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

[Kyle Seeback, Conservative, Brampton West, ON]

Mr. Speaker, I find it a bit rich that a member from that party is somehow suggesting we are not doing enough for victims. It would be funny, if it were not so tragic.

We do a lot for victims. We could talk about the victims ombudsman. We could talk about doubling the victim surcharge. These are just a couple of things off the top of my head. This party has put in significant reforms within the NCR regime to support the requests of victims, so that they are not revictimized by the system.

The Liberals are going to vote against this bill, which would enshrine significant rights for victims. I do not what the comment is about in saying “We're not supporting victims”, but they are going to vote against this legislation.

Yes, there has been a critic, and a good critic obviously, a former Supreme Court justice; however, I respectfully disagree. I think this bill is necessary, reasonable and prudent. Bill C-54 is a second check to make sure that we have things right. I do not see how it cannot be supported.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, in debating Bill C-54, there are two issues that come to mind for me personally.

One issue is regarding the issue of victims. I, for one, in representing Winnipeg North, am very much concerned about victims. In fact, I believe the Conservative government is doing very little to prevent people from becoming victims in the first place. It has not been progressive in terms of coming up with ideas to deal with the causes of crime in the first place. It is something in which the government has fallen short.

Speaking specifically to the bill, could the member provide a brief comment regarding the Chief Justice of Canada, who has indicated that the bill is not necessary to deal with the mental disorders and NCRs? I would appreciate a comment on that.

The other issue is on why it is that again we have the bill being rushed through in this fashion. We have seen this disturbing behaviour from the Prime Minister's Office of wanting to prevent members from having proper debate on important issues that Canadians want us to address.

Could the member could provide comment as to—

[Kyle Seeback, Conservative, Brampton West, ON]

Mr. Speaker, I am very pleased tonight to be speaking to Bill C-54.

As a member of the justice committee, I had the opportunity to review the legislation in detail. I had the benefit of hearing witnesses who came to the committee to testify with respect to this piece of legislation. We heard from people who were strongly in favour of the legislation, people who had been victimized by those who ultimately became NCR accused. They had certain things that they thought this legislation would do to help them. They had some other comments.

We also heard from some people who had concerns with respect to the legislation. I would respectfully submit that when we deconstructed most of the concerns that people raised at the committee, they were a result of either not understanding the legislation or not having read the legislation, or perhaps a combination of both, because most of the criticisms really did not withstand an examination by members of the committee.

I want to talk a bit about what this legislation would do. I will start off by going through four of the key changes.

In my view, one of the key changes in Bill C-54 starts off with making the safety of the public the paramount consideration when determining whether or not somebody who has been found not criminally responsible is going to be released into the public.

As I have often done when I get up and talk about these particular pieces of criminal justice legislation and many of the things that we have brought forward, I say that many of the things that we put forward actually just make common sense. When we talk to the average Canadian on the street, for example, or when I talk to people in my riding of Brampton West and explain some of these things and tell them this is the change that we are going to make with respect to this particular bill, often their response is, “Really? You have to make that change? Boy, it would just make common sense for that would be the law. Why would you have to make that change?”

Therefore, when we say that safety of the public is paramount, it means that when a court or a review board is going to make a disposition with respect to an NCR accused, it would take safety of the public as the paramount consideration. Not only would that make sense, but we would also be codifying some of the Supreme Court jurisprudence in that area. In R. v Conway, it was made very clear by the Supreme Court that safety of the public should be the paramount consideration, so when we amend section 672.54 of the Criminal Code, we would make it clear that:

When a court or Review Board makes a disposition...it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused,

—and here is the next change—

make one of the following dispositions that is necessary and appropriate in the circumstances....

Again, that just would make sense. We would make a disposition that is necessary and appropriate in the circumstances.

The next major substantive change would be incorporating what we call a “high-risk” accused.

There are have been many who have come to this committee and said, “Well, this is going to stigmatize people. I mean, how dare you call somebody “high risk”? This is a person who has perhaps a significant mental disorder, and you're stigmatizing that person.”

I would say the exact opposite. In fact, we would not be stigmatizing people who have mental health issues, because what we are actually doing is saying that there are a select few who might be high risk, and we are destigmatizing everybody else, because people would then know they are not high risk.

I went back to this at committee over and over. When people were raising concerns about these issues, I would say, “Let us look at the section.”

Quite clearly, proposed section 672.64 would state, “On application made by the prosecutor before any disposition to discharge an accused absolutely, the court may, at the conclusion of a hearing, find the accused to be [a] high-risk...”

There are a number of processes taking place here.

The first is an application that may be brought by a crown attorney. It is not saying a crown attorney would bring this application for every person who is found to be NCR. It is quite the contrary. I know crown attorneys. My wife is a crown attorney. They are hard-working people. They are not looking for extra work. They would not try and dig up case files just because they want to make a person high risk. That would be reserved for cases where there is a significant concern.

Even if a crown prosecutor had that significant concern, it would not mean that person would be designated high risk because there is a two-fold test: first, the crown prosecutor has to bring the application; and, second, he or she has to convince a judge that the high-risk designation is necessary in the circumstances.

