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

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I am pleased to rise in the House to speak to Bill C-54, the Not Criminally Responsible Reform Act.

The minister often introduces bills based on newspaper headlines, and I have often criticized this way of doing things.

We are all well aware of which incidents served as the basis for Bill C-54. For Quebeckers, it was the Turcotte case, and for western Canadians, it was the case of the individual with serious mental problems who decapitated passengers on a Greyhound bus.

All of these incidents can be described as gruesome. I am not saying that the media like to report on these sorts of events; however, these events do give the media graphic video images that are not always nice to see but that make it easy to stoke public opinion.

Before we begin examining Bill C-54, we must understand what this bill refers to. We are talking about people who will be found not criminally responsible because of mental problems. We cannot look at the provisions of Bill C-54 without looking at section 16 of the Criminal Code, which deals with mental disorders.

Section 16(1) of the Criminal Code reads as follows:

16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

I would like to simplify this provision so that those listening to us will understand. This means that people who, because of a mental disorder, are unable to appreciate the quality of the act they have committed, whether it be murder or another type of assault, will not be found criminally responsible.

However, the Criminal Code presumes that every person is of sound mind, even though one sometimes has to wonder about that. Seriously though, the Criminal Code presumes that individuals are of sound mind.

Section 16(2) of the Criminal Code reads as follows:

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

That is the problem in some cases. Dr. Turcotte’s case received a lot of media coverage in Quebec. People followed the trial with great interest because they wondered how such an intellectual man, a doctor, could have killed his children in the wake of a family break-up, of separation and divorce. When people do not follow the trial and do not understand the kind of evidence required, their imaginations get the better of them.

According to the Criminal Code, the burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue and must be proven on the balance of probabilities. The concept of mental disorder is very often the biggest part of the problem. It is not always very easy to prove.

I believe that background is important and that we should recall some previous decisions of the House. In 2002, the Standing Committee on Justice and Human Rights tabled a report on the Criminal Code provisions on mental disorders.

After the Standing Committee on Justice and Human Rights tabled its report, the government decided to retain the current wording of the definition of the mental disorder defence under section 16 of the Criminal Code and the definition of “mental disorder” set out in section 2 of the Code.

Section 2 of the Criminal Code is still as important as it was then and provides that “mental disorder” is defined as “a disease of the mind”. It is up to the trial judge, not the jury, to rule on what constitutes a disease of the mind or a mental disorder.

Some people believe that juries determine that. They think that juries are not equipped to make that kind of legal finding, and they are right. That is why it is up to the trial judge to determine whether it has been proven on a balance of probabilities that the person had a mental disorder.

That definition has remained the same since the Supreme Court of Canada rendered its decision in R. v. Cooper in 1980.

A disease of the mind embraces any illness, disorder or abnormal condition that impairs the human mind and its functioning, excluding, however, self-induced states caused by alcohol or drugs as well as transitory mental states such as hysteria and concussion. In order to support a defence of insanity, the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing it was wrong.

So the test is quite rigorous. Mental disorder must be proven on a balance of probabilities. Those who have followed what is going on in criminal law or who have taken an interest in the matter and have followed trials in which such defences have been raised know that evidence cannot be provided by just anyone. It may be based on the facts so as to prove a certain type of behaviour, but the finding or establishment of scientific or psychiatric evidence is done by expert witnesses.

Incidentally, and here I am thinking out loud, it might be interesting to see how the assessments are designed. The trial judge assesses the independent status of the expert summoned by the defence or by the Crown and determines what kind of evidence was presented. That is part of the trial. Where the individual is found not criminally responsible by reason of mental disorder, it follows that he or she will be taken into the system to receive care.

I encourage people to read the February 2013 issue of the Barreau du Québec's Journal du Barreau. On page 8, they will find a column by the eminent lawyer Jean-Claude Hébert on criminal non-responsibility, mental disorder, prisoners and patients. When the public looks at these cases, they sometimes think they make no sense. The crime in itself is terrible; it gives us the shivers and makes us question human nature. Then we hear that the person was incapable of criminal intent to commit the murders in question because he or she suffered from a serious mental disorder. I do not mean a minor bout of hysteria because the person was in a bad mood. It takes much more than that. We heard some incredible things during all those trials which were often amplified by some of the media because that increases circulation or makes for good phone-in shows. When I hosted a radio phone-in show, I heard about cases that made people wonder what was going on with the justice system.

Our role as politicians and legislators is not to inflame the debate based on hearsay or statements we cannot really prove. Mr. Hébert touches on the extremely relevant point on whether we are talking about prisoners or patients. Here we are clearly talking about patients. These are people who have been acknowledged as suffering from a serious mental disorder. So if we think the verdict is wrong, Mr. Speaker, there is a solution. You know it as well as I since you are a distinguished jurist.

