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.

Not Criminally Responsible Reform Act

[The Deputy Speaker, NDP, Joe Comartin]

The hon. member for Charlesbourg—Haute-Saint-Charles has the floor. As there is only one minute left, she has 30 seconds for her question.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Speaker, Catherine Latimer, who works for the John Howard Society of Canada, argues that we need more programs and services for victims of sexual abuse. The same is true of gay, transgender and transsexual people, who suffer a second and third type of discrimination and are victimized in our society.

The hon. member touched on the media and discussed the influence that newspaper headlines had on the bill. Ms. Latimer believes we need a stronger focus on prevention. Could the member comment on that?

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, that is a very relevant question.

There are many aspects to consider. First of all, we need to ensure that the bill does not stigmatize people with mental illness. The committee and Parliament need to keep that in mind.

I cannot say much about prevention right now because of time constraints. I already mentioned the Centre for Addiction and Mental Health, which treats people who were found not criminally responsible for their actions. It is currently operating at 104% of its capacity.

Without the necessary resources in place for prevention and treatment, this bill will be mostly a failure. That is why we are asking the government to give special attention to prevention and treatment when we debate the bill.

[Isabelle Morin, NDP, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, I am very pleased to rise in the House today to speak to Bill C-54, An Act to amend the Criminal Code and the National Defence Act (mental disorder).

I will first provide a little background. The bill proposes three major amendments. The proposed amendments are intended to make public safety the priority, to create a finding that a person who is not criminally responsible is a high-risk accused, and to enhance the involvement of victims.

At present, it is often forgotten that section 672.54 of the Criminal Code provides that the court or review boards shall take into consideration “the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused”.

As some of my colleagues have already said, we will support the bill at second reading, so that it can be examined in greater depth in committee. That said, measures already exist for making public safety the priority. That is something we consider to be very important, and we support it. We want to hear what the experts have to tell us about that.

The legislative amendments to the mental disorder regime in the Criminal Code that are proposed in the Not Criminally Responsible Reform Act would clearly make public safety the paramount concern in the courts and in the decision-making processes of review boards in relation to persons declared NCR—not criminally responsible—or unfit to stand trial.

I will explain that a little more. At present, at the trial of a person with a mental disorder, there are three possible verdicts: absolute discharge, if the person is not a significant threat to public safety; conditional discharge, and that is what we will be discussing here; and detention in custody in a hospital, which is not changing. So there are really two things. First, a person may be charged. However, if the person has a relatively severe disorder and is unable to stand trial immediately, they will not stand trial right away. The person will therefore have permission not to stand trial. They will be treated and will stand trial later. Here we are talking about someone who could be a threat to public safety. What is done then is that the person is offered treatment. The bill ensures that while receiving treatment, the person will not be dangerous to public safety.

My colleague from Rimouski-Neigette—Témiscouata—Les Basques told us about a problem: the fact that the timing of the Conservative government’s introduction of the bill seems a little suspicious. That is unfortunate, because it is a very good bill. We will allow the bill to proceed, but we are a little afraid that the Conservatives would like to score political points with this bill. They announced it on the day Quebec learned that Dr. Turcotte might be released. That trial received extensive media coverage. The Conservatives immediately came and told us they would be putting forward a bill to protect the public. So they came in on their big horses with their swords at the ready, to say they were protecting the public. That is something we hear a lot from the Conservative side: that they are the best when it comes to protecting the public. That said, this is actually what the bill does, by strengthening the protection of the public. But one does wonder why the Conservatives introduced it at this time. Why did they make the announcement at a point when the bill was still only at the draft stage or did not even exist yet?

My second concern about the bill is that the Conservatives are attempting to download costs to the provinces. In an interview with Global News, Carole Saindon, a spokesperson for the Department of Justice, said the provinces would have to foot the bill for this new policy. This seems to be increasingly the case with Conservative bills.

