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Foundations of mental Health Laws


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Roots of present day mental health law and policy

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Foundations of mental Health Laws

  1. 1. Foundations of Mental Health Legislation in Canada Daniel J. Brodsky* For centuries lawmakers have struggled to define the methodology of, and the justifications for, social control of individuals who may not conform to community mores. In particular, the historical origin of the present day legislative scheme to protect the public from mentally disordered individuals who are said pose a threat to the safety of others is ancient and evolving. It can be traced back through the writings of Sir Matthew Hale in the seventeenth century on the special verdict of “acquittal and enlargement,” Sir Edward Coke in the sixteenth century and Brackton in the thirteenth century with rudimentary beginnings even earlier to Aristotle’s fourth century bipartite division of knowing and acting. Prior to the invention of medicine, psychiatry or psychology, it was commonly believed that the only way to protect society was to keep mentally disordered offenders from places where they could cause harm.1 Efforts to come to grips with the problem included the enactment of civil statutes such as the Vagrancy Act of 1744, but resort to these laws was informal and irregular.2 At common law, there was little difference if insanity was raised before a criminal trial or as a defence because it was the question of quot;dangerousnessquot; itself (not civil versus criminal procedure) that informed detention status of the prisoner, as well as readiness for release even if the cause was unknown. Setting the stage for a dramatic moment in history was the fact that no criminal sanction similar to the vagrancy laws were available to restrain insane acquittees since the accused would “go at large” after a verdict.3 On May 15, 1800, gunfire at Richard Sheridan's Theatre Royal in Drury Lane suddenly brought this problem to the attention of the public.4 That evening, as King George III was entering the playhouse and advancing to take his seat for Le Nozza di Figaro, James Hadfield discharged a horse pistol at the King.5 Mr. Hadfield believed he was commissioned by God to prevent the end of the world by sacrificing his life for the salvation of all mankind. He could not commit suicide (a
  2. 2. PPAO Special Report 2 May 2008 moral crime), but he knew that he would surely be executed for the crime of attempted regicide. Mr. Hadfield was arrested and charged with high treason.6 Mr. Hadfield was tried on June 26, 1800. Attorney General John Milford7 appeared for the Crown and Thomas Erskine was assigned for the defence.8 A plea in the usual form – not guilty – was recorded. Following the close of the Crown’s case and only part way through Mr. Hadfield’s defence, Lord Kenyon, the Chief Justice, turned to the Crown in the jury’s presence to find out if the defendant’s insanity was contested.9 Attorney General Milford replied that while the Crown knew beforehand that Mr. Hadfield had been discharged from the army on grounds of insanity, the particulars proffered by the defence were “perfectly unknown” beforehand. Lord Kenyon immediately charged the jury on the issue of preventative detention (acquittal and confinement) and the threshold of necessity underscoring that, ... 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 ... but at present we can only remand him to the confinement he came from ... The Attorney General explained to the jury that, It is laid down in some of the books, that by the common law the judges of every court are competent to direct the confinement of a person under such circumstances. Counsel for the defence addressed the jury and made the following admission: My Lord, we who represent the prisoner … subscribe most heartily to the law as it has been laid down by my learned friend the Attorney General; most undoubtedly the safety of the community requires that this unfortunate man should be taken care of. Finally, assistant Crown Garrow made the following recommendation: Would it not be for the benefit of prosperity, if the jury would state in their verdict the grounds upon which they give it, namely, that they acquit the prisoner of this charge, he appearing to them to have been under the influence of insanity at the time the act was committed? There would be a legal and sufficient reason for his future confinement. The foreman of the jury delivered its verdict as follows:
