Here is an article I co-authored with Maya Kotob to assist criminal defence counsel in addressing the potential for an NCR Verdict in the appropriate case.
What to Expect when you’re NCR and What to Explain when you’re Counsel[i]
Anita Szigeti and Maya Kotob[ii]
Here are the basic touch-points for the necessary discussion on these important issues:
What to Expect when you’re NCR:
Indeterminate Detention, Liberty Constraints, Long-Term Supervision
What to Explain When you’re Counsel:
Indeterminate Detention, Liberty Constraints, Long-Term Supervision
The point is that:
Indeterminate Detention, Liberty Constraints, and Long-Term Supervision are possible, if not likely, outcomes of being found NCR or Unfit and being remanded to the jurisdiction of the Review Board. Clients need to understand all this. Counsel must explain the consequences.
Why the Need for this Short Piece on Practice Tips, Dos and Don’ts on what NCR means
At our firm, Anita Szigeti Advocates, we specialize in representing individuals who have serious mental health issues. We do this in many different forums, including representing clients who have been found Unfit to Stand Trial (UST / unfit) or Not Criminally Responsible (NCR). Once found UST or NCR, most accused will be remanded to the jurisdiction of the Ontario Review Board, a tribunal whose role, processes and mandate are not well understood by criminal defence lawyers who represent clients at the fitness / NCR stage in the criminal courts.
It is not uncommon for our office to get a call from a defence colleague wondering what just happened to his NCR client, who had been out on bail for many months, even years, but once found NCR, found himself detained in a secure psychiatric facility by Order of the Ontario Review Board (ORB.)
In order to provide competent legal advice to accused persons in particular facing the prospect of an NCR Verdict, or considering seeking one pursuant to section 16 of the Code, criminal defence counsel need to have a clear sense of what the client can expect. Unfit accused cannot, by definition, instruct their lawyer in relation to outcomes, including whether they seek a finding of unfitness. That in itself does not exempt the lawyer from explaining or attempting to explain to the accused person what consequences are likely to arise in the wake of the finding of unfitness. However, for our purposes here, issues particular to UST accused are out of the scope of this work. We will focus our remarks on NCR accused persons and the Verdict of NCR.
What the ORB Does As It Supervises the NCR accused person Under its Jurisdiction[iii]
The Review Board holds an initial hearing shortly after the NCR Verdict and after that holds at least annual reviews; sometimes there are more frequent reviews, if there is a significant restriction on the liberty of the accused or if the hospital that detains the person seeks an early review, for example. Every time the Board reviews the accused person’s situation, it must first determine if the individual continues to pose a significant risk to the safety of the public. This is the threshold issue for ongoing jurisdiction under the criminal law and that of the ORB. Significant threat means the likelihood of the accused committing a serious criminal offence. If the Board cannot make a positive finding of significant threat, the accused must be discharged absolutely.[iv]
In the event the significant risk threshold is met, the Board is required to make the “necessary and appropriate” disposition. This means the least onerous and least restrictive disposition the Board can make while safeguarding the public’s safety. Pursuant to section 672.54 of the Code, the Board must consider “four factors”, including the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused. The disposition options apart from an absolute discharge are a conditional discharge or a detention order. When determining what constitutes the least onerous least restrictive disposition order, the Board must have regard to the impact on the liberty interest of the accused of the entire disposition considered as a “package”, including the conditions that may attach to either a discharge or a detention order, rather than simply choosing between a conditional discharge or detention order itself. [v]
What the Forensic Psychiatric System Expects from NCR Accused Persons
Most NCR accused persons will commence their journey under the Review Board system detained in a secure psychiatric facility. Where the index offence is of a very serious nature, such as a homicide or serious sexual assault, it is likely the first detaining hospital will be Ontario’s only maximum secure facility, Waypoint in Penetanguishene. The person will then cascade down security levels of detention to medium, minimum, then be granted privileges to access hospital grounds, eventually into the community, overnight passes, hopefully followed by community living still within the rubric of a detention order. This process can take many years. While not every accused will follow this particular path, most will find this is a typical experience. They will almost invariably find the amount of time they spend detained in hospital or supervised by the Review Board while living in the community, shocking.
