Professor Craig Fraser: Unmasking the legal dimensions of mental illness
UTM’s forensic science Professor Craig Fraser discusses the intricacies of mental illness in the criminal justice system.
The laws around mental illness in the justice system have always been interesting to me—especially as a forensic science minor at the University of Toronto Mississauga. Learning that mental illnesses are no longer as sequestered from the judicial system as I once understood interested me. But for many courses, this topic was just a module’s worth of studies—a module that was buried beneath piles of lecture notes on other legalities. Determined to learn more, I enrolled in Professor Craig Fraser’s FSC361: Mental Illness and the Criminal Justice System.
“We should do a course on mental health in the forensic science program,” Professor Fraser recalls Dr. Tracy Rogers pitching to him a few years ago. “It piqued my interest,” he continues, “myself and another Crown [attorney] who I taught with initially for a few years, Andrew McLean, built the course and centred it around guest speakers.”
Professor Fraser is a former Crown attorney and lawyer. He currently serves on the Ontario Review Board, a tribunal that oversees individuals found by the court to be not criminally responsible or unfit to stand trial by reason of a mental disorder. This winter semester, Professor Fraser is set to instruct FSC361 alongside Crown attorney Brett Moodie.
Professor Fraser completed his undergraduate degree at Western University and graduated with a bachelor of arts, having completed his studies in political science. After finishing his undergraduate degree, he assumed a sales representative role at a pharmaceutical company in Alberta and later British Columbia. While he enjoyed the job, he realized he didn’t want to work in that environment for the rest of his life—he wasn’t as passionate as he wanted to be. Having always loosely considered a career in law, he decided to apply to law school, earning a spot at the University of Windsor. “[Law] was always something I thought would be an interesting profession because there are so many avenues open to you once you have a law degree, and that appealed to me. I didn’t necessarily know what kind of law I wanted to do, but I thought the education itself would be a terrific experience,” Professor Fraser explains.
After completing his law degree and finding his path in practicing criminal law, Professor Fraser soon found himself partaking in cases that involved mental illness. Pulling out a copy of the Criminal Code of Canada’s Part XX.1, Professor Fraser quotes mental disorder to be defined as “a disease of the mind,” which “embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning.”
Notably, Professor Fraser mentions that definition excludes self-induced states of mental impairment caused by alcohol, drugs, or transitory states such as hysteria and concussions. “It’s a very wide definition, but it really comes down to an abnormal condition that impairs the human mind and its functioning,” he says. “But in practice, you see that what distinguishes a mental disorder from another type of mental health condition is psychosis—people who experience delusions, hallucinations, and act on those symptoms of the illness, are typically the people that are found not criminally responsible [by mental disorder],” he explains.
To be found not criminally responsible by mental disorder, Professor Fraser adds, an individual has to meet one of two criteria. According to the law, having a mental disorder is the first requirement, but in addition to this, the individual must either not appreciate the nature and quality of the act or omission, or not appreciate the moral wrongfulness of the act or omission—with most cases falling under the second category. “So even though someone may, for example, kill another individual, if they are psychotic and suffering from delusions, which often are persecutory, which means ‘I have to do something to this person before they do something to me,’ they clearly understand they’re committing the act of killing someone, but what they don’t appreciate [due to their psychosis] is that it’s morally wrong, the illness deprives them of a rational choice.” Professor Fraser expands.
In most cases, he highlights that the court is well-equipped to understand that these individuals need mental support. “From my experience, [working] in Hamilton, we had a very robust mental health support network in the courts. So, for example, there were several court workers who were working with the Canadian Mental Health Association, and then there was our relationship with St. Joseph’s Hospital, which is a forensic mental health hospital. So, we had very active ongoing relationships with the hospital,” he recalls. He explains how the doctors at the hospitals would testify to fitness and criminal responsibility, and how court workers supported people who had mental health issues and didn’t have a lawyer to represent them in court.
Professor Fraser explains, persons in custody would have a lawyer to represent them, who also liaise with the Canadian Mental Health Association Court support worker, who, in some cases, liaise with the Crown. In some of these cases, the lawyers simply work to advocate for the person in custody, while in other cases, they provide information to aid in resolving the case, he continued to explain. Sometimes, Professor Fraser went on to say, the cases can even be resolved without prosecution. To resolve the cases without prosecution, a mental health diversion could be made where the accused is followed by the Canadian Mental Health Association for six months while under treatment and programming, says Professor Fraser. At the end of their time, if their treatment is successful, the charges are withdrawn. “This is an aspect of supporting persons with mental illness who aren’t committing serious criminal acts—they’re at the low end of the spectrum,” Professor Fraser adds. These include those charged with minor offences like mischief to property.
“The more difficult cases are the ones where there’s serious bodily injury or death that’s caused [by] a person that is ill,” he says. These cases, according to Professor Fraser, are difficult to find a middle ground that protects public safety but also recognizes that the accused is mentally ill and is not criminally responsible by mental disorder. In these cases, the accused are under the Ontario Review Board’s system, where they hold jurisdiction over the accused after the court makes its findings of not criminally responsible. After this, he explains, the court is removed from the case. The panel on the Ontario Review Board—two psychiatrists or one psychologist, two lawyers, and a public member with expertise and experience in the area of mental health—review cases annually to assess the progress and treatment of the individual. They also re-assess liberties and restrictions imposed to issue dispositions.
“In cases where there is serious injury or death, I think it’s harder for victim’s families to see the mental illness as the driving force for the offence. This is understandable,” Professor Fraser notes. After all, by not incarcerating the offenders, there is a notion that justice has not been served—in the traditional sense. However, rulings of not criminally responsible by mental disorder are not a new development in the legal system. According to Professor Fraser, they date back to laws from decades ago. “There is less stigma now than there was [before]. And I think a lot of that relates to how much mental health and wellness is in the public eye,” he says.
Exposing students to the intricacies of mental illness in the criminal justice system drives Professor Fraser’s passion for FSC361. Thinking back to a student who committed themselves to this path of study after being influenced by one of the guest speakers, he reflects: “Little things like that are very gratifying. […] When you can have that experience where a student connects with one of our speakers and then it changes the way they pursue their education.”
For me, FSC361 was monumental. It changed the way I understood the justice system, and how mental illness is inevitably intertwined in the system. Having the opportunity during the winter 2023 semester to meet and learn from various guest speakers, along with Professor Fraser and Professor Greenwood, was a valuable experience that not only taught me a lot, but also opened my eyes to the everchanging definition of “justice.” My advice to you? Take FSC361, you won’t regret it.
Opinion Editor (Volume 49) | opinion@themedium.ca — Kareena is a third-year student completing a double-major in Criminology and Socio-Legal Studies and Philosophy, and minoring in Forensic Science. She has previously served as the Associate Opinion Editor for Volume 48. Through her involvement and contributions with The Medium, Kareena hopes to foster a safe and trusted space, while encouraging others to let their voices and stories be heard. When Kareena is not writing or studying, you can find her watching true crime mysteries or cooking.
—According to Professor Fraser, they date back to laws from decades ago. “There is less stigma now than there was [before].
An indication that we are still teaching there is stigma. One day we will stop.
Harold A Maio, retired mental health editor