Treatment or prison? What happens when a killer is found mentally ill

0:00On average, about 20 homicide cases every year in Canada wind up with the killer being found not criminally responsible and sentenced to mental health treatment instead of jail. But how are these cases decided and what is the fallout for families of victims when the perpetrator is in sent to prison? I'm Dave Braykinridge and this is 10-3. Emma Jarrett, her reporter with the Investigative Journalism Bureau, joins me to discuss key factors that are frequently present in cases where an accused is designated in CR, why the designation is seen as controversial and what changes some are proposing. Don't forget you can find us on Apple Podcasts, Spotify, Amazon Music. I'd love it if you could leave us a rating or review until your friends about the show. So Emma, you and your team with the Investigative Journalism Bureau recently published a large piece on the notion of not criminally responsible designations.

1:05And this is a specific designation that's tied to criminal cases for people who may not be familiar with that. What does not criminally responsible mean? So not criminally responsible is a really interesting intersection between the justice system and the mental health care system. Essentially when that outcome is arrived at in court, it means that a person has been found to have committed the crime, but they can't be held responsible for it because their state of mind at the time rendered them unable to appreciate the moral wrongness of their action. So they didn't know right from wrong. And in those cases, that's where you end up with not criminally responsible. And so how is a designation like that typically arrived at? Is it psychiatric assessments? Is it reviewing someone's medical histories? Is it interviews with the accused in these cases by a crown and defense experts?

2:10And how does that find its way into the courts? It's a little bit of all of the above. I think particularly for defense who are aware of not criminally responsible outcomes in that avenue to go through in court, they could have a conversation with their client and go, yeah, because I think there's something going on here that we need to explore further. For the courts purposes, like when the judge is sitting there looking at the body of evidence in front of them. One of the most heavily weighted pieces is a psychiatric report. Sometimes they'll be multiple depending on how many experts are called in. The crown and defense can call their own expert assessors. But that psychiatric report done by psychiatrist, a forensic psychiatrist, will be based off of reviews of the accused medical history, their past mental health interactions and interviews

3:14with them themselves to understand what was going on when the crime was committed. Okay. And I know that it can be applied in cases other than homicides, but but killings are perhaps when the public may be most familiar with seeing an accused be determined to be not criminally responsible. What percentage of homicides in Canada result in these findings? That's really difficult to know because not criminally responsible outcomes, they're not tracked officially in any kind of consolidated database. There are some academics who will track them for their problems or whatever jurisdiction they live in. The best estimates are about 3% of all homicides will end up with a not criminally responsible outcome, but that really is just a best guess. Okay. And so when you look at the totality in Canada that might be a few in a year or a couple

4:15dozen in a year, I assume we're not talking hundreds because Canada doesn't have a ridiculously high instances of homicide, right? This is, you know, maybe a small amount every year. Yeah, you're looking at, I would say, the 24 max a year on average, if you look over, you know, the last many years since this has been going on as a, as a outcome in court from, from the 90s. You know, it averages out based on our data that we collected at about 20 a year. Okay. What prompted you and your colleagues at the IGB to look into cases like this? Was it the lack of available data? And what was it you were looking at? So it started out with our investigation into Famicides in Canada. We created a massive database over 1100 names of women and girls who had been violently

5:16killed going back to 2019. And within that database, we tracked the outcome of every single case and particular interests were the ones that went through court and the not criminally responsible outcome emerged as a really distinct category. And we, you know, you know, about these things in the abstract, it was a term I'd certainly heard before, but I didn't really understand to your first question, how do you even arrive at this designation? So that's what started diving into understanding what this is and how it's applied to Homo sites. And so looking overall at the data, looking at these case files and these outcomes, were there any main trends that started to reveal themselves? Perhaps the types of cases or the circumstances under which people redeemed NCR?

6:17Yeah, we identified three major trends. The first one is that women are overrepresented as victims in cases where the outcome is an NCR finding relative to their victimization in all Homo sites, which men actually make up the most of. Trend number two was how drugs, particularly cannabis factor into NCR cases. And you know, the big Y question behind that. And then the third is the time that elapsed between the accused's last point of contact with a system that on its face is supposed to catch an issue before it becomes a fatality. And we found that in many of the cases, it was days between the person either seeking

7:21help themselves or having a person very close to them trying to get usually a mental health intervention on their behalf and having it not be successful. Okay, so when we talk about contact with the mental health system, I know you kind of outlined a couple of avenues there where people may be seeking help themselves or relatives or loved ones maybe trying to get someone in to care. Are there other kinds of contact? Is, you know, does it do police mental health calls fall into that? And are we seeing cases where perhaps that people ultimately accused of murder and then found not criminally responsible should have been removed from, I guess, their situation or their circumstances into care? And is it a system that's kind of letting the victim and the killer down? I think that's a common feeling among like those people whose lives have been affected

