"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things."

~ Niccolo Machiavelli, historian and writer

Saturday, January 18, 2014

Pertinent and Timely Questions in Criminal Law ~ Part II

Continuing our discussion from last week on how well the criminal justice system deals with individuals with special needs, we will now look at how criminal culpability is decided, the sentencing of individuals with special needs and what happens when the complainant is an individual with special needs. 

III.  Deciding Criminal Culpability
Under sec. 16 of the Criminal Code, a person will not be held criminally liable for any offence if they meet the defence of "mental disorder".

16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. 

Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

Burden of proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

As when it comes to determining fitness to stand trial, defence lawyers, Crown lawyers and judges all have the power to seek a forensic psychiatric assessment if they think a mental disorder could have affected a person's actions when a crime was committed. The court will consider those assessments  before determining whether the person is criminally responsible for their actions.

Many people seem to think that this defence is only available to those who have a mental illness, but in reality it covers any type of recognized mental disorder, including, for example, autism and intellectual challenges. Also contrary to popular opinion, it is not an easy defence to meet. One must prove not only that they had a mental disorder at the time the offence was committed, but they must also satisfy the court that the disorder made it impossible for them to either

  • appreciate the nature of their actions in question or 
  • know that their actions were wrong.

Before changes made to the Criminal Code in 1992, courts had no discretion but to automatically detain in  custody persons found "not guilty by reason of insanity" (as it was once known) or unfit to stand trial on what was known as a 'lieutenant governor's warrant".

Changes made in 1992 to the Criminal Code (following the introduction of the Canadian Charter of Rights and Freedoms) eliminated the reference to "not guilty by reason of insanity" and replaced it with "not criminally responsible" (NCR). Also eliminated were the provisions concerning automatic "strict custody" and the role of the lieutenant governor.

Now, the court, itself, can either hold what is known as a "disposition hearing" or send the matter to the Criminal Code Review Board to hold a disposition hearing, following which the accused will be given an absolute discharge (meaning they are free to go), a conditional discharge (meaning they will live either in the community or a hospital subject to the conditions or restrictions set by the court of the Review Board) or be detained in custody in a hospital subject to conditions or restrictions.

The basic principle behind Section 16 of the Criminal Code of Canada dates back to a British ruling from 1800 in the case of James Hadfield. Hadfield had fired a gun at King George III and was found not guilty of attempted murder by reason of insanity. The chief justice, Lord Kenyon, felt that prison wasn't the place for Hadfield but also considered that it would be wrong to return him to the community

Kenyon wrote:"The prisoner, for his own sake, and for the sake of society at large, must not be discharged; for this is a case which concerns every man of every station, from the king upon the throne to the beggar at the gate; people of both sexes and of all ages may, in an unfortunate frantic hour, fall a sacrifice to this man, who is not under the guidance of sound reason; and therefore it is absolutely necessary for the safety of society that he should be properly disposed of, all mercy and humanity being shown to this most unfortunate creature.

"But for the sake of the community, undoubtedly, he must somehow or other be taken care of, with all the attention and all the relief that can be afforded him ... for the present, we can only remand him to the confinement he came from."

Hadfield was held in a psychiatric hospital for the rest of his life.


IV.  Sentencing An Individual with Special Needs


In the US, given that the death penalty has been taken off the table for defendants with an intellectual disability, the question now before that country's Supreme Court is how states should decide if someone convicted of a crime actually has an intellectual disability.

We are told that mental health professionals define an intellectual disability as a "substantial limitations in intellectual functions such as reasoning or problem-solving, limitations in adaptive behavior or “street smarts,” and evidence of the condition before age 18". Some states use this definition; however, others are much more arbitrary - such as Florida, where if you have an IQ over 70, you’re eligible for execution regardless of intellectual function or adaptive behavior.

Here in Canada, the death penalty, thankfully, is not on the table. However, when it comes to sentencing persons with disabilities for their crimes, one glaring discrepancy does come to mind. Although Canadian sentencing laws recognize that some categories of people in society are different than others (namely Aboriginals and youth), there is no special recognition given to persons with disabilities.

A. Aboriginal Sentencing
Section 718.2(e) of the Criminal Code addresses Aboriginal sentencing. The section requires a sentencing judge to pay particular attention to the circumstances of Aboriginal offenders and to consider all available sanctions other than imprisonment that are reasonable in the circumstances. An individual’s Aboriginal status is considered in determining a sentence because his or her circumstances are different from non-Aboriginal offenders.

One reason why the Criminal Code treats Aboriginal people uniquely is because Aboriginal people are overrepresented in Canadian prisons. For example, in 1997, Aboriginal people constituted close to 3 percent of the population of Canada, yet amounted to 12 percent of all federal inmates.

.  .  . 

