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.

[The Chair, Conservative, Mike Wallace]

We're on clause-by-clause consideration of Bill C-54. Pursuant to Standing Order 75(1), consideration of clause 1, the short title, is postponed.

The chair then calls on clause 2. Shall clause 2 carry?

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

I guess it's my law school background. I look at the bill and I know that the Supreme Court of Canada has already said that the paramount concern is public safety, and still that happened to Christine. So I'm just looking at ways we could improve the bill, based on your evidence, and that seems to me to be a hole.

I wonder if any of you or all of you want to comment on the testimony of Sue O'Sullivan as federal ombudsman for victims' rights. She spelled out a number of things. Frankly, until she listed them—and I look to my colleagues in the Conservative party as well—on reading the bill, I had thought those things were there. But I went back and looked, and she's right. There's nothing in the bill right now that says victims should be advised of the forensic facility location, that victims should be advised in advance of movements, that victims should be given advance information on release. You were here in the room when she testified.

Do you have any comment on whether you would support the amendments that Sue O'Sullivan suggested to improve Bill C-54?

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

Thank you, Mr. Chair, and thank you, Mr. Cotler.

First of all, thank you to all the witnesses for being here. Your evidence is very helpful.

Do any of you see anything in Bill C-54 as currently drafted to deal with the circumstance that Christine Russell described in which her victim impact statement was changed?

I don't see anything here in Bill C-54 that would change that process or protect victims from having that occur to their statements.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you. I tend to agree with you. That's been my experience as well, as a former law enforcement officer. Even though I never dealt with an NCR case, that doesn't hold water with what I know.

Ms. Illingworth, my last question is for you. We obviously need to ensure that victims are supported and not revictimized by the system. Do you think the changes we have proposed in Bill C-54 will reduce the revictimization for victims who go through this process? Does it strengthen victims' rights and the victims' ability to have a say and be protected by the legislation after a serious incident like this happens?

[Heidi Illingworth, Executive Director, Canadian Resource Centre for Victims of Crime]

Thank you.

I represent the Canadian Resource Centre for Victims of Crime and I'm grateful for the opportunity to appear before you this afternoon.

The CRCVC is a national, non-profit, non-government advocacy group for persons impacted by serious crime. We provide resources and emotional support to victims across the country, as well as advocating for public safety and improved services and rights for crime victims.

We are pleased to support Bill C-54 today. Our clientele includes families and individuals impacted by persons who have been found not criminally responsible. We remain very concerned about serious acts of violence committed by this small population of offenders and their lasting impacts on victims.

We believe mental illness should be treated as a medical and health issue outside of the criminal justice system, so that patients are stabilized and no longer suffer from symptoms. But we are particularly concerned with medication compliance and the ongoing community supervision of forensic mental health patients.

We support the amendment that would make public safety the paramount consideration by review boards in their decision-making process. Although there have been Supreme Court rulings in this matter, we understand the current approach basically balances four factors, namely the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society, and other needs of the accused.

We support the proposed reforms to codify the meaning of the phrase “significant threat to the safety of the public”, which is the test stated by the Criminal Code to determine whether the review board can maintain jurisdiction and continue to supervise a mentally disordered accused. Consistent with the Supreme Court of Canada’s interpretation, the phrase means a risk of physical or psychological harm to members of the public resulting from conduct that is criminal in nature, but not necessarily violent. The codification aims to ensure more consistency in the application of this test.

We are very supportive of the measures that will enhance victim safety and provide victims with opportunities for greater involvement under the Criminal Code mental disorder regime, namely, ensuring that they are notified, upon request, when the accused is discharged; allowing non-communication orders between the accused and the victim; and ensuring that the safety of the victims be considered when decisions are being made about an accused person.

We understand that currently there is not always consistent interpretation and application of the law across the country. We particularly want to ensure that the information needs of victims are met. This means that they are informed about the accused if they wish, as well as having their personal safety concerns heard and understood by review boards.

Given our work with family members across the country who've been impacted by NCR rulings, we want to reiterate what we hear from the victims themselves, which is that they do not want what happened to them or to their loved one to happen to anyone else. Public safety is their primary concern.

In the most horrific cases, where serious personal injury or death has occurred, victims are often very upset by the fact that the accused person was free in the community prior to their offence and had not received proper help and treatment for their mental illness. They deteriorated. They were unable to recognize the early symptoms of their deterioration, and they caused serious harm or took a life. Victims are fearful that this cycle will repeat itself, especially when it comes to ensuring that the offender will remain on their medication for the rest of their life.

We support the proposed high-risk designation, which would be applied where the accused person has been found NCR and there is substantial likelihood for further violence that would endanger the public, or in cases in which the acts are of such brutal nature as to indicate a risk of grave harm.

We support the fact that they would not be granted a conditional or absolute discharge, and that the designation could be revoked only by the court, following a recommendation by the review board. We understand that this would apply only to those found NCR and not to persons found unfit to stand trial.

Lastly, we feel this amendment would only apply in a very small handful of very serious cases across the country every year, and that is our interest in supporting it as well.

We furthermore agree with the proposed amendment that the review board may decide to extend. We support this. It's not that they must extend the review period for up to three years, but they can choose to.

Again, we're pleased to be here. We're pleased that this high-risk designation would not affect access to treatment by the accused, as has already been discussed.

Thank you.

[Mike McCormack, President, Toronto Police Association]

Good afternoon, everybody.

My name is Mike McCormack. I'm the president of the Toronto Police Association, where I represent 8,000 members of the Toronto Police Service.

First of all, I'd like to thank the Standing Committee on Justice and Human Rights for the opportunity to address the committee and to voice my association's and my membership's support for the proposed amendments to Bill C-54.

Before I start, I'd just like to put into context some of my comments regarding my support and my association's support for this bill. I'm just giving you a little bit about my background so you understand where I'm coming from.

