See the Supreme Court Ruling here!

The Canadian Supreme Court Rules on System Governing Forensic Patients
The Queen Street Patients Council Assists in Victory for Rights of "NCR"*
by Jennifer Chambers, June 17, 1999

It was an amazing victory. At first we thought we had lost– the Supreme Court ruled the law that governs people found NCR (* NCR means a person has been found Not Criminally Responsible on account of mental disorder) does not violate the Canadian Charter of Rights and Freedoms. But as we read on we discovered that the Supreme Court found that the Review Boards have not properly followed the law. Review Boards rule people in the forensic system. So the Court "reread" the law, and stated how it is to be followed.

The QSPC had argued that the system was unfair because it required the accused to prove that they are not dangerous in order to be released– no one else in Canada has to prove they are not dangerous to be free. We also argued that psychiatry is not capable of predicting whether or not someone will be dangerous, so the Review Boards err on the side of keeping people locked up. We pointed out the result– that people in the forensic system are typically in custody far longer than if they had just been found guilty and sentenced, especially when the charges are not serious.

This is what the Supreme Court said (in Winko ):

1. The NCR accused does not have to prove anything. In other words: "properly read the section does not ... impose a burden of proving lack of dangerousness on the NCR accused." (Paragraph 46). There is no presumption of dangerousness in the law. (49)

2. "Dangerousness" has a specific, restricted meaning of "a significant threat to the safety of the public". This means there must be evidence to support the risk being real, and the physical or psychological harm being serious. The activity causing the harm must be criminal. (50, 57)

3. The Review Board has a duty to investigate facts which support release, as well as detention. (54)

4. "If the court or Review Board fails to positively conclude, on the evidence, that the NCR offender poses a significant threat to the safety of the public, it must grant an absolute discharge" (47). In other words, if the court or Review Board "harbours doubts" or can not resolve whether someone is a significant risk to the safety of the public, they must unconditionally discharge (49) as there is no legal or constitutional basis for confinement. (50, 51)

5. "In all cases, the Review Board must make the disposition that is the least restrictive of the NCR accused's liberty possible." (70)

6. The Review Board has an affirmative duty "to consider the accused's personal needs" (92) (This is not news, but we should push for basic needs like training and education.)

The Queen Street Patients Council is the first psychiatric consumer/survivor group to have intervenor status in a Supreme Court case. The Chief Justices relied on some social science research we provided in their ruling. The Council appreciates the fine work of our lawyer Paul Burstein, and thanks Daniel Brodsky (counsel for Denis LePage) for welcoming us onto the case.

ATTENTION:
All "NCR" People who've been found
"Not Criminally Responsible" by reason of a mental disorder

Look at the results of the last hearing you had before the Ontario Review Board. If it appears on the record that there was any doubt as to whether or not you are "dangerous" (and the threat must be significant and they must have evidence) it means that they did not use the proper test, and the Court of Appeals should consider your appeal. If this is the case have your lawyer appeal to the Court immediately to seek your release.

OR:

a number of people found NCR have successfully asked the Ontario Review Board for a new hearing because of this ruling. You could also try this option.

See the Supreme Court Ruling here!

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