Bill C-54 (Historical)

Not Criminally Responsible Reform Act

An Act to amend the Criminal Code and the National Defence Act (mental disorder)

This enactment amends the mental disorder regime in the Criminal Code and the National Defence Act to specify that the paramount consideration in the decision-making process is the safety of the public and to create a scheme for finding that certain persons who have been found not criminally responsible on account of mental disorder are high-risk accused. It also enhances the involvement of victims in the regime and makes procedural and technical amendments.

Second Reading

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Mr. Speaker, we can tell this woman that we understand what happened and that the first thing we need to deal with is public safety. That is why the NDP decided to support this bill. That will make it possible to study it in second reading and improve it. However, we care a great deal about public safety, particularly the safety of this person's child.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, I am pleased to participate in the second reading debate in support of Bill C-54, the not criminally responsible reform act. I am going to focus my comments around how the bill reflects and builds upon the legal foundation provided by the Supreme Court of Canada on controlling the risks posed by the accused who are found not criminally responsible on account of mental disorder, or NCR.

The bill would provide enhanced guidance to the courts in applying several key legal tests that are present in the mental disorder regime of the Criminal Code. This is the part of the Criminal Code that deals with the mentally disordered accused, including those who are found NCR. The introduction of more straightforward terminology and clearer language proposed in Bill C-54 would better ensure that the courts accord the proper weight to the protection of the public. It is about keeping it as simple and clear as possible.

At the heart of the bill is the concern for protecting public safety, which is the first and foremost duty of any government, and everybody in the House agrees with that. Certainly my constituents have told me that, time after time. It has been recognized by the Supreme Court of Canada on numerous occasions, most recently in the 2010 case of R. v. Conway, as a paramount duty of review boards in the context of dealing with NCR accused.

In that case, the Supreme Court noted that, while an NCR patient's liberty must be a major occupation of these boards, it is still situated within the fence posts of public safety. That is the first priority, and if it does not fit within those fence posts, it is not going to happen. Bill C-54 proposes to clearly articulate those fence posts in an accessible and forthright manner.

The bill would ensure that the procedures put in place for reviewing the disposition of NCR accused are tailored responses that take into account the risk that any particular individual poses to society at large. It is not a cookie-cutter approach; it goes on a case-by-case basis. This is why Bill C-54 proposes to introduce the new designation of a high-risk NCR accused. It is not intended to apply to all persons found NCR; rather it is only directed at a subset of these persons after a court is first satisfied that there is a substantial likelihood that the accused would use violence that could endanger the life or safety of another person, or after a court comes to the opinion that the acts that constitute the offence are of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.

With reference to an earlier debate we had with the member for Toronto Centre and others in the Liberal Party, I would have to ask again a rhetorical question. What level of risk is acceptable to the public? The answer, I would say, is very little.

By introducing this designation, the bill responds to the paramount interest in protecting public safety cited by the Supreme Court in Conway. Specifically, the bill addresses the cases at the highest end of the risk spectrum when applied in the appropriate circumstances.

Bill C-54 also builds on the Supreme Court of Canada's 1996 decision in Winko v. British Columbia. In that case, the court interpreted the phrase in the existing section 672.54 of the Criminal Code regarding what is “a significant threat to the safety of the public”. This is the test used in the NCR regime by a court or review board in determining whether an accused should be discharged absolutely, or with conditions, or detained in a hospital.

In Winko, the court concluded that a “significant threat to the safety of the public” means a real risk of physical or psychological harm to members of the public that is criminal in nature and serious in the sense of going beyond the merely trivial or annoying. Again, I would ask what level of risk is acceptable to the public. The answer that my constituents would give and I think most people would give is, very little.

Bill C-54 is consistent with the Supreme Court of Canada's approach. It would clarify the meaning of significant threat to the safety of the public by specifically defining it in the law as:

...the serious physical or psychological harm to members of the public — including any victim of or witness to the offence, or any person under the age of 18 years — resulting from conduct that is criminal in nature but not necessarily violent.

This clarification is specifically intended to adopt and confirm the interpretation of the Supreme Court of Canada in Winko. It ensures that a court considering the threat posed by an NCR accused is able to take into account all the appropriate circumstances, including criminal conduct that is not overtly violent but may nonetheless signal a real risk to the public.