I've been a police officer for almost 30 years. I've worked in the most difficult communities in downtown Toronto. A large percentage of the people living in these communities are living with mental disorders. I know first-hand the difficulties that the mentally ill deal with on a day-to-day basis and the challenges that police officers face when we are responding to persons who have mental illness issues.

I worked in 51 Division for most of my policing career. I've worked closely with the community, responding to crime issues, including drug trafficking, prostitution, gang activity, violent street crime offences. As I said, this area is home to a large transient population, families living below the poverty line, and individuals and their families dealing with problems created by substance abuse and treated and untreated mental illnesses. We have numerous halfway houses, hostels, shelters, and the police work closely with this community and with our partners in responding to the community's needs.

As a police officer, I have been directly involved in responding to the needs of the mentally ill. My experiences range from assisting mentally ill people in acquiring basic needs, such as food or shelter, to arresting or being in violent confrontations with people who are mentally ill simply because they had no access to medication and have committed violent criminal offences in a psychotic rage.

I share this information with you just to give you some context of my support and my association's support for the proposed amendments to Bill C-54. I'm going to reiterate some of the stuff that Christine spoke about involving one of our members, Sergeant Ryan Russell, and an offence committed against him by a person suffering from a major mental disorder. This is the case of Richard Kachkar, and as I said, Sergeant Ryan Russell.

As you heard, on January 12, 2011, Ryan died in the line of duty. He was standing in uniform beside his police vehicle, emergency lights flashing, when Richard Kachkar murdered him. Mr. Kachkar was arrested, charged, as you heard, with first-degree murder in Sergeant Ryan Russell's death. During a highly publicized trial, the jury found Mr. Kachkar neither had the mental capacity to appreciate the nature of the act, nor did he know that the act was wrong, and he was found not criminally responsible.

The evidence that we heard at the trial confirmed that Mr. Kachkar suffered from a major mental illness at the time of Sergeant Russell's death and that he suffered from depression, schizophrenia, and he may have suffered from a personality disorder.

In February 2013, Prime Minister Stephen Harper announced the introduction of Bill C-54, the not criminally responsible reform act. It appeared to us that the primary objective of this bill is to ensure that public safety is and should be a priority in the decision-making process with respect to accused persons who are found not criminally responsible. This would be a way to enhance victim safety and promote greater victim involvement in the Criminal Code mental disorder process.

First of all, I'd like to say the police association supports the reforms that Bill C-54 will make and agrees that public safety is and should be the overriding consideration when decisions are made about persons found not criminally responsible by the courts. The public has a right to feel safe in their communities and to be protected against dangerous and violent offenders like Mr. Kachkar.

Second, the association supports a new high-risk “not criminally responsible” designation introduced by Bill C-54, which proposes to allow the courts to designate the most violent not criminally responsible offenders as high risk. The NCR defence is rarely used. It appears only in two out of every 1,000 criminal cases and is less commonly linked to violent offenders, who account for an estimated 10% of all NCR cases. The high-risk NCR designation would only apply to the small number of accused who have been found not criminally responsible and who pose a higher threat to public safety.

The Hon. Rob Nicholson provided some interesting facts in the House of Commons debate on March 1, 2013, about persons found not criminally responsible, when he stated that:

A little over 27% of individuals found not criminally responsible have had a past finding of not criminally responsible; 38% of those found not criminally responsible and accused of a sex offence had at least one prior NCR finding; 27% of those accused of attempted murder had at least one NCR finding; and, 19% of those accused of murder or homicide had at least one prior finding of not criminally responsible.

Under the proposed amendments to Bill C-54, high-risk offenders would not be discharged unless a court agreed to lift their high-risk designation, which we agree with; would be ineligible for unescorted passes into the community; and their mandatory review period could be extended from one year up to three years.

Having seen first-hand the revictimization of our victims going through this process year after year, we support all these amendments. The association endorses the enhancement of victim safety and victim involvement in the mental disorder process. This bill gives victims of crime a greater role by requiring that the courts and review boards consider the safety of the victim when they make decisions with respect to persons found NCR, and require the review board to notify the victim, upon request, if the accused person is to be released into the community.

I recently attended the ORB hearing with Christine and her family. I sat there for hours wondering what weight the victim impact statement currently had in this process, and I couldn't find any.

On April 29, 2013, after hearing his case, the review board ordered Mr. Kachkar to be sent to Ontario Shores Centre for Mental Health Sciences. This exposed serious systemic problems and serious flaws in the current review board system. The board was unanimous that Richard Kachkar suffered from serious mental illness and represented a significant threat to public safety. During the course of the hearing, a board psychiatrist asked Dr. Klassen, vice-president of medical affairs at Ontario Shores, why he was recommending putting Mr. Kachkar on anti-psychotic drugs at this time, 30 days after the NCR verdict, keeping in mind that this was not done in the previous two years that Mr. Kachkar was in custody, pending trial for Sergeant Russell's death.

In the absence of proper assessment, the review board gave the hospital—and this is key—the power to give Mr. Kachkar privileges in the community, escorted and accompanied by hospital staff. The hospital medical staff were going to be escorting this gentleman into the community if they felt they should do that—not security, not police.

The proposed legislation outlines that a high-risk NCR person would not be allowed to go into the community in this instance, and that they would not be able to go either unescorted or escorted, and only would be allowed in narrow circumstances, and subject—and this is key to us—to sufficient conditions to protect public safety.

What we found absolutely shocking was that these were conditions that Mr. Kachkar's counsel had not asked for, and they were granted without the understanding of the depth of his mental illness. He had not even been fully diagnosed. His mental health issues were major and he represented a significant threat to public safety, yet the ORB was going to allow him into the community.

Our concerns are that without discussion and without evidence, this is the way the board was behaving. He was going to be allowed back into the community in 30 days. In considering Bill C-54, we urge you to look at providing further statutory guidelines to the review board—the issues of public safety as well—guidelines that establish proper evidence-based balance between the need to protect the public and the requirement to treat people with mental illness who commit criminal offences.

