Justice Committee on June 5th, 2013

[David M. Parry]

Front and centre means it is part of the essential balance that the NCR regime strives to reach. It's a question of the mental state of the accused. It's a question of the needs of the accused. It's a question of public safety. It's a question of societal interest in the reintegration of the accused into the community.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

That's good. We have you on the record as being really concerned about the accused.

Ms. Pate.

[Kim Pate]

Building on this with the woman I was talking about, the paramountcy of public safety has been served by her now being in the forensic mental health system. If she had been placed in the prison system, as was likely to happen, she would still be in isolation. She would still be accumulating sentences. The human and social costs would not be serving public safety, nor would it be fiscally responsible.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

But in either scenario the public is safe because there's no opportunity for the individual to commit another act—

[Kim Pate]

That's not true.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

—notwithstanding the low recidivism rates that are already out there.

[Kim Pate]

I'm sorry to interrupt you, but that's not true.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

I've never been attacked by anybody in isolation, Ms. Pate.

[Kim Pate]

But you are dealing with charges all the time, of people being charged, being held criminally responsible, while they're in isolation. Ashley Smith accumulated almost 100 charges and new sentences, while she was in isolation—

[Blaine Calkins, Conservative, Wetaskiwin, AB]

I understand.

[Kim Pate]

—even though she wasn't maybe even physically attacked, and so did this woman, and so have others.

The point is that if this were in place, neither her lawyer nor I would have encouraged her to pursue an NCR designation because of the risk of her being held without resources. We did it in a province where we knew there would be resources applied, where we knew we could monitor it.

One of the issues that comes up frequently for us in cases is that individuals go into the system, and if they're in a province or territory that has the least resources, then the ability to monitor, document, and ensure that the review process is able to function is problematic. The lack of services is huge.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

That's appreciated. That's need-to-know information. I appreciate that. There are a lot of discrepancies in what various provinces have the ability to do.

I want to get some clarification from you, Mr. Burstein.

Is the codification of the public safety okay?

[Paul Burstein]

No, it's not, for this simple reason. The natural inclination when dealing with mentally disordered persons who have committed an offence is to presume that they're dangerous. The courts have recognized that. There are lots of studies. The public perceives it that way.

The reason codification of “least onerous” and “least restrictive” is important is that it's a statutory reminder to the review board to not forget that this person shouldn't be thrown out with the bathwater. By taking that out and going back to saying public safety is paramount, it essentially takes away that precautionary measure and refocuses them on stereotyping mentally ill people as dangerous. That's the problem.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

I understand.

Do I have any time?

[The Chair, Conservative, Mike Wallace]

Sorry, no.

Thank you for those questions. Thank you for those answers. That is our hour.

I want to thank each one of you for presenting and for providing the information to the committee as we consider this legislation.

I'll suspend the meeting while we get the next panel in line.

Thank you.

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, I want to call this meeting back to order.

This is our third panel. I appreciate everyone hanging in here. I know it's getting a little late. We've been giving each panel an hour.

For the last panel, we're joined by Chris Summerville of the Schizophrenia Society of Canada, and Catherine Latimer of the John Howard Society. As an individual, we have Lori Triano-Antidormi.

We're going to go through as presented.

Mr. Summerville, the floor is yours for 10 minutes.

[Chris Summerville, Chief Executive Officer, Alliance Facilitator, Schizophrenia Society of Canada]

I would like to thank the committee for providing me with the opportunity to testify on Bill C-54, the not criminally responsible reform act.

My name is Chris Summerville and I've been the CEO of the Schizophrenia Society of Canada for seven years, as well as the executive director of the Manitoba Schizophrenia Society for nearly 18 years.

I am here not only on behalf of the Schizophrenia Society of Canada and all of its provincial counterparts, but also on behalf of eight national mental health organizations and Canada's largest mental health hospital, CAMH. They see the necessity of working together to minimize the negative impact of Bill C-54.

As well, I am a family member who grew up in the presence of mental illness—a brother with schizophrenia, another brother and my own father who lived with bipolar disorder. All three came into conflict with the criminal justice system due to untreated mental illness. Two of the three eventually committed suicide. I know mental illness inside and out. I could tell you of many personal traumatic horror stories due to untreated mental illness—physical, emotional, and sexual abuse.

Now let me be crystal clear. There are negative impacts and unintended consequences of this bill. Mental health and mental illness are complex, as the government is aware with its establishment of the Mental Health Commission of Canada, of which I am honoured to be a board member.

