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.

[David M. Parry]

The reason the CBA thinks that this could be overly broad is that there is no specific definition given to the brutal nature of the offence. That is extremely problematic, because one of the fundamental principles of our Canadian criminal law is that the law has to be certain; otherwise, one of our fundamental concepts in criminal law, that the law has to be clear for you to be convicted of breaking it, just won't be present.

I think the danger with the high-risk designation is that because it is unclear, it could start to be applied to more and more offences. That is problematic, because we're then shifting the focus away from looking at the treatment of the accused—what the accused's mental condition actually is—towards the nature of the offence that was committed. That goes against the whole purpose behind Bill C-54, which is to shift attention to public safety.

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

Thank you, Mr. Burstein.

I would like to ask Ms. Pate a question.

Victims have often told us that what matters to them is to have financial and psychological support.

In your view, how will Bill C-54 provide victims with financial and psychological support?

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

Thank you, Mr. Chair.

My thanks to our witnesses for coming here to shed some light for us on these matters.

I would like to start with a short preamble. We are particularly interested in how we can help victims in this process. Over the next few weeks, we will try to determine which approach is best and we will talk to law experts, such as yourself, and mental health experts. We are also going to hear from victims we have previously talked to and representatives from the provinces.

That said, we must not play political games. We want to study all the arguments of each party on their own merits to find a solution that is as balanced as possible. Of course, this would be done by respecting the rule of law and the Canadian charters of rights and freedoms.

I have a question for Mr. Burstein and Ms. Dann.

You said that Bill C-54 was not heading in the right direction. Could you tell me what suggestions or recommendations you would make to ensure that it does head in the right direction?

[David M. Parry, Member, National Criminal Justice Section, Canadian Bar Association]

Good afternoon, Mr. Chair and members of the committee. It is a true honour to speak to you today and to be part of this very important conversation we're having this afternoon.

I feel that Bill C-54 presents many unique opportunities to change the law in this area, and I want to discuss the implications of this bill and some of the potential consequences it could have.

When Minister Nicholson was before this committee on Monday, he spoke about a need for a balance in what the Supreme Court has called the “twin goals” of the NCR regime. That is on the one hand public safety, and on the other hand, fair treatment of the NCR accused.

However, if balance is the issue, then the Canadian Bar Association respectfully submits that Bill C-54 gets that balance wrong. This imbalance here is significant, because getting it wrong ultimately puts long-term public safety in jeopardy.

No one denies the pressing need for adequate protection of the public. However, true protection of the public requires much more than detaining the NCR accused. Long-term public safety is best achieved through treatment and reintegration into society. Unfortunately, Bill C-54 does little to encourage this. The CBA supports some provisions of Bill C-54 but recommends against others.

I will now discuss the three major amendments proposed by the bill.

First, the CBA supports the proposed requirement that victims be notified, if they so choose, of the NCR accused's discharge, as well as the option for review boards to issue no-contact orders.These amendments fill a gap and have the laudable goal of addressing the needs of victims in the NCR regime. These build upon the introduction of victim impact statements in 2005, and the CBA fully supports them.

The second amendment I want to discuss is the removal of the “least onerous and least restrictive” requirement. The CBA recommends against this.

Under the current regime, review boards must make a disposition that is the least onerous and restrictive to the NCR accused, taking into consideration public safety, the mental condition of the accused, their reintegration into society, and their other needs. Public safety is already a fundamental consideration for review boards when deciding whether to release or detain an NCR accused. It's front and centre.

In the words of then Justice McLachlin in the Winko decision, “it ensures that the NCR accused’s liberty will be trammelled no more than is necessary to protect public safety”.

This requirement of being the least onerous and least restrictive is thus an important component of the balanced approach of the current regime. The Supreme Court has repeatedly said that the “least onerous and restrictive” requirement is at the heart of the constitutional validity of the NCR regime. Several cases going back nearly 15 years have affirmed this standard as essential for compliance with the Charter of Rights and Freedoms.

The proposed amendment to remove this language would bring that constitutional validity into question. Introducing the new and untested language of “reasonable” and “necessary” in the circumstances serves to negate the goal of consistent application of the law by review boards across the country.

Likewise, the proposal to make public safety the primary consideration in the bill disturbs the crucial balance between public safety and fair treatment of the NCR accused by making one more important than the other. This is another component that the Supreme Court has repeatedly identified as central to the current regime.

The CBA therefore recommends that the committee not remove the “least onerous and the least restrictive” requirement.

The third and final amendment I wish to discuss is the proposed addition of a designation of high risk that would apply to some NCR accused. The CBA submits that this addition is not only self-defeating but counterproductive to the goal of enhancing public safety.