In the circumstances, if we are not satisfied, that means we can appeal the decision. And if the reported facts are accurate, I believe the Turcotte decision is under appeal. However, if the diagnosis and the judge's decision on the matter were well-established on a balance of probabilities, as provided for by subsection 16(2) of the Criminal Code, as I said earlier, the Court of Appeal will confirm the judge's decision. Otherwise, it will overturn it and rule that the person may not use that defence. It will tell the individual that he or she was aware, was not suffering from a serious mental disorder and, in the circumstances, may not be considered not criminally responsible.

However, we are not at that point. We are dealing with cases in which the individual actually has a serious mental illness and is taken into care by the state. Another system enters into play, therefore. That is what Bill C-54 is trying to do.

I have heard some more incredible things about this. First this was announced by the Conservative government more than three times: first, by the Minister of Justice himself, second, by Senator Boisvenu and, third, by the Minister of Canadian Heritage and Official Languages, and then by the Prime Minister. We have heard all kinds of things.

After listening to the press conferences, I was eager to read the bill, since it seemed to solve all the problems for victims and all the problems of repeat offenders. I would also add, as an aside, that I am very eager to see the minister’s statistics.

Again, I really urge my colleagues to go and read the vaunted report I was talking about. It is the government’s response, so it is not just the recommendations made by the Standing Committee on Justice and Human Rights, it is the committee’s recommendations and the government’s response to those recommendations. That report shows the low percentage of people who are found not criminally responsible, with all due respect to the Boisvenus of the world who think there are tonnes of them. There are not tonnes.

It is true that the percentage has risen over the years. However, and this is what it does not say, before 1991, if I recall correctly, when the amendment was made to the Criminal Code, the term was changed from “not guilty by reason of insanity” to “not criminally responsible by reason of mental disorder”. At that point, summary conviction offences were also added, and this resulted in a lot of cases that had not been covered previously.

Obviously that had an impact on the statistics. According to the government’s responses, we are talking about a tiny percentage of cases where the individuals were found to be not criminally responsible. Of that minute number of repeat offenders, the minister talked about 28% of them who may have already committed an offence. The entire issue is now whether they had committed serious crimes when they had a mental disorder.

You know, as do I, that statistics can be made to say just about anything. So we have to look at this kind of case and stop playing the game that some of the media play. These are not subjects that should be played with to inflame the population. On the contrary, what is really happening has to be explained. We are dealing with something that no one in this House is familiar with, unless perhaps a psychiatrist was elected in the 2011 election, but I doubt that. Unless you are a mental health professional, these are cases that are sometimes incomprehensible in terms of the evidence involved.

I was working in radio at the time, and I recall a crime in my region. A woman had killed her husband, and there was some question of the whole issue of battered wife syndrome. Some absolutely unbelievable discussions ensued. People were surprised that someone could be acquitted of murder because of battered wife syndrome. The person in question was able to leave her home and function. It was proven that very serious mental disorders could arise out of that syndrome. Today, not as many questions are being asked about that syndrome. Things like that need to be toned down.

And so after listening to the press conferences, I thought that the Conservatives were going to delve into the concept from A to Z. The actual statistics show that there may be some exceptional cases in the system, but we must not throw the baby out with the bathwater every time there is a big headline in the newspapers, so they can take it out and about in the ridings.

It is so popular to say that the Conservatives are listening to people, that the issue is complicated, that they have done something, that they will be getting tough on people with mental disorders to make sure that they stay inside at least until they find it is reasonable to let them out.

I look forward to seeing what is going to happen in committee. My colleague from Rimouski-Neigette—Témiscouata—Les Basques very subtly announced that we were going to pass this bill at second reading. It is the sort of issue that deserves this kind of treatment. We always want to try to get rid of the irritants in the legal system for the victims, who are shortchanged in the legal system. They really are and I agree 100%. I do not think the victims will be treated properly with the band-aid solutions that we are getting from this government.

During the press conference given by the Minister of Justice, which Mr. Kennedy attended, Mr. Kennedy said he appreciated the efforts, but that we must not forget that victims must be cared for and given help. This is not what we are seeing in Bill C-54. A clause was added where they can, if they ask, draft something in writing. One of the victims who was with the Prime Minister said that she was unable to write. She said that she was still too close to the whole thing to be able to talk about what happened and so on.

This is not what we are hearing at the Standing Committee on Justice. What we are hearing is that when they are in the system and the trial begins, they become witnesses just like all the other witnesses. They are often treated with even less respect than witnesses in civil and commercial cases. Deals are reached between the Crown and the defence. Then, all we see is someone who is wondering what is happening; the case is closed. Why? Because there has been a deal between the Crown and the defence. I would not call that putting the victims first.