If I go back to the proposed section, it states:

...at the conclusion of a hearing, [the court may] find the accused to be a high-risk accused if the accused has been found not criminally responsible on account of mental disorder for a serious personal injury offence...and...the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person;

When we really take the time to listen to that section, it is saying that for a person to be designated high risk a court has to be satisfied that there is a substantial likelihood that the accused would use violence that could endanger the life or safety of another person. That to me is absolute common sense. Why would we consider an absolute discharge where a person would be released into the community, if he or she may be a high risk and there is a substantial likelihood that he or she would use violence that could endanger the life or safety of another person? That is the part of the test that has been changed. I am quite sure it would be used judiciously by our judges and it would not be used by crown attorneys all the time.

The second way that someone could be found high risk is if the court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a grave risk of physical or psychological harm to another person. That is a proposed section that a number of people at committee have said is wrong and that, if it were a brutal offence, would mean that the person is high risk. That is not true. A number of witnesses made that statement at committee. I had to walk them through the proposed section. It does not just say “brutal”. We must look at the proposed section, which does not say that. It states:

[If] the court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.

It is saying that there has to be some correlation. It is not just brutal; rather, it is brutal such that there is a risk of grave physical or psychological harm to another person. Therefore, if people want to suggest that we are saying brutal is high risk, they are not being truthful or they did not take the time to read the proposed section and understand what it says.

That is not enough. It does not just mean that there must be an indication of a grave risk of physical or psychological harm to another person because under subclause (2), “Factors to consider”, it goes on to state:

In deciding whether to find that the accused is a high-risk accused...

That could be under that first part of the test I talked about or the second part of the test. In either case, the courts would have to be satisfied that they have considered all relevant evidence included in the list. However, the phrase “all relevant evidence” does not mean that they are constrained by the factors in the list for a judge to consider. It is a non-exhaustive list.

Even if we accept the argument, “brutal”, we would then go down and look at what else has to be considered: the nature and the circumstances of the offence; any pattern of repetitive behaviour which the offence forms a part; the accused's current mental condition; and the opinions of experts who have examined the accused.

Even if someone tried to bring an application under the so-called “brutal nature” section, a court would have to look at all the evidence, which would include such things as the opinions of experts who have examined the accused.

The criticism that this might lead to a brutal crime, meaning the person is high risk, does not hold water. It is not a legitimate argument because a section in the statute says something very different.

Another issue that was raised at committee was that if a person was designated high risk, that person had to wait three years for his or her review and this was not a good thing. That is absolutely not true. It is not automatically three years. In certain circumstances, the review for a person who has been designated high risk can be moved to three years, but it is not automatic.

It is interesting, because the person who raised the matter of this being an automatic three years was Justice Richard Schneider, who came to the committee to provide us with his evidence on this and suggested that the three years was mandatory. I asked him if he could show me where it said that in the section. I understand there was constraints of time and we were talking, but he could not find it. However, when I look at the section, which is on page 8 of the statute around line 20, there are two ways in which this can be extended to three years.

First, it can be moved to 36 months after reviewing a disposition if the accused is represented by counsel and the accused and the attorney general consent to the extension. It has to be with the consent of the accused. Because we are dealing an accused, and in this case in particular an NCR accused, it has to be represented by counsel and with consent of the attorney general because we want to ensure we have real and legitimate consent to extend something to 36 months.

The other extension goes to the section again. I keep going back to this because we have to read the section before we decide to make the commentary. It says:

—at the conclusion of a hearing under subsection 672.47(4) or this section in respect of a highrisk accused, the Review Board may, after making a disposition, extend the time for holding a subsequent hearing under this section to a maximum of 36 months...

Here is the reason. If the review board is satisfied on the basis of any relevant information, including disposition information, in an assessment report made an offer under certain paragraphs, and this is key, “That the accused's condition is not likely to improve and that the detention remains necessary for the period of extension”. There is a burden of proof that has to be met in order to do that extension.

One of the things that was quite clear at committee, and this was virtually unanimous, was that review boards did good work. They work hard. They understand the law and we are putting that decision, the 36 months, back with the review board.

It is interesting because we did have a witness who came to the committee and who suggested that there was a problem with this 36 months review. When we look at the section, it is only if the accused's condition is not likely to improve and that detention remains necessary for the period of the extension.

Interestingly enough, when I had the opportunity to discuss that with Catherine Latimer from the John Howard Society, her response was, “Yes, I noticed that, but you will find that if you give very burdened organizations and review boards an option to extend the review periods, they always take it to the outer limit”.

Ms. Latimer was basically suggesting that review boards do not care what the test is. They do not care if the accused person's condition will or will not likely improve. The boards will do it at 36 months, because they do not want to work, because they have too much work. Ms. Latimer was one of the people who came to the committee and suggested that this bill should not pass. That was the argument. I vehemently disagree with that position.

I am going to talk briefly about the rights of victims, which is an important aspect of this legislation. I can say that I heard what I consider to be, in many circumstances, absolutely heartbreaking testimony from people who came to talk about family members who had been killed by an NCR accused person. They talked about their children being killed. We heard these things, and it was very difficult to listen to that kind of testimony.

I can tell you some of the things they were unhappy with that we wanted to fix. We cannot fix what happened. We all know that.