B. Youth Sentencing
The Youth Criminal Justice Act provides the legislative framework for Canada’s youth justice system. It includes a separate sentencing regime because the needs and situations of youth are different from those of adults.
Which might lead one to conclude that in the eyes of Canadian criminal law, no matter the type or severity of a defendant's disability, his or her circumstances are no different than anyone else's.

There are, however, one or two possible saving graces for a person with a disability. One is sec. 12 of the Canadian Charter of Rights and Freedoms, which provides that everyone has the right not to be subjected to any "cruel or unusual treatment of punishment".

So could imprisonment, in the right set of circumstances, constitute cruel and unusual punishment for a person with a disability?

The decision in R. v. T.LB. involved a defendant with a physical disability. A mother pled guilty to sexual interference with her child and possessing child pornography. Although the Crown sought a sentence of  four to six years imprisonment, she was sentenced to two years less one day to be served in the community to be followed by three years' probation. The mother, who had cerebral palsy and was in a wheel chair (and who in many ways was as much a victim of a crime as her son),required a caregiver to go to the bathroom, bathe, make her meals and get out of bed, but the Crown assured the court that these needs could be accommodated in both the federal and provincial jail system. Her communication difficulties also increased in group situations or if she was upset.

In electing to impose a conditional sentence, the judge relied on the unusual hardship that would be imposed on the mother were a period of incarceration actually imposed. The Court of Appeal, however, found that it was clear from the evidence that arrangements could be made within an institutional setting to accommodate her special needs. The Court also held that although imprisonment might "have a disproportionate impact on a person with disabilities for a variety of reasons, the fact that this is so cannot be used as a reason to decline to impose a custodial sentence where it is otherwise warranted. If that were the case, then individuals with disabilities could never be incarcerated, no matter their crime. That cannot be." The Crown's appeal was allowed and the mother was sentenced to 18 months' imprisonment.

Similar reasoning was applied in R. v. Myette, where the defendant, who had been convicted of sexual assault, was blind and required 24 hour assistance from his guide dog. The trial court was to asked to consider whether this fact should affect his sentencing.
The key issue for consideration is the question of whether the accused can be sentenced to a period of incarceration in a correctional facility given that he is blind and requires 24 hour assistance from his guide dog who is properly licensed to accompany him anywhere. The accused can recognize light perception in his left eye and is completely blind in his right eye due to optic nerve damage following a serious car accident at the age of 16 years. With the service of a guide dog the accused has been able to live independently since the age of 17. As a younger adult, the accused has been involved with the Paralympic Games and he represented Canada in track and field at the Paralympic Games in 1984 and 1992.  The accused is able to read and write in Braille. The Royal Canadian Legion sponsored the accused in training his first guide dog. His current guide dog was received from the guide dog school located in New York, USA. The accused’ sole source of income is from AISH. Probation is of the opinion that the accused is a suitable candidate for community based supervision. Probation has proposed a number of detailed conditions.
The defendant argued that the fact that Canada is a signatory to the United Nations Convention on the Rights of Persons with Disabilities meant that if he were to be deprived of his liberty by incarceration then he was entitled to guarantees in accordance with international human rights laws and, while incarcerated, must be treated in compliance with the principles of the Convention, including the provision of reasonable accommodation.


In particular, the defence relied upon Article 14 of the Convention.
Liberty and security of person
1. States Parties shall ensure that persons with disabilities, on an equal basis with others

(a) Enjoy the right to liberty and security of person;
(b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.

2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention,including by provision of reasonable accommodation.
The trial court found that even though denunciation and deterrence are primary sentencing features for these types of offences,a period of incarceration of 18 months to 2 years would be "unduly harsh, a deprivation of liberty out of all proportion to the deprivation suffered by other offenders in the Corrections system". Thus, he was sentenced to a period of house arrest for 18 months, with conditions.

The Alberta Court of Appeal disagreed, finding, as above, that even though imprisonment may have a disproportionate effect on the disabled, this could not be used to forego the imposition of a custodial sentence where it would otherwise be warranted. However, the Court did go on on to note that the Crown is obliged to accommodate special needs inmates and the fact that a custodial sentence will have a disproportionate impact on a person with disabilities might be a legitimate factor to take into account in determining the length of that custodial sentence.

In Myette, the Court of Appeal found that the trial judge erred in concluding that the correctional system could not accommodate the defendant’s needs. There was virtually no evidence from the defendant, himself, about how he functioned outside prison and which of his needs, if any, would be unmet were he incarcerated. He had relocated independently to Calgary when he was 17 after the accident in which he lost his sight) and "embraced his disability, adapted well to it, never having been held back as a result; and always welcomed challenges and found ways to overcome obstacles". Without more information, the evidence was incapable of supporting the trial judge’s conclusion that incarceration would be “unduly harsh, a deprivation of liberty out of all proportion to the deprivation suffered by other offenders in the Corrections system”.