This is what I have been trying to say right from the start. If the government really wants to change things and give the impression that it is taking care of the victims, it has to stop coming up with band-aid solutions. They look okay but they do not do very much.

It is difficult to be against motherhood and apple pie. So when we hear that special care will be taken when a high-risk person is involved, I would like to send out a note of caution to the people of Quebec and people in other regions who have gone through this kind of thing. They may have been witnesses, through the media, to certain events. Will the bill ensure that someone like Dr. Turcotte would be considered high risk? This is certainly not the case when I take a look at the definitions in Bill C-54. It does not seem to come under any of the criteria at all.

I am not clairvoyant, but we have to admit that past behaviour is often a predictor of future behaviour. I can just see the senator touring all around Quebec and parts of Canada and telling people that they listened and solved the problem. I say that is not the case. The title of the bill indicates that this is a reform. The minister may be right in saying that it is a major change because he has made this criterion the most important one of all. Except that was already the case in the courts. The courts repeatedly said that public safety was the most important criterion.

Do the Conservatives really believe that a court or a commission would not consider the risk to public safety before releasing a person who was found not criminally responsible for a horrible crime? Do they take the people who sit on commissions or on the benches for idiots? If the answer is yes—that is the impression we sometimes have—they should have made the entire exercise mandatory. What did they do instead? They made it optional. The Conservatives should stop saying that they are not satisfied with the courts and give them the authority to go out and see what is happening.

I will have a lot more to say about this in committee. This time, I hope the minister comes armed with statistics instead of empty talking points. I hope he brings the studies prepared by his department on the bill's constitutionality and compliance with the charter. I can see us keeping someone in prison who will file a writ of habeas corpus. I really do not want to hear that kind of debate.

For all these reasons, we will support the bill at second reading. However, we need to study the bill in detail because we do not want to have more victims. The Conservatives cannot say that punishing someone who is considered ill is a kind of victimization. In this case, all that can be done is to help them heal.

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

moved 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.

Mr. Speaker, it is my pleasure to speak to Bill C-54, the not criminally responsible reform act. The government introduced the bill because we want to ensure that public safety and the needs of victims receive the appropriate emphasis in the Criminal Code mental disorder regime. The mental disorder regime is the part of the Criminal Code that deals with accused persons who are found unfit to stand trial or not criminally responsible on account of mental disorder.

Before I describe what is in the bill, I would like to mention what is not proposed by the bill. First, the proposed reforms do not seek to impose penal consequences on people who have been found by the courts to be not criminally responsible on account of mental disorder. The bill is grounded on the need to protect the public from accused persons who pose a danger to society. This public safety objective forms the basis of the existing federal legislative regime on mental disorders and provides the justification for the proposed reforms as well.

Second, nothing in the bill would impact a mentally disordered accused's access to mental health treatment. It is well known that an increasing number of people who have become involved in the criminal justice system have mental health issues. These individuals pose unique challenges for police, courts and correctional officials. The government is committed to addressing the challenges posed by mental illness in the criminal justice system, and we have already made significant investments to improve the way offenders with mental health needs are managed. However, that is not the focus of the bill.

The not criminally responsible reform act does not apply to all individuals in the criminal justice system who have a mental illness. Rather, the bill focuses strictly on those who come within the purview of the Criminal Code's mental disorder regime and the corresponding provisions of the National Defence Act that deal with mentally disordered accused who are tried by a court. The mental disorder regime in both statutes applies only to individuals who have been found unfit to stand trial or not criminally responsible on account of mental disorder. Individuals who have a mental illness but have not been found unfit or not criminally responsible are dealt with in the traditional criminal justice system.

To better understand exactly who is captured by the bill, it is important to understand the concepts of unfit to stand trial and not criminally responsible. Unfit to stand trial and not criminally responsible are two distinct concepts in criminal law. The question of whether an accused is fit to stand trial can arise at any stage of the proceedings before a verdict is rendered. If an accused has been charged with a criminal offence but is unable, due to a mental disorder, to understand the nature or possible consequences of the trial proceedings or to communicate with a lawyer, then the court will make an order declaring the accused to be unfit to stand trial. Usually treatment will be administered so that the person becomes fit and is able to be tried, but until a person becomes fit to stand trial, he or she is dealt with under the mental disorder regime.

The question of whether or not an accused is criminally responsible for the offence charged focuses on the mental state of the accused at the time of the alleged offence. An accused may be found not criminally responsible due to a mental disorder if at the time of the alleged offence the person lacked the capacity to either appreciate what he or she did or to know that it was wrong.

Not criminally responsible on account of mental disorder was formerly referred to as not guilty by reason of insanity. The finding of not criminally responsible is neither a conviction nor an acquittal; it is a special verdict. Since a person found not criminally responsible is not convicted, the person is not punished or sentenced. Instead, the person is referred to the provincially established tribunal known as the review board, which is tasked with making decisions about the monitoring and supervision of mentally disordered accused persons.

