INTRODUCTION

Not all those suffering from a mental illness become a criminal but without proper treatment, they could be potentially dangerous to themselves or a threat to society's safety. The problem is that many of those who have a serious mental illness are not properly treated or even diagnosed with a mental illness. Voluntary patients diagnosed with a mental illness (or their representative) must consent to treatment, therefore, they have the right to refuse treatment. Patients can be released from hospitals when patients want to stop treatment but there is no guarantee that the patient will not relapse or even any guarantee they will take their medication. Only under certain circumstances can patients be forcibly treated. If severely mentally ill people go untreated, it increases the chances that they may commit a crime. The Ontario Mental Health Act controls the treatment of patients and has recently come under some criticism for allowing patients to go untreated for too long. Serious crimes such as assault or murder may be preventable if the person with the mental illness is properly treated or kept in a psychiatric facility. There is a conflict between the rights of the mentally ill and the rights of the public to be safe.

MENTAL ILLNESS: THE LEGAL DEFINITION

Legally, mental illness is covered under section 16 of the Criminal Code. This defines mental illness as a "disease of the mind" which incorporates "any illness, disorder, or abnormal condition which impairs the human mind and its functioning, excluding, however self-induced states of alcohol or drugs; as well as transitory mental states such as hysteria or concussion" (Saunders 1996, p. 731). This definition implies that the accused was not thinking normally at the time of the offence, therefore, could not really comprehend the illegal act at the time. In Canada, it is necessary for a guilty party to hold a 'guilty mind' or understand the nature of their actions as well as understand that what they have done is against the law. For most offences there are two elements, actus reus and mens rea, which make it a 'true crime'. Actus reus is the physical act of committing a crime while mens rea is the mental intent to commit a crime. Not every offence need the element of mens rea to be considered a crime, for example not stopping at a stop sign while driving. The controversy with the mentally ill is they are incapable of having mens rea in some instances. This distinguishes the mentally ill from the majority of offenders because it is assumed people either have the 'evil intent' or not. This legal definition of mental illness is quite specific and only incorporates what mentally illness is in the eyes of the law, for this reason, it is important to understand how the public and psychiatrists define mental illness.

Psychologically, mental disorders refers to "disruptions in emotional, behavioral, or thought processes that lead to personal distress or that block one's ability to achieve important goals" (Zimbardo 1992, p. 618). Six psychological indicators of mental illness are:

• personal distress or anxiety
• maladaptiveness: acting in ways that hinder personal goals, well-being and needs of society
• irrationality: acting in ways which are incomprehensible to others
• unpredictability: acting differently from situation to situation, like they have a loss of control
• acting in ways which are considered rare and are not morally acceptable or desirable according to society
• causing discomfort to others where they feel threatened or distressed (Zimbardo 1992, p. 619-620)

There are many mental illnesses but the ones which are relevant to possible criminal behavior are serious mental illnesses. 'Serious' mental illnesses are those where the person is potentially harmful to themselves and to others. Examples of serious mental illnesses are schizophrenia, major depression and personality disorders. Mental illnesses can cause people to act in an unusual or strange manner which could include such things as having delusions, withdrawal and having a distorted view of the world. Society generally views the mentally ill as acting in a bizarre or puzzling way, which in turn is not considered normal or acceptable by society.

THE BEAULIEU CASE

An example of the crimes that unstable mentally ill patents can commit is the case of Philippe Beaulieu. Philippe Beaulieu is a schizophrenic who stabbed Mona Hamilton, an 81-year-old woman, on Mackenzie King bridge in front of the Rideau Centre in Ottawa, Ontario. Beaulieu believed the elderly woman was following him and was trying to kill him. He claims that he was acting in self defence because he feared for his life. In reality the woman was not threatening his life but simply waiting for the bus. Beaulieu has the mental illness of paranoid schizophrenia which he been suffering from since 1978. He has been in and out of psychiatric facilities for years. In 1991, he stabbed his father and was hospitalized after being found guilty of aggravated assault so the fact he has a mental illness is not new. He had refused to take medication in the past which worsened his mental condition (Tam 1997a). When sentencing, the judge decided that it would not do Beaulieu any good to sentence him to jail so he was ordered to undergo psychiatric treatment. As well, the judge ordered random drug tests to monitor if Beaulieu was taking his medication and to ensure he was not abusing drugs (Campbell 1996). Beaulieu's mental illness caused paranoid thoughts and delusions, which in turn compelled him to act out violently. He believed his distorted thoughts were reality.

