;42:509–14 13. Ohayon MM, Crocker A, St-Onge B, Caulet M. Fitness, responsibility, and judicially ordered assessment. Can J Psychiatry 1998;43:491–5. 14. Nussbaum D, Malcolmson S, Dosis O. Summary of research on Bill C-30 implementation in Ontario during 1993 and 1994. In: Eaves D, Ogloff JRP, Roesch R, editors. Mental disorders and the Criminal Code: legal background and contemporary perspectives. Burnaby (BC): Mental Health, Law, and Policy Institute; 2000; p 104–18. 15. Davis S. Examining the impact of Bill C-30 in British Columbia. Int Bull Law Mental Health 1994;5:5–9. 16. Zapf PA, Roesch R. Fitness to stand trial: characteristics of remands since the 1992 Criminal Code amendments. Can J Psychiatry 1998;43:287–93. 17. Ohayon M, Crocker A. Impact of Bill C-30 in the Province of Quebec. In: Eaves D, Ogloff JRP, Roesch R, editors. Mental disorders and the Criminal Code: legal background and contemporary perspectives. Burnaby (BC): Mental Health, Law, and Policy Institute; 2000; p 119–28. 18. Ogloff JRP. The use of the insanity defence in British Columbia: a qualitative and quantitative analysis. Cited in: Hylton JH. Care or control: health or criminal justice options for the long-term seriously mentally ill in a Canadian province. Int J Law Psychiatry 1995;18:45–59. 19. Arboleda-Florez J. Research on the impact of the Criminal Code amendments in Alberta. In: Eaves D, Ogloff JRP, Roesch R, editors. Mental disorders and the Criminal Code: legal background and contemporary perspectives. Burnaby (BC): Mental Health, Law, and Policy Institute; 2000; p 129–39. 20. Grant I. Canada’s new mental disorder disposition provisions: a case study of the British Columbia Criminal Code Review Board. Int J Law Psychiatry 1997;20:419–43. 21. MacKay R. Insanity and fitness to stand trial in Canada and England: a comparative study of recent developments. J Forensic Psychiatry 1995;6:121–38. 22. Review of the Mental Disorder Provisions of the Criminal Code: Report of the Standing Committee on Justice and Human Rights (June 2002). Ottawa: Government of Canada. 23. Golding SL, Eaves D, Kowaz AM. The assessment, treatment, and community outcome of insanity acquittees: forensic history and response to treatment. Int J Law Psychiatry 1989;12:149–79. 24. American Psychiatric Association. Diagnostic and statistical manual of mental disorders. 3rd ed. Revised. Washington (DC): American Psychiatric Association; 1987. 25. Johnston C. Changes in Criminal Code will create more work for psychiatric facilities, MDs say. CMAJ 1992;146:1788–90. 26. British Columbia (Forensic Psychiatric Institute) v Johnson (1995), B.C.J. No 2247 para. 59, Wood J.A Author(s)Manuscript received July 2002, revised, and accepted February 2003. 1. Research Officer, Policy and Research Department, Forensic Psychiatric Services Commission, Forensic Psychiatric Hospital, Port Coquitlam, British Columbia. 2. Consultants, Policy and Research Department, Forensic Psychiatric Services Commission, Forensic Psychiatric Hospital, Port Coquitlam, British Columbia. 3. Manager, Policy and Research Department, Forensic Psychiatric Services Commission, Forensic Psychiatric Hospital, Port Coquitlam, British Columbia. Address for correspondence: James Livingston, MA, Policy and Research Department, Forensic Psychiatric Services Commission, Forensic Psychiatric Hospital, 70 Colony Farm Road, Port Coquitlam, BC V3C 5X9 e-mail: jlivingston@forensic.bc.ca
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