Equally important for our purposes, the Court of Appeal also rejected the trial judge's conclusion that an alleged breach of a United Nations standard is a also a presumptive breach of domestic law. The Court found that the fact that courts prefer to avoid conflict between domestic legislation and international treaty obligations is a rule of construction and does not mean that international law is directly imported into the domestic law. In other words, nothing in the Convention (international law) becomes part of Canadian (domestic) law - courts simply attempt to interpret domestic law so that it complies with international law, if at all possible.


V.  The Person with Special Needs as a Complainant : The
      Good, The Bad and the Ugly

1. "The Good"
Targeting a person with a physical or mental disability is considered an aggravating circumstance when sentencing a defendant. This means that whatever sentence a defendant might have otherwise received can be increased if there is evidence that the offence was motivated by "bias, prejudice or hate" based on physical or mental disability.

718.2  A court that imposes a sentence shall also take into consideration the following principles:
a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
       (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

2.   "The Bad"
The "hate propaganda" provisions of the Criminal Code create an offence for advocating or promoting "genocide", which is defined as certain stipulated acts "committed with intent to destroy in whole or in part any identifiable group". Although the term "iidentifiable group" includes any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation, there is mo mention of disability. The same is true with respect to the provisions of the Code concerning the promotion of hatred.

This was part of the reason why that horrific letter sent to the grandmother of an autistic boy in Ontario last year was not considered a hate crime under the Criminal Code. However, that incident did lead to the petition on change.org seeking an amendment to these sections of the Code to include persons with disabilities as an "identifiable group". Although a Private Member's Bill was brought last Fall seeking to make this amendment to the Code, sadly, it does not appear to have gained any traction.
creation of a petition on

    3. "The Ugly"
    What bothers me, personally, the most about our criminal law when it comes to a complainant with a disability is how the law has managed to completely ignore the special needs of the disabled. My hunch is there are multiple examples of this but I will leave you with just one, my own personal pet peeve, if you will. Feel free to share any others that come to mind.

    Who among us would challenge, for even one second, the necessity of protecting our children from those who would take advantage of them sexually?
    172.1. Luring a child
    172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with
    (a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence under subsection 153(1) [sexual exploitation], section 155 [incest against a person under 16 years of age] or 163.1 [child pornography], section 170 [parent or guardian procuring sexual activity] or 171 [luring a child] subsection 212(1), (2), (2.1) or (4) [procuring; living off the avails of a prostitute under the age of 18 years; aggravated living off the avails of a prostitute under the age of 18 years; obtaining prostitution of person under the age of 18 years] or section 271 [sexual assault], 272  [sexual assault with a weapon, threats to a third party or causing bodily harm] or 273 [aggravated sexual assault] with respect to that person;   ...
    And who among us would challenge, for even one second, the necessity of protecting those vulnerable due to intellectual challenges from those would take advantage of them sexually?

    The silence is deafening. At least when it comes to the Criminal Code.

    Even if the perpetrator is well aware that the other individual is mentally challenged, there are no similar provisions to protect such a person in such circumstances (no matter their developmental age), from any of the above behaviours.

    Does that sound right to you?
      ~  ~  ~

    Part I of this blawg post posed the question of  how well the criminal justice system deals with individuals with intellectual challenges and other mental and physical disabilities. I assume you are now in a position to draw your own conclusions on that issue. I know I certainly have mine.

          ~ ~ ~

    So what about Nichele Benn? Where is she in this process? And what are the likely next steps?

    Nichele has not yet entered a plea to the charges she faces. From the latest media reports, her case has been adjourned for one week, at which time a decision will be made as to whether or not an assessment will be ordered. No doubt negotiations continue behind the scene. That's where that stands for the moment.

    But I think it's important to realize that there are two very separate pieces to Nichele's situation; one being provincial and one being federal.

    Questions about where Nichele lives, what type of supports she receives and how incidents of aggressive behaviour are handled where she lives come under the provincial Dept of Community Services.

    However, criminal law is federal, not provincial.  Once Nichele enters that system (meaning once prosecutors decide to lay changes), there is nothing anyone in our provincial government can do to intervene in or change that process, other than to lobby the federal government to make changes to the Criminal Code, if they were so inclined.


    Very apropos to this discussion, a friend recently expressed her concern that if we change a law "to accommodate persons with mental defects (as defined by law), then people can use it as a loop hole to escape charges when more serious crime/death occurs". 

    I pointed out that the Charter demands that we do just that, in all areas of the law. In other words, on one level, we don't need to worry about changing the law because the law already requires us to accommodate people with disabilities. When a law, as written, either on its face discriminates against individuals with mental or physical disabilities or, by treating everyone the same way, fails to accommodate people with disabilities, there is a very good argument that sec. 15 of the Charter has been violated.

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