First, the proposed high risk regime suggests that just because the NCR accused has committed one serious offence, they will do so again. Existing evidence suggests the exact opposite. Furthermore, the Winko decision is clear that there can be no presumption of dangerousness. We moved away from the stereotype of the mad offender in the Swain decision nearly 20 years ago.

Second, the proposal risks being overbroad. That means the means to achieve its objectives are broader than necessary. This brings its constitutionality into question. The consequence of being designated high risk is that the NCR accused falls into a different custody regime.

It is unclear how this furthers the goal of enhancing public safety. The extra restrictions placed upon a high risk NCR accused could be characterized as punitive in nature. The objective ought not to be punishment because the accused has not been convicted of a crime.

However, if enacted, what does the CBA propose? We have three recommendations.

First, we recommend eliminating the proposed subsection enabling courts to designate an NCR accused as high risk if it 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.

Second, if this proposed subsection is not eliminated, then the CBA recommends that it should be redrafted to provide greater clarity, including a definition of “brutal nature” and a statement that the focus is on future conduct.

Finally, if the high risk regime is enacted, the CBA recommends adding a procedural mechanism to permit the NCR accused to apply directly to the court on an annual basis to remove the designation. This would encourage his or her progress and treatment.

I'd like now to offer some concluding remarks for the committee's consideration.

Our understanding of treatment and societal acceptance of mental illness have come a long way. We must always remember that the NCR accused is not a prisoner but a patient who needs effective treatment. That treatment is how we ensure public safety in the long term. Bill C-54 must recognize this essential point: an NCR verdict is not an opportunity to exact retribution on an immensely ill offender.

Thank you, Mr. Chair. I look forward to the committee's questions.

[Terry Hancock, Staff Lawyer, Law Reform, Canadian Bar Association]

Thank you, Mr. Chair and members of the committee.

The Canadian Bar Association is very pleased to appear before you this afternoon and discuss Bill C-54. The CBA is a national association representing 37,000 lawyers across Canada.

One of the Canadian Bar Association's objectives is to improve the law and the administration of justice. That is the approach we used in examining Bill C-54.

The submissions you have received were prepared by the National Criminal Justice Section of the Canadian Bar Association. The section includes defence lawyers, prosecutors and law professors from each province and territory in Canada.

With that I'm very pleased to introduce you to Mr. David Parry, a member of our national criminal justice section, who will provide you with the salient points of our submission.

Thank you.

[Erin Dann, Member, Criminal Lawyers' Association]

Thank you for the opportunity to address the committee.

I had the opportunity to listen to the last panel and the compelling testimony of both Ms. de Delley and Dr. Gaston. I was moved, as I expect all of you were, by that testimony. Their testimony and the testimony of other victims and family members who come before you highlight the very difficult task that this committee has before it.

As legislators, you are responsible for looking beyond the sometimes horrific nature of these offences and perhaps our natural inclination to want to see a perpetrator punished. By definition, people who are found NCR are not morally culpable for their crimes. As our Supreme Court has said and as our jurisprudence has decided, they did not appreciate what they were doing, or they did not understand it was morally wrong, and these individuals may have their liberty restricted only for reasons of public protection and for treatment, but not for punishment.

The Criminal Lawyers' Association applauds Parliament's desire to ensure that victims and all Canadians are adequately protected from the involuntary misconduct of seriously mentally disordered persons. For that reason, we support the provisions of Bill C-54 aimed at increasing victim engagement and notice to victims and the other related provisions.

Unfortunately, in our view, the remainder of the amendments contained in the bill do not further Parliament's laudable goal. We say that because they aim at the post-verdict treatment rather than the pre-offence circumstances of these seriously mentally disordered persons.

In the words of Justice Richard Schneider, who is the head of the Ontario Review Board and one of this country's leading thinkers on the issues of mental illness and criminal law, “Assuming there was a real problem with the current scheme, the proposed amendments completely miss the target.”

I think consideration of the case of Vince Li perhaps will demonstrate some of the shortcomings of the legislation. It also is instructive because it is clearly one of the most difficult and traumatic cases that we in the public have heard about. When Mr. Li killed Mr. McLean, he was not subject to any review board disposition. He had never had contact with any review board system at all. He was, however, actively psychotic, and his mental illness, schizophrenia, was untreated.

By all public accounts, he has done well in treatment. He has gained insight into his illness, understands that he will need to take medication for the rest of his life, and is open to a court order requiring him to do so. While initially confined to a locked wing of a hospital, in 2010 he was granted grounds privileges. Last year, he was given the privilege of escorted passes in the community and just last month was granted further privileges allowing supervised full-day trips into the community, on the recommendation of his treatment team.