The Toronto Police Association supports the initiatives reflected in Bill C-54. We are not insensitive to the difficulties of persons living with mental illnesses. We understand first-hand the devastating impact that mental illness has on the mentally ill, their families, their communities, and in this tragic case, Sergeant Ryan Russell, Christine, and her family, who became unwitting victims in this struggle with mental illness.

This bill does not target persons with mental disorders, those whose illnesses are non-threatening to others, nor does it seek to impose punitive consequences on persons found to be NCR due to mental illness. This bill speaks to the people who commit horrendous heinous crimes and who, like Mr. Kachkar, are found to be NCR.

We in the policing community are committed to protecting our communities. Our challenge is to find a way of reducing the potential for those found NCR to reoffend as well as to protect future victims.

As key stakeholders in the mental disorder regime, we want to ensure that people are taking their medications, that they do not have contact with victims, and that there is a support system in place to monitor mental health and reduce the likelihood of reoffending.

At least through the core process there should be an ability to impose conditions to assist in these protections—conditions that may include boundaries, living arrangements, participation in treatment plans, abstinence from illegal drugs and alcohol, and conditions to stay away from victims to prevent their revictimization.

[Justice Richard D. Schneider, Chair, Ministry of Health and Long-Term Care, Ontario Review Board, Review Boards Canada]

Thank you, Mr. Chair, for inviting me here to make submissions to the committee.

At the outset, I should indicate that I endorse fully and echo the submissions of my colleague Bernd Walter.

I'll speak very generally, in a broad fashion, about the three or four main areas of the bill.

With respect to the new enhanced notice provisions to victims, the review boards of Canada really take no position, but would note parenthetically that it seems to be antithetical to some of what's been in the media about victims' desire to be less engaged and not revictimized annually. This set of provisions, to our mind, drags the victims into the system and enmeshes them more fully. In Ontario we have a system where the victims can waive off future notices, and that is indeed where many of them, if not most, go. They do not wish to be further engaged or enmeshed in the system.

With respect to public safety as a paramount concern, as Bernd Walter has indicated, that has been the law for a decade or more. The review boards take no position with that.

With respect to the threshold of “least onerous and least restrictive” being replaced by “necessary and appropriate”, we note that it's a conjunctive test, which most of the academics find puzzling more than anything. When would something be necessary but not appropriate, or the opposite?

The real problem, to our mind, comes with the “high-risk accused” designation. It's with respect to this that there is grave potential for the amendments to actually, contrary to their purported aim, make the public much less safe rather than more safe.

One must remember that individuals who are prospective HRAs are individuals who have elected to avail themselves of the NCR defence. By putting into part XX.1 provisions that might, for a lack of a better way of putting it, appear frightening to the accused—for example, the prospect of being locked up in a hospital, where clinically contraindicated, for up to three years with no opportunity for review—you will inevitably find many accused not availing themselves of the NCR defence. The result of that, of course, is that they will take their chances, take their lumps, in the regular prosecutorial stream. That same individual who might otherwise have gone through part XX.1 in the review board system will one day be dropped out onto the street with no supervision, no gradual reintegration, no treatment.

That, Mr. Chairman, is a much more dangerous situation. The potential here is that the amendments will scare individuals who are presently being very well looked after, and whose reintegration into the community is a very carefully monitored, titrated process, out of that system and into one that would simply have them out onto the street, with no controls in place whatsoever. As Mr. Walter indicated, this is in no way a contest between those who are for public safety as opposed to those who are for accused rights. All professionals engaged in the system recognize that public safety is the paramount concern. That is our collective objective. Our submission is that the amendments proposed in Bill C-54 will, however, take us the wrong way down that road.

[Bernd Walter, Chair, British Columbia Review Board, Association of Canadian Review Board Chairs]

Thank you, Chair and honourable members of the committee, for the opportunity to come here today and speak to you.

Time is fleeting, so I'm going to speak very quickly. The synopsis of my remarks has been passed out. I want you to also hear from my colleague Justice Schneider, who is not only a respected jurist but also a psychologist. He has authored many of the leading texts in Canada in this field, so he is an expert indeed.

The review board chairs who do this work on a daily basis have no wish to be pitted against or to appear to be opposing the interests of victims. We're all on the same side here. But there are provisions in this bill that the justices and review board chairs do not support. As well, as there is a judicial role in the bill, I should say that at least five of the current justices or chairs of the review boards of Canada are in fact sitting justices.

The bill does seem to pit decision-makers and clinicians against victims. Bill C-54 diminishes opportunities for the current system of incremental, stable, and monitored reintegration into the community, which we all know is part of the system, and instead will encourage treatment avoidance, eventually followed by possibly untested and unsupervised release situations.

The bill does not, as currently framed, accord with treatment science, risk-prediction science, or fiscal prudence. It will see more mentally ill offenders in jail and untreated. It's based on no evidence.

I've been watching the committee's work with interest, on CPAC, and it seems to me that many of the speakers who you get in, many of the very compelling situations that you're confronted with, are actually dealing with how an offender gets into a system, with how he or she gets the NCRMD verdict, as opposed to any evidence of problems with the system once the offender is in. There is no evidence that there is premature release, or of recidivism, once the person is in the system under the very careful scrutiny of the review board, so we feel that the bill has the potential, at least, to make the community less safe.

I'm not going to quibble with the highlight on public safety. I could name at least five Supreme Court judgments since 1999 that make that absolutely clear, but I understand the codification argument.

The additional criteria of “necessary and appropriate in the circumstances” replacing the “least onerous and least restrictive” criterion really has no sensible meaning. It is vague and fraught with interpretation difficulties. I think it encourages detention and restriction disproportionate to the individual's actual assessed risk.