What the forensic psychiatric system is looking for before loosening the NCR accused’s Warrant is compliance. In turn, the Review Board’s expectations tend to follow what the treatment team and the detaining hospital want to see from the accused person. Compliance with medication and treatment, programming, following rules for engagement with health care providers and care-givers, following up with appointments and reporting on time, and compliance with an expectation that the person remain abstinent from any and all use of substances, including alcohol and cannabis, despite that those substances are otherwise legal.
In addition to compliance with hospital rules, policies and expectations, the NCR accused is expected to gain and maintain ‘insight’ into their mental illness, need for treatment, the risks associated with their use of substances, their risk of becoming violent or reoffending criminally if they discontinue treatment or use substances. It’s a lot. There is a lot of expectation and burden on the NCR accused as they try to navigate the system. The system also sometimes wants to see remorse or ‘insight’ into the index offences. Considering that the person is, by definition, not responsible for those actions, this requirement for remorse can be a tall order. Arguably, ‘remorse’ should not factor into consideration of the NCR accused person’s course under the Review Board, but it nonetheless sometimes does. The Board and the treatment team will also take into account preferences expressed by Victims of the index offences, which may influence further restrictions on the liberty of the accused person or where he may, for example, go or live.
Finally, any breach of the rules or decompensation as a result of going off medications or using substances is very likely to set the accused person back significantly. A severe episode of assaultive or threatening behaviour, especially if it results in seclusion or restraint, or reoffending and incurring further criminal charges, can cost an accused their community living or discharge disposition, for years to come. One step forward, two steps back is a relatively common unfortunate pattern for many under the Review Board’s jurisdiction. The road to freedom, to an absolute discharge, is often bumpy and always challenging. At least anecdotally, a decade under the Board is probably the average timespan.
When the Lawyer Should recommend NCR and When to Avoid it
The Review Board system under Part XX.1 of the Code has been described by the SCC in Winko as a ‘treatment / assessment’ model. The idea is that with treatment, the risk posed by the NCR accused will diminish and restrictions on the liberty of the accused person can then be loosened.
The history of those who were found NCR over the last three decades has evolved. Back in 1991 when the Review Boards were first established in the wake of Swain[vi] in the SCC, at least initially only those charged with the most serious index offences found themselves under the Review Board’s jurisdiction. This was the previous approach under the preceding system, when those found Not Guilty by Reason of Insanity (“NGRI”) languished detained indefinitely without regular reviews, at the pleasure of the Lieutenant Governor. Over time, with the new system ensuring regular reviews, and with decreased community supports for persons living with mental health issues, NCR became a finding often sought by defence for increasingly minor offences, perhaps for those with long criminal histories of minor offending, in order to secure longer periods of sustained treatment for their clients. It was something families of our clients supported as well and the system became accustomed to annual approximately 10% increases on the number of new NCR accused coming into the review board system.
Many of us then spent a long time trying to educate justice system participants that advancing an NCR plea or consenting to one the Crown sought or the Court was inquiring into, was not a good idea if the index offence was not extremely serious. As a result, probably, over the last few years we are no longer seeing huge increases in new NCR accused coming under the ORB’s jurisdiction. However, concurrent relatively new law coming out of our Court of Appeal, starting with a case called Wall[vii] in 2017, has meant that absolute discharges are more common these days. Anecdotally, we have seen more absolute discharges at earlier stages in the NCR accused person’s tenure under the Board, than we were accustomed to prior to a series of very helpful cases from Ontario’s Court of Appeal, and the evolution of the interpretation of the threshold of ‘significant risk.’ Also as a result of another series of relatively recent cases from the same Court[viii], more conditional discharges are now being granted by the Board. All of this has caused us, in any event, to modify the advice we now give defence lawyers to a more nuanced message than just ‘don’t do it if the offence is not severe.’