At the hearing, the crown, the representative of the Attorney General of Manitoba, did not oppose the increase in privileges, and we can assume that he or she did that because they accepted the evidence that those privileges would not be a risk to the public. Under the current regime as it stands, Mr. Li will remain detained until releasing him would not present a risk to the public. There is no need for him to be designated a high risk.

The CLA urges the committee to consider the possible negative impacts that such a designation could have, particularly the second pathway to this designation, whereby the court can make the designation on the basis that the offences “were of such a brutal nature as to indicate a risk of grave...harm to another person”. Whatever the definition of “brutal” is—and the CLA submits in our written submissions that there may be a problem with the vagueness of that term—Mr. Li's case would seem likely to meet it.

The problems with this provision are multifold.

First, the CLA is aware of no evidence that the brutality of the index offence is connected to the rate of reoffending or recidivism.

Second, the brutality of the index offence will not change, no matter the progress the offender makes. As currently worded, the provision suggests that even where a court concludes that Mr. Li poses no risk of violence, pursuant to proposed paragraph 672.64(1)(a) of that provision, the designation could remain under proposed paragraph 672.64(1)(b) because of his past act.

Third, where this designation is made, the NCR accused is deprived of rehabilitative privileges, such as passes into the community, even where the exercise of such privileges would not present a risk to the public.

This has a potentially disrupting effect on the therapeutic nature of the psychiatrist-patient relationship, increasing frustration and providing less motivation for rehabilitation, paradoxically potentially increasing public risk.

What the high-risk designation would not do is ensure that someone like Mr. Li is identified, treated, and monitored before he deteriorates to a point where his illness produces a serious violent crime.

The CLA's position is that if this government is committed to preventing the criminal consequences of serious mental illness, it must devote more resources and support to the provincial authorities responsible for mental health. The government has established the Mental Health Commission of Canada, which we applaud and view as an excellent initiative. What we would ask is that you listen to their sage advice.

In their policy documents and strategy documents they say that the way to reduce the overrepresentation of people with mental illness in our criminal justice system is a robust mental health care system aimed at prevention. We need to increase the role of the civil mental health system in providing services, treatment, and supports to individuals in the criminal justice system before they commit these horrific acts.

We need to provide training to police about mental health problems and illnesses, how to respond to mental health crises, and information about the services available to them.

If the high-risk designation regime is enacted, the CLA recommends some specific changes to the legislation. They are in our written submission.

In concluding, I want to answer some of the concerns expressed by questions asked of the minister and the Department of Justice on Monday and earlier today.

In terms of recidivism, the Department of Justice commissioned a study by Professor Anne Crocker. It's referred to in our written submissions, and also in the written submissions of the Canadian Bar Association. It sets out some of the statistics on recidivism for NCR accused people.

I also want to suggest that it is crucial for this committee to consider the impact the legislation will have on the capacity of provincial institutions. On this point, I note that this committee back in 2002 reviewed the mental disorder provisions of the Criminal Code, held public hearings, and at that time, 10 years ago, found that the forensic mental health system was strained to the limit and that given the lack of adequate resources it would be irresponsible and unrealistic to recommend the implementation of provisions that would place greater burdens on institutions that are the legal and fiscal responsibility of another government.

The situation, I can tell this committee, has not improved in the last 10 years. The Chief Justice of Canada, Beverley McLachlin, is among the many who have observed that the lack of adequate forensic treatment facilities for mentally disordered offenders is a persistent problem, and a problem that results in individuals waiting extended and lengthy periods of time in custody in a jail facility before they are able to enter into the forensic mental health system.

Our written submission, particularly on pages 9 and 10, highlight many of the cases where this problem has been documented.

Thank you.

[Paul Burstein, Director, Criminal Lawyers' Association]

Mr. Chair, on behalf of the Criminal Lawyers' Association, I want to thank this committee for the opportunity to comment on this very important issue.

It's personally a privilege and a pleasure to once again appear before this committee. My name is Paul Burstein. I'm the immediate past president of the Criminal Lawyers' Association, an association with over 1,200 criminal lawyers. We are one of Canada's largest specialist legal organizations. Like me and my colleague Ms. Dann, most of our members have regular contact with mentally ill people who, after falling through the cracks in our system of mental health, end up embroiled in the criminal justice system.

Personally, I've been working with mentally disordered offenders for over 20 years, since part XX.1 of the Criminal Code was first enacted. That legislation came into force on February 4, 1992. I became a lawyer three days later and have been working under that regime ever since. I've represented many mentally disordered offenders before the Ontario Review Board and on appeals to the courts of appeal against those dispositions.

