The Need for Limiting Mechanisms on Not Criminally Responsible Dispositions

Accused persons in Canada who are found “not criminally responsible” (NCR) on account of mental disorder are excused from criminal liability, as they have no moral blameworthiness for their action leading to the criminal charge. However, persons found NCR are not acquitted. They are transferred to the jurisdiction of a provincial review board, where they remain under supervision and conditions unless or until they are found to not pose a significant threat to the safety of the public. NCR accused may be detained in hospital during their review board supervision, or face other deprivations of liberties. There is no maximum period that NCR accused may be under the jurisdiction of a review board. Accordingly, a person found NCR could be subject to deprivations of liberty for the rest of their lives, even if found NCR on a relatively minor offence. This can be a disincentive for accused persons considering the NCR verdict, particularly when they would face a finite, non-custodial or short custodial sentence on conviction. This thesis considers the need for limiting mechanisms on the duration of NCR dispositions. First, the options for proceeding through the criminal justice system that may be available to accused persons with mental disabilities are reviewed. The history of the NCR verdict and NCR dispositions is then considered, including legal and legislative changes that have culminated in the current disposition provisions. This is then contrasted with empirical studies regarding NCR dispositions and the impact of such dispositions on NCR accused. The contrast allows for a comparison of the “law-on-the-books” to the “law-in-action”. Emphasis is placed on the discrepancy between the stated goals of NCR dispositions, which are allegedly not punitive because NCR accused are not morally blameworthy, and the potential punitive effect of indefinite dispositions. This thesis asserts that additional limiting mechanisms are required on disposition provisions. Capping provisions are the central limiting mechanism analyzed and recommended. A mandatory "verdict inquiry” when an accused person applies for, or consents to, an NCR verdict is also recommended. The thesis concludes with proposed next steps and topics for further discussion.

Name thesis:degree_name

Master of Laws (LLM)

Discipline thesis:degree_discipline

Law

Grantor dc:publisher.institution

Law

Year dc:date.issued

2022

Author dc:creator

• Friedland, Meryl

Advisor dc:contributor.advisor

• Silver, Lisa

Committee members dc:contributor.committeemember

• Koshan, Jennifer
• Ahmed, Sanaa
• Silver, Lisa

• Criminal Law
• Mental Health
• Not Criminally Responsible (NCR)

Statement dc:rights

• University of Calgary graduate students retain copyright ownership and moral rights for their thesis. You may use this material in any way that is permitted by the Copyright Act or through licensing that has been assigned to the document. For uses that are not allowable under copyright legislation or licensing, you are required to seek permission.

Language dc:language.iso

eng

DOI

https://dx.doi.org/10.11575/PRISM/40268

OAI identifier oai:identifier

oai:ucalgary.scholaris.ca:1880/115258