  3. 3. PPAO Special Report 3 May 2008 We find the prisoner is not guilty; he being under the influence of insanity at the time the act was committed. There was no material difference between civil and criminal mental health law before the jury returned a verdict of not guilty by reason of insanity (NGRI) in James Hadfield’s case, but that was about to change becauseThe defendant was acquitted, but Lord Kenyon had already determined that Mr. Hadfield would not “go at large.” if he was found not guilty. His LordshipThe Court was satisfied that it was essential to protect the public to issue an order for the insane acquittee to be taken to Newgate Prison where he would be interned indefinitely.10 For a time after the order was executed, a debate raged over its legitimately since it was generally agreed that Mr. Hadfield should not be punished.11 Moreover, a foundational pillar of the criminal justice system had been the belief that all people on trial are presumed innocent until proven guilty and they were entitled to hold the prosecution to its high burden of proof. However, proof beyond a reasonable doubt for predicted future crimes was unattainable. On the other hand, many people were concerned for their own safety if Mr. Hadfield were permitted to go at large to walk the streets.12 Parliament responded with surprising dispatch and passed the Criminal Lunatics Act of 1800 empowering the courts to order the detention in safe custody of insane persons charged with offences. For Mr. Hadfield, the detention was for the rest of his natural life. The enactment legalized the automatic detention of those who were acquitted on the grounds of insanity until “His Majesty's pleasure to be known.”13 Henry Pope in his treatise on the law and practise of lunacy articulated the twin animating objectives of the new law as follows:14 It is to the interest of public safety that society should itself be protected against the insane. Possessed of physical force without a regulating mind and subject to the natural instincts untutored by discipline and uncontrolled by fear of punishment, some classes of the insane threaten continual danger to those they are brought into contact. The very motiveless of acts is an additional element of peril. Hence again the duty and right of the state, for its own sake as well as that for the insane, to exercise peculiar powers of seclusion and control.
  4. 4. PPAO Special Report 4 May 2008 Nor is it merely against others that this protection is needed or conferred. From the same primary principle of the sanctity of human life, and the paramount importance to society of maintaining that principle in its integrity, the state is concerned to protect the insane against themselves. Hence at once the duty and the right to exercise coercion and impose restraint The choice to raise the insanity defence was not discretion to be lightly exercised.15 No longer was a defendant found not guilty on the grounds of insanity (NGRI) entitled to an unencumbered acquittal.16 Insanity became the special verdict linked with automatic indefinite confinement.17 The NGRI 1accused was designated a quot;criminal lunaticquot; to be detained for an indeterminate period and the hope of successful rehabilitative intervention was not a prerequisite of admission to this new regime for the safe custody of insane persons because it was presumed that the NGRI accused lunatic was beyond rehabilitation.18 Moreover, 1as it amounted to an acquittal, there was no right of appeal.19 While medicine in general had its renaissance in the sixteenth century, progress in psychiatry lagged behind. The NGRI lunatics were treated, not as a sick patients, but like wild animals (beasts) or criminals and it is not uncommon to read or hear accounts of restriction by chain and manacle; incarceration in dank, sunless dungeons that were seldom visited by physicians. Since the insane offender was originally considered to be beyond rehabilitation, it was typical for little or no treatment to be provided and detention was indefinite. While rehabilitation was always hoped for, unfortunately treatment proved to be abortive until well into the nineteenth century and truly effective therapeutic interventions were not developed until the twentieth century. Indeed, it was well into the late 1800s before mental health care workers began to invest their time and energies into this segregated population of offender. Howden J. observed that,20 As a result of this rather superior expression of benevolent concern for a fellow “creature,” counsel for Mr. Hadfield and the Attorney-General, in addition to Lord Kenyon, agreed he should not be released because of his potential dangerousness or risk to the public. From this situation, the asylum approach to dealing with the mentally disordered in the criminal justice system was born in the Criminal Lunatics Act. It provided that for a person acquitted of certain major crimes by reason of insanity, the court would order him or her to be kept in custody, “in such place and