THE HISTORY OF MENTAL ILLNESS WITHIN THE LAW

The background of the defence of mental disorder begins with the idea of insanity in the 1800's. Insanity can be defined as "impairment of mental or emotional functioning" that affect "perceptions, beliefs, and motivations at the time of the offence" (Bonnie and Morris 1987, p. 113). The insane person was not blamed because society believed the person was not acting as themselves but were overcome by uncontrollable urges or delusions. The offender was seen as being innocent of the evil intent to break the law and cause destruction. In the past, insanity was compared to infancy in the sense that the insane or infants have no control over their actions and lack a conscious intent to harm. This viewpoint of the insane created the defence of insanity. The insanity defence was originally under the Criminal Lunatics Act where a successful use of the defence resulted in an acquittal and custody into an asylum. The defence of insanity created controversy over definitions and whether it is reasonable to have insanity as a defence because it excuses offenders from criminal punishment that may be due. The defence of insanity has been debated in the past because of unclear definitions and interpretations of such terms as, "disease of the mind" and "wrong", the problem arose with trying to find a difference between those that are justifiably mentally ill and those that have a harmful intent. Often the courts could only rely on the psychiatrists testimony because of the lack of understanding of mental illness. (Saunders 1996, p. 723-729). The problem occurs when persons who lack the wrongful intent, but still are committing hurtful and illegal actions.

In 1909, the defense of insanity was replaced in England, Scotland and parts of the United States to 'diminished responsibility'. This means the accused can be found not fully mentally responsible. The offenders are not fully acquitted for criminal acts, but rather guilty of a less serious offence. An example is being found guilty of manslaughter instead of murder. This idea helped shape the present defence for the mentally ill in Canada.

THE DEFENCE OF MENTAL DISORDER

The Criminal Code in Canada was changed on February 4, 1992 from the defence of insanity to the defence of mental disorder. The basic idea behind the defence did not change, but changes were made in the terminology used, restrictions on time and some of the legal processes. This change replaces the term insanity with mental disorder and provides a more fair treatment of the accused. Generally, the changes of concern are the addition of a hearing to see what the present mental condition of the accused is, how dangerous they are and whether they need to be confined in a facility. Here are some of the changes and main components of the defence of mental disorder under the Criminal Code in Canada:

1. The term insanity was changed to mental disorder to avoid outdated and degrading terms such as lunatics and insane asylums.

2. The success of the defence of insanity used to be termed 'not guilty by reason of insanity' but was changed to 'not criminally responsible' under the new law. Not criminally responsible means the basic idea behind the defence of mental disorder is the accused is not responsible because they did not understand the nature of the act or were unaware that the act was wrong.

3. The court can order psychiatric assessments to determine whether the accused is fit to stand trial, is not criminally responsible or what the best disposition is.

4. Statements that are made by the accused during their psychiatric assessment cannot be used against them.

5. There is an initial disposition after being found unfit to stand trial or not criminally responsible which has a maximum treatment of 60 days.

6. Review boards in each province changed to having direct jurisdiction over the accused opposed to previously only being an advisory board.

7. The court or the review board can order the accused to be either:

a) discharged absolutely (because they are not a threat to society)

b) discharged with conditions

c) detained in a psychiatric facility

The disposition must be least onerous and least restrictive to the accused. The factors that are considered in deciding upon a disposition are:

i) protection of public safety

ii) the mental state of the accused

iii) the reintegration into society

iv) other needs of the accused

8. A court ordered disposition after a ruling of unfit or not criminally responsible can only last up to 90 days. Those found unfit to stand trial cannot be discharged, as well, a review board must reassess the disposition within 45 days of the ruling.

9. At disposition hearings, the accused can have a representative counsel and it is usually open to the public.

10. The accused has the right to appeal any disposition.

11. This legislation covers both indictable and summary convictions.

12. The concept of "capping" is introduced which means there now is a maximum period of time the mentally ill is affected by the disposition. Limits on the amount of time for being detained were not previously outlined. The maximum sentence for murder is life while the maximum time for designated offences (most violent crimes) is 10 years or the same as what the prison term would be. All other offences have a limit of whichever is shorter: 2 years or the maximum time allowed.

