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.

"In Need of Services" = "In Need of Protection"?

A very interesting decision out of the US, in which the Indiana Court of Appeals reversed a lower court finding that a mother had neglected her teenage daughter by refusing to pick her up from an emergency shelter.

Wait a minute, that sounds like abandonment, doesn't it?

Maybe but perhaps not if you have a good enough reason. In this case, the mother refused to take the girl home until she received counseling services.

Apparently the teenage daughter had a lot of behavioral issues, which the mother (a single parent) was attempting to address. And apparently it was the policy of the state's Department of Child Services to use a portion of state law that says parents are "unable" to provide necessary care as legal justification to "help" them secure services for their children with mental illness or a developmental disability.

In other words, in plain English, the government's policy was to substantiate neglect findings against a parent if the parent had legitimately been unable to access the services the child needed. Unable to access services because the government had, you know, refused to provide them.

Sound familiar?

The mother had twice called police after her daughter had become physically aggressive. Not surprisingly, police contacted DCS officials, who initiated an assessment and when, after the second incident, the woman refused to bring her daughter (who by that point had been diagnosed with oppositional defiant disorder) home until she received counseling, a petition was filed with the court alleging the girl was a "child in need of services" (which here, in Nova Scotia, we would refer to as a "child in need of protection") due to the mother's failure to provide necessary care.

Even though the mother had taken the child home a few weeks after first being requested and despite the fact that the Department's own investigation showed that the child, not the mother, had been the aggressor in the altercations, the girl was found to be "in need of services". To add insult to injury, the mother was ordered to participate in services and and pay DCS $25 per week for reimbursement of service costs.

If Only ...

I came across this story a few days ago and it made me really, really wish the Canadian Charter of Rights and Freedoms contained wording similar that found in the Americans with Disabilities Act, requiring that people with disabilities be allowed to live in the "most integrated setting" within their communities.

Because if it did, then maybe, just maybe, we could just as easily settle our own class action law suit and rather than assigning dollars to “institutions,” the money would follow the individual to the housing of their choice.

A federal judge on Wednesday approved a settlement to a long-running civil case that will force Illinois to begin moving hundreds of people with developmental and intellectual disabilities into more community-based homes and apartments of their choice.

“I firmly believe that the state of Illinois, the citizens, have been well-served by these efforts,” said U.S. District Judge James Holderman, who congratulated lawyers who have spent months negotiating terms of controversial case.

“I will issue an order promptly,” he said, noting that he had received only two objections out of 21Ö responses filed with the court. “I will announce informally today that my position is that the consent decree should be approved and this should be the law that is followed.”

The settlement in the case filed in 2005 by Stanley Ligasd and other plaintiffs will change the way the state now pays for their care. Rather than assigning dollars to “institutions,” the money would follow the individual to the housing of their of their choice. Institutions are defined in the lawsuit as any private, state-funded facility with nine or more residents.

Unfortunately, though, that's not the case

Leaving us to rely on sec. 15 of the Charter.

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

And although there are numerous examples of people attempting (unfortunately, not all that successfully) to use the equality provisions of the Charter to fund adequate social assistance rates and sec. 7 guarantees to "life, liberty and security of the person" to argue a right to subsidized housing for Canadians, I'm not sure that anyone has yet tried to pair sec. 15 rights with a right for the physically and mentally challenged to live within their own communities, in the homes they would choose.  As opposed to those that are imposed on chosen for them.

Although I'm thinking the wording of sec. 15 will never be found to support such a right; that we would need much more explicit wording, such as that found in the Americans with Disabilities Act.

Still, anyone there aware of any Canadian case law in this regard?

Injury Damages, Human Rights and Disability - A Guest Post

For Americans, a case just heard in New York state [Ed. This reference is now almost one year old - my sincere apologies to Mr. Mitchell  for the delay in getting this up] is raising questions about how far human rights questions can intervene in the calculation of damage awards ... and influence the outcome. It is interesting to see how this case tests against Canadian authority, how the idea is treated, here, and how the ideas it raises could affect the treatment of persons with disabilities north of the border.