Understanding mental illness requires a commitment that will lead to overcoming barriers to treatment and recovery. Bill C-54 does little to understand mental illness in order to protect Canadians, and therefore it will not protect Canadians. It's as simple as that.

First and foremost we wholeheartedly support changes that create greater involvement for victims in the process. Without a doubt we want all victims affected by crime to be part of the process. It is our goal and desire to have fewer victims of crimes committed by, and on, people living with a mental illness, and that is why we are here today.

That being said, there are missed opportunities in this bill for victims, such as enhanced trauma-informed psychological support and services. The government has an opportunity to make changes that will result in fewer crimes being committed by people living with a mental illness. I would remind you that only 3% of people with a mental illness come in conflict with the law, let alone commit a serious crime. This means ensuring that people living with a mental illness have access to the services they need. How many times do we hear about a person living with a mental illness trying to find help before they fall through the cracks or commit a crime? Too many.

Instead of focusing on preventing the crime in the first place, Bill C-54 focuses on punitive and stigmatizing measures that undermine the purpose of the not criminally responsible designation in the first place.

We should be here today discussing a bill that would enhance mental health services for all: early identification; early intervention; and early treatment options. Mental illnesses are treatable and recovery is possible. This includes schizophrenia and psychosis.

I can honestly say it is awkward for me to be pleading with the Government of Canada to work with the mental health community on a bill about people living with mental illness. None of the nine organizations were consulted before the announcement of this bill. This should be common sense, but now I am in front of all of you today trying to make sure changes are not made that will actually jeopardize the safety of Canadians, while further stigmatizing people living with a mental illness.

Our primary request today is not to rush such an important bill, but for you to work with the mental health community in collaboration with victims. If the government chooses not to, we revert to the following recommendations to minimize unintended consequences.

Number one, remove the creation of a high-risk category based on the brutality of the crime. This is simply not evidence-based and there is no correlation between high risk and the nature of the crime and the response to treatment. We want individuals reintegrated into the community at the right time, as medically decided by the patient's health care team, which includes forensic psychologists and psychiatrists. Creating categories and labels that have no evidence behind them will prevent the patient from getting the help that he or she requires.

Number two, expand the criteria around supervised passes from “medically necessary” to “for any purposes related to the accused's treatment plan and recovery”. This would allow for easier access to treatment-related visits.

Number three, eliminate retroactivity of the bill. Again, the purpose of the NCR designation is to provide treatment for the individuals so they may recover and successfully live life in the community with the appropriate supports and services. They are patients, not criminals.

If retroactivity continues to be the goal, then retroactivity may prevent a patient on conditional discharge and anyone moving toward discharge from reintegrating into society at the right time. Holding them longer than they need to stay when having responded successfully to treatment will not only hinder their care, it will mean the longer detainment is for punitive reasons and not to protect the public or better their mental health.

Number four, include the requirement for research to evaluate the impacts of the proposed changes. Too many people, such as Dr. Crocker, have expressed their concerns over the proposed changes. To encourage transparency and accountability, research should be conducted before the bill takes effect, and if the bill is passed, certainly research after the bill takes effect.

I want to conclude by asking you to give more credit to Canadians. They want an effective, recovery-oriented working mental health system. Most Canadians fully recognize that rushing this bill is in no one's best interest. They recognize that further shaping this bill by working in partnership with mental health organizations will not jeopardize their safety because certain high-profile NCR individuals are soon to be before the review board.

If these individuals are not fully ready to be reintegrated into society, the review board will not allow it. Please give greater credit to the review boards and the medical service providers—the professional experts. Evidence shows the work they do is producing successful results. Let's not interfere with this with a bill that will not render any positive results.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you, sir, for that presentation. Our next presenter, from the John Howard Society of Canada, is Catherine Latimer.

[Catherine Latimer, Executive Director, John Howard Society of Canada]

Thank you very much.

It's a great pleasure to be here today to talk to you about Bill C-54.

I'm speaking on behalf of the John Howard Society of Canada, which is a community-based charity committed to supporting effective, just, and humane responses to the causes and consequences of crime. The society has more than 60 front-line offices across the country, with programs and services that help to make communities safer.