  5. 5. PPAO Special Report 5 May 2008 such manner as the court shall deem fit, until His Majesty's pleasure is known,” and the King was authorized to make a corresponding order for safe custody until his pleasure was known. However, this relief was required only where “it may be dangerous to permit persons so acquitted to go at large.” (Appellant's factum in Swain v. R. p. 43, by C. Ruby, M. Edwardh and M. Code). The basic ideas of separate detention, danger to society, and insanity remain still in the new detention review system, though the variety and methods of treatment which exist today in the post-Freud and - Jung era of psychiatric and psychological sciences have advanced and differ greatly from 200 years ago when detention overrode other concerns, at least in law. As well, to some extent it is apparent from the present system, and the former LGW system as it was before Swain, that those basic ideas not only remain alive but the notion of relating mental disorder to threat to society has become ingrained in the criminal law as a general perception. On January 20, 1843, a pistol shot in the parish of Saint Martin in the Fields, in the County of Middlesex, brought the problem to the attention of the public once more. That day, Daniel McNaughton shot Edward Drummond, a civil servant and Personal Secretary to the British Prime Minister Robert Peel, mistaking Drummond for Peel, the intended mark. Mr. McNaughton saw a figure that he believed to be the Prime Minister from the rear approaching Downing Street.21 He fired a single shot into the back of the person he believed to be Prime Minister Peel. After the shooting Mr. Drummond walked to his brother's house nearby where he passed away five days later despite the medical attention he received.22 Mr. McNaughton entered a plea of not guilty and was tried for murder on March 3 and 4, 1843. Solicitor General William Webb Follett23 appeared for the Crown and Alexander Cockburn, Q.C. led the defence.24 Following the close of the case for the defence, the Chief Justice asked the Crown if Mr. McNaughton’s insanity was contested and the Solicitor General answered that, … I feel that I should not be properly discharging my duty to the Crown and to the public if I asked you to give your verdict in this case against the prisoner.25 The jury verdict in the trial of Mr. McNaughton was NGRI. Consequently, Chief Justice Tindal directed the gaoler to keep the prisoner in safe custody till Her Majesty’s pleasure be known. He
  6. 6. PPAO Special Report 6 May 2008 was subsequently remanded to Bethlem Royal Hospital where he lived for 20 years before his transfer to the Broadmoor Institution for the Criminally Insane, where he died in 1865. The attempted assassination of Prime Minister Peel prompted Lord Broughm to initiate a debate on the NGRI verdict and the nature and extent of the unsoundness of mind which would excuse the commission of a crime.26 The House of Lords debated the matter on 1March 6 and 13, 1843 before determining it would take the opinion of the judges on the law governing such cases. Accordingly, on June 19, 1843, fifteen judges of the common law courts, including Lord Chief Justice Tindal,27 attended the House of Lords to answer a series of questions. The questions were put to the commissioners orally and their answers founded, among other things, the specific test to be applied by a trier of fact in an insanity case that became known as the M'Naghten Rule. 28 The case is significant as well because it underscores the long process of attempting to integrate and apply the growing body of knowledge in the mental health field to the criminally insane.29 The goal was and always has been risk reduction.30 The provisions of the Criminal Lunatics Act of 1800 were incorporated into the draft British Criminal Code31 which was never enacted but which was later adopted in Canada within our first Criminal Code that came into force on July 1, 1893.32 Section 736 of the Criminal Code (1893) provided for the strict custody of Insane Acquittees in such places and in such a manner at the pleasure of the Lieutenant-Governor and the enactments remained virtually unchanged in form until the proclamation of Bill C-30 on February 5, 1992.33 After a contemporary criminal trial, a not criminally responsible (NCR) Accused is not free to “go at large.” Rather he or she is removed from the mainstream of the criminal justice system and faces indefinite detention and a detention review by a tribunal that must be satisfied that the NCR Accused does not pose a significant risk to public safety before release is a possibility.34
