Justice Committee on June 5th, 2013

[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.

[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]

Merci, Madame.

Our next presenter is Mr. Fedoroff from the Canadian Psychiatric Association.

You have 10 minutes, sir.

[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.

[The Chair, Conservative, Mike Wallace]

Thank you, sir, for that presentation.

Our next presenter, as an individual, is Ms. de Delley. Thank you for making the trip here from Manitoba. You have 10 minutes.

[Carol de Delley, As an Individual]

Good afternoon and thank you for providing me with this opportunity.

Today I represent many victims of NCR offenders as I call upon members of the House of Commons of Canada, regardless of what party they belong to, to join together to unanimously pass this legislation.

In July 2008 my 22-year-old son, Timothy Richard McLean, had his basic human right to life violated when he was sleeping and he became a victim of an NCR offender. I believe that my son died in the horrific and very public manner that he did to shed light on the issue of NCR so that positive change could result and the safety of the public would be ensured.

My family and I have had to endure the trial and five annual review board hearings, and Timothy will not even have been dead for five years until the end of July. This has left us with no opportunity to grieve our loss. I have spent the time since Timothy's gruesome death trying to raise awareness in the public about what NCR is and why I believe it needs to change.

I have had the support of Manitoba cabinet ministers Eric Robinson and Andrew Swan as well as MPs Shelly Glover, Candice Bergen, and James Bezan, and I thank them for that support. There is a seemingly endless team of professionals providing for every need of the offender. While in care and with regularly administered medication and intense therapy in a controlled environment, paid for and provided by the taxpayer, I would be surprised if the offender did not show remarkable improvement. What about the victims? In our particular case, along with our very large family, there were 40 or so civilian witnesses and almost as many police officers who were witnesses to this horrible experience. Who speaks for and represents all of them? Today, I do.

We are all the living victims of an NCR offender. The psychiatric community and the Schizophrenia Society claim that with this legislation we are stigmatizing the mentally ill. They have much to say in the defence of what they claim is a very small number of extremely ill individuals. I ask, where were all these professionals when these very disturbed individuals or their loved ones were trying to get help? In most cases the offender has a history of mental illness, often diagnosed but usually untreated. The crucial reason for the lack of treatment is that the person with the mental illness does not believe they have a problem and therefore refuse to get help. The reality in Canada is that even when close family members or associates have verifiable proof that an individual is suffering from severe psychosis or mental health issues, if that disturbed individual is resistant to treatment, they are under no obligation to get treatment.

In her book, Changing My Mind, Margaret Trudeau states:

A person with a mental illness needs an advocate—someone to chart the waters, interpret possible side effects of drugs and provide reassurance when recovery seems so terribly slow.

I concur that what mentally ill individuals need more than anything is an advocate to act in their best interests, because the afflicted person is incapable of making such decisions for themselves.

An NCR designation removes the offender from the criminal justice system and places them in the provincial health care system. The accused then receives the treatment and medication they should have received in the first place, and the issue of the murder is never addressed. A Criminal Code provincial review board by its very name is misleading. Most Canadians believe that the crime is reviewed at these hearings and that the accused or offender is still considered a criminal. That is not the case. There will be no criminal record for these offenders. The accused is now referred to as the patient, and the only thing being reviewed is the patient's mental status. It should be called what it is, a mental health review board.

I can understand that these extremely ill individuals may not be psychologically accountable; however, they are, without question or doubt, still responsible for killing another human being. The rights of the accused should not overshadow those of the innocent victims. The suffering of the victims and their families should not go unnoticed in our society. Provincial review boards ought to make it mandatory for the health facilities to release information on NCR patients. Victims should have the right to all information regarding the treatment and movements of those found not criminally responsible. I recognize the controversy and complexity of these issues. I believe that we as a society need to work together to create a Canada that is balanced and equal, a country that provides timely and tangible support to the victims and to enable seriously ill individuals to get the help they need but may not necessarily want.

I also believe it is crucial to protect all citizens, including the afflicted. I want to know when they are released back into our neighbourhoods and what we are doing to ensure these individuals are taking their medications. What programs are in place? How exactly are they being monitored? Whom do they report to?

If they reoffend, who will be responsible? We know it's not going to be the mentally ill individual, the provincial review board members, the psychiatrists, or the Schizophrenia Society of Canada.

Ekosi. Meegwetch. Thank you. Merci, with respect.

[The Chair, Conservative, Mike Wallace]

Thank you for that presentation.

We will now go to questions. Members, I am going to keep you to your five minutes so we can get in as many questioners as possible in every hour.

Our first questioner is Mr. Mai from the New Democratic Party.

[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. 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]

That's right.

Dr. Fedoroff, some of the questions we had initially for the minister were in terms of consultation.

Can you tell me how many psychiatrists your association represents?

[Dr. J. Paul Fedoroff]

There are about 130 full-time members.

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

Was your association consulted with respect to this bill before coming here?

[Dr. J. Paul Fedoroff]

Neither CAPL nor the Canadian Psychiatric Association, which is a much larger association, was consulted.

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

One of the things we did say was in terms of the government coming up with a bill where people working with respect to mental health, mental illness were not consulted.

Quickly, because I don't think I have much time, what is your view of what might happen in terms of implications for the justice system?

[Dr. J. Paul Fedoroff]

The criminal justice system, especially in terms of dealing with people with severe mental illness, is overloaded already. Adding extra measures would backlog the system and would almost certainly result in mentally ill people being placed in jail, spending time in jail, not being treated, rather than being heard and treated.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those questions and answers.

Our next questioner is Mr. Goguen from the Conservative Party.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

Thank you to the witnesses for testifying.

Certainly our thoughts and prayers go out to both of you, Mrs. de Delley and

Dr. Gaston, thank you.

My question is for Dr. Gaston.

You are a physician and you work in an emergency department. Is that correct?

[Dr. Isabelle Gaston]

Precisely, I work at the Saint-Jérôme CSSS.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Is that an emergency centre that specializes in treating trauma?

[Dr. Isabelle Gaston]

Yes, the Saint-Jérôme CSSS is a trauma centre, but it is also the third biggest psychiatric centre.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

You heard Dr. Fedoroff's testimony. I reread his brief carefully and he seems to say that there is no urgent need for reform regarding lack of criminal responsibility. Do you share his opinion? Do you agree that bringing in this reform at this time is not urgent?

[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.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Just like me, do you agree that there is usually some stigma attached to those with mental disorders?

[Dr. Isabelle Gaston]

On the contrary, the people I know who have a mental illness keep saying that they want to have a normal life and that they want to be recognized as being normal in a sense. But I feel that failing to provide better supervision to those who commit the worst crime of all will stigmatize the people who live good lives despite their mental disorders.

I have personally dealt with depression and I suffer from post-traumatic stress. It is very difficult for me to get back to my normal life. I haven’t killed anyone. We must not forget that a crime was committed. I think that is part of the reality. So those people need to have better support.

We are told that the risk of recidivism is low. We are talking about a recidivism rate of 1%. Would you want your wife, your children or your grandchildren to be part of that 1% or 2%? When I think about what happened to me, I think that the number is high compared to how little we are asking for.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

Our next questioner is Mr. Cotler from the Liberal Party.