Following a finding of unfit to stand trial or not criminally responsible, accused persons are subject to the mental disorder regime and are subject to the restrictions necessary to protect the public.

The Criminal Code sets out the review board's powers with respect to decision-making as well as various procedural and administrative provisions with respect to the holding of hearings, appeals, ordering of assessments, et cetera.

In determining which of the available orders should be made regarding a mentally disordered accused, the review board must take into account four factors: the need to protect the public; the mental condition of the accused; the reintegration of the accused into society; and the other needs of the accused.

Bill C-54, which is before the House, has three main components. First, it seeks to ensure that public safety is the paramount consideration when decisions are made about not criminally responsible and unfit accused. Second, it creates a new high-risk, not criminally responsible accused designation. Third, it enhances victim safety and victim involvement in the mental disorder regime.

With respect to the role of public safety in the review board decision-making process, Bill C-54 clarifies that public safety is the paramount consideration in the decision-making process. As I just mentioned, the current approach is to balance four factors, of which public safety is one. The approach in the not criminally responsible reform act is to ensure that public safety is at the forefront of decision-making. In addition to clarifying that public safety is the paramount consideration, our legislation would also codify the meaning of the term “significant threat to the safety of the public”. This is the test used to determine whether or not a review board should continue to supervise a not criminally responsible accused.

Some provinces have indicated that review boards are interpreting this test too narrowly. To ensure consistent application across the country, our bill would codify the meaning of “significant threat to the safety of the public” consistent with the way it was interpreted by the Supreme Court of Canada. It would clarify that the review board can continue to impose restrictions on a not criminally responsible accused who risks committing further criminal acts, even though he or she does not pose a threat of violence per se. For example, if the board is concerned about a not criminally responsible accused committing thefts or break-ins, it would be able to maintain jurisdiction over him or her and impose the necessary and appropriate conditions.

I would like to turn to one of the key features of Bill C-54. The bill proposes a new scheme that would permit the courts to designate certain non-criminally responsible accused as high risk. This high-risk accused designation would ensure that a person so designated would be held in custody and could not be considered for release by the review board until the designation was revoked by the court. A person found by the court to be a high-risk accused would not be entitled to unescorted passes into the community.

The high-risk not criminally responsible accused scheme would apply to the small number of accused who have been found not criminally responsible and who pose a higher threat to public safety. The scheme would permit a prosecutor to apply to the court for a designation when certain criteria were met.

First, it is important to note that the high-risk not criminally responsible scheme would apply to those found not criminally responsible. It would not apply to those who are found unfit to stand trial. The reason for this distinction is that an unfit accused has not yet been tried for the offence. It has not been proven that the person committed the acts that form the basis of the offence charged.

Further, if a person were not fit to stand trial, the person would also not be fit to participate in a hearing to determine whether he or she should be designated as a high-risk accused. If the accused is eventually tried and found to be not criminally responsible, he or she could at that point be subject to a high-risk designation, if the criteria were met.

Second, the high-risk designation process could only be launched with respect to a criminally responsible accused who was over the age of 18 years at the time of the offence. This is because the provisions of the Youth Criminal Justice Act already provide public protection from youth who are found to be not criminally responsible by, for example, the imposition of an intensive rehabilitative custody supervision order on young people with mental health issues who have committed serious or violent offences.

Third, the accused must have been found not criminally responsible for a serious personal injury offence. The existing mental disorder regime in the Criminal Code defines a serious personal injury as an indictable offence involving the use or attempted use of violence, conduct endangering life and a number of sexual offences listed in the Criminal Code.

If these criteria were met, the Crown could apply to the court for a finding of not criminally responsible if the accused was high risk. If the Crown made the application, the court would hold a hearing to determine the level of risk posed by the accused.

The court would make the finding that a non-criminally responsible accused was high risk in two circumstances. The first circumstance would be if the court was satisfied that there was a substantial likelihood that the accused would commit violence that could endanger the life or safety of another person. This is a higher level of risk than is currently required to maintain jurisdiction over a not criminally responsible accused, which is a significant threat to the safety of the public. In order to justify the increased restrictions on the high-risk, not criminally responsible accused, the higher threshold of “substantial likelihood” is used in the legislation.

The second circumstance when a court could make the high-risk designation would be if the court were of the opinion that the acts in question were of such a brutal nature as to indicate a risk of grave harm to the public.

Although the level of risk posed by a high-risk, not criminally responsible accused designated under this category would be lower than in the first circumstance, the nature of the actions that resulted in a serious personal injury that formed the basis for the application would point to the need for increased protection and restrictions.