8:21by a not criminally responsible outcome, you know, a lot of the times there's this opportunity to look back and you see all the different points of interaction that could have been an opportunity for intervention. And I think that is a particularly painful part of the NCR process is understanding and hindsight how this story could have ended so differently for everybody. So yes, to answer your question, police wellness checks are part of the systems we tracked to see, you know, what intervention points had there being leading up to the fatality. And you know, police make up certainly a healthy portion, but the most common is an interaction with the mental health care professional. And so, in the context of a hospital, someone will present at the emergency room and we had

9:23quite a few cases where, you know, the story goes, person A shows up, complains of psychiatric symptoms, the hospital is swamped, they're asked to wait for hours and hours at some point they leave, they may come back, you know, two or three times after that, still asking for help, not able to get appropriate care. And then the fatality happens. We'll be right back. In cases like that, was there anything that was talked about in court either through or from the crown or the defense about the systemic failings or through your interviews, did you talk to people who discussed how the system may have let these people down?

10:24Absolutely, from the surviving family members and friends of the accused and or the victim, there is a feeling of, you know, we want somebody held responsible for this. And there are actually lawsuits going on where surviving family members are turning around and suing, you know, the police, the mental health care system, whatever it may be, trying to get some accountability. The court records don't often, and I'm trying to think back in a detailed way, I don't think I've ever seen a court record or a judge's decision say, you know, hospital X, you just absolutely failed to, you know, things could have been done better. There were short staffing. There was, you know, the pandemic. There were any number of things going on. But I haven't actually seen a judicial ruling saying there was a dereliction of duty here. Yeah.

11:24And looking at the cannabis aspect to it, obviously cannabis in Canada has been legal for almost 10 years now and you're seeing greater usage. But I think for a lot of people, it's felt that cannabis is benign or, you know, not a, not a serious thing that would impact someone's mental health. What is it about cannabis that's believed to be factoring into cases like this? What's been seen or what's been seen by researchers in this area? I think certainly in North America and Canada, but I mean, I would assume all over the world because Canada is not the only place that cannabis is legal is that the younger somebody starts using cannabis and they, like, I've talked to researchers who say, I've had, you know, 10, 11 year olds show up and be like, yeah, I've used cannabis before. The younger you use it, the more risk you are at for a vulnerability, like anxiety or

12:30depression, being exploited by the impact of the drug on your brain and becoming a major mental health disorder. So, you know, most of the population I would argue has these vulnerabilities. They're fairly, you know, common anxieties are only common thing that most people have. Therefore, you could infer that, like, most people are at risk of developing psychosis depending on how early they get their hands on cannabis and it into their bodies and how often they use it. You know, the hereditary illnesses are also factoring into that. That would increase your vulnerability, but the headline, really, that researchers want to get out there is, you know, cannabis is not without risk just because it's decriminalized and the younger you use it, the more at risk you are. Okay. And then I know this work stemmed out of work you, you were, you had done

13:33into the issue of Femiside in Canada. You know, as you say in your reporting that, I think it's a majority of cases, the victims are women. Why is it supposed that women are the victims in so many of these cases? Is it, you know, children killing parents? Is it that, um, partners killing their spouses? What are the factors that play here? So when the civil mental health system fails, um, usually the, the responsibility of helping the person who's in crisis falls to their family or their very close friends or their intimate partner. Um, so often women are put into this position of being a caregiver to this person who is in an increasingly deepening mental health crisis, which of course puts them more at risk depending on if violence becomes part of that. And, you know, certainly in the cases,

14:34we looked at the homicides. Um, there was often a history of violent red flags leading up to the fatality. Looking at the results of an NCR designation, if a person is not found criminally responsible, what happens to them? Like, are they, they're not sent to jail, but are they institutionalized? Are they sent home? What, what happens to people in these cases? I would say 9.9 times out of 10, uh, they're institutionalized. Did a, in a forensic mental health hospital, and there are, um, quite a few of them all across Canada. Um, there they are under the treatment of a team of mental health experts ranging from nurses with specialty training to forensic psychologists and psychiatrists, addiction counselors, you name it, it's, it's their kind of thing. Um, and they're in those facilities, they're institutionalized, uh, until such time as they're deemed

15:39stable and no longer presenting a significant risk to society. And that is the real variable here, where, you know, I don't, none of us will ever know the specific reasons why, uh, someone may be deemed not a risk six months after their, um, deemed NCR and then given community passes versus someone who remains institutionalized for a decade. Um, you know, that's medical information. The doctors evaluate it every year. The patient is eligible for a, um, a review to sort of a separate progress over, over the preceding year. Um, but that's, that's where I think there's a lot of, um, confusion and dismay from the public is not understanding, you know, why, why does, you know, someone who killed my loved one, um, and their deemed not currently responsible, you know,

