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

[Patrick Brown, Conservative, Barrie, ON]

Mr. Speaker, one of the important aspects of this bill is that it takes into consideration the role of the victims.

To go through an ordeal as a victim is a huge challenge, but to then have this memory revisited by potentially having the person who was convicted in your small town or place of work and not know about it would be harrowing. That is why this bill takes the rights of the victims into consideration and involves them in the process by giving them advance notice and the ability to have conditions placed upon the release.

It is the right balance. The bill recognizes the role of the victims. I applaud the minister and the team for putting that in Bill C-54.

[Jonathan Tremblay, NDP, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Mr. Speaker, I think the member would likely agree that such a bill—one that changes so many measures and creates an obligation to monitor these individuals—will cost money.

After the costs are assessed, we are left with two options: the government either passes the bill onto someone else or it pays for these changes.

If these costs are not included in any programs, has the government decided what it will do? Will the provinces be left to foot the bill or will the government pay for these changes?

[Patrick Brown, Conservative, Barrie, ON]

Mr. Speaker, on the issue of cost, I would note that this government has invested a lot in mental health. Since 2006, the government has invested nearly $90 million in mental health for prisoners.

In terms of transfer payments and the costs the provinces accrue, the provinces have received transfer payments that this year now total $62 million. That is nearly a 50% increase since 2006. This government has been very generous with the provinces.

What it comes down to is making sure that we have balance and fairness in our justice system. If there is a cost associated with protecting and being aware of the rights of victims in the process of ensuring public safety in our communities, then that is certainly the right decision to be made.

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

Mr. Speaker, after my speech earlier, I was asked about what we are supposed to tell a mother whose child was murdered. My family experienced something like that. My cousin was tortured and killed. His murderer spent the rest of his life in jail, where he died. He never got out. This bill would not have done anything to help his family.

I would like to know how the member can put so much faith in this bill that ultimately does not change very much. What is there of substance in this bill?

[Patrick Brown, Conservative, Barrie, ON]

Mr. Speaker, obviously I do not know the details of the specific case raised by the member.

This legislation is important, because it would do three things. It would enhance victims rights. It would put public safety first, and it would create a very important high-risk designation. I want to speak directly to the high-risk designation.

The legislation would create a new designation to protect the public from a high-risk, not criminally responsible accused. Upon this high-risk designation by a court, a not criminally responsible accused would have to be held in custody and could not be considered for release by a review board until his or her designation was revoked by a court.

This is important for our communities. If the member is asking what the point of the bill is, it is about protecting public safety. Obviously, there is a lot of support for this in the country. Any of us who have constituents who have heard about these reforms know that there is a lot of support for it. I am glad that this government is putting victims first and is protecting public safety across the country.

[Mark Warawa, Conservative, Langley, BC]

Mr. Speaker, it is a real honour to speak to Bill C-54, the not criminally responsible reform act, at second reading.

As we know, the Government of Canada is committed to protecting victims of crime and to making our streets and communities safer for all Canadians. To this end, on February 8, our government introduced the not criminally responsible reform act. The act would ensure that public safety comes first in the decision-making process with respect to accused persons found not criminally responsible on account of a mental disorder. It would enhance the safety of victims and would promote greater victim involvement in the Criminal Code mental disorder regime.

When this bill was first introduced last February, I am sure that many, if not all of us, received support from across this great country. We each received a lot of input through emails, phone calls and letters and when we were at community meetings. When this was first introduced in February, there was a lot of positive response. Canadians want this. Victims need this.

The Criminal Code mental disorder regime applies to a very small percentage of accused persons. Under Canadian criminal law, if an accused person cannot understand what the nature of the trial is or its consequences and cannot communicate with his or her lawyer because of a mental disorder, the court will find that the person is unfit to stand trial. Once an accused becomes fit to stand trial, he or she is then tried for the offence for which he or she was initially charged.