This definition also addresses a key concern we have heard time and time again—namely, the need to ensure victims' interests are acknowledged in the criminal justice system. With this amendment, Bill C-54 would make it clear that when a court or review board considered what is a threat, it must consider not only the general public at large but also any victims, witnesses or any person under the age of 18.

This would help ensure that any particular threat or danger to the victim is not forgotten or overlooked. Safety to the public must include the safety of its most vulnerable members, and Bill C-54 recognizes and affirms this objective.

I welcome the proposed addition of this specific definition to the mental disorder regime. It would help to clarify this crucial point of law and provide assistance to the courts and review boards that have to make these very challenging decisions.

Bill C-54 aims to clarify another important issue, which is the meaning of the phrase in section 672.54 of the Criminal Code: disposition “that is the least onerous and least restrictive to the accused”. There is no mention of victims. That phrase refers to the duty of the review board to choose between the possible dispositions for an NCR accused, including absolute or conditional discharge and detention in a hospital subject to any appropriate conditions. However, it is also a phrase that is not easily understood or as clear as it could be. Therefore, Bill C-54 proposes to replace this phrase with the far more accessible and understandable wording: “that is necessary and appropriate in the circumstances”. In other words, it would give some balance between the rights of the victims and the rights of the NCR accused.

This change is consistent with the authorities I have referred to, who held that in deciding between dispositions, safety of the public must be the primary consideration. What is a necessary and appropriate disposition will depend on the threat posed by the particular NCR accused. The language of Bill C-54 would still require review boards to consider all the relevant circumstances in making such a determination.

I think many will appreciate that reviewing legal areas such as the appropriate disposition for NCR accused is not always easy for Parliament or the courts to discuss. Decisions of the courts, such as the Winko and Conway cases I have referred to, can signal to Parliament that an area of law would benefit from clarification from the legislature. Bill C-54 is an important and significant step in this direction as it pertains to the legal regime for determining appropriate dispositions for NCR accused. It is a bill that would clearly indicate that the protection of the public is the guiding principle that courts and review boards must address in arriving at dispositions under the regime.

This balanced bill deserves the approval of the House, because it should also be a guiding principle of this place that we find the correct balance between the rights of victims when dealing with criminal justice and the rights of the accused. In this case, our first priority should always be the rights of victims and the protection of the public. I urge members to vote for this bill.

From what I am hearing, I am certain the bill will pass second reading and move to committee, where it can receive fuller discussion and input from witnesses; and we can address some of the legitimate points that have been brought up tonight by members on both sides of the House.

I encourage all members of this House to join me in supporting Bill C-54. Let us get it to committee and do the right thing for victims while still doing the right thing for those who are caught up in the justice system through no fault of their own, through mental illness.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, first, the member for Selkirk—Interlake mischaracterized my position a little when he alleged that I said the bill was unwarranted. I did not say anything of that nature. However, I am looking forward to seeing the evidence that is out there to say we need the bill, and I am looking forward to hearing that at committee.

The bill would make explicit the fact that the review board needs to take into consideration public safety, which is the paramount consideration. I want to know if the boards are not already making public safety the paramount consideration. I have read the Criminal Code, and I think it says so explicitly. However, even if it did not, one would assume that would be the paramount consideration. Therefore, how would Bill C-54 actually do anything different?

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, there is no bolt of lightening or anything like that to throw out the old and bring in the new. As I said, it is a matter of refining what is there. It is a matter of making the wording clearer so that review boards could have more guidance and clarity.

As I mentioned, section 672.54 of the Criminal Code says: disposition “that is least onerous and least restrictive to the accused”. It says nothing about victims. We are talking about replacing that with, “that is necessary and appropriate in the circumstances”. This is a broader statement that also brings into play the rights of the victim as well as the rights of the accused. It is a more balanced approach in our view.

My colleague raises legitimate questions. These are not simple issues. Therefore, Bill C-54 is an effort to make it clearer and make it easier for boards to come to the appropriate decision. I think once we get to committee there will be another opportunity to address more of these issues in a fuller manner.

[Jinny Sims, NDP, Newton—North Delta, BC]

Mr. Speaker, as has been said, New Democrats are pleased to support this bill at this stage. However, we have lots of questions, and that is why it should go to committee, so we can get the questions clarified, have debate and move amendments; that is, if the Conservatives accept any constructive amendments. On this side, we always live in hope.