16:41they're released in six months. Whereas if they had gone to jail, they would have been in jail for potentially, you know, up to 25 years. Um, and I, I think that that murkiness, uh, creates a lot of distrust of the NCR system. Yeah. Is that why it's, it's so controversial, you know, you get some cases that are high profile and, and you get politicians who come out and say this is a problem. Like what, what are the political aspects to this debate or even what do mental health experts say about the NCR designation? I think that on its face, I think most reasonable people would allow that if someone is in a mental health crisis and they're not able to appreciate that what they're doing is wrong, like you can't criminalize mental illness, like that's not a productive way to deal with the issue. Um, it becomes quite controversial because once it moves

17:43out of the theoretical and into their real life, I mean, I can only imagine how horrendous it would be to be, you know, you've had someone close to you be killed and possibly your other family members being, um, you know, held responsible for that and the outcome is, oh, well, they're not, yes, they did it, but they're not criminally responsible. Um, and, and you know that behind them is years and years of the family begging for them to get help from the mental health care system and not being heard and so forth. Um, and I think that's a really, uh, traumatizing experience for them to go through and makes it controversial in that way. And then on the political side, you know, you have politicians who, uh, they're under fire a lot right now for bail and bail reform and, you know, it's pretty, uh, common feature now in news stories when there's

18:45been, uh, a murder, uh, for the news story to say, oh, yeah, and this person was on bail for, you know, a prior issue or whatever, and to note that fact. So people are just becoming more aware of it and in turn, they're going to their politicians and going like, hey, why are these people on on bail when they've committed prior violent crimes? And so the politicians are, you know, really trying to, uh, give it the appearance of dealing with wishy-washy judicial responses to crimes is, is, is my read on it, certainly. Um, but mental health professionals say that like this is just a necessary feature of our criminal justice system, um, and it should not be taken away. Yeah. I assume for this piece, you spoke with families of victims of, of homicides where the person was declared not criminally responsible. What do they have to say

19:45about the designation, about the court process, about the end result? It's devastating. They, you know, I think even in a quote-unquote regular, um, murder trial, the, the victims families feel like they're not heard as much as they want to be and that, you know, I think it's pretty common to read of families criticizing the system saying, you know, prioritize the, the, uh, rights of the offender over the rights of the victim. In an NCR case, the families we spoke to, you know, it, it tends to happen quite suddenly. Um, that it's someone's declared not criminally responsible. It also is a process that, um, puts a, puts a trial on hold because there has to be a whole separate like sidebar of, you know,

20:46we have to get the assessment done to see it. This is even a viable road of defense to go down. So it delays the process, it can turn an already, you know, years-long ordeal into, you know, to double the time it takes to get through court. And at the end of it, they know that the families know that every single year, they're going to have to be present at a hearing to, and rehash the details of this horrible moment in, in their lives and their loved ones life, um, to see whether or not the individual who was responsible for the fatality can be released and what privileges they might get. And that's, that's, we've been told very upsetting, um, to know that that's the future, um, for, for the surviving members of the families when an NCR outcome is handed down. Mm-hmm. Are there, are there changes that people want to see brought in? Is there, is there a feeling that perhaps we should get rid of the designation or be more prescriptive in how it's

21:53dulled out or, or have better assessments done or even on the preventative side? Is there a feeling that more mental health supports are needed to get people into care to prevent killings like this from happening? Yeah, I think the preventative action is the one that, um, people would be the most supportive of, um, you know, it's so much better to not have to deal with a problem once it's ballooned into something huge rather than deal with it early on when it's smaller and can be managed. So I think the feeling is that everyone would like to see more robust resources put into mental health and mental health care and, um, you know, being, being proactive, having proactive interventions. Um, I haven't spoken to anybody who said that they wanted the designation events here and removed altogether, but certainly there is, um, concern that it not be used liberally and that it truly is reserved for cases where, um, it's, it's very much proven that

23:01this person was not able to appreciate the nature of their actions, um, and that, that is about right back to that gray area of, you know, how do you assess someone's mental health status at the time when they committed a horrendous crime? Well, I, I know that these can be heavy cases and it's heavy work that you're doing, but I really appreciate the feature that you wrote and I appreciate your time today, Emma. Thank you. Thank you so much. 10th free is produced by Sean Knox, Theme Music by Bryce Hall. Thanks to my guest, Emma Jarrett, you can read this whole feature at nationalpost.com and learn more about the ijb at ijb.utoronto.ca. I'm Dave Brakin Ridge. Thanks for listening.