I cannot remember who told this story, but a person was walking in a mall and bumped into the NCR accused person who had committed the acts of violence against his or her family member. The person was in a panic. One of the revisions in this act would give the victim notice of the discharge of an NCR accused. The victim would receive notice when the NCR accused was going to receive an absolute discharge. That would be a huge step up.

The bill would make victim impact statements mandatory. If victims wanted to make statements, they would have to be considered before a disposition was made. Non-communication orders would also be mandatory. If victims did not want communication from an NCR accused, they would not have to have it. It is common sense.

I have a great example of the bipartisanship at the committee. An amendment was put forward by my colleagues in the NDP on letting victims know the intended place of residence of NCR accused people. That goes back to the story of someone bumping into the NCR accused in the mall. If victims know that they are being discharged and where they are being discharged to, the chance of having those unfortunate incidents would decrease.

Another point raised at committee was that with this legislation, NCR accused persons would be put in jail. That was put forward by Dr. J. Paul Fedoroff. I asked him where in the legislation it said that an NCR accused person would go to jail. He could not point it out. I then walked him through the section and talked about what would happen. When dealing with people deemed high risk, they would be put in treatment.

Going back to the terms of disposition, subsection 672.54(c) states that, “by order, direct that the accused be detained in custody”, and this is key, “in a hospital”. Somebody designated high risk would not go to jail. I do not know where that came from. It is not true. NCR accused persons would be put in a hospital for treatment.

When I pointed that out, the response was that before people were declared NCR, they would be put in jail, and that was the problem. The answer was that this is how the system currently exists. When people have committed serious crimes, are awaiting trial and do not get bail, they are put in jail. This legislation would not change that.

This is a piece of legislation that would be moderately used. It is a tool. I like to call it a double-check. When a review board was about to absolutely discharge an NCR accused person, there could be an application to the court to say that the person might be high risk and could reoffend and commit a violent act. The court could be asked to look at it to make sure that it was the right disposition. It would be a sensible, reasonable safety check. I hope that it has the support of all members of the House of Commons.

The House resumed from June 17 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 third time and passed.

Bill C-54—Time Allocation Motion

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

Mr. Speaker, seeing that the minister wants to address the substance of the bill, having been at committee when the Federal Ombudsman for Victims of Crime, Sue O'Sullivan testified, I was surprised that among her many amendments that would have spoke to what victims wanted, so many of the measures were not included in Bill C-54. It was very clear from the victims rights groups that testified at committee. Most of them saw the very compelling need to ensure adequate mental health services, that we had more in place for prevention and that the not criminally responsible sections that were most important to victims were the ones about notification. These are not the ones who are most under assault by those who are expert in clinical psychology, forensic psychology, review boards and legal experts.

There was a way forward to respond to victims' needs and to also respect the system that, according to all the experts, was working well in the stream of not criminally responsible people who were then monitored closely. Why did the minister not pursue a compromise in which victims' rights and the rights of mentally ill people who found themselves in the NCR system were both respected?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Mr. Speaker, I would like to spend the whole 30 minutes talking about great Canadians like Brian Mulroney and other great Canadians, but 30 minutes would not be nearly enough to talk about the accomplishments of Conservative prime ministers in this country. It would not even come close to what we would need.

That said, I am pleased that we are moving forward on this Bill C-54 that concerns not criminally responsible individuals. I think, and everybody should agree, that having five hours of debate can be very helpful. This bill has been in the works for quite some time. It has been before committee and it was here for second reading.

Again, I hope nobody over there is offended that protection of the public will be the paramount consideration. It seems to me that protection of the public should have the support of everyone. I look forward to this debate.

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

moved:

That, in relation to C-54, An Act to amend the Criminal Code and the National Defence Act (mental disorder), not more than five further hours shall be allotted to the consideration of the third reading stage of the Bill; and

That, at the expiry of the five hours provided for the consideration of the third reading stage of the said Bill, any proceedings before the House shall be interrupted, if required for the purpose of this Order, and, in turn, every question necessary for the disposal of the said stage of the Bill shall be put forthwith and successively, without further debate or amendment.

Data Used by Government with Respect to Bill C-54

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

Mr. Speaker, I rise to respond briefly to last night's further intervention by the hon. member for Kingston and the Islands on the question of privilege respecting Bill C-54, the not criminally responsible reform act. My intervention will be brief and I hope it will be the final of many interventions on this point.

On the report tabled on Thursday, the hon. Parliamentary Secretary to the Minister of Canadian Heritage pointed out last night that the hon. Minister of Justice had sought, and did in fact receive, unanimous consent to table that document. For example, page 433 of the House of Commons Procedure and Practice, second edition, at footnotes 111, 112 and 113, notes several examples when documents have, with unanimous consent, been tabled in only one official language.

Mr. Speaker, in the case currently before you, the Minister of Justice sought such unanimous consent to table the report for the very reason that it was produced in only one official language. Otherwise, he would not have had to seek such consent in the first place. The minister did so in the fullness of transparency, to provide members with the document as quickly as possible. Of course, once the translation is complete, the document will be tabled in the other official language as well.

On the tabling of a Microsoft Word track changes version of the document, it is my understanding that this was deliberately chosen as the means by which the House could most easily, readily and quickly determine what had changed between the two versions of the report. Rather than the member opposite trying to ascribe the most nefarious possible motivation to the minister tabling the track changes version, I would suggest that he, instead, consider the most plausible explanation: the minister was simply trying to be as transparent as possible. What he did was provide the House with an easy-to-reference version specifically highlighting the differences. For those not satisfied with that, he also provided the website address where a clean print of the updated version of the report could be located.