McMillan v. New York is a race-discrimination based decision but its implications extend far beyond mere questions of race. It involves, directly, how legal equality assurances should affect how damages awards
are calculated for injured people.

The cases’s background is this: You might remember a terrible accident a few years ago when a New York ferry slammed into its dock at high speed killing several people and badly injuring others.

One of the persons injured was an employee who was left paralyzed in his legs and in part of his arms and unable to work. He therefore suffered not only the actual loss of the use of his arms and legs but also a
direct elimination of his ability to continue to earn income from his employment. And, in such cases, with a sufficiently young claimant, the loss of projected income over a working lifetime can be a very large amount indeed.

This Claimant, McMillan, is African-American. And this is where the case becomes interesting. The fact is that, as a group, African-Americans have a shorter statistical life span – and therefore a shorter statistical working life span – than other groups in society.

McMillan sued for damages including his inability to carry on working and the loss of wages it would mean over the balance of his working life.

The calculation of this kind of loss is a standard exercise in Canadian and American law. It involves trying to decide how much a loss of income the man could be expected to suffer over each year and how long he might be expected to be able to work.

Perhaps you’re seeing the argument coming: Because, African-Americans have shorter life spans, on average, than other groups in American society and the factor immediately became an issue in calculating the loss that he suffered. Clearly, a person with a shorter lifespan (and therefore a small chance of working full time to retirement age), will expect to earn less than others with a longer projected life as a result of the same inability to work. And just as clearly, his damages will be less if because of his accident, he can no longer work.

New York City’s lawyers brought this argument – not rocket science by the way, but a usual and customary part of damages law – directly into play. They argued that because the McMillan’s lifespan was statistically less than, say, a Caucasian working the same job, in effect, he should be entitled to less damages than his Caucasian counterpart.

In the result, of course, the City expected to save a very significant amount of money. The trial judge refused to allow the city to make this distinction. He awarded damages based on overall life expectations and refused to limit it to those governing African Americans. The first argument that he used was that “race” is such an undefined and fluid category that statistics based on the distinction is much less precise than the category might at first appear – and so it would be unfair to judge people’s claims based on unclear data. The second argument was that as a result of better care and treatment because of the funds available from the damages award, the claimant’s expected life span might actually expand.

But lastly, and this is where it bears consideration here, McMillan decided that because the US constitution protects everyone equally under law, that a distinction allowing the law to differentiate between claimants based on race-based characteristics actually violated that constitutional protection.

You can see, for the Americans, damages calculations based on disability will also have an effect. In the same way that as the court found that how statistics link lifespan to “race,” at best, only in the fuzziest of ways linkages of lifespan to disability will, in the same way, be only the vaguest and most remote connection, if helpful at all.

How could this affect us here?

Canadian cases arguing racial distinctions cases are fewer and farther between than in the US. However, there are broad suggestions from now decade old or older cases, that courts have attributed lower earnings potential or life span to native claimants in BC damages claims. While a struggle has been being waged to limit unfairness – and corrections are taking place – in applying old statistical information to the projected earnings levels of women to reduce their damages claims as compared to similarly claiming men, the issue has not been resolved.

But no one seems to be studying the claims of persons with disabilities. And equally, no one seems to be considering applying the constitutional protections of equality.

The courts here have reminded us that the Charter’s s. 15 including equality considerations can be available in our country to affect this area of law (case based “common law”) decisions as well as any
government regulation or practice. But as of yet, it seems, the issue has yet to be directly confronted in the country’s law reports.

Perhaps the perhaps innate unfairness of categorizing people for legal purposes based on any grounds of inequality deserves close review in Canadian cases. Perhaps it’s a place where our governments need to intervene.

A Guest Post by Mr. Blair Mitchell, a Halifax lawyer who has practiced in the area of civil and administrative litigation for over 20 years and whom, you might recall, has graced our pages previously.