The shocking acts of violence committed by Vince Li, Allan Schoenborn and Richard Kachkar have made them poster boys for a Conservative government bill that targets mentally ill offenders found not criminally responsible.

Prime Minister Stephen Harper and government officials have touted the reforms as a necessary measure to protect public safety, but experts in the field argue it could do the opposite.

The bill received royal assent a week ago and is set to become law in July, to the collective dismay of many clinicians, researchers, lawyers and judges who say the government has ignored respected research and expert opinion.

“If you want to enhance public safety, all the data is saying turn right and we’re going left,” says Justice Richard Schneider, chair of the Ontario Review Board, a provincial body that oversees individuals found not criminally responsible or unfit to stand trial.

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First tabled early last year, the Not Criminally Responsible (NCR) Reform Act sparked a debate that quickly degenerated into a false choice between public safety and the rights of mentally ill accused, says Schneider.

In the back-and-forth, a key fact was often overlooked: the lives ended by Li, Schoenborn and Kachkar would not have been saved by the amendments.

The bill seeks to change how individuals are dealt with after they are found NCR. It does not address the systemic failures that led to these terrible acts in the first place.

Li, Schoenborn and Kachkar all sought treatment unsuccessfully in provincial mental health systems before they killed people, a troubling pattern the Senate committee on legal and constitutional affairs branded a failure when it passed the bill.

“Extreme acts of violence by mentally ill persons often follow repeated interaction with the health system,” the committee wrote in a report in late March. “The warning signs are there but interventions by the health system prove ineffective.

“It is a failure of the mental health system that must be addressed in order to protect public safety and address the needs of mentally ill patients . . . more work is needed to determine the cause of these significant failures,” the report said.

These concerns are shared by nearly everyone who has a role in the system — victims, researchers, politicians, psychiatric and legal experts — which raises an important question: If the real problem is a failure of the health-care system and not the justice system, then why aren’t we working to fix that instead?

Before he decapitated 22-year-old Tim McLean on a Greyhound bus in 2008, Li had been receiving treatment in an Ontario hospital for his mental illness, but discharged himself against medical advice. Provincial laws that govern when a person can be involuntarily committed to hospital are weak, particularly in Ontario. Clinicians must believe a person poses a significant risk to themselves or others.

Kachkar sought help at a Toronto walk-in clinic the day before he went on a rampage with a stolen snowplow and killed Sgt. Ryan Russell, a 35-year-old husband and father. A doctor advised him to visit an emergency room or the Centre for Addiction and Mental Health, but he didn’t. Less than 24 hours later, a man was dead.

Though it is understandably alarming for the people whose family members were killed by these men to consider their eventual freedom, all available evidence indicates the review board system is working well, with recidivism rates for NCR patients significantly lower than those for offenders released from the prison system.

Serious problems in the mental health system were highlighted in a recent national study: 65 per cent of people declared NCR on a serious violent offence had been hospitalized prior to the offence, according to data from the National Trajectory Project, an in-progress study on NCR individuals.

“The message is therefore that most are actually known to our mental health services,” says project leader Anne Crocker, a psychiatry researcher and professor at McGill University. “We clearly need to do more prevention from there.”

Li, Kachkar and Schoenborn — a B.C. father who stabbed and smothered his three children in 2008 when he was psychotic — are extreme outliers in the system. Their acts were horrendous, but the brutal nature of an offence committed by a mentally ill person is not a scientific indicator of their future risk to reoffend. More risky are those who slip through the cracks of the mental health system.

In other words, it is not Vince Li and Richard Kachkar we need to worry about, but future Vince Lis and Richard Kachkars.

‘No scientific basis’

When the government first unveiled the NCR bill, those who work and conduct research in the justice and forensic mental health fields were flabbergasted.

“There is no scientific basis to it,” says Patrick Baillie, a Calgary-based lawyer and forensic psychologist.

The legislation was drafted by Justice Department employees without any consultation with people who have expertise in related fields, and it passed despite warnings that it could do more harm than good.

“I suppose, unfortunately, that is consistent with their broader outlook on public policy and criminal justice,” says Archibald Kaiser, a professor of law and psychiatry at Dalhousie University in Halifax, “where they basically distort the concept of public safety to introduce more and more repressive legislative measures.”