If a person is found to have committed an act that constitutes an offence but lacks the capacity to appreciate what he or she did or know that it was wrong due to a mental disorder at the time, the court makes a special verdict of not criminally responsible on account of a mental disorder, also known as NCR. That person is neither convicted nor acquitted.

If a person is found to be either unfit to stand trial or NCR, the board then decides on a course of action. Under the current law, the review board can make one of three possible decisions. If the person does not pose a significant threat to public safety, there could be an absolute discharge, a conditional discharge or a detention in custody in a hospital.

Bill C-54 proposes to amend the mental disorder regime, which deals with accused persons who are found to be unfit to stand trial or are NCR.

The legislative amendments to the mental disorder regime in the Criminal Code proposed in the not criminally responsible reform act would explicitly make public safety the paramount consideration in the court and review board decision-making process related to accused persons found to be NCR or unfit to stand trial.

The legislation would amend the Criminal Code to create a process for the designation of NCR-accused persons as high risk in cases where the accused person has been found NCR of a serious personal injury offence and there is a substantial likelihood of further violence that would endanger the public, or in cases in which the acts were of such a brutal nature as to indicate a risk of grave harm to the public.

There has been a lot of comment made in the House over the last number of hours. Hopefully, that clarifies the bill. This is to be considered in the most dangerous and extreme cases. Those designated as high-risk NCR-accused persons would not be granted a conditional or absolute discharge, and the designation could only be revoked by the court following a recommendation by the review board. This designation would apply only to those found NCR and not to persons found unfit to stand trial.

The proposed legislation outlines that high-risk NCR accused persons will not be allowed to go into the community unescorted. The public supports that. Escorted passes will only be allowed in narrow circumstances and subject to significant conditions, to protect the public safety. Canadians support that. Also, the review board may decide to extend the review period for up to three years for those designated high risk, instead of annually. Canadians support that. The high-risk NCR designation will not affect access to treatment by the accused. Canadians support that.

In addition, the proposed reforms will codify the meaning of “significant threat” to the safety of the public, which is the current test used to determine whether a review board can maintain jurisdiction and continue to supervise a mentally disordered accused. It will clarify that the risk to the public safety must be criminal in nature, but not necessarily violent in form, for restrictions to be imposed upon the accused.

The legislation would enhance the safety of victims and provide them with opportunities for greater involvement in the Criminal Code mental disorder regime by ensuring that they would be notified, upon request, when the accused was discharged; allow non-communication orders between the accused and the victim; and ensure that the safety of victims be considered when decisions were made about an accused person.

This is what I have heard also from Canadians, which is the importance of the consideration of the families of the victims.

Often, we have heard that the consideration and the involvement of these families that are dealing with a loss in a traumatic situation in their lives need to be considered and way too often that has not happened.

Provisions of the proposed legislation will also help to ensure consistent interpretation and have application of the law across our great country. These proposed reforms will not change the existing Criminal Code eligibility criteria for the exception from criminally responsibility on account of mental disorder.

Since the introduction of the federal victims strategy in 2008, our government has responded to the needs of victims of crime in an effort to give them a more effective voice in the criminal justice system. Canadians are very happy with what has been accomplished.

Funding has been provided to projects and activities that enhance victim assistance programs across Canada, that promote access to justice and participation in the justice system and the development of law, policies and programs, that promote the implementation of principles, guidelines and laws designed to address the needs of victims of crime and articulate their role in the criminal justice system, that contribute to increased knowledge and awareness of the impact of victimization, the needs of victims of crime, available services, assistance in programs and legislation and also that promote, encourage and enhance governmental and non-governmental organizations' involvement in the identification of victims' needs and gaps in service and in the development and delivery of programs, services and assistance to victims, including capacity-building in the non-governmental organizations.

The legislation would enhance victims' rights. It would enhance the safety of victims by ensuring that they would be specifically considered when decisions were being made about accused persons found NCR. We will put the public safety first. The legislation would explicitly set out that public safety is the paramount consideration in the decision-making process. Also, the legislation would create a new designation to protect the public from high-risk NCR accused.