It is important to bear in mind that the original version of the report, which I will note was marked as final by the author in November 2012 and with consent to release, as tabled in a response to Order Paper Question No. 1169, was upward of 200 pages in length, thus making the need for track changes or the benefit of track changes rather obvious.

On the matter of the response to Order Paper Question No. 1169, I would refer to what was asked in the order paper question itself. In paragraph (a), the government was asked for certain information relied upon “in developing this legislation”. That is a very important part of the question. The material that was provided in answer to that was the earlier version of the report. I am left wondering how data received well after second reading debate started—that is, the revised report—could be responsive to a question related to the development of the bill, which was the question on the order paper.

Despite that, my colleague should be commended for noting in his response to that order paper question that a revised version of the report had been received. Therefore, not only was he responsive to the question, he was also transparent and open at the same time.

Finally, the hon. member for Kingston and the Islands offered some comments on a systemic remedy, which he proposed. Despite his creativity, I disagree that there is a prima facie case of privilege to be found here. As such, I need not respond further to his suggestion on how to craft an order of reference to the procedure and House affairs committee.

Third Reading

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

Mr. Speaker, indeed, that statement came from someone who suffered a terrible tragedy.

Quite frankly, it is very difficult for me to imagine what she went through, even though I have two young children. I think she is right in the sense that victims of a crime like this one feel extremely disadvantaged and helpless when the offence is committed by someone who is found not criminally responsible. They feel as though the justice system has let them down.

That is why it is never a bad idea to examine these elements of the justice system. In this case, Bill C-54 deals with the issue of individuals found not criminally responsible. If victims feel as though the system ignored their needs and their situation, we need to be able to comfort those victims through possible changes to the system, but again, from a perspective that does not violate the Canadian Charter of Rights and Freedoms, for instance, or use the issue for political gain.

These debates are extremely important and very sensitive, and this matter must be dealt with accordingly.

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

Mr. Speaker, I rise before the House for the second time this evening, this time, to speak to Bill C-54.

Bill C-54 is important. It is the latest bill on the Conservative government's crime agenda. Based on the controversial example of Dr. Guy Turcotte in Quebec, the government thinks it is better to impose its ideological measures.

The profound, collective feeling of injustice triggered by the murder of his two children was a completely normal, healthy reaction. Indeed, he made us question the essence of justice and the future of our society and prompted us to ask other important questions of that sort. As parliamentarians, it is our duty to ask whether such a case, which fortunately, is very unusual, requires us to question where the justice system is going.

I would like to quote a senator who was talking about one of her bills dealing with this issue. I think this quotation is quite relevant:

Even though there may be the odd case that concerns us all, Canada has recognized mental health experts and a proven judicial system. Anger and pain should not dictate our courts. Nor should they dictate our laws. It is a mistake to go down this path because instead of building a peaceful society we would create an unstable, harder, less tolerant one. We would fall into a vicious cycle of repression and violence, precisely into which the [Prime Minister's] Conservatives—and Senator Boisvenu—seek to lead us....We are talking about sick people. Punishment will not cure them. Prison does not cure.

That was Senator Hervieux-Payette, and those were her words regarding her own Bill S-214. I am quite certain that she will not mind if I draw a parallel with the current situation.

Is the government outraged that I would dare claim that it is playing politics at the expense of victims? The government is constantly accusing the opposition of siding with pedophiles, murderers and other criminals of that ilk, so I would simply like to try a little experiment.

The government has made several public statements on this bill, as did Senator Boisvenu and the mother of the two murdered children, Isabelle Gaston, whose state of mind I cannot even begin to imagine. The following is an excerpt of the statements of Senator Boisvenu and the Minister of Canadian Heritage at the announcement of Guy Turcotte's release on parole:

We believe that Isabelle Gaston doesn't deserve to live in fear of her children's killer, and neither do other victims...

Such decision is clearly undermining Canadians’ confidence in our justice system.

That's why our Government will shortly introduce legislation to address Canadians’ concerns about high-risk accused persons found Not Criminally Responsible on account of mental disorder who may pose a threat to public safety if released.

Well, if the government is not engaging in petty politics, and if the bill does not apply in any way to Dr. Turcotte's case, why are the Conservatives promoting the bill by using an emotionally charged and high-profile case involving children?

It smacks of demagogy and is very dangerous when the government plays with Canadians’ feelings and keeps them in the dark. The Conservatives know full well that this legislation will give the government an opportunity to capitalize on Canadians’ empathy for Ms. Gaston, while at the same time never clearly pubically admitting that the legislation cannot, and will never, apply to Ms. Gaston even if Mr. Turcotte were to face a second trial. Moreover, when Ms. Gaston was questioned on a Quebec public affairs television program, she admitted to being unaware whether the legislation would even apply in her situation. To quote Ms. Gaston “As far as I am concerned, I do not know, it is perhaps too early to get a sense of whether it will have an impact on my situation—the process is ongoing.”