Those who opposed the bill were fine with its first component — that provincial review boards be required to notify victims, upon request, if the NCR person is to be released into the community. Many review boards do that already.

The second element — making public safety the “paramount” consideration for review boards — is moot, opponents say, because public safety has been the primary concern for decades, enshrined in common law.

The third and most controversial amendment is the designation of a “high-risk” accused label, which imposes restrictions on people who have committed the most “serious, violent” crimes. The designation would delay annual review board hearings for up to three years, restrict community passes and make discharge contingent on a court lifting the high-risk label.

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Justice Department officials say the government believes the amendments are reasonable solutions to concerns raised by victims. Minister Peter MacKay refused an interview request for this story. His staff emailed a statement.

“This legislation, which contains entirely reasonable reforms, has widespread support from victims and Canadians,” spokesman Sean Phelan wrote. “The new high-risk designation only applies to the most serious, violent cases and only if there is a substantial likelihood for further violence that would endanger the public. It does not in any way affect the high-risk individual’s access to treatment but does help ensure that our communities are kept safe.”

The high-risk designation carries the potential for an NCR individual to be hospitalized without cause for up to three years without a review, which many legal experts believe is punitive in nature — contrary to criminal code provisions on mentally ill accused — and could be subject to a constitutional challenge. They also argue the tougher measures could result in mentally ill accused ending up in jail instead of getting treatment in the forensic mental health system because lawyers will advise their clients to avoid pleading NCR due to the possibility of indefinite detention.

Victims, their advocates and police associations have voiced support for the amendments.

“Why did I support the bill?” says Carol de Delley, mother of Tim McLean, the victim on the Greyhound bus. “Because I don’t expect to get what I want: A life for a life. A life sentence for a life taken. That’s not going to happen in today’s society.”

The mother knows the bill would not have saved her son. She understands the mental health system is the real problem, but has little confidence it will ever be fixed.

“From where we’re sitting as the victims,” she says, “any improvement is better than what we have already.”

Absolute discharge

One of the most serious concerns victims have about the review board system is the potential for an NCR individual who has committed a serious offence to be released on an absolute discharge, without conditions or mandatory follow-up.

To get an absolute discharge, a patient must show he has developed insight into his illness and is committed to continued treatment. The review board must decide the NCR person is no longer a significant threat.

“The bad news is that violence and mental disorder are associated,” says Dr. John Bradford, a highly respected forensic psychiatrist based in Brockville, Ont. “The good news is when you treat it, the violent risk goes away.”

However, the risk for violence can return if those individuals stop taking medication and become ill again. “That doesn’t change when you get an absolute discharge,” Bradford says.

Bradford and others believe more caution is needed. His policy as a psychiatrist is to continue treating his patients even after they are discharged absolutely, but not all clinicians do the same.

“There is a gap,” he says, in this part of the NCR system. Bradford does not believe indefinite detention is the solution, but he does feel there should be a next step — a community-based treatment plan for continued follow-up with NCR individuals after they get absolute discharges.

“The community treatment orders that exist in Ontario are too weak,” he says. “If they were beefed up they would fill the gap but at the moment they don’t.”

Bradford has cause to be careful. In 1991, Bruce Hamill, a former patient of his, participated in a grisly killing in Brockville with serial killer Peter Woodcock, a.k.a. David Michael Krueger. Hamill had killed an elderly neighbour 15 years earlier in Ottawa. He recovered and was granted an absolute discharge, but soon after he stopped taking medication and became psychotic again.

Three key issues must be addressed to bridge the gaps that lead to failures in the mental health system, says Baillie, the Calgary lawyer and psychologist. Canadians with mental illness need better access to treatment — wait times for a psychiatric consult are up to a year in some provinces — and stronger community supports. Stigma must also be tackled, he says, because it prevents people who need treatment from seeking it.

“Until we deal with those pieces we’re going to continue to have folks who aren’t supported, who deteriorate and who then kind of drop under the radar . . . until something blows up,” Baillie says. “And when it blows up, it’s the police that end up getting involved in it, and when it’s a horrific offence then the media and the public become aware of it and say, well, how can this be allowed to happen?”