Canadians want this. Canadians need this. I encourage all members to support this.

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

Mr. Speaker, I will repeat my last question.

I mentioned that my cousin was tortured and murdered. The murderer went to jail and never got out because his crime was too horrible. He died in jail. The answer to my question was that the government wants to protect Canadians.

How would this bill have better protected Canadians when this criminal in particular remained in jail? It would not apply to him. What more will it do?

[Mark Warawa, Conservative, Langley, BC]

Mr. Speaker, we are very sorry for the loss that she has experienced. However, law cannot be based on any one example. We heard an example from the Winnipeg, Manitoba area of a person who was released and how it had created a lot of angst within the community, about whether people's safety were at risk.

We need to have legislation built on logic that reaches a balance. We are at second reading right now. If this bill passes second reading, it will go to the committee. The justice committee will deal with this legislation and possibly make some changes to make it better.

Legislation cannot be built on one example.

[Bernard Trottier, Conservative, Etobicoke—Lakeshore, ON]

Mr. Speaker, one of the things my colleague described in his speech was the discretion that was utilized when it came to applying the not criminally responsible provisions in the bill.

Could the member expand on why this is really not a case of one size fits all, but that this is a tool that is being deployed and is at the disposal of prosecutors who will look at the specific examples of the case?

Could the member expand on why this is a useful adaptation for the judicial system, looking at specific cases and that it is really not a case of treating all cases the same?

[Mark Warawa, Conservative, Langley, BC]

Mr. Speaker, the hon. member brings up a very good question.

The courts still have discretion. If the courts deem an individual not criminally responsible, but that the individual involved has committed a very serious offence and is possibly a risk to the community, then that individual will have this high-risk designation. That could be removed at a future time, if the review board applies to have it removed.

Right now, someone who is found not criminally responsible does not have that designation. Having that designation for the very serious offences, provides the courts discretion but it also provides another step of assurance that public safety is paramount.

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

Mr. Speaker, I want to return to the concern that I have expressed this evening, that despite good intentions perhaps in the way this legislation is drafted to deal with a concern the public has, which I feel is driven by the headlines as opposed to empirical evidence, we may inadvertently make the situation worse.

The courts have been very clear that the not criminally insane provisions and much of the law that surrounds them must be seen in the context of mental health and treatment and not in a more punitive approach.

In evidence of this, I would just cite briefly from Mr. Justice Binnie in the Owen case, who said:

It is of central importance to the constitutional validity of this statutory arrangement that the individual...be confined only for reasons of public protection, not punishment.

I put it for my friend from Langley, that this bill, in many areas, seems to trespass from the preventative mental health focus to one that is treating mentally ill persons as criminals and subject to more severe punishment.

[Mark Warawa, Conservative, Langley, BC]

Mr. Speaker, I thank the member for being here during these late hours.

As parties, we have the opportunity to take a breather, but she is here, faithfully representing her community. I want to thank her for that. It takes a lot of effort for her to do it by herself.

To the member's question about whether this is punitive, it is absolutely not. This is reaching a balance where the courts still have discretion to put a classification on somebody who presents, or could present, a very high risk of reoffending. The paramount consideration is whether this designation needs to be put on an individual to protect the public.

The courts have the discretion. If the designation is put on, it would only be the courts that could remove it.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I am pleased to rise to speak to this profoundly important bill before the House. Bill C-54 is one that calls for all parliamentarians to reach deeply into their experience and their commitment to making good sound public policy in the country and it calls upon us to balance some of the most important values that we have, not only as parliamentarians but as Canadians.

The proposed legislation will amend the Criminal Code to create a process for the designation of “not criminally responsible” accused persons as high risk where the accused person has been found not criminally responsible of a serious personal injury offence and there is a substantial likelihood for further violence that would endanger the public or, alternately, in cases in which the acts were of such a brutal nature as to indicate a risk of grave harm to the public.Those designated as “high-risk” accused persons will not be granted a conditional or absolute discharge and the designation can only be revoked by the court, following a recommendation of the review board. It is important that this designation will apply only to those found not criminally responsible and not to persons found unfit to stand trial.

