High Risk: Marginalizing the Mentally Ill

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A Justice of the BC Supreme Court refused to label    Allan Schoenborn as a “High Risk Offender”, meaning that designation has still not been successfully applied since it was introduced by the Harper Government.

Allan Schoenborn was found guilty, but not criminally responsible for the murders of his 3 young children, whom he believed had become victims of sexual abuse. Psychiatrists who assessed him unanimously agreed that he had been suffering from delusions and other symptoms consistent with a schizoaffective type disorder. As a result, it was determined that he did not bear legal culpability for his actions.

Although he was found to not be responsible for his actions, he was remanded to Colony Farm, a Forensic Psychiatric Hospital, for an indefinite period of time (as is standard with all NCR offenders).

The purpose of the Not Criminally Responsible, High Risk Offender legislation is aimed at designating offenders found not criminally responsible by reason of mental disorder as “high risk” if it can be proven that they pose a serious threat of inflicting grave physical or psychological harm to another person.

This legislation is strictly applicable to offenders found not criminally responsible – in essence, it is punitive legal recourse only available for individuals who have already been deemed as severely mentally ill.  

In her decision, Justice Martha Devlin determined that there was no reason to believe that Schoenborn met the criteria necessary for a High Risk designation. She noted that his current mental condition, along with the opinions of the experts overseeing his care, does not reflect him posing a serious threat to the public.

If the designation had been granted, it would have excluded Schoenborn from receiving escorted outings into the community, and would create a 3 year period between his review board hearings, as opposed to 1 year as is current procedure.

One of the biggest concerns we see in this legislation, is the effect it may have on offenders who should be entering a plea of not criminally responsible. The problem is that if an offender is likely to meet the criteria of a High Risk Offender once being deemed NCR, they may opt to take a determinate jail sentence simply because a High Risk Offender designation could seriously impede their ability to regain freedom from the psychiatric facility where they are being held. If an Accused person is told “plead guilty and you’ll get 10 years in jail” or given the option of “if you establish a NCR defence, there is a risk of a High Offender Designation, and I can’t tell you with any certainty whatsoever when, or if, you will ever be freed”, which option will likely seem more attractive?

Interestingly enough, Mr. Schoenborn’s high profile case was basically singled out by Stephen Harper when the “High Risk Designation for NCR Offenders” legislation was tabled in 2013. The decision by Justice Devlin demonstrates why impartiality and transparency are vital to the survival of judicial process: although the facts related to this case are heinous and disturbing, a path has been carved for Mr. Schoenborn, and Justice Devlin refused to hinder his progress. His NCR designation was not established in haste, and each step of his treatment since that time has been methodical and closely monitored. He requires intensive treatment and rehabilitation in order to, one day, have an opportunity at freedom.

Navigating through the criminal justice system as an Accused person is an intimidating experience. It is compounded when you are dealing with a mental illness. We are experienced in liaising with clients who suffer from severe mental health problems. We understand that compassion, respect and understanding are of fundamental importance when confronting with these issues. We are conveniently located in Richmond, B.C. only a few steps away from Brighouse Station on the Canada Line, which brings you from various locations in Metro Vancouver in 20 minutes. We service all areas of the lower mainland (including but not limited to Surrey, New Westminster, Port Coquitlam, North Vancouver, and Abbotsford) the interior of B.C. (including but not limited to Cranbrook, Kelowna, Kamloops, and Salmon Arm), Northern B.C. (including but not limited to Prince George, Prince Rupert, and Quesnel) and in the Yukon Territory where we offer services in Whitehorse, Dawson City, and Old Crow. Contact our office today for your initial consultation.

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Impaired Driving in Canada

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Presumption of innocence: We hardly knew ‘ye


Our federal government has once again announced its proposal to strengthen the powers of police investigation techniques in impaired driving files.

You would be hard pressed to find someone who would disagree that keeping our roadways safe is a top public safety concern.

You would not, however, have difficulty in having that same person agree that they value their fundamental rights as Canadians – including protection from unreasonable search and seizure, as guaranteed by section 8 of our Canadian Charter of Rights and Freedoms.

What our government is proposing to do will put you in a position to pick sides.

Under the current legislation, officers are only allowed to administer a roadside demand if they suspect the driver has alcohol in his or her body.

Under the suggested legislation, officers will be able to request a breath sample from any motorist they stop, regardless of the reason (broken taillight, speeding, not signaling for a lane change, etc – circumstances that absolutely do not strongly indicate a drunk driver).

Now, you may think this is no big deal – but you might want to think about the totality of this situation.

Here is a chart that details the current mandatory minimum penalties (these do not apply where injury or death has occurred):

Offence

Penalty

First $1,000 Fine
Second 30 days imprisonment
Third and all subsequent 120 days imprisonment

Here is another chart that details the proposed mandatory minimum penalties, which are categorized by BAC (Blood Alcohol Content) (again, these do not apply where injury or death as occurred):

BAC (per 100ml of blood)

Penalty

80 to 119 mg $1,000 Fine
120 to 159 mg $1,500 Fine
160 mg or more $2,000 Fine 

And if you refuse? They are proposing a minimum $2,000 fine. It doesn’t matter if you’re completely sober and you simply don’t want to be forced into an unnecessary procedure – a refusal is a refusal, and on top of that $2,000 fine, that refusal would result in a criminal charge too.

And all of that is for drinking and driving where no injuries or death occur.

Now – if you are in an accident and hurt someone, and the police suspect alcohol is a contributing factor, you will likely be charged with impaired driving causing bodily harm.

These penalties are enormous.

If found guilty in a summary proceeding, you would face a maximum of 2 years less a day in jail (anything 2 years and over lands you in a federal jail, anything less than 2 years will put you in a provincial jail). If you are found guilty of the same crime after being punished by indictment, the maximum term is 14 years.

But if there is a death involved, our government doesn’t want to rule out what we rarely see in our judicial system – life imprisonment. This is in range with the sentence given for any other crime that results in death.  

If this legislation succeeds, it will be interesting to see how the statistics reflect the increased authority to police. As it currently stands, the law allows the police to use their discretion to determine whether or not they suspect a driver has alcohol in his or her body. This new legislation would completely eradicate the need for officers to rely on their skills, training, and intuition – they don’t need to form an opinion whatsoever. They can simply pull anyone over and demand that they provide a breath sample.

So while this legislation is being presented as a way to protect Canadians on our roadways, it is also giving a pass to police on their responsibility to adhere to our presumption of innocence over guilt in these specific circumstances.

The law, and available defences to the impaired driving are constantly shifting and changing. There are many facets of these specialized investigations that require the assistance of experience defence counsel. At the Tarnow Law office, our lawyers bring forward over 45 years combined experience.

We are conveniently located in Richmond, B.C. only a few steps away from Brighouse Station on the Canada Line, which brings you from various locations in Metro Vancouver in 20 minutes. We service all areas of the lower mainland (including but not limited to Surrey, New Westminster, Port Coquitlam, North Vancouver, and Abbotsford) the interior of B.C. (including but not limited to Cranbrook, Kelowna, Kamloops, and Salmon Arm), Northern B.C. (including but not limited to Prince George, Prince Rupert, and Quesnel) and in the Yukon Territory where we offer services in Whitehorse, Dawson City, and Old Crow. Contact our office today for your initial consultation.

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