My question to the member across the way is, basically, what the difference is between this bill and the current legislation and whether the courts and review boards already take public safety into consideration when they make their decisions.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, I would say to my hon. colleague that for all of us hope springs eternal.

My colleague from Halifax is wearing orange and my colleague from Newton—North Delta is wearing orange, and they asked the exact same question as well.

[Jinny Sims, NDP, Newton—North Delta, BC]

We just want an answer.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

I am sorry, Mr. Speaker; I will have to give them the same one that I gave just a moment ago, and that is to clarify some of the language to make it simpler and more clear to review boards that this is a balanced approach between the rights of the victims and the rights of the NCR accused. It is not a cookie-cutter approach. They have to take public safety as the primary consideration, but in a balanced and more definitive way. These are the kinds of questions that can be addressed at committee with various expert witnesses, to find wording that might make it even more clear than what is in the bill right now.

[Jamie Nicholls, NDP, Vaudreuil—Soulanges, QC]

Mr. Speaker, Samuel Clemens once said, “Whenever you find yourself on the side of the majority, it is time to pause and reflect”. Tonight I find myself on the side of the majority of members in the House, as well as the majority of Canadians who are looking to us in the House to reform our treatment of NCR people.

I mention this because, by looking at real tragedies such as the Tim McLean murder or the Turcotte murders, the public is understandably outraged at what they perceive as a miscarriage of justice. The majority of Canadians usually do not agree with the verdicts given or with the way the cases are treated in general.

We in the NDP support Bill C-54 at second reading because we think we need to look seriously at how review boards handle reviews, as well as how victims' rights are considered during the reviews. However, I want to pause and reflect, because this bill needs to be studied in committee. We must not let the outrage outweigh sound policy decisions in deliberating on Bill C-54.

It is hard as a parliamentarian to separate emotion or personal ideas of justice from what is actually a sound and informed policy deliberation. I am encouraged to hear sound policy deliberations from my colleagues on both sides of the aisle tonight, and I hope we can come to a consensus to work together to put public safety first when complying with the rule of law and the Canadian Charter of Rights and Freedoms.

As a human being and a father, I am absolutely disgusted and puzzled. For the life of me, I cannot understand how a man can murder his children. It is horrible. I feel very emotional about it. Who would not be shaken by reading the headlines about such crimes? I was saddened to hear about Guy Turcotte. Cases like that one that receive a lot of media attention suggest that the current approach may not be effective.

I am thinking of Isabelle Gaston and all victims. I would like to know how we can help victims get through this. We need to understand that Isabelle Gaston just wanted her two children, Anne-Sophie and Olivier, to still be alive. However, no court decision will bring her children back. After the trial, Ms. Gaston wanted the media to leave her alone so that she could get on with her life.

We need to ask ourselves some serious questions. How can we help victims? The member for Okanagan—Coquihalla talked about failing victims. I am putting myself in the shoes of victims who have lost children and, in my opinion, financial compensation from the government will never soothe a parent who has lost a child. As individuals, we are not capable of determining what victims need.

In the coming weeks, I hope that we will be talking to mental health experts, victims and provincial representatives to find out what they think the best approach is.

If we rush ahead with a poorly-thought-out policy, we will not be better off. If we make only cosmetic changes for the sake of the government to merely appear as if it is acting on this file, we will not be any further advanced.

The government has had six months to put this on the agenda. It has waited six months to put this on the agenda. Let us be honest: We need expert opinions. We need to consult with victims and with provinces. If the government were honest, it would admit that both crime and mental illness are wicked problems; if we plan to solve them, we will require complex, well-thought-out solutions, and even then we might not arrive at the right solution.

The definition of a wicked problem is a problem that is “difficult or even impossible to solve because of complex interdependencies and contradictory and incomplete requirements”.

Professor Nancy C. Roberts has said there are three main approaches when approaching a wicked problem. The first is an authoritative approach, whereby all the competing points are eliminated, the problem is simplified and power is vested into fewer hands. The consequence is that not all points may be taken into account to solve the problem.

The second is a competitive approach. It is an adversarial approach in which two sides come at each other. In that approach, knowledge-sharing might not happen and parties who care about their solution winning might not come to consensus to find the best approach.