  7. 7. PPAO Special Report 7 May 2008 Today Part XX.1 of the Criminal Code guides the approach to dealing with offenders who are not criminally responsible for their behaviour or who may be unfit to stand trial:35 When insanity provides an exculpatory defence, the actor remains very much the concern of the criminal law. The insanity rules identify special mental conditions under which persons cannot be expected to ensure that their conduct conforms to the requirements of law; and therefore the general law of criminal culpability is unsuited. The actor is formally acquitted because mental impairment has made the standard penal sanctions inappropriate. Alternative coercive measures may, however, be taken because of the potential dangerousness of the condition … Under the old provisions of the Criminal Code based on the common law rule, the accused relieved of criminal responsibility by reason of insanity was referred to as an NCRMD quot;acquitteequot; ... Under Part XX.1, by contrast, the NCRMD offender is not acquitted. He or she is simply found to be not criminally responsible. People who fall within the scope of Part XX.1 are more appropriately referred to as simply NCRMD accused. Part XX.1 of the Criminal Code supplements the traditional guilt-innocence dichotomy of the criminal law with a new alternative for the NCR Accused – an alternative of individualized assessment to determine whether the person poses a continuing threat to society coupled with an emphasis on providing rehabilitative opportunities. In this regard, Parliament brings into play the criminal law power to prevent further predicted criminal conduct while acknowledging that the NCR Accused is not morally culpable. Part XX.1 of the Criminal Code aims to preserve the autonomy and dignity of the individual without compromising the safety of the public or the person by striking a balance between the protection of the public and the fair rehabilitation of morally blameless offenders.36 This delicate balance is maintained by ensuring that the State’s legal intervention in restricting the liberty of the individual is no greater than necessary.37 An NCR verdict is a historical finding that the person on trial suffered from a “disease of the mind” and committed the actus reus of an offence. It is not a determination of present or future dangerousness. While it may very well be rational to assume that persons found NCR are dangerous, this assumption will not be true for all NCR Accused. Lamer J. in R. v. Swain specifically cautioned:38
  8. 8. PPAO Special Report 8 May 2008 [W]hile the assumption that persons found not guilty by reason of insanity pose a threat to society may well be rational. I hasten to add that I recognise that it is not always valid. While past violent conduct and previous mental disorder may indicate a greater possibility of future dangerous conduct, this will not necessarily be so. Furthermore, not every individual found not guilty by reason of insanity will have such a personal history. The NCR verdict39 triggers a disposition hearing under Part XX.1 of the Criminal Code and an assessment of whether the NCR Accused poses a significant threat to the public.40 The “disposition” can be an absolute or conditional discharge, detention in a hospital, and/or treatment. The trial judge may then make a disposition order pertaining to the NCR Accused or defer the disposition decision to a Review Board. After the initial disposition order is issued, the NCR Accused comes under the jurisdiction of a provincial Review Board where disposition orders other than absolute discharges are reviewed. From this time forward, the NCR Accused’s liberty restrictions are not supposed to be that dissimilar to that of the incapacitated civil detainee that is involuntarily committed under civil statutes until such time as he or she cannot be said to be a significant threat to the safety of the public. Of course, there are very important liberty interests at stake when a Review Board makes a disposition.41 Such preventative detention is a serious infringement of personal liberty and it must be reasonable and demonstrably justified in the circumstances.42 The “twin goals” of our present day legislative scheme are protecting the safety of the public and treating the offender fairly.43 Giving effect to these laudable goals requires a Review Board to annually review the status of every person in Canada who has been found to be not criminally responsible on account of a mental disorder or unfit to stand trial and grant the disposition that is the least onerous and least restrictive one compatible with the offender’s situation, taking into account the four factors enumerated section 672.54 of the Criminal Code (public safety, mental condition of the accused, other needs of the accused, and the reintegration of the accused into society). In other words, a Review Board’s jurisdiction to do anything other