This proves that all Ms. Gaston really wants is for things to change, and for her children not to have died in vain, which is entirely admirable. However, I seriously doubt that a more rigid position and the criminalization of mental illness will resolve the problem.

I use the word criminalization because, in truth, government members do not really believe in rehabilitation—we realized this when Bill C-10 was adopted. After listening to Senator Boisvenu, the jury is out as to whether he even believes that people genuinely suffer from psychological distress or severe mental illness.

In fact, the senator even wants the government to review the definitions of a number of mental illnesses whereby individuals may be found not criminally responsible.

Why? Simply because Mr. Boisvenu does not think that the incidence of mental illness could have increased so significantly over the past 10 or 15 years.

Why did the number of people found not criminally responsible increase twenty times? I do not think that the incidence of mental illness has increased at such a rate over the past 10 or 15 years. We must find out why there has been such a drastic increase in the number of these cases.

My colleague, the member for Gatineau, our justice critic, explained this during her opening speech. She said:

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.

To what point are mentally ill offenders dangerous?

This question was at the heart of an extensive study the Canadian government's Department of Public Safety conducted at the end of the 1990s. It recorded and analyzed more than 60 studies on this subject to properly identify the problems.

These studies looked at more than 15,000 offenders who had been released from prison or specialized hospitals and who were followed in their communities for a period of four to five-and-a-half years, on average. What were the findings?

When compared to offenders who do not have major psychological or psychiatric disorders, mentally disordered offenders are less likely to recidivate violently.

Second, mentally disordered offenders are not always actively psychotic. They may be in remission or their symptoms are being managed by medication.

The study also evaluated the relative importance of different risk factors. Many mental health professionals place considerable emphasis on “clinical” variables. Examples are length of hospitalization and type of mental disorder (e.g., schizophrenia, manic-depression). The meta-analysis found that these variables demonstrate very weak associations with violent re-offending. Much more potent predictors of violent recidivism are the factors typically found to predict violence among non-disordered offenders. Examples of these risk factors are criminal history, unemployment and family problems.

When the Minister of Justice said in his opening speech on second reading that the objective of the proposed reforms was not to impose criminal penalties on individuals found by a court to be not criminally responsible on account of mental disorder, that was only half true, in fact.

In reality, Bill C-54 will divide the clientele into two types of cases: those who meet the criteria in Bill C-54 and those who do not meet those criteria, even though they have all been found not criminally responsible on account of mental disorder. This means that accused persons whose cases meet the criteria and who are found to be high-risk accused could be held in custody with no possibility of release by the review board as long as the court has not revoked the finding.

Why place people who are not criminally responsible outside the jurisdiction of the review boards that deal with mental disorders, quasi-judicial tribunals that are composed of psychiatrists, not judges? Only a court could find an accused to be “high-risk” and then revoke that finding, at present. Before revoking it, the court would seek the recommendation of the mental disorder review board, but the final decision would no longer be the board’s.

In Quebec, the mental disorder review board makes decisions concerning individuals who have been found unfit to stand trial or not criminally responsible on account of mental disorder.

As long as the accused is not discharged unconditionally or found fit to stand trial, a review must be held each year. With Bill C-54, that time will be extended to three years, and this could cause a number of problems, according to the experts with the Canadian Forensic Mental Health Network. It would prompt defence counsel to stop pleading not criminally responsible and opt for custodial prison sentences in the traditional prison system. In addition, individuals found not criminally responsible on account of mental disorder would not receive proper care, but they would still present a danger when they were released.

The study I referred to earlier also found that the similarities between risk factors for offenders with mental disorders and other offenders suggest that there is a point at which health care services and the criminal justice system could integrate their approaches in order to effectively manage offenders with mental disorders.

There are two specific areas where co-operation between the two systems is possible: risk assessment and rehabilitation of offenders. I am not citing that study to embarrass anyone, but simply to try to make the government members understand the consequences of deinstitutionalization, poverty and the criminalization of mental health problems. Prison does not cure people.

This bill, like so many others, was drafted without much thought to the consequences and without consultation, in order to make the public, and particularly the Conservative base, believe that this government is tough on crime. In reality, this bill would probably not apply to the case of Guy Turcotte.

Clause 12 of Bill C-54 adds a new section to the Criminal Code, section 672.64, which lists the conditions that must be met in order for a person to be considered high-risk:

672.64 (1) On application made by the prosecutor before any disposition to discharge an accused absolutely, the court may, at the conclusion of a hearing, find the accused to be a high-risk accused if the accused has been found not criminally responsible on account of mental disorder for a serious personal injury offence, as defined in subsection 672.81(1.3), the accused was 18 years of age or more at the time of the commission of the offence and

(a) the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person; or

(b) the court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.

For Guy Turcotte to be declared an assumed high-risk accused, the judge has to be convinced, beyond a doubt, that he would likely seriously harm another person or could endanger the life of another person. Everyone agrees that the murders were both brutal and grotesque. I, too, have children. However, that is not what justice must decide. Rather, it should focus on whether or not there is a chance the accused will reoffend.

Given the decision made, the experts were obviously able to convince the judge that this was not the case. I am going to outline the five criteria that the judge must take into consideration—and he must take all of them into consideration—when determining whether the individual is a high-risk accused.