You've already heard a number of witnesses who have parsed the content of Bill C-54 for you. I won't go into that in detail, except to say that the John Howard Society of Canada has no problems with the elements of the bill that are designed to assist victims, particularly in notification and providing no-contact orders. But as an evidence-based organization that is principally driven, we are unaware of any evidence suggesting that the existing review board procedures dealing with “not criminally responsible” are flawed. We would welcome seeing the basis for these proposed changes.

One of the key elements of a fair justice system is an ability to differentiate between the criminal and the medical dynamic in certain incidents. At the heart of fairness in the criminal law is that to be held responsible and liable to punishment, the perpetrator must not only do the act, but must also have criminal capacity, that is, to have understood the nature and consequences of the behaviour and to have appreciated that it was wrong. Factors such as mental illness, brain injury, and age can render a person incapable of having the necessary criminal intent, and therefore the person is not blameworthy or punishable for the act.

Many people, when they see a horrific act done by someone who is later found not to be criminally responsible, continue to refer to it as being a crime. It is a tragedy, but it doesn't hit the Criminal Code standard of being a crime because the perpetrator is not criminally responsible.

We are very concerned to make sure that those who have committed acts and are found NCR and no longer a danger to the public are not punished but are treated and reintegrated safely back into the community. The treatment and release regime in this area is delivered with much greater success than the treatment, release, and rehabilitation regime of the criminal justice system generally in terms of reduction in recidivism.

I had the benefit of reading the Canadian Bar Association's brief. We are very supportive of their charter jurisprudence dealing with the mentally ill accused and some of the issues that they raised. Our concerns are concentrated on two fronts. One is the adverse impact on the NCR regime. Our first concern is the high-risk designation under proposed paragraph 672.64(1)(b), which allows there to be a designation of high risk based on a single act. No matter how brutal, a single act is not an indicator of future risk. To impose additional restrictions on liberty based on this labelling is unfair and would likely violate section 7 of the charter and fail to meet a rational connection test under section 1.

Moreover, the high-risk designation and personal injury offence both could be based on psychological harm. To allow psychological harm as a trigger for a high-risk designation invites what the Supreme Court of Canada identified in Swain as “an irrational fear of the mentally ill” to influence the labelling and the treatment of the NCR.

The problem with the designation, and the regime that follows is it may be that people who can be quickly treated with psychotropic drugs and are able to be successfully and safely reintegrated into the community would have to wait an additional two years. Instead of the annual review, there would now be a three-year review. This would be an unfortunate and arbitrary detention of someone who does not need to be detained based on their mental health status.

Moreover, those designated as high risk who have permanent brain injuries and conditions that are not treatable, such as FASD and senile dementia, could be subject to indeterminate detention.

There are many community-based regimes which allow for people with certain brain injuries to function in a safe way in a community. It would avoid them taking up space in very expensive, highly limited forensic psychiatric institutions if there was some ability to look at their ability to be dealt with in the community in a safe way.

The regime really only has two categories: you're either in the regime or you're no longer designated high risk, and that presents another slight problem for us.

We also would prefer that the designation of high risk be done by the review board, rather than it being a judicial determination. The review boards are equipped with psychiatrists and the medical expertise to actually make a fair assessment as to whether or not someone constitutes a future risk. It would be beneficial to leave the expertise in the review board for that purpose.

The other concern of the John Howard Society is the adverse impact on the justice and correctional system and on scarce mental health resources. There is a legitimate concern that fewer mentally ill accused will raise an NCR defence. To get to the gate of a judge determining that you should be designated high risk, you would first have to be found to be NCR, which is usually a hearing which is kicked off by the accused or the accused's lawyer because they have identified certain psychiatric problems.

If they choose not to go with an NCR defence, it would be likely that they would be dealt with in the formal justice system, even though they may not have been capable of framing a criminal intent. The result would be that it would be unjust to punish them for an offence for which they lack the mens rea, but opted not to pursue an NCR defence because they did not want to be labelled with the high-risk designation and risk longer periods of confinement.

This could mean that more people with serious mental health conditions would end up in our corrections system, which is ill-equipped to address their needs. This is a high priority for many organizations, including the Correctional Service of Canada, to improve the capacity to deal with people who have serious mental illnesses and who are in the correctional system now. Adding to those numbers will make this challenge all the more difficult.

The other concern is with people who are designated as high risk and detained for longer periods in forensic psychiatric facilities. You're giving priority to people for scarce limited resources who may not pose the highest need or the most risk to the community, and most legitimately need that particular set of services.