The proposed legislation outlines that a high-risk accused person would not be allowed to go into the community unescorted and escorted passes would only be allowed in narrow circumstances and subject to sufficient conditions to protect public safety. Also, the review board may decide to extend the review period for up to three years for those designated high risk, instead of annually. The high-risk NCR designation would not affect access to treatment by the accused.

This bill would also speak to the very important role of victims in this important matter. These changes would ensure that victims were notified upon request when an accused who had been found guilty and received a not criminally responsible designation was discharged. It would allow non-communication orders to be issued between the accused and the victim. Finally, it would ensure that the safety of victims be considered when decisions were being made about an accused person.

Provisions in the proposed legislation would also help ensure consistent interpretation and application of the law across the country. These proposed reforms would not change the existing Criminal Code eligibility for the exemption from criminal responsibility on account of mental disorders.

This is a very difficult issue for victims, families and communities and for all of those involved in the criminal justice system, from the police to the prosecutors to the defence bar to the judiciary. Public safety must come first when complying with the rule of law and the Canadian Charter of Rights and Freedoms, but it calls on very important balancing to be done. A number of recent cases that received significant media attention in Canada raised questions about the appropriateness and effectiveness of the current approach. In particular, we want to know how we can help victims better in the process and deal sensitively, fairly and effectively with not criminally responsible offenders.

In the coming weeks, we New Democrats want to talk with mental health experts, victims and members of the bar in provinces to find out what they believe is the best approach. It is important to note that we New Democrats do not want to play political games with this file. We must focus on the policies, merits and serious issues that are involved in this matter.

I want to talk about some things that jump out as inherently positive from the bill. First, Public safety as a paramount consideration is important to note. Second, increasing the involvement of victims in the process is something that will find favour on all sides of this House. Third, the ability of victims to be notified, to have non-communication orders issued and to have their own safety be considered in all matters respecting a not criminally responsible offender are all laudable goals.

It is positive to have review boards have the option and not the obligation to extend the time for review and it is something that will expand the efficiency of our system. However, it is important to note that there are important causes for concern and pause here.

This bill proposes that there be a limit to the number of community visits for high-risk accused persons. That introduces the concept of having mandatory minimum approaches to this area of the law that I think is so typical and characteristic of the Conservative approach to crime, which study, statistics and experience of jurisdictions around the world have shown to be such an utter failure. There is also a legitimate concern about charter compliance and, very importantly, unjustifiable stigmatization of those with mental illness.

I want to address something that I think the Minister of Natural Resources mentioned a couple of hours ago, and that is the fact that a very sizable proportion of offenders who get NCR designations had some experience with the law prior. In fact, a very sizable percentage of those people had been incarcerated before. It is very important for us to note what kind of assistance is available to people with mental health issues in the current federal justice and penal systems and what the Conservatives' record is on dealing with the people who have experience with our criminal system before they get NCR designations.

There was a committee prepared in December 2010 entitled, “Mental Health and Drug and Alcohol Addiction in the Federal Correctional System”. In that report, after exhaustive study across this country, visiting some 20 federal institutions and hearing from all kinds of witnesses, there were 71 recommendations made to the government to deal with mental health in our prison system. Those recommendations were for the very people whose mental health issues first emanate in our system and end up getting NCR designations in many cases. These were some of the things recommended.

Recommendation 1 stated:

That the federal government, in cooperation with the provinces and territories, make a commitment to and a serious investment in the mental health system, in order to ease the identification of and access to treatment for people suffering from mental health and addictions before they end up in the correctional system.

Recommendation 3 stated:

That the federal government work with provinces and territories in order to ensure that police officers, Crown prosecutors and other key players in the criminal justice system be trained to recognize the symptoms of mental health problems, mental illness and drug and alcohol abuse so that they can direct offenders to the appropriate treatment services.

