Thank you very much. I'm pleased to be with Julie Besner and Carole Morency, whom you have probably met or known over the years, who have testified and provided information to the committee.
I am very pleased to come before the committee today to discuss Bill C-54, the Not Criminally Responsible Reform Act.
Before I discuss what is in the bill, I would like to mention what is not proposed by this legislation.
First, the proposed reforms do not seek to punish individuals who have been found by the courts to be not criminally responsible on account of mental disorder.
Second, nothing in the bill would impact mentally disordered accused's access to mental health treatment. Bill C-54 seeks to provide guidance to those who are involved in the decision-making process for accused persons who are found by a court to be either not criminally responsible on account of mental disorder or unfit to stand trial. These individuals are referred to as mentally disordered accused and are dealt with according to the powers and procedures set out in the Criminal Code mental disorder regime.
I would like to speak first to the difference between these two verdicts. When an accused person suffers from a mental disorder that prevents them from understanding the court proceedings and communicating with their lawyer, the trial cannot take place and the court enters a verdict of unfit to stand trial. On the other hand, if the accused person is tried and is found to have committed the act or omission that constitutes an offence, but lacked the capacity at the time of the offence to appreciate what they did or know that it was wrong, the court enters a verdict of not criminally responsible on account of mental disorder.
A finding of NCR or unfit to stand trial are special verdicts, as those accused persons are neither acquitted nor convicted. Instead, orders referred to as dispositions are put in place to set out whether the accused will be detained in the custody of a hospital; discharged with conditions; or in the case of those found NCR, if they do not pose a significant threat to the safety of the public, discharged absolutely.
Bill C-54 proposes to amend the provision in the Criminal Code that sets out the considerations that the court and review board must take into account in making dispositions with respect to NCR or unfit accused persons.
One of the key proposals in Bill C-54 is the amendment that would clarify that public safety is the paramount consideration in the disposition-making provision. This is an amendment that has been strongly supported, you will be pleased to know, by my provincial and territorial attorneys general.
Codifying this principle would ensure that it is applied consistently across this country in all jurisdictions, and it would also be consistent with the Supreme Court of Canada jurisprudence, most recently in the case of Regina v. Conway, in 2010. In that same provision, Bill C-54 proposes to replace the term “least onerous and least restrictive to the accused”, with the requirement for the courts and review boards to make a disposition that is necessary and appropriate in the circumstances. This wording is easier to understand and is intended to be consistent with the Supreme Court of Canada's interpretation of this principle in Winko v. British Columbia. That is, in essence, that the accused's liberty shall be limited no more than is necessary in order to protect the public.
Bill C-54 amends the Criminal Code to enhance the safety of victims and provide them with opportunities for greater involvement in the hearing process. The bill provides that victims be notified when an accused is discharged if they so requested, and it allows for non-communication orders between an NCR accused and the victim. The bill also requires the courts and review boards to give specific consideration to the safety of the victim in determining whether or not an accused poses a significant threat to the safety of the public.
In addition to the amendments seeking to clarify the provisions of the Criminal Code, the bill proposes a new procedure for increasing public safety in cases where the public is at higher risk.
The bill proposes a new scheme that would permit the courts to designate certain NCR-accused as high risk. A high-risk NCR-accused scheme would apply to a small number of accused who have been found NCR and who pose a higher threat to public safety. A successful high-risk designation would follow certain steps.
First, an accused must be found NCR for a serious personal injury offence. This type of offence is currently defined in the mental disorder regime as an indictable offence involving the use or attempted use of violence or conduct intended to endanger the life or safety of another person, or a number of sexual offences. Second, the prosecutor must make an application to the court for a finding that the NCR-accused is a high-risk accused. Third, the court would hold a hearing to determine if the NCR-accused is high risk.
An NCR-accused may be found to be a high-risk NCR-accused in one of two situations. The first situation is that the court is satisfied that there is a “substantial likelihood” the accused will commit violence that could endanger the life or safety of another person. Substantially likely is a higher test or threshold than is currently required to maintain jurisdiction by a review board over an NCR-accused. This latter test is defined as “a significant threat to the safety of the public”.
The second situation where a high-risk designation may be made is if the court is of the opinion that the serious personal injury offence was of “such a brutal nature as to indicate a risk of grave...harm” to the public. Although the level of risk posed by an NCR-accused designated under this category would be different from the first situation, the nature of the actions that form the basis for the application, coupled with the serious potential harm should the accused reoffend, indicate a need for increased protection and restrictions.
An important limitation on a high-risk NCR scheme is that it would only apply to those found NCR. It would not apply to those found to be unfit to stand trial. There are two reasons for this. First, an unfit accused has not yet been tried for the offence, and therefore it has not been proven that they committed the act. Second, an individual who is not fit to stand trial would also not be fit to participate in a hearing to determine whether they should be designated as a high-risk accused.
A second limitation on the scope of the high-risk NCR-accused designation is that it would only apply to an accused who is over the age of 18 years at the time of the offence. The Youth Criminal Justice Act contains special provisions to deal with youth accused who suffer from mental disorders, including the imposition of an intensive rehabilitative custody and supervision order on young people with mental health issues who have committed serious violent offences.
The result of a high-risk designation is that the accused must be detained in a hospital. The review board would not have the discretion to order an absolute or a conditional discharge, nor could a high-risk accused be absent from the hospital except for medical purposes or for any purpose that is necessary for their treatment. Any absence would require an escort and a structured plan to address any risk to the public related to the leave.
A high-risk designation may also impact the time period between review hearings. Currently, mentally disordered accused persons have their cases reviewed on an annual basis, though this may be extended up to two years in certain circumstances, i.e. upon the consent of the accused and the Attorney General, or if the review board is satisfied that the condition of the accused is not likely to improve and the detention remains necessary for the period of the extension. A high-risk NCR-accused may have their review period extended by the review board up to three years.
Finally, a high-risk NCR-accused designation would not be permanent. It may be revoked by a superior court of criminal jurisdiction. The process would begin with a recommendation by the review board that the high-risk NCR-accused no longer presents a substantial likelihood of committing violence that could endanger the life or safety of another person.
Upon the recommendation of the review board, the court would hold a revocation hearing. After considering all of the evidence, the court would determine whether there is no longer a substantial likelihood that the accused would commit violence that could endanger the life or safety of another person. If the court is satisfied that the high-risk accused no longer poses an elevated risk, the court must revoke the high-risk finding. Upon revocation of the high-risk finding, the accused would be dealt with as a regular NCR-accused and continue to be supervised by the review board as appropriate.
I would like to underscore the importance of these amendments for all Canadians, especially victims who desire that public safety should come first in the mental disorder regime. Bill C-54 intends to strike a better balance between the need to protect society against those who pose a significant threat to the public and the need to treat mentally disordered accused persons appropriately.
Thank you, Mr. Chairman.