The definition of “significant threat” and the other criteria in the new provision have at least five different definitions of risk, from significant, to substantial, to risk simpliciter. I really think that is a real challenge to consistent interpretation. The definition of “significant threat”, which is of course the threshold determination that we have to make in every single case, converts probability, to possibility, to risk simpliciter. In other words, any risk whatsoever may serve to detain. I think that will impose detention in cases of minor or even speculative risk and will also encourage the utilization of costly thousand-dollar-a-day hospital beds beyond the point when they are actually required to manage an individual's actual presenting risk.

The “high-risk accused” designation must be applied for before absolute discharge. It applies in defined “serious personal injury” offences, which in my view would be indictable offences possibly requiring more jury trial, burdening our justice system. It also requires the “substantial likelihood” of future violence, endangering “life or safety”, and also considers the brutality of the index offence. Risk assessment literature will tell you that brutality or past behaviour is not a good predictor in terms of the severity of recidivism. It just doesn't capture the essence, we think, of what you're trying to achieve, or the kinds of outlier cases that are actually mobilizing this particular bill.

I won't speak to the 36-month provision. I do think the requirement to go back to court to stop the high-risk designation will mean that once a person comes back from the court with that designation revoked, it may actually mean he's entitled to an absolute discharge when he or she gets back to the board. I think that's problematic.

I should say that courts are not experts in risk prediction. Courts look back. They try to assess evidence to see if something happened, if an offence occurred beyond a reasonable doubt. The review boards, with psychiatrists and with community members already on them, are the experts in future risk prediction.

We have no quarrel with particularly the victim provisions, although I should say that those provisions have been around since 2005 in Ontario and B.C. Every victim is provided with notice initially, with an option to continue to receive notice of hearings or to waive that. Since 2005 not a single victim has asked to read a victim impact statement in B.C., even though they're constantly being provided with notice and a brochure of their rights.

Finally, we think there's no persuasive evidence that the current system is wanting.

We think it's charter challenge rich. It sacrifices proportionality. It drifts, unfortunately, from treatment to punishment, and the three-year term may actually decrease scrutiny of the most dangerous and most concerning individuals in the system. The bill is also, I should say, at odds with the Mental Health Commission's own study on recidivism by mentally disordered offenders.

I'd like Justice Schneider to have some time.

Amended Report on Bill C-54

[Ted Hsu, Liberal, Kingston and the Islands, ON]

Mr. Speaker, I rise on a question of privilege in relation to Bill C-54, the not criminally responsible reform act. In particular, I rise to address certain data offered by the Minister of Justice and the Minister of Natural Resources in support of the bill that I believe violates my privileges as a member, and the privileges of all members of this place.

As O'Brien and Bosc note, on page 86 of House of Commons Procedure and Practice, second edition, privileges may be infringed by “the provision of deliberately misleading information to the House by a Minister”.

The case at issue involves a report prepared for the justice department by a research team led by Dr. Anne Crocker of McGill University, entitled “Description and processing of individuals found Not Criminally Responsible on Account of Mental Disorder accused of serious violent offences”. This report has been central to the discussions of the Standing Committee on Justice and Human Rights on this legislation. It was important in the House, as well, during second reading debate. In fact, if we look at the blues from last Wednesday's justice committee meeting alone, we will find Dr. Crocker mentioned by name 10 times.

As one of the few scientists in the House today, I especially value and need correct numbers to properly do my work as an MP; otherwise my work would be impeded.

One thing people have learned over the last few centuries is the value of observation and measurement: the success of empiricism. That is how we have made advances in science and technology. It gives us the ability to have smart government policies, to understand the people and the country they have entrusted us to govern.

I found Dr. Crocker's report helpful in formulating my own thinking on Bill C-54.

As a news story by Laura Stone of Global News reported yesterday afternoon, and thus I am raising this question at the first opportunity, the Department of Justice was provided with the initial version of the report that I mentioned in November of last year. Some of the data in this report was incorrect as the result of a coding error. This is not something for which I would find fault with the government or researchers. Tabulation errors are bound to happen here and there, and in my work as a scientist I have made such mistakes and have had to fix them. In fact, that is how good scientists work. Mistakes are discovered, acknowledged and fixed, and our understanding advances.

What is shocking is that the government was provided with a corrected version of the report from this past March, and despite having the new report, continued to cite from the old report, misleading Parliament and Canadians. The government even went so far as to table the old report in this place after being informed of the corrected report, a report it has yet to table.

Moreover, the government now takes issue with the researchers whom it commissioned to prepare the report, saying their corrections raise questions about the quality of the work, calling it “unreliable”, even though science actually makes progress through a process involving a continual recognition of errors and their corrections. The researchers did the right thing here, and they know what the right numbers are.

While I could go on at length about the need for evidence-based policy-making and how we should not be legislating if we do not have facts to support our propositions, I will confine myself now to the privilege question before us.

House of Commons Procedure and Practice, second edition, includes, at page 83, a list of items found by the United Kingdom Joint Committee on Parliamentary Privilege to be types of contempt. Specifically included on this list is “deliberately attempting to mislead the House or a committee (by way of statement, evidence, or petition)”. As well, and again I quote, “deliberately altering, suppressing, concealing or destroying a paper required to be produced for the House or a committee”.

Mr. Patrick Baillie of the Advisory Council of the Mental Health Commission of Canada testified before the justice committee this past Monday in response to a question from the member for Brossard—La Prairie, and said:

Regarding the recidivism statistic, there was an unfortunate error that occurred in the initial draft of the report that was provided to the Department of Justice in November of 2012. [...] That error was discovered on March 14th and immediately communicated to the Minister's office, and a revised report was provided on March 18th with that data corrected.

My colleague, the member for Mount Royal, followed this with a clarifying question, to which Mr. Baillie responded:

We became aware of the error on March 14 and communicated that to the minister's office that day. The amended report was then provided to the research division on March 18 with an acknowledgement seeking clarification of what was the nature of the coding error. So the office was aware of that in March.