The better way to determine whether your client should pursue or consent to NCR, is to evaluate whether the client is likely to succeed in the forensic system and before the ORB. Rather than focusing exclusively on the nature and severity of the index offence, ask whether the client is likely to be able to comply with the significant expectations of the system. If the NCR accused is generally rule-governed, willing to take and likely to respond to medications, not resist and instead defer to authority, abstain from drugs, he is going to do well and may get out relatively quickly. If the person does not do well with authority, perhaps has a personality disorder diagnosis or anti-sociality, has a severe drug use dependence or prefers harm reduction to abstinence to address that issue, he is not likely going to cascade through quickly and may have a long and difficult, indeed possibly indefinite such course under the ORB.
Protecting Yourself from Ineffective Assistance Claims in the Wake of NCR Verdicts
The best and most imperative thing you can do to head off any issue later on is to obtain instructions about NCR in writing. In instructing you to pursue or consent to an NCR Verdict, make sure your client acknowledges your advice that NCR may mean Indeterminate Detention, Liberty Constraints, and Long-Term Supervision. Spell this all out in the plainest terms possible. “You may be detained in a secure, jail-like, setting, without privileges to access the community, without being able to live outside of a psychiatric hospital, for a long time, years or even a decade or more, indefinitely. There is no guarantee you will ever get out.” While not cheerful, if the client understands, appreciates and signs this instruction, you and the client are sure this is what he wants and he is doing so voluntarily on a truly informed basis.
[i] This work has its genesis in several articles Anita Szigeti co-authored with now Justice Jill R. Presser over the last decade. These include two publications in For the Defence, the quarterly magazine of the Criminal Lawyers’ Association (CLA) including “The Responsible Approach to the Issue of Criminal Responsibility” [FTD, CLA Volume 32, No. 5, July, 2011] and “Practice Tips for Effective Advocacy Before the Ontario Review Board” [FTD, CLA, Volume 32 , No. 6, October, 2011]. Anita Szigeti also co-authored a textbook, “A Guide to Mental Disorder Law in Canadian Criminal Justice”, LexisNexis 2020, with Justice Presser and others, on which this short practice piece relies; see Ch. 9 in particular.
[ii] Authored by: Anita Szigeti, Principal Lawyer, and Maya Kotob, Associate Lawyer, Anita Szigeti Advocates, Toronto. The firm specializes in representing individuals with serious mental health issues in civil and criminal justice streams.
[iii] This short summary is no substitute for reading the entirety of Part XX.1 of the Code and minimally the key SCC cases that govern this area of law. Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 R. v. Owen, [2003] 1 S.C.R. 779 Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), [2006] 1 S.C.R. 326 Mental Health Centre Penetanguishene v. Ontario, 2010 ONCA 197, Penetanguishene Mental Health Centre v. Ontario (A.G.), [2004] 1 S.C.R. 498, Pinet v. St. Thomas Psychiatric Hospital, (2004), 182 C.C.C. (3d) 214 (S.C.C.)
[iv] Winko v. British Columbia (Forensic Psychiatric Institution), [1999] 2 SCR 625 (SCC)
[v] Penetanguishene Mental Health Centre v. Ontario (Attorney General), [2004] 1 S.C.R. 498, 2004 SCC 20and Pinet v. St. Thomas Psychiatric Hospital, [2004] 1 S.C.R. 528, 2004 SCC 21
[vi] R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 SCR 933, <https://canlii.ca/t/1fsks>,
[vii] Re Wall [2017] O.J. No. 4773 (O.C.A.)
[viii] Valdez (Re), 2018 ONCA 657, Esgin (Re) 2019 ONCA 155, Williams (Re), 2021 ONCA 90
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