The federal government passes laws and downloads the costs of implementing them to the provincial governments. It did so, for example, when it increased the age of eligibility for OAS. It did so again with Bill C-10 on minimum sentences. This bill we have before us, which is a good bill, will also have to be paid for by the provinces. What is more, we do not know if the provinces and territories were consulted. We do not know what will happen if a province does not have the necessary funds to fully implement the bill.

There is an organization in Ontario that deals with mentally ill people who get in trouble with the law. It is currently working at 104% capacity. The bill is a step in the right direction, but we do not know if we will have the means to implement it.

My second point concerns the creation of the high-risk NCR accused designation. This bill would amend the Criminal Code by creating a process to designate accused persons as high-risk NCR. They could be designated NCR because of serious personal injury offences committed against other persons and because there is a substantial likelihood of further violence that would endanger the public. The designation might also apply in cases in which the acts were of such a brutal nature as to indicate a risk of grave harm to the public. High-risk NCR accused would be ineligible for a conditional or absolute discharge. The designation could only be revoked by the court following a recommendation of the review board. This designation would apply only to NCR accused, not to persons found unfit to stand trial.

Persons found unfit to stand trial are persons who are unable to undergo a trial but who were not unfit at the time of the crime.

The third amendment I discussed earlier concerns enhancing victims' involvement. I would like to emphasize this point. Victims often appear to be forgotten by the Conservative Party. This is what troubles me. The government always tables law and order legislation, but it often forgets the victims. I used to work in a prison. I was a teacher at a detention centre. Social reintegration is key to ensuring that things go well in society. I understand that there must be laws and punishment—no one is opposed to that—but we are lacking a reintegration aspect.

As a number of my colleagues have said, we had trouble obtaining data from the government on this subject. Some members had to place questions on the order paper to get answers. We wanted to get some of the case law and statistics gathered by the government on persons found not criminally responsible. We wanted to know how much time each person found not criminally responsible spent in treatment before being discharged. We wanted to know exactly how many people this legislation would affect.

I think it is appropriate to talk about enhancing victims' involvement. Victims are often disregarded in Conservative legislation. This bill would ensure that victims are notified, upon request, when the accused is discharged. The bill provides for non-communications orders between the accused and the victim. It will also ensure that the safety of victims is considered when decisions are made about an accused person. However, I find this last point somewhat vague. This information does not tell me how that would be done or how victims' safety would be guaranteed.

To sum up, I think this is a bill that will enhance an existing act. I hope the Conservative Party is not playing a game so that it can make a lot of political hay out of this issue.

This is not the point of the exercise. The objective is to come up with a better law that respects human rights.

I hope that we will have the bill before us in committee long enough to study it carefully, that witnesses from all sides of the House will appear and that we will go through the whole process in order to pass this bill.

[Colin Carrie, Conservative, Parliamentary Secretary to the Minister of Health]

Mr. Speaker, my colleague asked why the government brought forward this legislation and what the timing was all about. She has been in the House for a while, and I want her to be aware that it is very consistent with our government's commitment to making Canadian streets and Canadians safer.

It sounds like she is very supportive, and she mentioned that the legislation has three new components: one, putting public safety first; two, creating a high-risk designation; and three, enhancing victims' involvement. That is one I want to talk about because we have heard of some horrible cases where three beautiful children were murdered and then the perpetrator was released into the community after a short period of time without the family of the children knowing.

Could the member put forth any of the NDP's ideas to better enhance victims' involvement and victims' rights? At the end of the day, this is what it is all about. I would like to hear her comments on that.

[Isabelle Morin, NDP, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, I thank my hon. colleague. I would like to touch on two points in his question.

First, he asked me why the bill was introduced at this particular point in time. In fact, it was introduced according to the roadmap and the agenda that the government has set.

That being said, the fact that the announcement was made on the same day we learned that Dr. Guy Turcotte had been released from prison and had gone home to his community seems to me to be a hugely political move rather than a move intended to improve the law. That is why I expressed concern about that.

The second part of his question concerned the three amendments that were made. As I said in my speech, we think that these are sound measures. I do not agree that a criminal should be able to return home without the family being made aware of it. I am very happy that the bill now takes this into consideration and that the family can be notified.