As Mr. Baillie further testified, and with this I would agree:

I think that it is important on such a serious issue for the committee to have accurate and up-to-date information, and I hope that the report that was provided to the office in March can be made available to the members of this committee for their deliberations on this topic.

It should be clear that reliance on the old report prejudices members of all parties. Indeed, the news article in question quotes the Conservative MP for Cumberland—Colchester—Musquodoboit Valley as saying, “If it was tabled in the House of Commons, I assumed it was accurate”.

The initial draft of the report was tabled as part of an order for return in response to question 1169 on the order paper standing in the name of my colleague from Mount Royal. That order for return included the report as an annex with a note stating, “A significantly amended version of this report was provided to the Department of Justice on March 18, 2013...”.

This statement is important because it confirms that the department was made aware of it on the 18th. It is also important because the order for return bears the minister's signature.

Where it gets interesting is that the old report itself was included in response to part of the order paper question asking about sources relied upon by the government in developing Bill C-54. This makes sense because the government can only rely on the evidence it had at the time. However, the question also asked the government separately for several particular pieces of information, including which people who were found NCR released had been convicted of a subsequent offence and what was the nature of the subsequent offence. The government's response was “see annex 1”, which was the old report.

If the government is asked a question and gives an answer, we will assume it is referring to the most up-to-date information that it has. Members would easily conclude that the correct information was included in response to the question and thus the corrected report. As we found out only this week, that was not the case.

While I take issue with the government's choice to table the old report when it had the new corrected report, as a matter of principle, I also take issue with it as a matter of privilege. Simply put, the government should seek to be forthright with Canadians, providing them and their elected representatives with accurate information in a timely fashion as a matter of course. The government has an obligation to do so as per the rules of the House.

On Monday, May 27, the Minister of Natural Resources stood in this place and said the following during debate on Bill C-54:

It is very important that when we talk about what the risk to the public is, we try to get as close as we can to the facts. The facts are: 27.3% of not criminally responsible accused have a past finding of NCR; 38.1% of NCR accused of a sexual offence had at least one prior....Those facts have to be brought into the analytical picture so we get a more objective understanding of what is in fact going on.

That was May 27. Yet, the minister cited from the old report.

To illustrate the problem with but one example in his intervention, the scary sounding statistic that 38.1% of NCR accused of a sexual offence had at least one prior NCR finding is in fact incorrect. In reality, the number is only 9.5%. The government knew of this fact two months before the statement of the minister.

It is not surprising that in the same debate the leader of the Green Party stated, “I was baffled by the statistics used earlier in the debate by the Minister of Natural Resources...”.

I think many watching that debate were also.

However, where it gets more baffling is the response from the member for Etobicoke—Lakeshore, wherein he stated:

the Minister of Natural Resources cited a few recidivism statistics, and whether it is 27.3% of NCR accused who have had past findings of NCR, or 4% or 7% as the member stated, what is important in this legislation is that prosecutors would have some additional tools....

What is important is that parliamentarians are provided with the facts. What is important is that this House is not misled.

I submit that the Minister of Natural Resources misled the House in his interventions on May 27, citing crucial statistics that the government previously acknowledged had been since revised. Moreover, I submit that the Minister of Justice misled the House on May 27, as well, when in response to a question from the leader of the Green Party about the Crocker report in particular, he stated:

Mr. Speaker, we have actually commissioned a couple of reports and I referred to some of the statistics in the final report that was given to us in November 2012.

By the Minister's own signature on the order for return on May 27, he acknowledged that an amended report was given to the justice department on March 18. Therefore, he misled the House, by stating on May 27 that the “final” report was “given to us in November 2012”.

Mr. Speaker, in your ruling on March 18 of this year, and found on page 14854 of the Debates, you reiterated that:

Our parliamentary practice sets a very high threshold for the Speaker to make a prima facie finding of privilege.

Citing a previous ruling from last year, you reiterated the three findings you must make regarding misleading statements. I will quote from your ruling, Mr. Speaker:

one, it must be proven that the statement was misleading; two, it must be established that the member making the statement knew at the time that the statement was incorrect; and three, [it must be proven] that in making the statement, the member intended to mislead the House.

Briefly going through each element, the Minister of Justice calling the November 2012 report final was misleading when there was a corrected March report. By his own pen, he acknowledged the March report's existence in May. The question he was asked was about the Crocker report in particular, and it was the minister who volunteered the qualifying adjective “final”. I therefore submit that this misled the House, as did the reliance on the old report on the same day in debate by the Minister of Natural Resources.

On that last point, Mr. Speaker, you quoted Speaker Milliken's ruling of April 21, 2005, found at page 5412 of Debates, wherein the former Speaker reminded the House of a key element to consider when finding a prima facie instance of privilege. Specifically, he said:

...whether the minister's responses in any way impeded members in the performance of their parliamentary duties and whether the remarks were intentionally misleading.

Mr. Speaker, members are impeded in their functions when they are denied evidence and facts used in crucial arguments for or against legislation. Various members have raised concerns over the statistics involved in this file. It is clear that the member who asked the question to the Minister of Justice that elicited the “final report” answer was upset that she could not further question the Minister of Natural Resources about his statistics from said report, and remarked in this place, “I wish I could have gotten a question to him”.

Those statements of May 27 were right before the bill went to committee, and as I understand it members will be beginning clause-by-clause examination this evening. They have thus been operating with incorrect data before them, an issue raised by witnesses this past Monday. Again, this is something that prejudices all members, regardless of party.

On this point, I refer you to an intervention from the Conservative member for Prince Albert on Bill C-54, when he said:

There has been a limited amount of data on the rates of reoffending by NCR accused persons.

and then:

These reforms will provide the data we consider necessary....

I think that member would be pleased to learn that there is such data and that the government is in possession of it, though whether or not he reaches the same conclusion upon its review is a different story.