The result of a high-risk designation would be that the accused would have to be detained in a hospital. The review board would not have the discretion to order an absolute or conditional discharge. Also, the high-risk accused would not be permitted to be absent from the hospital except for medical reasons or for any reason that was necessary for treatment. The absence would require an escort and a structured plan that had been put in place to address any risk related to the leave.

Generally, mentally disordered accused persons have their cases reviewed on an annual basis, but they may be extended up to two years in certain circumstances. Our bill would provide review boards with the discretion to extend the period between reviews to up to three years if the mentally disordered accused was found to be a high-risk, not criminally responsible accused.

The high-risk designation could only be revoked by a superior court of criminal jurisdiction. If, at a review hearing for a high-risk accused the review board is of the opinion that there was no longer a substantial likelihood that the accused would commit violence that could endanger the life or safety of another person, it could recommend to the court that the high-risk designation be revoked. If and when the review board made this recommendation, the court would have to hold a revocation hearing. After considering all the evidence, the court would determine whether there is no longer a substantial likelihood that the accused would commit violence that could endanger the life or safety of another person. If so, the court could revoke the high-risk finding.

However, the revocation would not result in an automatic discharge of the accused. Instead, the accused would be dealt with as a regular not criminally responsible accused and would be supervised by the review board until the person no longer posed a significant threat to the safety of the public, at which time he or she could be discharged.

The third component of the not criminally responsible reform act are provisions that enhance victim safety and victim involvement in the mental disorder regime.

Victims have raised concerns that their safety was not specifically being taken into consideration by review boards when decisions were being made.Victims also expressed concern that they had no way of knowing if and when a not criminally responsible accused was going to be discharged into the community. Victims would like an opportunity to have concerns with respect to their safety taken into consideration, and where necessary and appropriate, addressed in the conditions of discharge. Bill C-54 addresses these issues.

First, the bill would explicitly require that the safety of the victim be considered by courts and review boards when they make decisions with respect to persons found unfit and not criminally responsible.

Second, the bill would require the review board to notify the victim, upon request, if the accused person is to be released into the community. The amendment to make victim notification available upon request is a necessary component of this new notice requirement, as some victims do not want to be kept apprised of the release of an accused and may find notification to be an unwelcome reminder of the offence.

A third element intended to enhance victim safety is the specific power provided to review boards to order non-communication orders between mentally disordered accused and the victim. There is also a provision to specifically enable the review board to prohibit the accused from going to a specific place. The Criminal Code already provides such safeguards in the bail context. We think it makes sense to also include these powers in the proposed mental disorder regime reforms so they would also be available to review boards.

Finally, the bill would remedy a procedural matter raised in the 2012 decision of the Court of Appeal for Ontario. In the Kobzar case, the court struck down the provision that provides for an automatic suspension of an absolute discharge immediately following a crown notice of appeal. The proposed reforms would replace the automatic suspension of an absolute discharge with a discretionary suspension, if the judge is satisfied that the mental condition of the accused justifies the suspension and the appeal.

I have had the opportunity to discuss a number of these issues with my provincial and territorial counterparts. In fact, a number of them wrote to me about concerns they have, including the need to ensure that public safety is the paramount consideration in the decision-making process. I can confirm that my provincial and territorial counterparts support the idea of expressly making public safety paramount.

In closing, I think the bill effectively balances the right of the public to be adequately protected when mentally disordered accused persons pose a danger to society, with the rights of the unfit and not criminally responsible accused to be treated fairly and appropriately. I urge all members to support this important piece of legislation.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, this afternoon we will continue debating third reading of Bill C-42, the enhancing Royal Canadian Mounted Police accountability act, a bill that would give the RCMP the tools it needs to strengthen accountability and enhance public trust. I am puzzled why the NDP is putting up member after member to delay and block bringing accountability to the Royal Canadian Mounted Police. The New Democrats should let the bill come to a final vote so that these much-needed reforms can be put in place. In fact, the RCMP commissioner, Robert Paulson, was in front of the committee yesterday, and he called for swift passage of the bill.

If the New Democrats heed the commissioner's advice and allow the debate to conclude, we will be able to start third reading of Bill S-7, the combatting terrorism act, and help keep Canadians safe that way.

Tomorrow, we will start the second reading debate on Bill C-54, the Not Criminally Responsible Reform Act. This bill proposes to put public safety as the first and paramount consideration in the process of dealing with accused persons found to be not criminally responsible. It accomplishes this change without affecting the treatment these individuals receive.

The debate on Bill C-54 will continue next Thursday and—if necessary—on Friday. Monday, we will consider Bill C-47, the Northern Jobs and Growth Act, at report stage and third reading. We will continue that debate on Wednesday.

Tuesday, March 5, shall be the sixth allotted day, which will go to the New Democrats.