For almost 20 years I've been part of a small roster of lawyers that the Ontario Court of Appeal appoints to assist it in dealing with mentally disordered offenders who have filed their own appeals against ORB dispositions. I've appeared before the Supreme Court of Canada on a number of very important cases that have dealt with the subject matter of Bill C-54. I've taught courses dealing with mentally disordered offenders. Most important, like so many millions of Canadians, I'm a parent of a child who has long suffered from a major mental illness. I can well appreciate how families are also victims of mental illness in having to deal with the person afflicted with the mental illness and how they act out as a result of their illness.

My colleague Ms. Dann is a former clerk for the Supreme Court of Canada. She also works with a firm that does much work with mentally disordered offenders. She devotes much of her practice to that. On behalf of our association, Ms. Dann will make some brief comments on what our members believe this committee must consider before moving forward with Bill C-54. Then she and I will answer any questions the committee might have. We've left the clerk with some written submissions that further outline our submissions.

Ms. Dann.

[Dr. J. Paul Fedoroff]

Yes. Bill C-54 will do absolutely nothing to reduce the risk of first-time offenders, who are the main offenders. It will do nothing in terms of reducing the risk of returning people who are NCR back into the community. In fact, it may increase the risk, because the bill makes it impossible to test somebody by giving them unescorted passes on grounds before giving them more greater levels of privileges. It's going to delay treatment and make it more difficult to be sure that the person isn't just saying something that we might want to hear.

As I said before, to address the larger issue, what we need is better education of the public and victims to understand that these people are very different, that your mother is very different from a criminal who may have committed the same crime. People with mental illness, by all the principles of jurisprudence, need to be dealt with differently because they don't understand what they are doing at the time.

[Dr. Isabelle Gaston]

Why is he opposed to this reform if he thinks that it does not really change things?

Dr. Fedoroff says that it is unfair to those who have a family member with a mental disorder. What I can say is that even a member of your family could be murdered. Do you understand? There are two sides to every story. By constantly being in contact with people with a mental disorder, perhaps we end up finding them nice and forget that there are other people in society. We forget that our decisions can affect an entire community and many families.

My brother’s best friend is schizophrenic. It is surprising to see schizophrenics and people who suffered from depression and were very ill support these measures. In fact, millions of Canadians suffer from a mental illness, but most of them will never commit a crime. I think Bill C-54 is really a minor precaution in the sense that it will only affect a very small number of people. So I don’t see why we are creating a tempest in a teapot.

They are still people who committed horrible crimes, and I invite you to read the definition. I will not go into the details of what I went through as a mother and what my children went through. When I see the only report card my child had, I find it hard not to feel that it is unfair. I would feel blessed if I could go visit my son or daughter in a psychiatric institution.

There is a whole range of activities and services offered at the Institut Philippe-Pinel, such as macramé, psychological and criminal law services, a pool, mini-golf, and pool tables. Perhaps they feel it is unfair. However, if I could give them a choice, I don’t think Olivier and Anne-Sophie would find it unfair that they are required to be treated in an institution. We are not punishing people. Rather, we are asking them to get treatment and to be careful. That is the least we can do for those who have lost their lives or whose integrity has been damaged.

In addition, we are not talking about 40 years. It has already been four years since my children died. It would be a good idea to enforce this law. I don’t understand why anyone would be opposed to it. I think this legislation is one more step in protecting everyone.

[Dr. Isabelle Gaston]

I always say that on February 20, when my children were murdered, the person who existed that day died with them.

In what I do, I know now that being alive is a privilege. Whether this has an impact on me or not, I know that it will be a good thing for the other families who may follow me, because, unfortunately, there will be other crimes.

One important element in the bill would be the victim's statement. That seems to me to be an important point in Bill C-54. I was interrupted because all of this was very rules-bound. I wanted to show the photograph of my children, but my freedom of expression was curtailed. I think that this bill could lead to some changes.

There's also the fact of having to go back before a judge. Ideally, I would see the trial judge because currently, people wash their hands of things to some extent. They feel they are there only to assess the person who was found not criminally responsible. In my situation, I found it quite remarkable that the individual would have made progress in only one month, when he was assessed by the same psychiatrist. According to me, this would allow for a more critical perspective. I am aware of the fact that the board does very good work, but sometimes, because of regulations related to the right to information, it is difficult to assess the work these people do.

In Quebec, you see, these things are done behind closed doors. There are people at the Institut Philippe-Pinel in Montreal, there are some in Trois-Rivières and some in Quebec, but those who committed the most serious crimes are mostly sent to the Montreal Philippe-Pinel Institute and no one evaluates the work the people involved do in that regard.

To answer your question, I think that this bill offers a certain protection because of the fact that the accused would return before the same judge.

In my situation, we would have to see. I don't think it would apply.

[Hoang Mai, NDP, Brossard—La Prairie, QC]

Ms. de Delley and Madame Gaston, our thoughts are with you.