  9. 9. PPAO Special Report 9 May 2008 than order an absolute discharge only attaches if a positive finding can be made on evidence before the tribunal that the person poses a significant threat to the safety of the public.44 Recently, Justice Linhares De Sousa of the Superior Court of Justice reaffirmed that,45 … the proceedings of the ORB [Ontario Review Board] have a dual purpose as follows: (a) protecting the safety of the public; and (b) treating the offender fairly … Tasked with this dual purpose, the ORB also bears the burden of making a disposition which is “the least onerous and least restrictive to the accused” taking into consideration the following four factors, namely, “the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused” (section 672.54 of the Criminal Code of Canada). Justice De Sousa also observed that, Parties may disagree as to the appropriate disposition which should be made. In this case, Mr. Leyshon-Hughes and counsel for the Crown do disagree. Nonetheless, no one party bears the burden of “proving” or establishing risk to the public in any given case. As the Supreme Court of Canada pointed out at paragraph 54 of its decision, The legal and evidentiary burden of establishing that the NCR accused poses a significant threat to public safety and thereby justifying a restrictive disposition always remains with the court or Review Board. If the court or Review Board is uncertain, Part XX.1 provides for the resolution by way of default in favour of the liberty of the individual. … before a Review Board has jurisdiction to do anything other than order an absolute discharge, they must make a positive finding that the offender quot;poses a significant threat to the safety of the public.quot; Finally, De Sousa J. underscored that to discharge its legislative mandate, a Review Board must:46 … exercise all … inquisitorial powers within the context of a hearing during which the NCR Accused is accorded all his constitutional and statutory rights to procedural fairness. … an explanation … is misplaced when it sacrifices procedural fairness in the interests of efficiency… The law has changed quite substantially since that fateful gunshot on May 15, 1800 but it still has a long, long way to go. I’m looking forward to reading the Psychiatric Patient Advocate Office’s Special
  10. 10. PPAO Special Report 10 May 2008 Report: Honouring the Past, Shaping the Future – 50 Years of Progress in Mental Health Advocacy and Rights Protection. * Daniel J. Brodsky is a criminal defence lawyer who devotes a significant amount of time to activities that advance the rights of mentally disordered individuals in conflict with the law. Daniel has published, lectured and for example participates regularly as an invited faculty member for the Canadian and American Academy of Psychiatry and the Law. Daniel has championed the cause in many jurisdictions before all levels of court in Ontario including review boards, inquests and public inquiries as well as the Federal Court and the Supreme Court of Canada.
  11. 11. 1 Up until a few decades into the nineteenth century, the medical profession knew little about mental disorder and believed insanity to be incurable. The treatments that were attempted, such as those involving leeches to remove ‘tainted’ blood from the insane, were futile. 2 The Vagrancy Act of 1744 is the touchstone for present day civil mental health legislation. 3 Nigel Walker, Crime and Insanity in England (Edinburgh, 1968) at vol. 1, 84 – 85; George Keeton, Guilty But Insane (London, 1961) at 14 – 15; R. v. LePage, [1994] O.J. No. 1305 at para. 65; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 at para. 17 – 43; MacDonald et. al. v. Vapour Canada [1977] 2 S.C.R. 134; Starnaman v. MHC-P (1995), 24 O.R. (3d) 701 (Ont. C.A.). 4 His Majesty was in the company of his son, the Duke of York, Queen Charlotte and the Princesses Augusta, Elizabeth, Mary and Amelia. 