As I draw to a close, I return to the issue of the report. I submit that the corrected version was required of this government in its answer to Question No. 1169 to the extent it cited such a report as a source of current, correct data.

Moreover, as the Debates of March 1, before the corrected report was brought to the government's attention, illustrate that the government undertook to provide members with data. In particular, the Minister of Justice cited statistics and said in response to a question, “There are statistics, and I would be glad to share the report with the hon. member”, later again repeating, “Those are statistics and findings that have been researched. I would be pleased, of course, to share this with the hon. member in more detail”.

I do not believe the House or committee sought more information from the minister of the government because we took the minister at his word to provide the data he and his department had. I believe the government undertook this obligation of its own accord and therefore created an impression in the minds of members that it would be forthright with the data. As we now know, it was not.

Mr. Speaker, while I realize such matters, if found by you to be prima facie breaches of privilege, are referred to the Standing Committee on Procedure and House Affairs, there are other avenues here that may be more helpful. While I do believe you should find that the House and committee have been misled by the minister cited, I am more concerned about the remedy.

While I doubt the government would be willing to put Bill C-54 on hold until it had data it considered reliable and accurate with regard to persons found non-criminally responsible, I would accept this. Moreover, I would even consider abandoning this privilege claim if the government were to table the new report in the House and explain why it did not choose to do so when it was first made aware of the correction. While I realize other members affected by this situation may have a different approach and wish to see this at the Procedure and House Affairs committee, I simply need to have the correct numbers placed before the House.

In closing, all members of this place, regardless of party, benefit from having facts and data before them when legislating and, indeed, I would argue we all have a right to know. The government knew, but kept members in the dark and, by its own admission, made an effort to conceal.

This is something that ought to be sanctioned as, if left uncorrected, remains a standing affront to the privileges of all members of this place.

[Susan O'Sullivan, Federal Ombudsman for Victims of Crime, Office of the Federal Ombudsman for Victims of Crime]

Good afternoon, Mr. Chair and esteemed committee members.

Thank you for inviting me here today to discuss Bill C-54, which seeks to enhance public safety and better meet the needs of victims in cases where an accused is determined to be not criminally responsible, or NCR.

To begin, I would like to take the opportunity to provide a brief overview of our office's mandate.

As you may know, the Office of the Federal Ombudsman for Victims of Crime was created in 2007 to provide a voice for victims at the federal level. We do this through our mandate by receiving and reviewing complaints from victims; promoting and facilitating access to federal programs and services for victims of crime; providing information and referrals; promoting the basic principles of justice for victims of crime; raising awareness among criminal justice personnel and policy-makers about the needs and concerns of victims; and identifying systemic and emerging issues that negatively impact on victims of crime.

In other words, we help victims individually and collectively. We help the victims individually by speaking with victims every day, answering their questions, and addressing their complaints. We help victims collectively by reviewing important issues and making recommendations to the federal government on how to improve its laws, policies, or programs to better support victims of crime.

I am pleased to be here today to bring a victim's perspective to this bill. I thank you for your part in wanting to ensure that victims' voices are heard.

Our discussion today focuses on legislation specific to those found to be not criminally responsible for serious personal injury offences, those who, in light of their mental condition, should not be held to account for the crimes they have committed. It is important to keep in mind the distinction between a convicted offender and someone found to be NCR and to ensure that those with mental illnesses are treated appropriately.

I believe strongly in increased supports to help those with mental illness in our communities, and in the importance of support as prevention by helping to address these issues before they result in tragedy. However, I also want to offer you another point to consider throughout your study of this bill. Following any violent crime, regardless of whether the accused is found to be not criminally responsible or a convicted offender, the trauma a victim experiences is, in all cases, devastating. Regardless of the mental condition of an accused, victims' needs must be met and their treatment and rights should be equitable. We know that all victims will need to be treated with respect, to be informed on how the process works and their role within it, to have their needs and input considered, and to be protected from intimidation or harm.

My office has on several occasions spoken with victims and victim advocates, who have brought their concerns regarding this issue to our attention. Through these discussions, we have identified several significant gaps in legislation and policy that ultimately carry negative impacts, on both victims directly and more broadly on public safety.

Two years ago, in June 2011, I wrote to the Minister of Justice recommending certain reforms in the not criminally responsible cases in order to ensure that the needs of victims of crime were met. These recommendations related to two items: the importance of considering both victim and public safety in all release decisions, and the lack of rights, policies, and support in place for victims of NCR cases.

In terms of public safety, my office recommended that review boards give paramount consideration to public safety and ensure that an inquiry is made about the whereabouts of the victims of the offence before making any release recommendations. With respect to the consideration of the victims, we recommended the provision of funding for victims to attend review board hearings and the implementation of notifications for victims regarding the transfer, release, or other status changes of the accused, as is currently available in the federal corrections system.

I am encouraged to see that Bill C-54 addresses a number of our recommendations, and I strongly support these proposed changes. Specifically, I am pleased to see, and strongly support, the prioritization of public safety as the paramount consideration for court and review board decision-making and the increased information provided to victims.

In addition to these elements, Bill C-54 also makes additional changes by proposing a high-risk designation that could be applied to accused persons who meet certain criteria. This particular section of the bill pertains to the effective management and treatment of those determined to be not criminally responsible, which falls outside the scope of the expertise of my office, so I will limit my remarks to the elements of the bill that specifically relate to the victims—the other two issues.

Bill C-54 proposes to ensure that public safety is the paramount consideration in the decision-making process for not criminally responsible cases. I think that considering the safety of the public just makes sense to most Canadians. Public safety is without a doubt an issue of concern for all victims. Many, if not most, of the victims I talk to tell me that above all else they do not want what happened to them to happen to anyone else. This increased emphasis on public safety will provide assurance to the victims that their safety is being considered in decisions and may help to further reduce victimization.