He must consider the nature and circumstances of the offence, any pattern of repetitive behaviour of which the offence forms a part, the accused’s current mental condition, the past and expected course of the accused’s treatment, including the accused’s willingness to follow treatment, and the opinions of experts who have examined the accused. If one must take into consideration all these criteria, the Turcotte case does not at all fit, given the experts' opinions, his mental condition and the treatments and therapies that he is following.

The nature of the offence is the only criterion that might lead a judge to consider him dangerous. However, given his mental condition at the time, and based on what the judge took into consideration, the risk of reoffending is very low. According to the Conservatives' bill, Guy Turcotte would not be a high-risk accused.

The one thing I agree on is that victims should be at the centre of the process. The problem is that the bill says very little on this aspect.

In closing, I want to reiterate that the government must realize the importance of providing real support to victims of crime, including by following up on more than one recommendation of the report by the ombudsman for victims of crime. It must also understand the whole psychosocial structure surrounding prevention, the study of risk factors, research, health care and rehabilitation.

It is difficult because each case is unique, but experts have tools to try to have everyone make progress. Some are probably beyond redemption, but just like with the concept of high-risk accused or mental disorder, it is certainly not up to politicians, or even the legal profession to establish the foundations. It is up to psychiatrists and doctors.

While referring to the former cardiologist's case, the Minister of Canadian Heritage said that such decision obviously undermines Canadians' confidence in our justice system. However, the minister was not able to say how this desire to put victims at the centre of the process would translate into concrete measures.

That is another contradiction in the Conservatives' logic, and it is the reason why we presented a number of amendments in committee. In fact, one of those amendments was accepted, and it is one of the few that the Conservative government has accepted in any committee.

The amendment would inform victims, at their request, of the address of a person already found to be not criminally responsible for a crime so that the victim can avoid the area for his or her own well-being. It is one of the examples that showed that we do care about the victims. We want to improve this bill so that it reflects this concern.

One of the reasons why we will be supporting this bill is that we were able to have the Conservatives accept a second amendment that would require the government—no matter which party is in power in five years, that is in 2018—to have a committee study and re-examine the situation.

There are still many concerns about this bill, and I have pointed out a few of them. I think it is worthwhile examining them. There are other concerns that I did not have the time to address in my speech. They were brought up by experts, or in committee, and had to do with the possibility that this bill may be unconstitutional.

The validity of such measures is obviously based on the victims' rights, but also the rights of those deemed to be not criminally responsible for the acts committed. These laws must also be protected. In that sense, a contradiction could easily lead to interpretation of the Canadian Charter of Rights and Freedoms. The committee was informed of concerns by the media. That is why, five years after the bill becomes law, such a study would be pertinent.

In my speech, I made sure that I talked about the danger of politicizing cases like the Guy Turcotte case. I am certain that other members could cite similar cases that have occurred in their riding or region. These cases are very delicate and they affect us.

I already mentioned that I have children. Anyone who has young children will be emotional about a situation like that. It is the reason why such a delicate and sensitive situation must be handled by parliamentarians in the same manner, that is in a delicate and sensitive manner. These types of cases must not be used to promote a political agenda.

The reference made by the Minister of Canadian Heritage and Senator Boisvenu to what I just mentioned was the second speech made on the same bill. It was announced twice. The government must be very careful, because this kind of issue is very volatile. Again, the politicization of these cases has muddied the waters for the collective debate we should be holding on this issue. This makes it much more difficult to find our way.

In the future, for law and order bills on crime, I would like the government to be much more sensitive to the reactions it causes and the way they interfere with the debate when similar bills are introduced.

On this side of the House, we showed we were willing to work with the government. We will do so by voting for this bill, among other things. In addition, we demonstrated our co-operation by proposing and expediting the passage of Bill C-2, which allows for the group prosecution of biker gangs.

We will continue to work on this issue, but we need the government's co-operation in order to have a healthy and useful debate for Canadians.

[Mike Wallace, Conservative, Burlington, ON]

Mr. Speaker, I agree 100%.

If we could legislate away mental illness, I would do it tonight. I would probably get unanimous consent to do it, and we would do it.

However, it is not possible, and we do have to have a balanced approach on all topics, including mental health, crime and other health issues. If I could legislate away cancer, I would do that also by unanimous consent. I cannot do it. It does not happen. It will not work.

We have to have a balanced approach. Part of the balance in our view is, through Bill C-54, to make sure we have appropriate mental health help for those who have committed serious personal and brutal offences. In Bill C-54, we need to find a balance to help victims with the issues they are now going to face as victims of these mental health offences.

It is a balancing act. This is not the complete answer. I do understand that there are two sides to it. We have been investing in prevention as a government and we will continue to invest, but we also have to help those who have already committed those offences.

[Mike Wallace, Conservative, Burlington, ON]

Mr. Speaker, it is my honour this evening to speak to Bill C-54. It is also my honour to be the chair of the justice committee, which has recently dealt with the discussion on this piece of legislation.

I want to thank the committee for its work. We had extended hours. We invited a number of witnesses from all sides of the debate on this particular issue. The committee worked very well together and very hard at hearing everyone out. We had a number of interruptions with bells and a number of other votes that happened within, but we were able to get through the presentations in a very respectful way as a committee. We heard from all sides, whether they were victims, victims' family members, those representing the mental health side of the equation, such as associations, legal opinion and health care workers in the mental health area. It was a very good discussion.