5 That Mr. Hadfield ‘missed’ his target is unclear because it is unknown if the intent was to actually assassinate or just signal the attempt, and then address the King, announcing quot;God bless your royal highness; I like you very well; you are a good fellow; but this is not the worst that is brewing.quot; 6 R. v. Hadfield (1800), 27 St. Tr. 1281 at 1281 – 1283, 1294, 1298 – 1299, 1307 – 1330, 1353-1356. 7 Later Sir John Milford, Speaker of the House of Commons and Lord Chancellor of Ireland. 8 Later Lord Chancellor Erskine. 9 Counsel for the defence indicated that 20 further witnesses had yet to testify. 10 The civil mental health system did not stop James Hadfield on May 15, 1800 and Lord Chief Justice Kenyon was not about to invoke the civil system after the jury verdict was rendered. 11 The insanity acquittal itself was the exercise of compassion because it was seen as cruel to inflict punishment on an insane acquittee. 12 Does this debate persist? Consider the 2002 science fiction film “Minority Report” staring Tom Cruse that was based on a short story of the same name for a pop-culture commentary on the perils of hidden false negatives for society [offenders who are predicted not to recidivate who do re-offend]. 13 Larry Gostin (ed.) Secure Provision, A Review of Special Services for the Mentally Ill and Mentally Handicapped in England and Wales (London, 1985) at 15; Norman Finkel, Insanity on Trial (New York, 1988) at 16; A.J.C. O'Marra, cited in Hadfield to Swain; The Criminal Code Amendments Dealing With the Mentally Disordered Accused (1993), 36 Crim. L.Q. 49; Richard Moran, The Origin of Insanity as a Special Verdict: The Trial For Treason of James Hadfield (1800), Law & Society Review, Vol. 19, No. 3, December, 1985, at 601-633; George Keeton, Guilty But Insane (London, 1961) at 17 – 61; Nigel Walker, Crime and Insanity in England (Edinburgh, 1968) at vol. 1, 15 – 51, 74 – 83; R. v. LePage, [1994] O.J. No. 1305 at para. 65 – 66 (S.C.J.). 14 Henry Pope, A Treatise on the Law and Practise of Lunacy (2d ed. London, 1890) at 4 – 5, 401 - 402 15 R. v. Scott (1993), 87 C.C.C. (3d) 327 (Ont. C.A.), [2004] O.R.B.D. No. 138. 16 In effect, the NGRI verdict is a form of conviction and the LGW is a form of indeterminate sentence. 17 The power to confine was exercised with disinterested indifference. Margaret Hall, Selected Writings of Benjamin Nathan Cardozo (New York, 1938) at 262. 18 Oliver Wendell Holmes, The Common Law (Boston, 1881) at 42 – 43, 108 – 109; F.A. Whitlock, Criminal Responsibility and Mental Illness (London, 1963) at 44, 52; R. v Felstead, [1914] AC 534. 19 There is still no Criminal Code provision for a special plea where section 16 is resorted to as a defence in Canadian law. 20 R. v. LePage, [1994] O.J. No. 1305 at para. 66 – 68 (SCJ); Roger Smith, Trial by Medicine: Insanity and Responsibility in Victorian Trials (1981, Edinburgh). 21 Mr. McNaughton believed that he was being persecuted by the police, the Church of Rome, the Tories and the Prime Minister and he needed to defend himself. 22 McNaghten's Case (1843), 10 Clarke & Finnelly 200; 8 E.R. 718; [1843-60] All E.R. Rep. 229; sub nom. McNaughton's Case, 4 St. Tr. N.S. 847; 1 Town. St. Tr. 314; 1 Car. & Kir. 130, n; sub nom. Insane Criminals, 8 Scott, N.R. 595, H.L.; 14 Digest (Repl.) 60, 246; sub nom. M'naghten's Case, Mews' Dig. i. 349; iv. 1112. S.C.; 1 C. and K. 130; Nigel Walker, Crime and Insanity in England (Edinburgh, 1968) at vol. 1, 91; George Keeton, Guilty But Insane (London, 1961) at 99 – 101. 23 Later Sir William Webb Follett, Attorney General. 24 Later Lord Chief Justice. 25 McNaughton's Case, 4 St. Tr. N.S. 847 at 923 – 926. 26 The reverberation from the shots fired at the Queen during her pregnancy by Edward Oxford brandishing two pistols as she was being driven up Constitution Hill with her husband, Prince Albert and the NGRI verdict three years earlier, may well have informed the monarch’s request of the Law Lords to reconsider the right-wrong test. Mr. Oxford was tried for high treason and found NGRI in July 1840. He was sent to Bethlem Royal Hospital, where he remained until the criminal patients of the institution were transferred to Broadmoor Hospital in 1864. Three years later, he accepted a discharge on the condition that he would leave the country. He left for Australia with dispatch and was never heard of again (R. v Oxford, [1840] 4 State Trials (New Series) 498, 9 C. & P. 525, 1 Town. St. Tr. 102; 14 Digest (Repl.) 60, 235). 27 The trial judge who presided over the McNaughton case. 28 The law lords would have found Daniel McNaughton to have been guilty but insane. The murder of Edward Drummond was a mistake; Daniel McNaughton intended to kill the Prime Minister and he knew that what he intended to do was against the law.