Nonetheless, I still have concerns about what is done to help the accused reintegrate into the community. I find that not much support is provided.

In addition, we must not forget the victims, who must be given assistance, including psychological support. We have to be sure that they understand the process. We often hear that the process is complicated.

I had to reread the bill the number of times before talking about it, and I was a teacher before becoming a member of Parliament. Many of the sections are extremely complex and they have to be clearly understood. Most people will not find this very easy. An awareness campaign is perhaps necessary to ensure that everybody clearly understands the issues and that people agree with the way in which the decisions are made.

For the victims, this is certainly a step in the right direction. I look forward to hearing from the witnesses in committee.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

Mr. Speaker, clearly public safety has to be protected, in a way that is consistent with the rule of law and the Canadian Charter of Rights and Freedoms.

I would also ask that the government take those things into consideration and that all the legislation it proposes comply with the Canadian Charter of Rights and Freedoms and the Constitution.

My hon. colleague also mentioned that in addition to introducing bills and enacting measures in the House to assist victims, we have to have the necessary resources to fight crime effectively and help victims regain control of their lives.

Does my colleague have any additional comments on that issue?

[Isabelle Morin, NDP, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, I thank my colleague for her question.

As I said earlier in my speech, I think the government has a tendency to produce a lot of bills that shift the cost to the provinces. I do not know what the provinces’ reaction has been, but we will certainly have to think of a way to help them.

According to the CEO of the Schizophrenia Society of Canada, the bill will mean that the public will be more prejudiced against persons with mental disorders. In my opinion, the bill does not help them, since they will be further stigmatized.

The provinces do not have a lot of resources to work on prevention and support these people. Individuals who have mental disorders are victims of what is happening to them. I do not think there are many resources to help the province ensure that individuals with mental disorders are properly reintegrated into society, that they do not reoffend, and that their mental health care helps them feel better in society.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, I will start by talking about the implications when someone receives a verdict of not criminally responsible on account of mental disorder. I will focus on understanding the parameters for and applications of such measures in criminal proceedings.

It is an honour for me to be able to inform the public. Over the holidays and over the past few weeks, I toured a number of reserves in Quebec. I was informing people about the amendments set out in Bill C-45, Bill C-38 and Bill C-27. These amendments will affect both the traditional and contemporary ways of life of the aboriginal peoples.

I will do the same thing today. I will be informing the public. My background is in law. I was a litigator for almost six years. I worked primarily in criminal law, but I also worked in mental health. During my years as a lawyer, I was called upon to present a number of applications under subsections 672.11(a) and 672.11(b). Later on, I will talk more about how these two parts of the section are applied.

Based on how the media have covered certain cases over the years, it seems clear that the bottom line is popularity and ad revenue, and that the media will resort to flashy tactics, broad appeal and—to a certain extent—misinformation. This is why some people err in fact and in law. This is not a criticism, because not everyone has a legal background, but there are some misconceptions floating around. I think it is important to get back to the basics with this debate, to talk about the foundations, what it truly means and how these sections are applied.

Subsections 672.11(a) and 672.11(b) of the Criminal Code refer to applications that the defence lawyer and the prosecutor can submit to a judge in a specific case. When we meet our client for the first time in a criminal case—I will talk about my experience as a defence lawyer—we can determine fairly quickly whether the individual is in a fragile state of mind, as we say. When we visit a client in his cell or in the psychiatric wing and he is not in his right mind, the psychiatrists' reports will often say that he is in a fragile state of mind, disoriented and confused.

It is at that point that the lawyer goes to the judge and says that when he met with his client, the client was not able to give clear instructions and seemed to be in a fragile state of mind and somewhat confused. There is therefore reason to believe that he is not in his right mind and should undergo an assessment pursuant to paragraph 672.11(a) or 672.11(b). The crown prosecutor may also broach this subject.

I see this all the time in my practice in my riding. For example, in the past few days, journalists from Radio-Canada—not to name names—have said that drug-related crime in my riding increased by 38% in 2012.