I also want to thank our clerk, Jean-François Pagé, who did a fabulous job on very short notice, making arrangements for very balanced panels for us to see. Also, the analysts and the legislative clerks helped us.

I also want to thank the leader of the Green Party who joined us at committee with a number of amendments. It does not happen that often. It is some sort of a new process for committees to have independents sit at the table with us when we go through legislation and contribute to the discussion on amendments that they bring forward. I appreciate that.

I do appreciate the professionalism of the committee in dealing with a number of amendments. I believe there were 52 or 54 amendments in front of us. We did accept amendments. One came from the government side, one from the New Democratic side and one from a Liberal member. They were accepted and in fact there was some crossover between the two opposition parties.

Let me take just a few minutes to review exactly what Bill C-54 actually would do. There is lots of rhetoric about what the bill would do; we heard some of it this evening. I want to be as factual, as clear and as precise as possible on the changes to the NCR regime that now exists. These would be amendments to an existing not criminally responsible regime, which we think are needed to make our system better. It is not to change, to stigmatize, as we have heard from others tonight. It is actually to improve the justice system.

There is nothing wrong with improvements to the justice system. There is nothing wrong with improvements to any system. That is why we are here as legislators. We look at what is happening. We see what is actually happening on the ground after we make laws. Sometimes we do not get it completely right. Sometimes, over time, things change and we need to make changes. That is all we would be doing. We would be making some amendments to this to deal with a few high-risk accused situations.

Bill C-54 would create a new application process to obtain a finding from a court that an NCR accused is a high-risk accused. The high-risk accused finding would result in the disposition requiring detention of the accused in a hospital until the court revokes the findings.

Let us be clear about this. There is an NCR regime at present. A court can find someone not criminally responsible at present, or NCR. They do not go to jail. That is what NCR is about. They need help. They have a mental issue through no fault of their own. Based on the evidence that is provided, a court can make a judgment that this individual is not criminally responsible for the actions he or she has taken. Some of them can be very horrific, some at a different level, but it is still their mental capacity that has been the issue.

Do they go to jail? What the previous speaker said, that the system would send them back to sort of rot in jail longer, is not the case. In the present regime, someone who is designated NCR gets help. He or she gets hospitalized, basically.

At present, there is a review board to see how they have done. It is an annual review. The victims would have to come and listen to the progress the individual has made, and a review board would decide whether the individual needs to continue treatment. It is not punishment, it is treatment.

All we are doing is, first, saying that in some very specific situations, some NCR-designated individuals are of high risk, both to themselves and to the public. We are defining a different and added category in this piece of legislation. Would it apply to everyone who is designated NCR? Absolutely not. That is not what it is designed for. That is not how we expect it to be used. There was some discussion about a burden on the courts system. That would not be a result. There would be very few cases in Canada annually. In fact, I hope it would never be used, to be honest. It would be great if the high-risk designation in NCR were never required. However, it may be required and we need to have the legislation in place to provide that designation for a court to determine.

The application would have been made by the prosecutor before an absolute discharge could be ordered. That means that the government prosecution would have to decide whether someone really is high risk, so there is a burden of proof in terms of whether the individual is high risk before a prosecutor could bring it forward.

The high-risk accused finding would only be available in cases involving serious personal injury offences that resulted in a verdict of NCR. Therefore, they need to know that the person has been found NCR already. As well, it is what we call an “incident”, not a crime that leads to jail, because these people need hospitalization. The incident would have to be an offence that involved serious personal injury and the accused would be 18 years of age or more. Therefore, it would not be used for children or young offenders, it would be for adults. We need to ensure that everybody understands that.

To determine a finding of high-risk accused, the court would have to be satisfied that there is a substantial likelihood that the accused would use violence that could endanger the life or safety of the public. The safety of the public would become paramount in this high-risk category. I would suggest that also safety of oneself would also have some consideration. At committee, we did hear it stated that, based upon actual court cases in the past, public safety is a priority. All this legislation would do is codify that and put it in the legislation, not just by jurisprudence of what has happened in different court cases.

The court could also make the high-risk accused finding if it were of the opinion that the acts that constitute the offence were of such a brutal nature they would indicate a grave risk of harm to another person. Therefore, an individual is found NCR and based on the evidence the court has determined that the individual needs hospitalization and needs help with the mental illness that has caused this serious offence. It is not just any serious offence, but one of a brutal nature that would cause the court to look at whether the high-risk category should apply. The court would consider all relevant evidence, including the nature and the circumstances of the offence, any relevant pattern of repetitive behaviour, the accused's current mental condition, the past and expected course of treatment and the accused's willingness to follow treatment, as well as expert opinions.

We heard in the last speech about the committee not accepting the amendment on medical experts. Based upon the input we got on that amendment, we had a full discussion on that amendment. Experts from the ministry of justice were there. They indicated that by putting medical experts as an amendment it may limit who we could ask on this and that not everyone who may have expertise on determining some of these criteria would be a licensed medical individual. There could be others involved, from a social services point of view, from other areas, who would be able to help in determining some of these circumstances and the nature of the offence, the pattern or premise, who may not have a medical designation. That is why we wanted to leave it open, so that all expert opinions could be sought. They would still have to be experts. We would not just be asking anyone.