It is very difficult for us to hear all of that. That said, it is an honour to have you here. I thank you for having taken the time to come and testify. We congratulate you on your courage. Sharing your experience allows us to better understand what is going on. It is very meaningful for us to hear people like you tell us about their experience.

I would like to begin with Ms. Gaston.

Last Monday, when the Minister of Justice was here, I asked him whether in this specific case of Mr. Turcotte, Bill C-54 would apply, especially as concerns the definition of a high-risk individual. The minister and the officials representing the Department of Justice were unable to answer the question. It is possible that that definition would not apply in this case.

Does that change your perspective on the bill to some extent? I think that you raised — and we understand that — the issue of notification. That really wasn't discussed. This is more in connection with the fact that in the case of a high-risk individual such as Guy Turcotte, the bill would not apply.

[Dr. J. Paul Fedoroff, President, Canadian Academy of Psychiatry and the Law, Canadian Psychiatric Association]

Thank you very much for this kind invitation to present to you on behalf of the Canadian Psychiatric Association, and to sit next to Dr. Gaston, to whom I extend my sincere condolences.

I believe I was chosen for this honour because I am president of the Canadian Academy of Psychiatry and the Law, which is the largest organization of psychiatrists who specialize in assessing, managing, and treating the population that Bill C-54 will directly impact. However, I may also have qualifications on the basis that I am a practising psychiatrist at the Royal in Ottawa.

This legislation is about victims. Looking around this room, I know that some of you will be affected by this legislation. I know this because one in five Canadians is affected by a significant mental health problem. That means that virtually everyone in this room has at least one family member with this problem. In the same way that not every person with mental illness is honoured to have a family member in the House of Commons, most people with mental health problems do not commit crimes. In fact, most violent crimes are committed by people with no mental illness. Bill C-54 will not affect the majority of violent crimes against Canadians because they are committed by criminals who intend to break the law. Even among the people with mental health problems, the small percentage of whom commit crimes, most will not be affected in any way by Bill C-54. The legislation itself acknowledges this fact and states it applies only to a small proportion of accused with mental health problems.

Who are these people with mental health problems which Bill C-54 applies to? They are people with mental illnesses so severe that a judge in a court of law has determined that at the time of the crime, because of their mental illness, they were unable to appreciate the nature or consequences of what they were doing, or to know that what they were doing was wrong.

The Criminal Code of Canada, as in all civilized countries, recognizes that it is an injustice to hold a person responsible for their actions if their mind was so impaired they did not know what they were doing. These people are declared NCR, not criminally responsible, in a court of law by a judge, not a psychiatrist, and are referred to as “NCR accused”. Any one of you at this table could have a relative who is declared an NCR accused. I say this with the greatest respect because becoming an NCR accused has nothing to do with your personal character or the integrity or respectability of your family. It has to do solely with having a mental illness that prevents you from knowing that what you are doing is against the law and wrong. This is who Bill C-54 affects.

I began by saying that Bill C-54 is about victims. I and everyone in this room agree victims deserve the utmost in respect and care. Now imagine that your relative with a mental health problem, which they did not ask for, commits a violent offence and is found NCR. Who are the victims? The person who was attacked is, for certain, but also the family members of both the victim and the accused, as well as the community. What will Bill C-54 do for victims? It will not increase victim notification. That already happens always. It will not delay the speed with which NCR accused are returned to the community. Most NCRs are followed for longer than three years. It will not change the frequency of board reviews. High-risk offenders typically are seen more frequently, and it would seem bad practice to decrease the hearing times.

Here is what Bill C-54 will do. It will increase the burden on the criminal justice system in the process of designating so-called “high risk”. It will make it harder to transition NCRs safely back to the community since passes, which begin as escorted and lead to unescorted, assist in assessing true risk. It will risk stigmatizing people with significant mental health problems.

For the sake of all victims, including potentially your own relatives, I hope you will reconsider the merits of this bill carefully.

I will finish with a brief anecdote. Suppose a woman suffers from a delusion that a very severe poison is actually healthy. She gives it to her husband and her husband becomes upset or mildly ill. Now, suppose that same woman with the same delusion gives the same poison to her entire family at a birthday party and kills her entire family and all her children. Suppose another person who is a criminal, who intends to kill people, intentionally poisons someone. Ask yourself, is it just, is it fair to treat all those individuals the same way?

Bill C-54 moves us towards treating a person with a delusion as though they were a criminal.

Thank you.

[Dr. Isabelle Gaston, As an Individual]

Good afternoon.

Thank you for having invited me to participate in this meeting of the Standing Committee on Justice and Human Rights.

I am sure my experience within the system will help you to recognize the importance of Bill C-54, a bill which I support.