Psychosis and toxic psychosis are recurring themes. That is why I have submitted dozens of requests pursuant to section 672.11 over the years. That is specific to my practice in my riding. There is a lot of violence. The psychiatric wing is very well equipped. There are a number of psychiatrists working in Sept-Îles. Some cases, not the majority, were so serious that clients were routinely transferred to the Philippe-Pinel Institute in Montreal for help.

It can take about a month for a client to leave and get assessed to determine if he is criminally responsible. The client is sent to Montreal or, sometimes, to Sept-Îles. The serious cases are usually sent to Montreal to be assessed. The client comes back with an assessment, and the findings go on for pages.

It is interesting reading material and I miss it very much. I will not hide the fact that I miss my practice. I often receive calls on my business cell phone asking me to represent someone. I have to refuse because I do not have the time.

When the client returns and we look at the case, we examine the assessment and the expert report, which provide information about the circumstances and the expert's opinion. To date, I have never seen the Crown challenge the assessment or ask for a second one, but that can happen.

The judge relies on the findings of the expert in Montreal or Sept-Îles, as the case may be. The judge will refer the case of the individual in question to Quebec's administrative tribunal. He will rule that the individual is not responsible and simply transfer the file.

This is one aspect that we have not talked about much. I have not heard anything about this today. None of my colleagues has mentioned this. In Quebec, the administrative tribunal is responsible for the file and will determine the course of action to be taken for people who are not criminally responsible.

To put all of this into perspective, I will add that the hearings of Quebec's administrative tribunal are held by videoconference at the Sept-Îles hospital, in my experience. The tribunal members appear by video. The lawyer is present with his client, who must appear once or a few times a year, if I am not mistaken.

Ultimately, the members of the administrative tribunal will determine what course of action should be taken in a case. That is where the problem lies. I will provide more information on this subject in the next few minutes.

I worked for years with clients with mental health problems. Some but not all people with these types of disorders are stubborn about or opposed to being monitored and taking medication. Many of my clients were opposed to taking medication.

One of the criteria for determining whether people are mentally ill is that they are not aware of their own illness. As a result, as soon as they are not being so closely monitored, individuals who do not realize that they are sick tend to stop taking their medication because they do not believe that they are sick and they do not think that they need to take it. This is a fairly volatile client group. These people may simply stop going to their monthly appointments with their psychiatrist and may just vanish.

I have dealt with this type of situation in my practice. The extremely difficult cases I have had to deal with sometimes gave me the shivers. I will not give any identifying information because of privacy concerns. However, some files dealt with necrophilia, arson and extreme violence. Over the years, I was able to help some of these individuals get back on the right track.

Sometimes, once these individuals were released following their hearing before Quebec's administrative tribunal, they vanished because they were not being monitored closely enough.

I have sometimes received calls after a few months or years from the police or from the client himself who is in a fragile mental state but, in a moment of lucidity, called me to find out the status of his case. I would ask him if he was still taking his medication and where he was in Quebec. I wanted to know where he was because I knew he had high potential for violence. I will spare you the details, but they sometimes keep me awake at night.

In short, these individuals decided to run away, which is why I insisted that, at the very least, they be more closely monitored and that their location be tracked in order to prevent them from vanishing.

I also dealt with arson, which is a fairly common occurrence. Those working in the field of psychiatry see all kinds of people. Sometimes it can be interesting to read about these cases.

The cases could give you goosebumps.

Some recent highly publicized cases have called the existing approach into question. So we must refocus the debate on the best interests of victims, while ensuring that the rule of law and the Canadian Charter of Rights and Freedoms are respected.

I plan on returning to practising law sometime in the future. Perhaps I should not say this, but it comes naturally to me to represent these individuals and help them get back on the right track after they are assessed by the people in Montreal. The judge would simply refer the whole thing to Quebec's administrative tribunal.