Recommendation 4 stated:

That the federal government work with the provinces and territories on early identification of mental health and addiction issues affecting offenders in remand, and secure access to treatment services for them in order to address conditions that are so often precursors to escalating crime and incarceration.

Recommendation 5 stated:

That the federal government support the creation and funding of more drug treatment courts to divert offenders with addictions to treatment centres and mental health courts to divert those with mental health needs to appropriate services.

Recommendation 17 stated:

That Correctional Service Canada work towards a psychologist/patient ratio of no more than 1:35 at all federal institutions.

That was evidence received from the Canadian Psychological Association.

Recommendation 19 stated:

That Correctional Service Canada add psychiatric nurses and nurses at every federal institution.

Recommendation 21 stated:

That Correctional Service Canada place a renewed focus on individualized treatment for all offenders with diagnosed mental health conditions, including addiction issues.

Recommendation 28 stated:

That Correctional Service Canada cover the cost of all medication prescribed to treat mental illness of offenders on conditional release in the community through warrant expiry.

Those are just a handful of the 71 recommendations made three years ago to the government. Do members know how many recommendations the Conservatives have put into practice? Not one, not one of 71 recommendations. Yet the Conservatives stand in the House when there is a serious media story of someone who finally commits a serious act, someone who has been involved with the correctional system, and want to pass a law that deals with the aftermath.

Here is the difference between the New Democrats and the Conservatives. New Democrats want to work to prevent crime from happening in the first place. New Democrats care more about victims than the Conservatives do because we want to make sure that there are no victims in the first place. Instead of trying to deal with the aftermath, the shattered lives of victims after crimes have been committed, New Democrats will actually put money and resources into the system, unlike the Conservatives. Instead of chasing cheap headlines and cheap answers that do not work, we will put the resources in so that people suffering from mental health in this country get the treatment they deserve that will keep them out of the penal system, out of the courts and, most importantly, keep our communities safe. That is the sensible approach to mental health in this country. That is a sensible approach to deal with people in the criminal justice system. It is the only way we are going to make the public safe in this country. That is the New Democrat way.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, I want to pick up on a point my hon. colleague made about wanting more mental health professionals in the system. It is very laudable and a very appropriate thing to do. The NDP railed against this for another issue that involved that and that was getting more mental health professionals into the military system to deal with veterans and PTSD and so on. We started with 225, tried to get to 450, we have it to about 350 and that is far as we can get because those people simply do not exist. It came to the point where the civilian mental health world was getting a little cranky with the Canadian Armed Forces because they were taking all the people and there were none left for anyone else.

This is not a criticism of the member's statement. The question is, when there is such a paucity of mental health professionals and we cannot get there with Veterans Affairs or the Canadian Armed Forces, how does he suggest that we overcome that challenge for the bigger picture of getting more mental health professionals into the prison system?

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, that is an excellent question and one that the committee looked at extensively in 2010, because there is a problem attracting and retaining health care professionals into the prison system. We looked into that very issue. In fact, recommendation 16 of our report says that Correctional Service Canada should develop an attraction and retention program for psychologists, nurses, psychiatric nurses, occupational therapists, social workers and other necessary professionals including paying market salaries, that Correctional Service Canada provide for dedicated budgets for the ongoing training of health professionals in order to make the environment more attractive to them.

These were two very tangible recommendations already made to the government three years ago. A further suggestion that was made as well was to locate prisons near hospitals, as is happening in Saskatchewan, where there can be a synergy between the psychology and psychiatric divisions of hospitals and universities working with the prison.

These are the kinds of innovative measures that have been taken in other countries and this is why the countries are having greater success at lowering recidivism rates than Canada is. But how much money have the Conservatives put in the Correctional Service system in terms of adding to the salaries to attract these professionals to the prison system? They have not done the job. They did not get the job done and that is why there is a paucity of those professionals in our system.