Review boards balance public safety, rights of those not criminally responsible

A lawyer who chairs the board that will decide Vince Li’s fate if he’s found not criminally responsible for beheading a bus passenger says such findings don’t mean a person gets off scot-free.

“It’s not a get-out-of-jail-free situation,” said John Stefaniuk of the Manitoba Criminal Code Review Board.

A judge will rule Thursday on whether to accept the argument by both Crown and defence lawyers that Li was not criminally responsible for the horrific death of Tim McLean on a Greyhound bus last summer.

If such a ruling is made Li would receive treatment for his mental illness. It would be up to the review board to decide when, if ever, Li is released. His status would be reviewed yearly.

Stefaniuk said there are a number of patients in treatment who would have been back on the streets sooner if they had simply plead guilty to an offence.

Stefaniuk, who spoke generally about the process and not about Li specifically, said the board’s main concern is to balance public safety against a patient’s right to the least restrictive conditions possible.

“It’s not a punitive approach at all, because the accused is not found guilty of any offence.”

Each province has a review board that decides what happens to people who admit to committing crimes, but were found not criminally responsible. The verdict means the person was suffering from a mental disorder at the time of the crime that made it impossible for them to know it was wrong.

The composition of the board can be slightly different in different provinces, said Stefaniuk, but it must be chaired by a lawyer with at least 10 years of experience. A psychiatrist or psychologist must also be present. A member of the public is also often appointed to a board.

At a meeting of the board, the public is represented by a someone from the Crown attorney’s office, while the patient usually attends along with their own lawyer.

The board reviews police reports and transcripts of previous judicial hearings, and also hears evidence from treating psychiatrists. These experts testify about the patient’s current mental condition, including their treatment plan and prognosis, and Crown and defence lawyers get the opportunity to ask questions.

“It’s very much like a court or administrative hearing,” said Stefaniuk.

The board carefully considers whether a patient poses a risk to the public. Members take into account the patient’s insight on their illness and why they did what they did. The board also looks at their acceptance of a need for treatment and their ability to function in society.

“It largely depends on the assessment of the patient’s medical condition and the risk of danger to the public. In cases where there’s a risk of danger, often times a patient will be placed in custody – in hospital – for what may be a very long period of time,” said Stefaniuk.

McLean’s mother, Carol deDelley, has been pushing the government for tougher anti-crime legislation called “Tim’s Law.” The legislation would mean that a person found not criminally responsible for a violent, unpredictable crime would face incarceration for life, with no possibility of parole, yet receive treatment within prison.

The idea has been getting support on message boards, with some saying Li will get away with murder and be allowed to walk free if he’s given that verdict.

That reaction shows a misconception that someone who is found not criminally responsible can’t be rehabilitated, said Vani Jain, who manages a justice and mental health program at the Schizophrenia Society of Ontario.

“I think it’s important to know that with treatment, people with mental illness are no more violent than the rest of the population.”

She has worked closely with such people and their families.

“The families that we work with are thankful that this system is in place. Because to them, it was not the person that committed the crime, it was the illness.”

Review boards can recommend three possible outcomes for patients.

They can be sent to a mental facility that is secured like a prison. In Manitoba, that means at one of two hospitals with a specific area set aside. Other provinces have jails that contain mental health wings.

Another option is a conditional release within the community. This can encompass many different ways of living. The patient may live in a specialized halfway house or other supervised facility, they may face curfew checks, a ban on the use of alcohol and a restriction on who they can contact. There’s also a variety of methods available to ensure that a patient is continuing to take medication.

The review board can also give a patient an absolute discharge, which means they’re no longer monitored.

Stefaniuk said it’s “very, very rare” that this happens right after someone is found not criminally responsible.