Finally, I hope that the opposition will support our hard-working approach to business so that we could also consider second reading of Bill C-48, the technical tax amendments act, 2012; the second reading of Bill S-12, the incorporation by reference in regulations act; and report stage and third reading of Bill S-9, the nuclear terrorism act.

In addition, in response to what I will take to be an invitation from the oppostion House leader, I would like unanimous consent to propose the following motion. I hope the opposition will not block it.

I move that, notwithstanding any standing order or usual practice of the House, Bill C-7, an act respecting the selection of senators and amending the Constitution Act, 1867 in respect of Senate term limits, be deemed to have been read the second time and referred to a committee of the whole, deemed considered in committee of the whole, deemed reported without amendment, deemed concurred in at report stage and deemed read the third time and passed.

Unanimous consent for this would show that they really do care about Senate reform.

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I welcome the implicit offer of assistance from the House Leader of the Official Opposition.

I look forward to discussions with him later on the possibility of moving forward both Senate reform and Bill C-12 on a unanimous consent basis straight to committee. I would be happy to do that with him.

This afternoon we will continue debating the Liberal opposition day motion. Tomorrow we will hopefully finish second reading of Bill C-48, the Technical Tax Amendments Act, 2012, a measure supported by all three parties. After that we will turn to third reading of Bill C-42, the Enhancing Royal Canadian Mounted Police Accountability Act; third reading of Bill S-7, the Combating Terrorism Act; and second reading of Bill S-12, the Incorporation by Reference in Regulations Act.

When we return from our constituency week on Monday, February 25, we will start second reading of Bill C-55, the Response to the Supreme Court of Canada Decision in R. v. Tse Act. This bill needs to be passed by mid-April before the Supreme Court ruling takes effect, which would render the important powers available to police ineffective.

After Bill C-55, we will consider Friday's unfinished business.

Tuesday, February 26, shall be the fifth allotted day, which will go to the Official Opposition, and it will therefore choose the subject of debate.

On Wednesday and Thursday, we will continue debating the bills I have already listed.

Additionally, Bill C-47, Northern Jobs and Growth Act, was reported back from committee yesterday, and I anticipate Bill S-9, Nuclear Terrorism Act, will be reported back soon. So we could also call these bills at report stage and third reading, if we have extra time next week.

Finally, on Friday, March 1, the House will start the second reading debate on Bill C-54, Not Criminally Responsible Reform Act. The Prime Minister announced this bill last week as part of our efforts to ensure we have a justice system that puts the rights of victims first.

Safer Witnesses Act

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, I am going to say honestly that I am pleased to rise in the House to speak to Bill C-51 at second reading, not so much personally, as I was already up speaking this morning, to Bill C-42, as was the parliamentary secretary, but because, like many members, we have had challenges even getting to the House today.

As the NDP public safety critic, I have the honour of speaking in the House quite often. Unfortunately, too often, it is on bills motivated by the Conservatives' tough on crime attitude. The parliamentary secretary asked why we do not support all of their bills. I would like to take just a moment to talk about this tough on crime attitude, because this is an attitude that too often results in policies that are ripped from headlines.

At best, it is based on a faulty concept of deterrence and the idea that harsh sentences somehow deter crime. There is actually no imperial evidence to show that. The only way deterrence functions is when the investment is made at the front end of law enforcement. It is the certainty of being caught and the swiftness of prosecution that puts people off committing crimes.

Most criminals do not sit at home thumbing through the Criminal Code to see which offence to commit based on the length of the sentence. Obviously they are motivated by other social, economic and personal factors. If resources are put at the front end, we get better results. That is one reason this legislation looks a lot better to us than most of the bills that come forward from the Conservatives.

At worst, the tough on crime agenda appears to be based on little more than retribution, and retribution is not an effective approach to crime. Although it may make some people feel better for a short period of time, it results in policies that are expensive and that rarely show any positive results. In contrast, we in the NDP believe in evidence-based measures, which will help us build safer communities.

I am honestly pleased to stand in the House today to support Bill C-51 at second reading. We have seen a couple of hopeful signs from the Conservatives with this legislation, and also with Bill C-54, which deals with measures for those not criminally responsible. We have seen more consultation from the government on these two bills. We have seen more attention to evidence on these two bills than we have seen before. In this case, action is long overdue. We are glad that the government finally listened to stakeholders, as we have been asking it to do this since 2007.

In November 2012, the NDP member for Trinity—Spadina repeated our call for action to expand eligibility for those going into the witness protection program. This is particularly important in the struggle against street gangs. The previous narrow definitions excluded them from the witness protection program. We and government members have heard from many community representatives, and from many law enforcement agencies, that to get co-operation to help break street gangs, inclusion of possible witnesses in this program would be very important.

Since 2007, the NDP has also specifically called for better coordination of federal and provincial programs and better provision of services to those provincial programs, which is another positive measure we see in the bill.

