Mr. Speaker, I take this opportunity to say that I will be sharing my time with my colleague from Vancouver Centre.
I find myself in, I suppose, a not unusual position for me, but nevertheless, one where I am swimming against the tide.
I have no doubt at all that there is a need for us to take the issue of victims and victims' rights very seriously. If we were to look back at how the law could be improved, this would be one area in which we can all agree. However, when I look at the legislation overall, and after the discussions I have had over the last several weeks with a number of groups involved with the issues of mental health and mental illness, I find myself unable to recommend to my colleagues that we vote in favour of this legislation, even at second reading.
I know that when I say that, there will be members who will be struck with disbelief and others who will say that surely I recognize that dangerous people should be kept off the street. My answer to that is, of course, and they are.
The facts are these. The defence of insanity, the recognition that people who are not able to judge the consequences of their acts and are unable to say whether they are right or wrong and are found either not able to even stand trial or not criminally responsible, has been a foundation of our criminal justice system in the common law world for hundreds of years. It is a basic principle of the criminal law that people who can understand the consequences of their actions and have the necessary intent should be found criminally responsible. Others have to be treated in a different way. They are not simply set free, as some using stereotypes might like to make people believe, but rather are kept away from society, and today, as we try to deal with these issues, are hopefully treated and rehabilitated in such a way that they are able to be successfully reintegrated into society.
It was Madam Justice McLachlin, who, in consideration of a case before the court before she became chief justice, said:
Treatment, not incarceration, is necessary to stabilize the mental condition of a dangerous NCR accused and reduce the threat to public safety created by that condition.
That was in the so-called Winko case.
Until the early nineties, the rule was that one was held at will under a lieutenant-governor's warrant. The lieutenant-governors in the provinces established review committees, but there were really no clear criteria that established how incarceration would suddenly end. It was response to a decision of the Supreme Court, in the Swain case, that said that the protection of the public was not guaranteed by that practice and that we had to establish a new system.
The basis of the new system was to say that first of all, we are not punishing people, because they are not capable of being punished. I am glad that the Minister of Natural Resources emphasized that in the speech he gave. We are not punishing people. We are incarcerating people for the protection of the public. Yes, of course. Public safety is an absolutely important concern we all have and all share. No one wants to see public safety in any way, shape or form compromised. It is also to allow people to become rehabilitated, because they were not capable of understanding what they were doing. We want to put them in a condition where they will be able to understand what they are doing. We understand that this is an area of life that is full of fear, insecurity, mythology and misunderstanding and in which it is only too easy, from time to time, to say, “We have a hot button. Let's press it”.
I certainly believe and share the comments made by members of both the Conservative and New Democratic parties that it is entirely legitimate for us to take the concerns of victims far more seriously than we have in the past. I can say, as someone who has been in government, that we have made every effort to do that, when it was important for us to do that, in terms of having victim statements and the courts taking what is happening to victims much more seriously than they had.
However, we also have to understand that we live in a society governed by the rule of law, wherein we cannot incarcerate people indefinitely without providing for due process, which is what the court told us in 1991. There had to be due process.
The government will argue that it has provided for due process and that the process it is establishing is perfectly adequate. I have to say to the government that I am not sure it has been able to do that. In fact, I have recommended strongly to my colleagues, when I was in a position to recommend something to my colleagues, that we not support this legislation, although I said to them that this response will not be politically popular. This will not be a winner with people because when we press a button like this, we will get a response from the public.
I say to my colleagues in the Conservative Party as well as in the New Democratic Party, both of which are now supporting this legislation, let us not manufacture a crisis that does not exist. There is no crisis in public safety. It does not exist.
The evidence is not there that justifies the sense that if someone has committed a horrible crime and is mentally ill, he or she is any more likely than anyone else to commit that crime again. In fact, the opposite is true. The rate of recidivism for those people who are found to be not criminally responsible is 4% for those people who have been given an absolute discharge; for people who have left prison, it is 44%.
The fact of the matter is we cannot incarcerate people indefinitely. We have to have a process that respects the rights of the individual as well as the rights of society. That is the balance we have to strike.
Naturally, there will be situations that are trying and emotional. We see that. However, people with a mental illness who are linked to a serious crime are not criminals. That is not a principle that the Liberal Party just made up. It is a long-standing principle of natural justice within our society. This bill is off kilter and, unfortunately, that is why we cannot support it.
I spent particularly the last few years of my political life campaigning for people to better understand the nature of mental illness, the importance of getting rid of stigma, the importance of understanding that the mad individual is not necessarily and in all circumstances someone who is to be incarcerated for an indefinite period of time and the importance of understanding that we have gone through a steady evolution over the last 100 years in understanding how important it is to treat, yes, the causes of crime, just as truly as we treat crime itself.
If I believed that our current legislation denigrated the importance of public security and public safety, I would agree with the government and I would agree with the New Democratic Party, but that simply is not the case. It simply is not the case to say that these review boards are conducting their work as if public safety were of no concern or of no consequence to them or to anyone else.
We have allowed certain mythologies, certain stereotypes, to take over. We are failing to recognize the real risks that apply to this legislation.
I was interested that Mr. Sapers, the corrections investigations officer for the country, expressed concern about this legislation, saying it would increase the number of mentally ill people in jail, not decrease that number.
I may be at risk of being even further stereotyped by my colleagues in the other way when I say this. Shakespeare said it best:
The quality of mercy is not strain'd.
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest:
It blesseth him that gives and him that takes.
'Tis mightiest in the mightiest. It becomes
The thronèd monarch better than his crown.
His sceptre shows the force of temporal power,
The attribute to awe and majesty
Wherein doth sit the dread and fear of kings,
But mercy is above this sceptred sway;
It is enthronèd in the hearts of kings,
It is an attribute to God himself.
And earthly power doth then show likest God's
When mercy seasons justice.
Let us never forget, colleagues, that mercy must season the justice that we seek.