The third approach is the collaborative approach. This approach engages all stakeholders to come to a consensus, to come to a common, agreed approach.

In the NDP, we believe in that third approach, that collaborative approach.

In the coming weeks we should meet with mental health experts, victims and provinces to find out what they believe is the best approach. However, and I should caution members, we do not want to play political games or use tragedies for political advantage with this file.

Let us take Samuel Clemens' words into account and focus together, working together on crafting what is the best policy.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, I appreciated the comments of the member for Vaudreuil-Soulanges. He is a very eloquent new member of the House and does a very effective job in the House of Commons.

I appreciate his remarks particularly when it comes to the difference between what legislation purports to do and what it actually does. What goes beyond just looking at the legislation is what resources are being allocated by the federal government—in other words, what is it doing to provide the resources to support victims and support this legislation?

Throughout the evening, we have been asking questions. The member for Vaudreuil-Soulanges has been asking questions. We have not got answers back from the government about how it will provide resources for this legislation. It seems apparent that it will be put on the backs of the provinces.

When we look at the cutbacks the government is making in health transfers, we see it is basically cutting back 50% of health care transfers over the next few years. In this context, we have concerns about whether this legislation is being adequately funded.

Does the member for Vaudreuil-Soulanges share the concern about the government not providing the funding to support the legislation?

[Jamie Nicholls, NDP, Vaudreuil—Soulanges, QC]

Mr. Speaker, I am very concerned about the financial implications of this bill. Indeed, I fear that the government did not do its homework and plan for adequate transfers to the provinces in order to meet their needs in the area of treating mental illness.

Let us look at the facts. A PBO document states the following:

Assuming that the new CHT escalator is maintained indefinitely, PBO projects that the share of federal CHT cash payments in provincial-territorial health spending will decrease substantially from 20.4% in 2010-11 to average 18.6% over 2011-12 to 2035-36; then 13.8% over the following 25 years; and, 11.9% over the remainder of the projection horizon.

This means that health transfers to the provinces are expected to decrease over the long term. As a result, I am very concerned about the fact that the government has not sufficiently planned how it will meet the provinces' needs in this area.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I thank my hon. colleague from Vaudreuil-Soulanges. That was a very fine speech indeed.

I want to turn our attention to another piece of this. As much as we can say we want to address the problem and that the problem is the people who are held not criminally responsible, if the legislation that is passed is not compliant with the charter, it will make things worse, even with the aims that the Conservatives claim they want to address here.

If my hon. colleague is familiar with the position of the Canadian Bar Association, its members have looked at this and at the removal of the language of the “least onerous and least restrictive” requirement, which is essential in their mind to constitutional validity of the provisions that we now have. The Supreme Court of Canada has underscored this: that if we remove, as Bill C-54 would, the language of the “least onerous and least restrictive” requirement, we may well find that this legislation would be susceptible to a constitutional challenge and that it would fail to survive.

[Jamie Nicholls, NDP, Vaudreuil—Soulanges, QC]

Mr. Speaker, these are definitely matters that we would like to discuss with the government side in committee. We would like to talk about the balance between the rights of individuals and the rights of victims. These are things that can be explored and debated in committee. We can discuss the serious questions about the charter and the balance between the rights of victims and the rights of individuals. That is why we are supporting it at second reading: so that it can get to committee and we can discuss these issues.

[Patrick Brown, Conservative, Barrie, ON]

Mr. Speaker, I am thankful to have the opportunity today to contribute to the second reading debate on Bill C-54, the not criminally responsible reform act. The bill proposes to amend the mental disorder regime in the Criminal Code and the National Defence Act to strengthen their ability to better protect the safety of the public, as well as do a better job at responding to the needs of victims in the mental disorder regime.

It may be useful to provide a bit of background on the existing mental disorder regime before I outline the amendments proposed in Bill C-54 and why they are important reforms.

A fundamental principle of our criminal law, including the mental disorder regime, is that a person must be morally blameworthy to be criminally liable for a wrongful act or omission. They must have the mental capacity to know and appreciate what they are doing and the mental capacity to distinguish between what is right and wrong. Also, they must be able to communicate and give instructions to their lawyer and understand the nature and consequences of a criminal trial in order to be tried.