I thank Prime Minister Harper for allowing the victims to be heard at long last.

I am an emergency room physician. I practise in a regional hospital centre and our hospital houses the third largest psychiatric department in Quebec. Consequently, many patients with psychiatric illnesses come to my emergency department for treatment.

One fact is more relevant for this committee. I was the mother of Olivier, 5 years old, and Anne-Sophie, 3 years old, who were murdered on February 20, 2009. I was present at all of the legal proceedings and on July 5, 2011, my former husband was found to be not criminally responsible for the death of my children. Afterwards, the work of a fastidious commission of inquiry into mental disorders led to the release on parole of the man who took the life not only of my children, but, by the same token, of two Canadian citizens.

Even though I am at the centre of a terrible tragedy, I hope that you will understand that my testimony is no more and no less biased than that of certain lawyers, psychiatrists or other witnesses who will appear before you. Indeed, some of them seem to forget that there are two sides to every coin. You were elected and you will have to vote on this bill. This topic is too important to be allowed to become a partisan issue, identified with a single party.

No law is entirely perfect and none will ever please everyone. However, I think that a good law is a law that tends to be as fair as possible for the majority of the citizens of a country. Bill C-54 gives priority to public safety.

While rereading the Canadian Charter of Rights and Freedoms, I realized that defending the right to life and safety is far from easy in Canada. It sounds good on paper, but when someone is dead, I get the impression that we tend to forget them. In Canada, all human beings are considered to be equal in value and dignity. Everyone is supposed to have an equal right to protection before the law. Actually, that is not the reality. This bill will give everyone the protection they are entitled to, not only to us, the victims, but to everyone in society.

When people object that the bill will do nothing to further prevention, that the rate of recidivism is low and that it will stigmatize those with a mental illness, I think that they are straying from the topic. They are forgetting to draw a distinction between primary prevention and secondary prevention. They forget that a serious crime was committed. That cannot be just set aside. They forget that someone else was the victim of a crime and someone else will be a victim if there is a subsequent offence.

People have to stop accusing those who are in favour of the bill—people like myself, for instance—of lacking empathy for those dealing with mental illness. That is a false argument. I am not lacking in empathy, quite the opposite. I am in favour of rehabilitation and I understand the suffering caused by a mental illness. I treat patients who are psychotic, depressive or suicidal with the same energy as those who come in with a heart attack.

It would be fairer, in order to really understand my position, to know the hierarchy of my values. I find it unfortunate that a person suffering from a mental illness commits a crime, but I find it even more unfortunate that someone loses their life or well-being because of that crime. For me, the death of Olivier and Anne-Sophie demands that I require that the system protect my life, my well-being and that of others, because it is when you lose those you love that you realize that being alive and healthy is a privilege.

Certain psychiatrists claim that this act will undo years of progress and that it is very unfair. Unfair to whom? According to you, is it unfair to demand that we be cautious? I do not agree with those who claim that the defenders of this bill are trying to be punitive with people who are not criminally responsible. Injustice is sustained by everyone, myself, my children and all of society. If you believe that demanding that the person who took someone's life receive care and at least short-term supervision is punitive, we do not have the same vision of the work done by mental health workers.

I am quite willing to be sensitive and acknowledge that it is not always easy to be in a psychiatric institution, but it is much better than being six feet underground. The atrocious death of my children demands that the system not cut corners with my safety and that of other citizens. A non-criminally responsible person will be able to take up their life at the completion of their mental rehabilitation.

If Bill C-54 is passed, certain patients will be declared “high risk” if they have committed a very serious crime, if they have been guilty of serious physical mistreatment of others, or if there is a strong possibility that they may commit other acts of violence. This makes perfect sense to me.

It is time for things to change, because the current state of the system is not very reassuring. In December 2012, even if the commission of inquiry into mental disorders felt that the murderer of my children still presented a serious risk because of his mental state, he was nevertheless released without supervision.

I do not understand the rationale behind such a decision. I have the impression that people are playing Russian roulette with my life. I don't feel protected, really, at this time. People try to reassure me by telling me not to worry, but out of millions of Quebeckers, it was nevertheless my sister and my niece who came face to face with the man who killed my children, in a shopping centre near their home, last February 18. That morning, I had declined the invitation to go shopping with them because I was working that day at 4 o'clock. Why?

I think that all families that are in my position have the right to feel safe, especially in their immediate neighbourhood. On the contrary, we are not informed about anything and we do not have access to the information that would allow us to know what point in the process our aggressor has reached. I have no idea how my former spouse would have reacted to me that day, nor how I would have reacted to him. What I do know however, is that I am afraid. I know that the current system is not there for me. I also know that should there be such a meeting, I would be alone to defend myself before, during, and after that encounter.