If the court makes the high-risk accused finding, a disposition requiring detention of the accused in a hospital must be made. I think that is an important thing to indicate.

We are not talking about removing the hospitalization aspects and sending people to jail because they are high risk. It is determining that they go to a hospital that would handle their NCR issue if the offence were brutal in nature and that there were a high risk it may reoccur or that they could hurt themselves. And so, it is still a hospitalization. This does not remove that aspect of NCR and send them to jail but give them help.

No conditions permitting absences from the hospital would be authorized unless a structured plan was prepared to address the risk to the public, and only with an authorized escort.

If we were to go down my street in Burlington, Tuck Drive, and told people that, at present, somebody who has committed a brutal offence and has been found NCR, within the year, without a structured plan, would be able to go on an unescorted release, I would say the people on my street would be shocked that is what the law is at present.

All this is saying is that for those who are found NCR and then high risk, there would be a structured plan to address the public aspects and authorized escorted release. That is not saying they would not get to go out in public. We would try to help them with their plan to be reintegrated, but not on their own at that particular time as a high-risk NCR individual. They would have to be escorted so we could review what they were doing.

I think that is common sense. I do not think the public would be upset that those escorted absences were only a decision-making process and could impose a non-communication, non-attendance condition in order to ensure their own safety.

It just makes sense to me that we would have that ability, that condition in this bill, and it is surprising that it does not exist at present.

I want to talk briefly about what the bill does not do. Bill C-54 does not seek to punish individuals who have been found by the courts to be not criminally responsible on account of their mental disorder. It is not jail time. We want to make sure that is there.

I can tell members the witnesses we heard from were all excellent witnesses. They all brought an expertise to the table, whether a victim or an individual representing the legal field or the mental health field. However, when questioned on the specifics of the wording of the bill, of the different clauses, it was interesting to see that this is what they thought could happen but it was not actually the wording of the bill.

Nothing in Bill C-54 would affect the access of mentally disordered accused persons to mental health treatment. There is no prohibition to their getting help. With this bill, accused persons would still be NCR. They would get a high-risk designation and they would still be hospitalized. The government would be there to help them overcome the mental illness that caused the serious and brutal actions to take place. The government wants them to get better and to be integrated back into society. We have a responsibility as a government to make sure that high-risk individuals get the treatment they need.

Bill C-54 does not seek to stigmatize the mentally ill. The bill does not suggest that mentally ill people commit crimes or are dangerous. The bill does not say that. People came to see me in my office. I agree that the messaging from all of us here is that the support in this bill does not suggest that we are stigmatizing mental illness.

We know people need help. We know that happens. As a government, we put together the mental health strategy, and the high-risk category does not apply to everyone who has a mental illness. It would apply to very few individuals. The new high-risk NCR accused finding does not create the presumption of dangerousness. Rather, it focuses on a relatively small group of NCR accused persons who qualify for the high-risk finding.

The other item that is important to understand is twofold. One, the review board still exists and the review board is still required to provide information on how individuals are progressing through their treatment. The review board change is simple. Right now it is every year that victims attend to hear how the perpetrators are doing. They are re-victimized over and over again. The bill would make it up to every three years. We are adding two years. The review board could make a decision of up to three years.

The only other major change, which was highlighted by a question from my colleague in the Conservatives, is that a judge would determine whether a person is high risk. I have faith in the court system, and if that happens, a judge would decide, based on the evidence, including the review board evidence, whether individuals have accomplished what they needed to do in that high-risk designation, at which point the NCR designation can be removed and people can be reintegrated into society.

Those are two of the changes. If a judge determines that someone is high risk and NCR, that judge has the ability, the authority and the responsibility to determine when those designations will be removed.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Mr. Speaker, sometimes listening and hearing are two different things.

No one has suggested that the government is setting out to stigmatize the mentally ill. What we are talking about are the unintended, negative consequences of a piece of legislation. Indeed, the government consulted all the crown attorneys across the country, but it did not consult the Canadian Bar Association or attorneys who actually have a specialty in mental illness and NCR. One cannot talk to just one group and not the others.

If this is a good a bill, as the member is trying to suggest, and would not have those negative, unintended consequences, why did the government not consult the professions that are actually in charge of people who are mentally ill? They all oppose the bill. They all say that the unintended consequence would be to stigmatize people and send them back into the corners, where they will not be diagnosed.

Bill C-54 would deal with people after the fact, after they have committed violent crimes. We are suggesting that the bill should look at getting people an early diagnoses, before they get there, so that we can pick them up and prevent those kinds of crimes from occurring. We should find ways of working closely with mental health communities, with all of the legal professions and with victims to create a good and balanced piece of legislation

The House resumed 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 third time and passed.

Bill C-54—Notice of Time Allocation Motion

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

Mr. Speaker, I must advise that an agreement has not been reached under the provisions of Standing Orders 78(1) or 78(2) concerning the proceedings at third reading of Bill C-54, An Act to amend the Criminal Code and the National Defence Act (mental disorder).

Under the provisions of Standing Order 78(3), I give notice that a minister of the Crown will propose at the next sitting a motion to allot a specific number of days or hours for the consideration and disposal of proceedings at the said stage.