THE ONTARIO MENTAL HEALTH ACT (OMHA)

The Ontario Health Act (acts vary from province to province) are the regulations which outline the treatment of those with mental illness. The Act concerns issues such as consent for treatment, standards for psychiatric facilities, hospitalization of the mentally ill, psychiatric examination, disclosure of records and other related topics. The handling of offenders within the Act includes orders of psychiatric examination made by the justice of the peace. The requirements of the accused are that he/she:

a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

c) has shown or is showing a lack of competence to care for himself or herself;

and the justice of the peace must have reasonable belief that the possible mental illness could result in serious bodily harm to themselves, others or their own physical impairment (OMHA sec. 16).

Once an order has been made, a physician provides the examination along the same guidelines as the justice of the peace. The controversy within this portion of the Act is the meaning of the term "imminent". Presently it is illegal to detain persons suffering from a mental illness unless it is proven that they are an "imminent danger" to themselves or others. "Imminent danger" has been ruled by the courts to be two to four weeks. It is difficult to legally prove that they are a danger despite how obvious it may be. Even if they are found to be dangerous, they can only be forcibly held for 72 hours while they are being evaluated ("Reform the Mental Health Act" 1997).

After examination by a physician and 72 hours of detention, the assessed person can either be released, admitted as an informal or voluntary patient or admitted as an involuntary patient. If a physician completes a certificate of involuntary admission the patient may be detained, restrained, observed and examined in a facility,

a) for no more than 2 weeks under the certificate; and
b) for no more than,

i) one additional month under a first certificate of renewal,
ii) 2 additional months under a second renewal, and
iii) 3 additional months under a third or subsequent certificate renewal

After the period of forcible detention is completed, the person becomes an involuntary patient (OMHA sec. 20).

THE ONTARIO REVIEW BOARD

The Ontario Review Board is a provincial group which plays an important role in the Ontario Health Act and the treatment of mentally ill offenders. The decision of the kind of treatment of those that are either found not criminally responsible for a crime due to their mental illness, or those which are potentially dangerous patients, is in the hands of the Review Board (Rogers 1997a). The Review Board usually consists of five members that includes a psychiatrist, a lawyer and a nonprofessional, or someone unrelated to the field of law or the mentally ill. The Review Board has three options to sentence the offender with a mental illness as mentioned earlier.

PATIENT RIGHTS VS. PUBLIC SAFETY: THE ISSUE OF FORCIBLE TREATMENT

The current Ontario Mental Health Act is under criticism for not balancing the needs of all the parties affected. Ottawa Crown attorney Andrejs Berzins believes the Ontario Mental Health Act is making it easy for those who are a risk to themselves or others to be on the streets instead of in a hospital where they belong. He claims that the conflict between the rights of the mentally ill and the rights of the public is not equal in this Act. In his opinion the Act weighs too heavily on the patient's rights instead of public safety (Davis-Barron 1996). This brings about the issue of involuntary patients. Under the Ontario Mental Health Act, the requirements for involuntary admission is the attending physician must find:

1. The mental illness could result in the patient causing serious bodily harm to themselves, to others, or cause serious physical impairment to the patient. In both cases, the potential harm can only be prevented if the patient remains in a psychiatric facility.

2. The patient is not suitable for being an informal or voluntary patient. (OMHA sec. 15)

A possible solution to the tension between the rights of the mentally ill and public safety is to give psychiatrists more power in order to force treatment on those with serious mental illnesses or increase the detention time.

PROBLEM OF TREATMENT: CLOSURE OF PSYCHIATRIC HOSPITALS

Another problem in treating the mentally ill is the lack of room in psychiatric facilities. Jeffery Arenburg, a paranoid schizophrenic who killed sportscaster Brian Smith, was sentenced to Ontario's only maximum security psychiatric hospital for the criminally insane, the Ontario Mental Health Centre in Pentanguishene. The problem is there are no beds available at the facility, therefore, he must remain at the Royal Ottawa Hospital until there is any room available (Tam 1997d). This means that mentally ill patients are not all in facilities that can provide them the proper treatment that is necessary for recovery and control of the mental illness. The Ontario provincial government has proposed that by 1999, four of the ten existing Ontario psychiatric hospitals are to be closed. The places where this is supposed to happen are in Brockville, Lakehead, London and St. Thomas. As well, they want downsizing which includes reducing the number of beds by 33%. Downsizing creates problems for the mentally ill and society. Those who are mentally ill will be allowed on the streets and in turn may threaten public safety (Brown 1997). By closing down such facilities, there is a new emphasis on community based programs such as clinics, crisis units and special programs. The question is, can they really "replace" hospitalization instead of being "additional" to hospital treatment? All the community based programs are useful, but are not equivalent to a hospital facility.