It is wise to let a judge decide to release or not release an individual deemed to be “high-risk”. The members of the commission of inquiry into mental illness probably do good work, but as a physician, I know it can be difficult to be both physician and judge. In my opinion, the biggest precaution that should accompany this change in the legislation is that the professional corporations should remind their members of their code of professional conduct and of the ethical rules that govern medico-legal assessment. Professional corporations should also point out that there is a major difference between medical evaluators and practising physicians. Under no circumstances should any physician be authorized to wear both hats. This seriously undermines the confidence of victims.

It would be desirable to increase the length of hospitalization in a psychiatric facility to three years. Even if you cannot force an individual to undergo treatment, you would thereby certainly increase his chances of eventually participating in the rehabilitation activities available to him. At the very least, this would allow for a longer period of observation, so as to permit a better assessment of the person who has committed a serious crime.

In my situation, it took one year before the murderer of Olivier and Anne-Sophie decided to begin therapy. Unfortunately, that therapy was at an “embryonic” stage, according to his physician, when he was paroled in December 2012. At the hearing that preceded that parole, the patient admitted that he had made a great deal of progress, thanks to his stay in hospital, even though he had wanted to be released a year earlier. I would also like to remind you that the expert who testified a year before that parole suggested that the patient be released without any kind of condition. That example is a good illustration of the fact that aside from the patient, the health care team and the experts can also benefit from a longer assessment period.

In conclusion, this bill gives me greater hope that one day, the scales that are the symbol of our justice system will once again attain a certain balance for the parties involved. However, it remains essential in my opinion that a national or at least a provincial reform be brought about to guide the experts who testify before the court. No matter how often the expression “not criminally responsible” is redefined, or how rigorous the follow-up of those who are deemed not criminally responsible by the board responsible for that follow-up, those who interpret the legislation are the ones who can weaken our legal system and generate injustice, both for the accused and for the victims.

That is why it is urgent that rules and procedures be brought in as frames of reference for the experts who testify before the courts. The quality of the expert assessments presented to the judges and jury members must be monitored. Even if most of these expert assessments are of good quality, we must ensure that they respect all the rules of proper practice.

We must require at the very least that these assessments be rigorous, impartial and objective. The trust the general population, and victims, place in our justice system depends on it.

Thank you. I am available to reply to your questions.

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, I call to order meeting number 76 of the Standing Committee on Justice and Human Rights. Today we're televised.

Our orders of the day are 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 (mental disorder).

We have three panels and a number of witnesses today. As I said before to members of the committee, each presenter has been offered 10 minutes. I will be a little flexible on that but still make sure they get their presentations in. Then we will have questions. Then we'll go on to the next panel.

We have lost a little time, so we may run this one a couple of minutes past, just to make sure we hear everyone.

I want committee to be aware, so that there are no surprises, that we passed a motion on Monday of last week that independents could come to the committee and move amendments during clause-by-clause consideration. Amendments need to be in prior to that. They've asked whether they can come.

The precedent is this, and this is my ruling on it. They are more than welcome to sit at the table with us. They can listen to the discussion and the presentations. If a member of the committee from one of the recognized parties wants to share some of their time with independents, they're more than welcome to do so. I'll recognize that. Otherwise I'll need unanimous consent of the committee to provide a speaking turn to those individuals. When it comes to clause-by-clause study, I will provide approximately two minutes to those independent individuals to present their amendments, if they have any. They will not be voting, but they can present their amendments at that time.

That is the ruling. They have been made aware of that through correspondence.

Let's begin. We have two individuals and one organization. Ms. Isabelle Gaston is here as an individual. From the Canadian Psychiatric Association we have Mr. Paul Fedoroff. As an individual, we have Carol de Delley. We'll follow the names on the orders of the day.

Madame Gaston, you're first to speak to us. The floor is yours.

Respecting Families of Murdered and Brutalized Persons Act

[Massimo Pacetti, Liberal, Saint-Léonard—Saint-Michel, QC]

Mr. Speaker, I rise today to speak to Bill C-478.

As my colleagues have already said, this bill amends the Criminal Code to provide that a person convicted of the abduction, sexual assault and murder of one victim is to be sentenced to imprisonment for life without eligibility for parole until the person has served a sentence of between 25 and 40 years as determined by the presiding judge after considering the recommendation, if any, of the jury.

As my Liberal colleague, the member for Halifax West, stated during the last debate on the bill, we Liberals will be supporting this matter at second reading. We support the principle behind the legislation—that is, we agree that those who are convicted of abduction, sexual assault and murder of one victim should not easily receive parole.

Many community organizations, including the Canadian Resource Centre for Victims of Crime, also support this bill.