If, at the time the act was committed, a person suffered from a mental disorder that rendered that person incapable of knowing what they did or that it was wrong, the trial court can find the person committed the act in question but order a verdict of not criminally responsible on account of mental disorder. If at that time of trial the mentally disordered person does not have the capacity to understand the nature and the consequences of the criminal trial, they may be found unfit to stand trial.

After either of these findings, the person will be dealt with according to the mental disorder regime, which is designed to balance the twin goals of public protection and fair treatment of the accused, usually by provincially appointed review boards. The review boards are composed of at least five members with legal and psychiatric expertise.

As I noted, the bill contains elements that address both public safety and victims. In terms of the public safety reforms, the bill would amend the Criminal Code and clarify that public safety is paramount in consideration for the review board decision-making process. Although the Supreme Court of Canada has said that public safety is already the paramount consideration, most recently in its 2010 judgment of Regina v. Conway, the proposed amendment would ensure consistent application in cases across the country.

The reforms would also codify the Supreme Court of Canada's interpretation of “significant threat to the safety of the public”, which is the current test for determining whether review boards can continue to supervise the not criminally responsible accused. The Supreme Court interpreted this phrase in the Winko case in 1999.

The amendment would also clarify that the accused need not pose a threat of violence, but must pose a real risk of physical or psychological harm to members of the public that is more than merely trivial or annoying and must be criminal in nature. This would ensure this test is applied consistently across all jurisdictions.

Bill C-54 also proposes to create a new high-risk mentally disordered accused designation scheme. This new scheme would only apply to the accused who were found not criminally responsible for a serious personal injury offence. The mental disorder regime would define a serious personal injury offence as an indictable offence involving the use or attempted use of violence, conduct endangering life or safety, or sexual offences. In these cases, the Crown would apply for the high-risk designation to be made by the court.

This designation could be made in two situations. The first would occur when the court was satisfied that there was a substantial likelihood that the not criminally responsible accused would commit violence that would endanger the life or safety of another person. The second situation would be if the court was of the opinion that the offence for which the not criminally responsible accused was found to be not criminally responsible was particularly brutal, so as to indicate a risk of grave harm to the public.

Accused persons who are found to be unfit are not included in this high-risk designated scheme because they have not yet been tried and determined by a court to have committed the act. The effect of such a judicial designation is to protect society from a high-risk individual and prevent the accused from being conditionally or absolutely discharged.

As well, a high-risk not criminally responsible accused would not be permitted unescorted passes in the community. This is particularly important. Escorted passes would only be permitted for medical reasons and only when a structured plan was in place to ensure the safety of the public.

It is important to clarify that the high-risk designation would not be permanent. Once a review board was satisfied that the high-risk, not criminally responsible accused no longer posed a substantial likelihood of committing violence that would endanger the life or safety of another person, it would make a recommendation to the superior court of criminal jurisdiction for review. The court would then hold another hearing to determine whether the designation should be removed. If it reached the same conclusion as the review board, the designation would be revoked. The accused would then become a regular not criminally responsible accused and would be dealt with under the regular procedures of the mental disorder regime. These are balanced proposals that seek to protect both the safety of the public and the rights of accused persons to fair and appropriate treatment.

I would like to return to the victim-related reforms. The mental disorder regime already offers many opportunities for victims to be involved in this process. They can attend hearings and present victim impact statements.

The proposed reforms would enhance victim involvement by providing that victims be notified, on request, when a discharge order has been made. This would ensure that victims have advance notice about the fact that they may run into the mentally disordered accused. This is especially concerning if the person is released into a small community.

The law would also be clarified explicitly to provide that the safety of victims be considered in the decision-making process. Further, Bill C-54 proposes to clarify that the review board shall consider whether it is desirable to issue a non-communication order between the not criminally responsible accused and the victim. The review board would also consider whether to order the not criminally responsible accused to not attend a specific place, such as the victim's home or place of work.

In closing, I would like to encourage all members to support this bill's passage at second reading. This is a bill that would provide balanced measures to protect public safety and enhance victim involvement in the mental disorder regime. These are reforms we should all support.

[Lynne Yelich, Conservative, Minister of State (Western Economic Diversification)]

Mr. Speaker, I would like to have the member again emphasize how important it is for the victims to be part of decision-making and how important this legislation is for public safety to be at the forefront of decision-making.