These other facilities do not necessarily provide staff, security and medical care which are suitable or properly qualified for caring for mental patients (Davis 1996).

In Ottawa, about 100 people are on a waiting list to have a case manager. A case manager may have a maximum of 20 clients who they visit on a regular basis, monitor their medication and help them work out daily issues, such as problems with roommates within the hospital. In Ottawa, there are only 11 case managers (Bohuslawsky 1996). This is a lack of enough professionals to assist in the treatment within facilities.

The are obviously consequences to not having enough room in hospitals for the mentally ill. Funding cuts are forcing hospitals to release patients sooner than in the past. Fifteen years ago the average amount of time patients remained in hospitals was 30 days, but in 1997 the average time has reduced to only 14 days. That is about half the time which is not sufficient to stabilize the patients. Patients are released before they have been fully treated and thus result in an increase of mentally ill out on the streets. If mentally ill offenders are sentenced to facility treatment, will there punishment be fully served? This could mean that the offenders are set free, jailed or spend time in a medium security facility as opposed to a maximum security facility where they belong. The Ontario government seems to be having a conflict of interests. The Ontario Mental Health Act should allow more mentally ill people to be treated yet they want to cut funding and downsize within hospitals in order to save money. The alternative options to being hospitalized do not solve the problem of untreated and dangerously ill persons committing crimes. It is necessary for the mentally ill to have a suitable punishment and the government needs to address that issue.

NEW GUN LAWS: PREVENTING OWNERSHIP BY MENTALLY ILL

Various cases of mentally ill people owning and using weapons has raised questions and concerns about those with a history of mental illness owning guns. A new program, which will come into effect in 1998, places questions concerning a persons mental history on the application for a Firearms Acquisition Certificate, which is required to own a weapon. This is intended to prevent potentially dangerous people from owning a gun especially if they have illness such as depression, suicidal tendencies or substance abuse problems. Firearm officials also want to be alerted to those who "could be dangerous" by having the ability to check criminal records and also want to create a database which would include medical, psychiatric, and personal profiles provided by family, doctors and police. An obvious problem with this program is that the mentally ill may not willingly share there mental health history or they may not even know that they are mentally ill (Tam 1997c).

FACTS ON CRIME AND THE MENTALLY ILL IN OTTAWA

According to the Canadian Mental Health Association, there is up to 45 000 in Ottawa that will probably experience a serious mental illness in their life, and 2% of these people have the potential for violence. In 1996, about 500 people were referred for psychiatric assessment by the courts. There has been an increase in calls to the police about crimes involving mentally ill. In 1990, there were 1570 such calls. In 1995 this number increased to 2640. Some studies have shown that those with major mental disorders are more likely than the general public to commit violent acts but it is very difficult for professionals to predict who those people are. (Bohuslawsky 1996).

THE BRIAN SMITH MURDER CASE

An example of a case that deals with the problem of mental illness and crime is the Brian Smith murder case. Brian Smith, a former hockey player and a sportscaster for CJOH TV in Ottawa, was fatally shot in the head on August 1, 1995. He was shot by a schizophrenic man named Jeffrey Arenburg who heard voices in his head which he believed was broadcast by the media. Based on this delusion he targeted the media and Brian Smith just happened to be the one he encountered. He admitted to committing the murder but used the defence of Mental Disorder. This means that he should not be accountable for his actions because he was mentally disabled, he did not know that what he was doing was wrong. There was a fitness hearing to determine whether he was mentally fit to stand trial. It was found by the jury that he was unfit to stand trial. Arenburg was ordered to undergo forcible treatment by receiving anti-psychotic injections which helped his schizophrenia into remission (Rogers 1997b). Arenburg was eventually found not criminally responsible for the murder because of his mental illness.