As I have already said, decisions from this tribunal do not carry a lot of weight, at least not in Sept-Îles. It may be different in a metropolitan or urban area, where the hearings are conducted in person. But that is not the case where I come from. I remember one case in particular, with someone who took off after the hearing and attended only one hearing with the administrative tribunal. Perhaps this person was eventually caught. An arrest warrant may have been issued. The police eventually tracked him down to make sure that he was not in a fragile state of mind, that he was taking his medication properly and did not represent a danger to himself or others. I am thinking of cases of schizophrenia, since people with this illness can be dangerous to themselves and to the general public.

That is something that poses significant problems. I am thinking about a specific case, but I should mention that he was a martial arts expert and he assaulted anyone who tried to go into his cell or into his room in the psychiatric wing. He thought the Hells Angels were coming to the hospital to get him. That is why he punched people, including large men. The hospital uses “code 88” when a patient becomes violent. All of the large men are asked to help out. It may be “code 89”; I cannot remember anymore. There is an internal code at the hospital in Sept-Îles. Whatever the case may be, he punched out five people. He was in pretty good shape.

He was found not criminally responsible because he could not discern right from wrong. He was a victim of his own illusions. However, he was released and no one knew where he was for a while. A few months went by, maybe a year or two, and then he called me about his case. I knew then that he had stopped taking his medication and appearing at hearings.

That is my summary of the risks and implications, which I submit to you.

[The Deputy Speaker, NDP, Joe Comartin]

If the member wishes to finish his speech, he will have six and a half minutes the next time.

It being 1:30 p.m., the House will now proceed to the consideration of private members' business as listed on today's order paper.

The House resumed from March 1, 2013, consideration of the motion that Bill C-54, An Act to amend the Criminal Code and the National Defence Act (mental disorder), be read the second time and referred to a committee.

[Alain Giguère, NDP, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I will be sharing my time today.

Bill C-54 aims to include a new policy in the legislation, and that policy, that ideological shift, forces us to take a step back and look at our country's history.

As soon as British rule was established, we enforced British laws. Criminal laws were set out in the aptly named Bloody Code. The number of crimes that resulted in a death sentence was unreasonable. Quite often, it was not just death by hanging. In Canada, it often involved torture.

The second important element of the British criminal code that we inherited is the jury. That is an important element, one that should not be ignored.

Individuals appearing before the jury were guilty. They had already been proven guilty. When the jury found out what kind of sentence was to be meted out, the jury members decided to declare the individuals innocent. The jury did not want to be complicit in enforcing an overly harsh and unreasonably cruel law. Luckily, the Bloody Code was amended and became the Criminal Code.

At the time, stealing cattle could lead to death by hanging. Household servants who stole something from the house could receive the death penalty. Those crimes were abolished because they were so unreasonable and the penalties were no longer being enforced. The jury refused to be complicit in imposing such harsh sentences.

This brings us back to the present situation. Juries can still refuse to enforce the Criminal Code in a more modern way. If jury members really believe in all good conscience that enforcing the Criminal Code is unacceptable, they can reject it.

The last time this was clearly applied in recent times was in the Morgentaler case. Dr. Morgentaler performed abortions, which was strictly prohibited by the Criminal Code. He was prosecuted in a trial by jury. The evidence that he was indeed performing abortions was clear, but the jury refused to enforce the Criminal Code. The jury said it would not be complicit with the politicians who had passed the legislation, which they considered to be flawed and poorly drafted, legislation that punished a crime that was only in the politicians' heads. The jury said no. That is the danger with Bill C-54 and its whole underlying philosophy—that we are going to be tough on crime, scare people and impose extremely harsh minimum sentences to punish crime.

Judges will say to themselves that the cases are theirs, that they will keep a certain distance and that they are not puppets who are incapable of any independent thought. We saw this with the Firearms Act. Someone had gone to a friend's house, taken the friend's revolver and was playing with that illegal weapon. He committed a crime. However, the judge ruled that there had to be criminal intent and that the law, as it was written, was unacceptable. He struck down the law.

A judge can strike down a law, and so can a jury.