While we are fortunate that such brutality is rare in Canada, we know all too well that this evil does exist. Just this time last year, the nation was gripped with headlines of Luka Magnotta, who is alleged to have killed, raped and dismembered his victim. He is presently awaiting trial on charges including murder and committing an indignity to a body.

Also at this time last year, a sentence was handed down in the case of Michael Rafferty of Woodstock, Ontario, who along with Terri-Lynne McClintic was arrested and charged in the abduction and murder of eight-year-old Victoria Stafford. Both are serving life sentences with no chance of parole for 25 years, Rafferty having been found guilty of first degree murder, sexual assault causing bodily harm and kidnapping.

These names and these cases, like those of Paul Bernardo, Russell Williams and Clifford Olson, clearly prove that this evil does exist in Canada and force us to evaluate the need to amend our Criminal Code accordingly.

Of course, the question might arise as to whether the existing regime is sufficient. All these individuals I have named have been punished, and many will not be out for parole for quite some time.

The answer is that this bill, as the mover noted, is not about punishment. Indeed, it does not increase penalties for any of the associated offences. What Bill C-478 does, however, is extend the period of parole ineligibility to relieve grieving families of the burden of having to relive their awful torment every two years once the offender becomes eligible to seek parole. Indeed, the bill is about ending the re-victimization of families.

It should be noted that the 40-year period that the bill speaks to is not a requirement. Judges are given necessary discretion on this particular point.

That is not to say that the bill is a flawless piece of legislation. These being private members' bills produced with the limited resources that we have as members of Parliament, there are going to be some flaws. Hopefully, at committee we will work hard to make sure that these are perfect bills when they come out of committee.

My colleagues from the NDP have raised concerns regarding its compliance with the charter and with the Rome statute. I am sure these will be questions put to the technical witnesses at the justice committee for which they will undoubtedly have well-researched answers. Surely amendments could then be moved if needed to clarify both our desire to comply with our domestic and international obligations and our desire to achieve our aim of a longer period of parole ineligibility for certain types of offenders.

It is not often that I am able to address the House on matters of criminal justice policy. I am delighted to do so today and I am delighted that the bill before us is not one of the usual mandatory minimum penalty bills that the Liberal Party opposes on policy grounds.

Much of the discussion in the House on justice policy of late has focused on the idea of victims' rights. I am proud to be part of a party that takes the rights of victims seriously and has matched this commitment in word and in action.

On November 1, 2005, the Government of Canada established the National Office for Victims at Public Safety Canada. This office is a single point of contact for victims who have concerns about offenders and questions about the federal correctional system and Canada's justice system.

The office provides victims with information and provides input on policy and legislative initiatives. It also attempts to educate members of the criminal justice system about victims' issues.

Further, although it has perhaps been overlooked in the current debate over Bill C-54, the Liberals proposed the initial amendments to the not criminally responsible regime that permitted a victim to read a victim impact statement at a review board hearing and required courts or review boards to advise a victim of his or her right to submit a victim impact statement at the initial disposition hearing for the accused.

Before closing, I must address one troublesome aspect of the bill as it is before us, not in substance but in form; namely, it is a piece of private member's business that has been endorsed by the Prime Minister and Minister of Justice as a worthwhile and necessary change to the law. Yet, it is something that would have been adopted much faster had it been introduced and advanced as government legislation. Indeed, why was this not part of the crime omnibus bill, Bill C-10? Or, more pertinently, why was this amendment not included in 2011 when Parliament debated Bill S-6, the serious time for the most serious crime act? Surely the government will agree these are serious crimes that deserve serious time.

My point is that the government has had ample opportunity to make this change to the law without having to use private members' hour to advance its agenda. It is a troubling trend because the use of private members' bills limits debate and circumvents charter review, something which is completed by the Department of Justice for only government bills and not private members' bills like Bill C-478.

Another troubling trend is that the Conservatives' justice agenda focuses on punishment without bearing in mind as well the need to adopt preventative measures designed to reduce the number of victims in the first place. Wow. For some types of offences, we should focus on root causes of crime, such as poverty, lack of education, and lack of access to affordable housing. For other types of crime, we should be looking at mental health initiatives for early screening and detection such that individuals may be diverted into the treatment programs they need.

Regrettably, changing sentencing and parole rules, however welcome some changes may be, does not prevent victimization. We must ensure a holistic approach is taken to justice, one that seeks to prevent crime, one that seeks to adequately punish the offender, and one that seeks to better reintegrate offenders into society once they have served their sentences.

In short, there is much more to be done, and Bill C-478 is not a magic bullet to solving the problem of crime in this country. However, as I stated at the outset, I believe the principle behind this bill has merit and thus I will be voting to send it to committee for further study and review.