Zhebin Cong case raises questions about ‘not criminally responsible’
|Toronto Star 20 Jul 2019 at 03:58|
Mayor John Tory called Friday for a comprehensive review that would bring together inquiries launched by Toronto police , the Centre for Addiction and Mental Health (CAMH) and the Canadian Border Services Agency into how a man who was being detained at CAMH managed to walk away from the facility and leave the country.
Zhebin Cong fled on July 3 after being issued an unescorted day pass from CAMH, where he was being held for treatment after being found not criminally responsible for killing his roommate with a meat cleaver in 2014.
In the wake of one of two police reviews examining whether there was miscommunication about the threat Cong posed to the public, the Star spoke to criminal defence lawyer Robert Karrass, an expert in mental health and criminal law, about what a finding of “not criminally responsible” means, and how risk to the public is assessed.
Q: What does it mean to be not criminally responsible (NCR)?
A: The question is not, “Do you have a mental illness and did you commit a crime?” The question is, “But for the mental illness, would you still have committed the crime?” And then you must have been robbed of the ability to know what you did was wrong or not understand the reasonably foreseeable consequences of your actions.
Q: How often are people found NCR?
A: It’s a very high threshold. It is very, very difficult to be found NCR. The vast majority of people are not found NCR — and it is even more rare when it is a serious violent offence.
(In 2017, a total of 126 people were found not criminally responsible in Ontario, according to the Ministry of the Attorney General. In the same year, more than 200,000 cases were completed. There are currently about 1,500 people under the jurisdiction of the Ontario Review Board who have been found unfit to stand trial or who have been found NCR.)
Q: What happens after a person is found NCR?
A: The person is sent to a secure psychiatric facility for treatment. Within 60 days, they must have a hearing before the Ontario Review Board — a five-person panel including a psychiatrist and a medical doctor or psychologist — who will determine whether the person poses a “significant threat to the safety of the public.” If they are considered a “significant threat,” the board will then consider how to manage that threat in the least restrictive way. It may mean the person is detained in the hospital — sometimes with escorted or unescorted passes into the community — or is allowed to live in the community under certain conditions. If the person does not pose a “significant threat,” they must be released entirely. A “significant threat” means that the person poses a risk of serious physical or psychological harm to members of the public in some kind of criminal way.
Q: What factors does the Ontario Review Board consider?
A: The board usually gets a report from the hospital, and hears submissions from a Crown prosecutor, a defence lawyer and testimony from the person’s psychiatrist. They will consider the nature of the crime and whether it was violent or non-violent. They consider the person’s behaviour in the unit. They will also consider whether the person is taking medication — and whether they are taking medication voluntarily with an understanding of why they are taking it, or whether they are simply following the instructions of hospital staff. This is a very important factor, especially when the board is considering a conditional discharge. In the majority of NCR cases, treatment is required. And if you think you don’t need treatment, what happens when you leave the hospital?
Q: How long can it take before a person found NCR is fully discharged?
A: There is no time limit, no matter how minor or serious the crime is — the board can have a person detained indefinitely. The board is known to be very cautious in the decisions about release. They also often don’t want to give the hospital the authority to make changes too quickly, though they do delegate the ability for the hospital staff to make decisions about passes, for example, on a daily basis with a full assessment of the person’s condition and risk level at that moment. In order to maintain legal jurisdiction over the person, the board must be consider them to overall be a “significant threat to the safety of the public.” But the hospital can determine that a person is a low enough risk to have a unaccompanied day pass to go into the community with the necessary support — as CAMH did with Cong. It doesn’t mean the hospital and the board are contradicting each other about his risk level.
Q: What do we know about recidivism rates for people who are found NCR?
A: Most people with a major mental illness never engage in criminal activity. People with mental illness are more likely to be victims of crimes. If they have engaged in criminal activity, it is very unlikely they will do so again with treatment.
(A landmark study of 1,800 NCR patients found that 0.6 per cent of patients committed another serious violent offence, 8.8 per cent committed a violent offence and 17 per cent a non-violent offence.)
Q: What do NCR cases tell us about the availability of mental health care in Ontario?
A: In many NCR cases there is a documented history of hospitalizations and interactions with the police. At the end of the day, we need more education and more funding for mental-health resources. It all boils down to early intervention. Treatment is more effective and the person is less likely to decompensate to a point where they harm themselves or others. Police also need to be trained in de-escalation and to take people to the hospital, not to jail.
Q: What do you think about Premier Doug Ford’s comments about Cong being a “nutcase,” and that, “You can’t let guys like this loose. You throw away the key.”
A: There are two sides to every story. What happened in the Cong case was a very sad situation. He will have to live with what he did for the rest of his life. And with treatment, his mental-health condition might improve but perhaps it may not completely, and until that time there has to be a significant amount of monitoring. On the other side, we have the victim and the victim’s family. Everybody can agree causing the death of someone else is a horrible thing and I think Premier Ford was focused on that perspective. His choice of language — such as the word “nutcase”— was not the best. But there is a group of people in society who don’t understand NCR and don’t understand that a person can act out of character from themselves because of mental illness. Rehabilitation is a part of the traditional criminal justice system as well. Except in very rare cases, we do not “throw away the key.” We usually incarcerate people for different lengths of time, after which they are released. In cases of murder, where the sentence is life, there is typically the option to apply for parole after a certain period of time.