  12. 12. Accordingly, the law lords would have found Daniel McNaughton to have been guilty but insane. 29 Atkin Committee on Insanity and Crime (1923); F.A. Whitlock, Criminal Responsibility and Mental Illness (London, 1963) at 20 – 22, 41, 43 – 45; Charles Rosenberg, The Trial of the Assassin Guiteau: Psychiatry and Law in the Gilded Age (Chicago, 1968); M'naghten's Case, Mews' Dig. i. 349; iv. 1112. S.C.; 1 C. and K. 130. 30 Efforts to empirically validate rehabilitation and management techniques to reduce the risk of future harm (dangerousness) are, however, only of recent origin. 31 Report of the Royal Commission Appointed to Consider the Law relating to Indictable offences: With an Appendix Containing a Draft Code Embodying the Suggestions of the Commissioners (London, 1879) at 192; Nigel Walker, Crime and Insanity in England (Edinburgh, 1968) at vol. 2, 1 – 17. 32 See ss. 738 - 741 of The Criminal Code, 1892. 33 The main part of Bill C-30 formed what is now Part XX.1 of the Criminal Code, R.S.C. 1985, c. C-46. 34 Originally, Parliament was under the impression that the Charter demanded fixed limits to the criminal law power and stigmatization and Part XX.1 of the Criminal Code included capping provisions that were thought to be a finely tuned and well thought out balance between the rights of an NCRMD accused and the protection of the public. Parliament contemplated that the regime for the detention and control of mentally disordered accused persons under Part XX.1 of the Criminal Code would be proportional to the gravity of the index offence, and detention would be finite except for the gravest offences, such as murder or high treason. Concerns over post-cap continuing dangerousness caused the notion of proportionality to be abandoned and the unproclaimed capping provisions were subsequently repealed (See Bill C-10, An Act to amend the Criminal Code (mental disorder) and to make consequential amendments to other Acts, 1st Sess., 38th Parl., 2004 (assented to 19 May 2005) S.C. 2005, c. 22). 35 Lingley v. New Brunswick Board of Review (1973), 13 C.C.C. (2d) 303 (F.C.T.D.) at 308. 36 Attorney General of Ontario v. Grady (1988), 34 C.R.R. 289 (Ont. H.C.J.); R. v. Swain, [1991] 1 S.C.R. 933 at 970-72, 1024-30. 37 Winko at para. 17 – 18, 20, 32, 40, 42 - 43, 183 -186; Starson v. Swayze, [2003] S.C.C. 32 at para. 6-7, 10, 75, 91, 112. 38 Swain, at 1015. 39 The initial finding is made by the judge or jury trying the defendant. 40 Throughout the process, the NCRMD accused is to be treated with dignity and given the maximum liberty compatible with the twin goals of protection of the public and fairness to the NCR Accused. 41 In particular, isolating offenders in secured institutions away from the mainstream of society thereby incapacitating their risk to the community. 42 Winko at para. 209; R. v. Tulikorpi, [2004] 1 S.C.R. 498 at para. 53. 43 Winko at para. 42, 48 – 49; R. v. Mazzei, [2006] 1 S.C.R. 326 at paragraph 28; Penetanguishene Mental Health Centre v. Ontario (A.G.), [2004] 1 S.C.R. 498 at paragraphs 51 to 56; Criminal Code, section 672.54. 44 Leyshon-Hughes v. Ontario (2007), 220 C.C.C. (3d) 121 at para. 15(g), 16 (S.C.J.); Mazzei v. British Columbia (Adult Forensic Psychiatric Services, Director) (2006), 206 C.C.C. (3d) 161 at para. 16 (S.C.C.); R. v. Owen, [2003] 1 S.C.R. 779 at para. 33-34. 45 Leyshon-Hughes at para. 37, 48 – 51, 53, 56 – 57, 62 – 65, 68 - 90. 46 Leyshon-Hughes at para. 37, 48 – 51, 53, 56 – 57, 62 – 65, 68 - 90.