When it comes to crimes committed by people with mental health issues, it is important to understand that, when faced with the absolute horror of the crime, members of a jury always tend to say that an individual of sound mind would never have done such a thing. A good example of this is the case of Dr. Turcotte, who murdered his two children.

All the lawyers and prosecutors who are under the obligation to present proof beyond a reasonable doubt have encountered this problem in these types of cases: the jury cannot accept that a man of sound mind would do such a horrific thing to his children.

Dr. Turcotte took full advantage of this human reaction. That was the basis for his defence. It was a jury that decided his fate. It is easy to say that the judge should have done more, but there is always the risk that the jury will be unable to accept that a person of sound mind could commit such atrocities.

This risk hangs over every trial involving serial killers. That is why prosecutors must be well prepared. They must prove that the crime was premeditated. Often, if the prosecutor can prove that the crime was premeditated, the jury sees that it was not a moment of temporary insanity. The person planned, organized and committed the crime. In the case of Dr. Turcotte, the jury did not find that such was the case.

With the notion of “beyond a reasonable doubt”, only a glimmer of doubt is needed for the person to be proven innocent. This poses another problem: the use of media coverage of the amendment to the Criminal Code for political purposes. We must not kid ourselves. There is a party in the House with a “tough on crime” agenda. That is fine. However, it is a bit ridiculous for the government to say that it is going to be tough on criminals and then turn around and make cuts to police budgets. This is not the first time that this government has contradicted itself.

People who commit crimes must be punished. Our Criminal Code does just that. However, some changes had to be made. Parole after one-sixth of a sentence and the two-for-one credit for time served before sentencing did not make sense.

It is fine to pass a law, but the reality is that we have to enforce it. Whenever we express the slightest doubt, we are accused of supporting pedophiles or cyberpedophiles and being anti-law.

Legislation and the law are two different things. So are legislation and justice. In the House, we are committed to justice. We are being asked to pass bills whose only objective is to let the minister say that the government will prevent such and such an incident from happening. I am sorry, but in the case of Dr. Turcotte, it would not have changed anything. Furthermore, leaving a rope in Dr. Turcotte's cell will not solve the problem.

By the way, I would like to point out that counselling a person to commit suicide is a Criminal Code offence. The Conservatives might want to inform some senators of that. It would be useful sometimes if people would read the law, not just defend it. Ignorance of the law is not an excuse, especially for those in Parliament who claim to champion Criminal Code amendments.

This is obviously a sad case. I have very little time left, so to sum up: this law will not change anything because the jury still remains the judge of the facts.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, it is important for us to recognize that there is so much more that government can do in terms of working, in particular, with provincial counterparts to try to deal with some of the issues related to mental illness and the number of crimes that are being committed. One only needs to look at some of our institutions, particularly hospitals, to get a sense of the number of individuals where there is a correlation between mental illness and crimes being committed.

My question is related to the importance of providing resources for detecting mental illness and dealing with issues that ultimately lead to crimes being committed because we are giving short shrift to the needs of mental illness. If we dealt with mental illness in a more holistic approach, we would be able to prevent some of these crimes from taking place in the first place. I am interested in the member's comments on that.

[Alain Giguère, NDP, Marc-Aurèle-Fortin, QC]

Mr. Speaker, this law is problematic. Some individuals should not be able to plead insanity. We must identify the problem to prevent such crimes, since some people need health services while others, who are of perfectly sound mind, plead insanity. Those are two completely different things. Measures must be taken to provide support for mental health.

With deinstitutionalization, too many people were released from psychiatric hospitals and literally put on the street. These crimes were predictable. Quite often we are talking about petty theft. Others commit serious crimes, plead insanity and win their case. That is another problem. We must provide support for mental health care. Too many people are on the street who should not be there.

[Tyrone Benskin, NDP, Jeanne-Le Ber, QC]

Mr. Speaker, my colleague was talking about the concept of justice. I would like to take a closer look at that concept, compared to the concept of vengeance. It sometimes seems as though bills introduced by this government focus more on vengeance than justice, but is justice not what victims of crime want?