An issue this case poses is the improper, or lack of, treatment of mentally ill persons. This lack of treatment fosters situations where the mentally ill could commit crimes. Alana Kainz, the widow of Brian Smith, pointed out that the mental health system in two provinces failed to treat her husbands killer. Arenburg refused treatment in Ottawa and in Bridgewater, Nova Scotia. During a previous trial in Bridgewater, he broke every window in the courthouse, and displayed serious mental problems. He was treated with medication but left the hospital and stopped taking medication. In 1991, he threatened employees at the Ottawa radio station CHEZ but the Ontario Review Board ruled that the Royal Ottawa Hospital, which treats mental patients, could not make him stay for treatment. Kainz believes that if Arenburg had been properly treated, Brian would not have been killed. The crime could have been prevented by the police, psychiatrists and the review board (Rogers 1997c).

EFFECTS OF THE CASE IN ONTARIO

The Brian Smith murder case has introduced reforms to the Ontario Mental Health Act. Following the trial of Jeffrey Arenburg, there was an inquest into Brian Smith's shooting. This inquest made recommendations about the Mental Health Act which could add more public protection (Tam 1997b). The goal of the inquest was to find out the reason why Arenburg could avoid treatment for four years while it was known that he was a dangerous schizophrenic. The right to protect the mentally ill's freedom has caused them suffering because they are not being properly treated. The best solution to a mental illness is usually taking medication but under the present Mental Health Act, it is still difficult to force patients to take medication unless they have committed a serious crime or have harmed themselves.

In November of 1997, a coroner's jury made 72 recommendations to change Ontario's psychiatric system as a result of the inquest into Brian Smith's death. The goal is protection of the public through allowing forcible treatment, funding and legislation. The focus is on the Ontario Mental Health Act, community treatment programs and educating those that deal with the mentally ill. Recommendations include for the more stable, outpatient treatment that forces patients to take their medication and have medical appointments; a crisis response service; including anti-psychotic drugs under drug plans; training police, ambulance workers and security to deal with mentally ill; requiring family members to provide information about mentally ill when applying for firearms; guidelines to warn police about potentially dangerous patients; improving the access of medical information between provinces; and adding information about mentally ill to the national police database. Recommendations to the Mental Health Act include meeting the needs of the mentally ill, their families and the community; clearly identifying the rights of the mentally ill to refuse treatment vs. the rights of society to force them to receive treatment; involuntary treatment should consider predictors of dangerousness; review boards should focus on their patient's history and clarifying the wording, as in "imminent danger".

CONCLUSION

It appears as though the public and the government are realizing that mentally ill patients need to be given appropriate treatment. The rights of the mentally ill patients should not be forgotten, but rather changed to be more realistic and productive. Nobody wants the mentally ill to be treated unfairly, but if they are dangerous nothing is accomplished if they are out on the streets where damage can be done. Hopefully the Arenburg recommendations bring about changes to the Ontario Mental Health Act that can improve the situation for everybody. It is important for those who are mentally ill to be treated not only for themselves but for the benefit of all society. Something should be done before tragedies occur instead of after the fact, as in the case of Brian Smith.

Additional Sources

Bohuslawsky, Maria. "Too Few Caring Faces" Ottawa Citizen 16 Feb. 1996.

Bonnie, R., and N. V. Morris. "Debate: Should the Insanity Defence Be Abolished?" Journal of Law and Health 2 (1987): 113.

Brown, Margaret Diane. "Is Ontario Courting Disaster?" Ottawa Citizen 29 Sept. 1997.

Campbell, Don. "Accused Not Jailed After 1991 Stabbing." Ottawa Citizen 5 July 1996.

Davis, Simon. "The Trouble with Closing the Asylums." Vancouver, 18 March 1996.

Davis-Barron, Sherri. "Laws Too Lax to Deal With the Mentally Ill." Ottawa Citizen 28 Jan. 1996.

Ontario Mental Health Act, The

"Reform the Mental Health Act." Ottawa Citizen 29 Sept. 1997.

Robertson, Gerald B. Mental Disability and the Law in Canada. Toronto: Carswell, 1994.

Rogers, Dave. "Arenburg Fit for Trial in Smith's Slaying." Ottawa Citizen 1997b.

Rogers, Dave. "Killer Not Responsible for Smith's Death." Ottawa Citizen 1 May 1997a.