Bill C-54 also proposes measures specific to victim safety; namely, that the court and review board consider whether it is desirable in the interests of the safety and security of any person, particularly a victim or witness, to impose a non-communication order or to require that the accused refrain from going to particular locations. While the option for non-communication orders already exists, mandating the requirement to consider this option puts a specific and important emphasis on the consideration of a victim's needs and safety.

Bill C-54 also proposes that victims who request it be notified of conditional or absolute discharges. This change helps to enhance victims' treatment in the system by increasing their access to information, which may further contribute to their sense of safety.

I support these measures entirely.

As I mentioned at the beginning of my remarks, regardless of the mental state of the accused, victims have certain basic needs: the need to be informed of the process, including their rights within it, and the need to have their safety considered. Providing victims with information about the accused's progress and release into the community can significantly increase their sense of safety and may increase their confidence that the accused is accessing supports to promote and maintain mental health. This information may also help victims to address general feelings of anxiety and isolation that come from finding themselves in an unknown and unfamiliar system, to prepare up-to-date relevant victim statements for review board hearings, and to plan for their safety.

Additionally, having this type of information may help victims on their healing journey. Experts state that:

In addition to the victim's need to feel safe, information about the offender's treatment plan and movement within the correctional system may promote the psychological healing of some victims, and may directly increase victim satisfaction with the justice process.

Though we must be careful to note that this relates to victims of an offender who is sentenced and who moves through the criminal justice process, it's not difficult to imagine how the same types of information could also assist victims in NCR cases.

Despite these benefits, victims in NCR cases have significantly fewer entitlements to information than do those offenders who move through the corrections and conditional release system. To address this gap, I recommend that Bill C-54 be further enhanced to ultimately provide victims in NCR cases with rights similar to those of victims in the criminal justice system.

Please note that all of the recommendations I am going to provide should apply only in cases where they do not pose a safety risk to the accused, the facility, or an individual, and only in cases where the victim requests the information.

Specifically I recommend that the following rights be added to the bill: that victims be advised of the location of the forensic facility where the accused is detained; that victims be given advance notice of any scheduled absence, either escorted or unescorted, from the hospital, and the general destination, city or town, to which the accused will be travelling; that victims be given advance notice of the destination of release or conditional discharge, or if the accused, on conditional discharge, will be travelling to the vicinity of the victims; that victims be informed of any conditions of release for the accused when they are conditionally discharged into the community—this may include such things as mandated medication or treatment, non-communication with children or others, the requirement to attend treatment sessions, general mobility restrictions, and more—and that victims be given advance notice of any scheduled transfer to another facility or change in the level of security of their ward, or move by the accused to another province or territory, for the purpose of treatment.

In addition to these measures, I would also recommend that upon request, victims be given a chance to view, but not retain, a photo of the accused at time of release; that victims be notified when there are additional or increased restrictions on liberties placed on the accused, such as when the accused is brought back into the facility or has been transferred from a minimum to a medium or maximum security unit; and that victims be notified when non-communication orders are put in place.

Finally, though it relates to the administration of justice and is therefore a provincial matter, I would also submit for consideration the need to ensure that these rights are implemented effectively and that there are clear roles and processes in place in each province or territory to ensure victims receive the notifications they are entitled to. Having requested and received information from the Department of Justice's Policy Centre for Victim Issues, our office became aware that not all provinces and territories necessarily have a system in place to ensure victim notification. Without these systems in place to ensure that victims are, in fact, being notified, a codified right to notification becomes notional.

In conclusion, I strongly support Bill C-54's proposal to ensure that public safety is a paramount consideration in the decision-making related to the release of an accused as well as the inclusion of further measures to enhance victims' rights. If the further measures recommended are included, I believe that Bill C-54 will help ensure more equitable rights for victims of crime in cases where an accused is found to be not criminally responsible. All victims of crime deserve to be informed, considered, and protected, regardless of the mental state of the person who harmed them.

Thank you for the opportunity to bring the victim perspective to the study of this bill and for your consideration of the recommendations I have provided today to further strengthen this proposed legislation.

Merci.

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, welcome to meeting number 78 of the Standing Committee on Justice and Human Rights on Wednesday, June 12. I apologize to our witnesses for the delay, but we were voting in the House.

Our meeting today is televised. Pursuant to the order of reference of Tuesday, May 28, 2013, Bill C-54, an act to amend the Criminal Code and the National Defence Act, we have two panels, and then we're going to do clause-by-clause.

Our first panel is here. We have three groups of witnesses, each with 10 minutes. Our first witness is Mr. Thomas Frederick Shreeve, who is appearing as an individual.

You have 10 minutes, sir.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

I'm asking if you support the part of Bill C-54 that allows a victim to request that the accused, if released, not be in a specific place, and also a non-communication order.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Thank you, Mr. Chair.

I'll ask one question due to limited time, and I'll go down the line.

Bill C-54 would provide the authority for a non-communication order between an NCR individual and the victim, and an order that the accused not attend a specific place upon the request of the victim.

Mr. Bedarf, you brought that up in one of your comments, so I'm assuming you support those two pieces in this legislation.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you, Mr. Chair.

I want to thank our guests for being here this evening.

My first question is for the representatives of the Association des groupes d'intervention en défense des droits en santé mentale du Québec and the Canadian Mental Health Association. They can take turns answering it.

Were your two associations consulted about Bill C-54? If so, in what way?

[Michel Surprenant, President, Association of Families of Persons Assassinated or Disappeared]

Good evening. My name is Michel Surprenant, and I am the president of the AFPAD, or the Association of Families of Persons Assassinated or Disappeared.

I would like to thank the members of the House of Commons Standing Committee on Justice and Human Rights for having me here today for the study of Bill C-54.

I would like to share a few examples of not criminally responsible cases that have been of concern to member families of the association in recent years and that justify the AFPAD's support of this bill.