We have always called for better overall funding for the program. I will come back to that question.

While we support what the bill attempts to do, which is improve the witness protection program, we are concerned that the Conservative government will refuse to commit any new funding. In fact, the minister said during the introduction of the bill that this would have to be funded from existing funds.

While there is no legislative flaw we can see at this point in the bill, which ensures that we will support it at second reading, we are concerned, because as I often like to say, the proof is in the funding. If we make these improvements, but law enforcement agencies do not have the funding they need to operate the program, we have not moved very far forward.

Whatever the improvements here, the demand that the RCMP and local police departments work within their existing budgets will likely hinder the implementation of the proposed amendments and the improvements in the bill.

The RCMP's own website states that there are instances when the cost of witness protection may impede investigations, particularly for smaller law enforcement agencies. When municipal departments, which are extensive across this country, try to make use of the program, they must reimburse the RCMP fully for the costs, which can be very high. This is an ongoing cost for them. Most of them have no provision in their budgets for making use of this program. It means, oftentimes, that front-line law enforcement officers have to make difficult choices, because they cannot get those who need protection into the program, because the funding is not available to support those individuals once they are in the program.

Again, the witness protection program is often crucial to getting the co-operation the front-line police need so that they can get convictions that will take key organized crime figures out of the community. If there were adequate funding, the same would be true for getting key witnesses to testify against street gang members to help break up those street gangs.

The federal witness protection program has long been criticized for its narrow eligibility criteria, for its poor coordination with provincial programs, and for the low number of witnesses actually admitted to the program. In 2012, 108 applications were considered for admission to the program, and, largely due to funding constraints, only 30 people were accepted.

What does that mean? It means 78 cases for which we might have been able to get a conviction and might have been able to make progress on organized crime, because that has been the focus of the program to this point. We did not get that because of inadequate resources.

There are some important improvements, as we acknowledge, in the bill. Bill C-51 proposes a better process to support provincial witness protection programs. This would be especially important for expediting getting new identity documents for those in provincial programs. Before, as the parliamentary secretary mentioned, this required transferring them to the federal program and transferring them back, with an enormous amount of bureaucratic time-wasting and cost. We are pleased to see that.

The expanded definition is important. In addition to including witnesses in street gang cases as possible entrants to the program, it would also expand the program to include agencies with national security responsibilities.

It would also extend the period for emergency protection. That is one of the key issues local law enforcement figures have raised. Sometimes people need to go into this program very quickly, and sometimes it takes a while before they can get into a more permanent situation. Extending that emergency protection is important.

Provinces such as Ontario and Alberta have been pushing for a national revamp of this program, including recognition of their existing programs. Again, the designation of programs and recognition of those programs is a positive feature of the bill.

For federal departments and agencies with a mandate related to national security, both those that function under national defence and those that function under public safety would now be able to refer witnesses to the program. I will say in a minute why that has been a gap of very great concern in the past.

Because there is no direct reference to eligibility for the program for witnesses in street gang cases, many stakeholders have been concerned that street gang witnesses may not fit these new criteria. We are assured by the government that they will. We look forward to talking about this question in committee to make sure that this critical area is indeed covered by these changes to the witness protection program.

At committee I will be asking those questions to make sure that the federal government is truly committed to the inclusion of street gang, youth gang and national security witnesses in this program. This will be an important step toward building safer communities in Canada.

We believe that the bill addresses the key problems. There are still a few things it does not do. Again, we would like to talk about those in committee.

Bill C-51 does not include provisions for an independent agency to operate the program, as was recommended in the Air India inquiry report.

There is kind of a conflict of interest when the RCMP manages the program and also manages the investigations. It is able to use the incentive, I guess one would say, of the witness protection program to get co-operation, and then, later, it makes the decision about who is actually eligible to be in the witness protection program. The Air India inquiry report suggested that there should be an independent agency to make those decisions that involve the RCMP as both the investigating authority and the decision-making authority on who gets protection from the program.

When we look at national security, the inability to protect witnesses was a major obstacle to prosecutions in the Air India bombing case. That is why, in the report, there was a lot of attention given to the witness protection program. One witness, Tara Singh Hayer, publisher of the B.C.-based Indo-Canadian Times, was assassinated in 1998. This made the affidavit he had given the RCMP in 1995 inadmissible as evidence in the case.

I would say that Mr. Hayer was not a likely candidate to go into the witness protection program because he was a very brave individual. However, two additional witnesses, seeing what had happened to him and not being eligible to go into the witness protection program, refused to provide evidence to the RCMP or the Air India inquiry because of what they had seen happen to another witness who had provided information, and the fact that he was assassinated.

Justice Major, in his report, acknowledged that he felt unable, because of the restrictions in the witness protection program, to provide the protection that would be necessary for prosecution in the case of Air India.