Allow me to start by telling you a little bit about the AFPAD, which I represent. It was founded by victims' families for victims' families. The main mission of the Association of the Families of Persons Assassinated or Disappeared is to support, advise and defend the interests of families affected by a homicide or disappearance under apparently criminal circumstances. The AFPAD has over 500 member families.

In recent years, a number of cases have attracted the attention of victims in Quebec. I would like to tell you about some of these cases.

I would like to start with the case of Pascal Morin. On February 10, 2012, a little over a year ago, in a murderous fit and affected by a mental illness, Pascal Morin in turn killed his mother, Ginette Roy-Morin, 70 years of age, and his two nieces, Laurence and Juliette Fillion. At the end of his trial, Pascal Morin was found not criminally responsible for his actions under section 16 of the Criminal Code.

No one is questioning the fact that he was sick. He is currently in hospital under the responsibility of the mental health commission. However, the idea of Pascal Morin's being released causes enormous fear on the part of the family and the community, which knows Pascal Morin well.

The idea of releasing such people makes the families of victims and the authorities fear the worst. I would like to quote Francis Fillion, the father of the victims, “Our other daughter, who is five years old, still wonders if her uncle will come and see her and kill her. All I want now is to take care of my family without the fear that he can visit her!”

Furthermore, the mayors of the Saint-Roman region have asked the government to intervene to prevent this type of case. On December 8, 2012, the council of mayors of the Granit RCM expressed that it was urgent to find solutions so that tragedies like this wouldn't happen in the future.

According to the AFPAD, in addition to strengthening medical resources for people with mental health issues, Bill C-54 is an essential solution.

As Dr. Gaston said during her testimony before the committee on June 5, 2013, a distinction needs to be made between primary and secondary prevention. Primary prevention means providing resources to treat individuals with mental health issues before their case become so severe that they are a danger to other members of society. The provincial government is responsible for taking care of this because it comes under the responsibility of health care authorities.

Furthermore, when a crime has been committed and it involves serious personal injury, the AFPAD believes it is reasonable and fair to take preventive measures so that an individual who committed a crime, but who was deemed not criminally responsible, cannot commit another one. To achieve that, the person needs to remain very closely monitored for a certain number of years.

Bill C-54 will ensure that the most serious cases cannot be quickly released from hospital. That doesn't mean putting them in prison, but rather giving them the care they need.

Bill C-54 is a reasonable and fair response that could have enabled Ronald Malo's family to feel respected as victims. Remember that Ronald Malo was murdered in cold blood by Rolland Belzil at the Verchères city hall. Rolland Belzil was found not criminally responsible after he was charged with attempted murder in 2012 of two City of Verchères employees in Montérégie. A third charge, for the murder of his 80-year-old neighbour, Ronald Malo, was brought later.

The justice system needs Bill C-54 to restore public confidence in institutions of the judicial system. When citizens lose confidence in the justice system, not only does it lead to distrust of judges, defence lawyers and Crown attorneys, but it also causes mistrust and fear within families and the community. These fears are not unjustified.

Rolland Belzil stabbed his neighbour, Ronald Malo, to death following a dispute over a fence that had gone on for 12 years. He then went to city hall, where he allegedly attacked Luc Fortier, the city manager, and Martin Massicotte, his assistant, at knifepoint. Allow me to quote the lawyer of the victims, who had the opportunity to be represented. These comments by Christine Dubreuil-Duchaine appeared in an article:

“At what point do we declare a person dangerous or not? How far can we go without there being any true consequences? As far as I'm concerned, this situation mirrors that of Guy Turcotte...,” said Ms. Dubreuil-Duchaine.

According to the lawyer, the Quebec justice system needs to ask the right questions, so that there are no more situations like Ronald Malo's. Should justice be harsher? Should we step in more quickly?

“Someone paid with their life for these questions to be asked,” lamented Ms. Dubreuil-Duchaine....

I would also like to tell you about the case of Alain Piché, an accountant who lived in Cap-de-la-Madeleine and who had no prior criminal record. However, on March 19, 2007, Alain Piché killed his parents. He cut off their heads with an axe and a blunt object before hiding their bodies in a freezer. In July 2008, the court rendered its verdict and found him not criminally responsible on account of mental disorder. In June 2009, Piché was admitted to the Institut Philippe-Pinel.

The mental disorder review board had granted Piché unescorted absences. I repeat: they were unescorted absences. The only condition imposed on him was that he not communicate with members of his family. The attending medical team was even given the power to determine the terms, duration and frequency of his absences based on his clinical state and his behaviour.

This raised the indignation of the criminal and penal prosecuting attorney responsible for the case, Jean-François Bouvette. He had deplored the fact that it was up to the board to monitor Alain Piché's absences and to issue conditions to ensure the public's safety. This example clearly reveals the fear that this type of permission can lead to in the community. This example also shows the risks of giving the mental disorder review board too much leeway.

Thanks to Bill C-54, the most serious cases of personal injury can be better monitored. It will be up to judges to determine when a person will be at high risk and when that person is no longer at high risk. High-risk individuals will not be able to go out into the community. They will have to receive intensive medical care, surrounded by trained medical personnel. Some might say that it is stigmatizing toward individuals with mental illness. The AFPAD feels that it is a secondary prevention measure that will protect the lives and safety of community members, including families and individuals with a mental illness who have not committed any serious offences.

I will close by reminding you that these cases of being not criminally responsible, including the case of Guy Turcotte, who killed his two children, affected the population. A mother from Sherbrooke, Fanny Denoncourt, who was quite shocked by the outcome of the Guy Turcotte trial, took the initiative of organizing a march to denounce violence against children. The protest took place on March 2, 2013, in the streets of Sherbrooke, and other similar protests were held at the same time elsewhere in Quebec to demand tougher criminal legislation.

On behalf of victims, on behalf of future victims who will have to experience tragedies, on behalf of the population, we ask you to support Bill C-54 and pass it as quickly as possible; otherwise, the justice system will lose even more of its legitimacy.

Thank you.