The RCMP has also called for intensive psychological examination of potential protectees, a national support centre for the program, and has also supported the call for an external advisory board in their case to serve as a watchdog on the decisions being made.

We recognize that these are all potentially outside the scope of this bill, but I still think it is worth having a discussion in committee about some of the other things that the RCMP has said are necessary for the efficient operation of the witness protection program.

New Democrats believe that strengthening the program will improve co-operation with local police and the RCMP in the fight against gang violence, and in doing so will help make our communities safer. It has a proven record of success in the fight against organized crime.

While the Conservatives have been slow to respond to this issue, and we on our part have been calling for these changes since 2007, we are pleased to see that the government has listened to the stakeholders in this case and brought in this new legislation to expand the program.

Bill C-51 does address key legislative concerns with regard to the witness protection program and therefore warrants our support. Despite our ongoing concerns about funding, the NDP recognizes that Bill C-51 still falls short on some key changes to the program, such as having a more transparent and accountable process for admissions into the program. Again, the Conservative government has ignored the important recommendations of the Air India inquiry with regard to this independent review of who is admissible into the program.

We do feel that Bill C-51 provides the basic legislative fix that we need. We will wait to see if the Conservatives are going to provide the resources to make it really count for local communities. As I often say and will say again, the proof is in the funding. Local police wish to make use of this program. They welcome these changes. They are waiting to get to work on some of the street and youth gang problems they have when this tool becomes available to them. However, it will not work if they do not have the funding at the local level.

At the public safety committee, we are doing a large study on the economics of policing. I think it has made all members of Parliament aware of the constant downloading of costs and responsibility onto police forces.

When we asked witnesses at committee what percentage of their calls for service were actually what people regard as crime, they responded that it was around 20%, saying that 80% of the time the police spend working on other issues. What that really means is that they are working on things like mental health, addictions, and all those other social problems of exclusion and marginalization. In our society we have made what I would call an unconscious decision that we will leave all those responsibilities to the police. One good sign of that, which we often see, is the difficulty of finding emergency social services, even in urban areas, after five o'clock. Who will one call after five o'clock when most people have their mental health and addiction crises? Those offices are closed.

The police become the agency called to deal with those problems. This is one of the huge, and probably the most important, cost drivers in policing. I know that the Minister of Public Safety suggested that police salaries were in fact a cost driver and that they took away resources from other things they needed. We on this side believe that the police who serve our communities as highly trained professionals need to be paid a fair, professional wage. We recognize that most of the time wages—and certainly in municipal and provincial departments—have been set through a process of free collective bargaining. Therefore, it not the police salaries that prevent resources being available for things like the witness protection program, but government budgets and all those other demands that we place on the police every day of the week.

As I said at the beginning, we know that the police are out in snowstorms doing all kinds of things that are not strictly fighting crime but providing emergency assistance to the public. I am looking forward to the work in committee not just on this bill but also on the study on the economics of policing to help find some ways to get the cost of policing under control by getting the focus back on building safer communities.

We in the NDP are committed to this concept. We need measures based on real evidence that will lead us toward solutions that make our communities safer. One way of doing this is through an improved witness protection program that helps keep our streets safe by giving police additional tools to fight street gangs.

The parliamentary secretary talked about an expedited process. I want to again reassure her, as I did in the questions asked at the beginning, that on this side we are committed to getting this bill to committee as soon as we can, and giving it a high priority in committee and bringing in the witnesses we need to talk to as quickly as possible. We will not prolong the process beyond what is needed, because we know that local police forces are in fact waiting for this tool to be made available to them in order to do some very important work in community safety.

At this point, I am happy to conclude my remarks by saying that this is one case where the New Democrats believe that the government has listened to stakeholders and has consulted. It might be a little late, but we are pleased to see that it brought in this legislation, and we will be looking at the next budget to make sure that the resources that police forces need, particularly the RCMP, are there to ensure that this new and improved witness protection program can actually be used by those on the front line.

Justice

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

Mr. Speaker, the hon. member is correct. Canadians, particularly victims, are increasingly concerned about the potential for high-risk individuals being released into the community. It is not surprising, given that, according to the Department of Justice, between 1994 and 2004, there was a 50% increase in the number of review board admissions for those found not criminally responsible and unfit to stand trial. This is one of the reasons we have introduced Bill C-54, the not criminally responsible reform act. We are acting to ensure that public safety is given paramount consideration while giving a greater voice to victims. These are common sense reforms. I hope they have the support of all members of the House.

Not Criminally Responsible Reform Act

[Ed Fast, Conservative, Abbotsford, BC]

moved for leave to introduce Bill C-54, An Act to amend the Criminal Code and the National Defence Act (mental disorder).

(Motions deemed adopted, bill read the first time and printed)