In conclusion, the John Howard Society strongly supports the policy objective of limiting the harms caused by mental illness, both to the primary victims, those afflicted with the disease, and to others, including their family members.

Bill C-54, however, will not achieve that objective. It will impose labels inconsistent with therapeutic goals of treatment and public safety. It will remove therapeutic expertise by making the labelling and associated regime a judicial process or a judicial determination. It will require that limited psychiatric hospital space be allocated on the basis of the designation, and it will have the effect of compounding the serious challenges posed by those with mental health issues in the corrections system.

The real challenge for public safety is the number of inadequately treated prisoners with mental health issues who will be returning to communities. This is where as a society we need to marshal our efforts and our resources. The review board process for the NCR is working well and does not need, in our view, to be changed.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you for that presentation.

Our next presenter, as an individual, is Lori Triano-Antidormi, a psychologist, I believe.

[Dr. Lori Triano-Antidormi, Psychologist, As an Individual]

Thank you for the opportunity to speak before you today on Bill C-54.

I am a mother, a victim impacted by a crime committed by someone found NCR, and a practising psychologist.

l am the mother of Zachary Lawrence Antidormi. Zachary was murdered on March 27, 1997, at the age of two and a half. Zachary was playing with his best friend when our neighbour, Ms. Lucia Piovesan, came out of her house with a large kitchen knife tucked under her cape and stabbed my little Zachary 12 times. My beautiful Zachary died as a result of his injuries and, as you can imagine, my life was changed forever. I did not have my beautiful boy. I was rendered non-functional for almost a year, and people have now come to call me a bereaved mother and a victim.

Ms. Piovesan, who was 60 years old at the time of the act, suffered from a serious mental illness. She suffered from paranoid schizophrenia. Her delusions led her to believe that the spirit of her own dead son lived within my Zachary. She stabbed Zachary numerous times to release her son's spirit from Zachary. Ms. Piovesan was found not criminally responsible.

Ms. Piovesan had a history of erratic behaviour. Over the years, she had come in contact with hospitals, various doctors and psychiatrists, and the police, but she was never properly assessed or treated. We had called the police to our home more than a dozen times with the hope of having her apprehended and assessed. Ms. Piovesan's daughter also tried, without success, to have her mother apprehended, assessed, and put into treatment, but she, too, continually hit barriers.

Ms. Piovesan's daughter, as is true for much of the public, did not understand her mother's thinking or her mother's behaviour. She did not understand her mother's mental illness, and she did not appreciate the quality of her mother's delusional thinking. She tried to correct it and challenge it. In the end it was her mother's delusional thinking that formed the basis of her actions to murder my son to release the spirit of hers.

This year, on March 27, I was home from work owing to the fact that since Zachary's death, I have taken that day off, mainly for self-care. It was on March 27, 2013 that a verdict of not criminally responsible was reached in a tragic case in Ontario. It was determined that the individual who committed the crime suffers from a serious mental illness, and owing to the nature of his illness, he engaged in a behaviour that led to the death of another human being. The media coverage on this case and on Bill C-54 stirred feelings in me that surprised me, given their intensity. Given the intensity of these feelings, I felt compelled to explore them further.

Bill C-54 stirs in me feelings of upset in that the bill is very stigmatizing and punitive and does not reflect an accurate understanding of serious mental illness. The creation of a high-risk category based on brutality of the crime, for example, is not founded in any evidence. Brutality of the crime does not determine risk. Drawing attention to the brutality of the crime serves, instead, to perpetuate a myth that people with mental illness are violent. Further, lengthening the review from one year to three years for the high-risk accused is, in my opinion, punitive, not rehabilitative.

l do not understand how this bill will accomplish what it claims to be one of its main goals, namely, to enhance public safety. It is my understanding and experience that the review boards, which review cases annually and determine the level of security for those found NCR, work very hard to balance public safety with the rights of those with mental illness, and their efforts seem to be working.

My family was not protected. The lack of protection was not, however, due to flaws in current NCR legislation, but to a mental health system that is not working and has many gaps. Bill C-54 would not have protected my family, but an improved mental health system might have.

As already stated, the current NCR legislation appears to be working, with recidivism rates of NCR accused lower than those of persons found criminally responsible and managed by the corrections system. I find myself repeatedly asking, “Why target individuals after their crime is committed rather than directing more attention to preventing such crimes in the first place?”

When I read about the high-profile NCR case in the paper and learned that people had noticed the mental health of this individual deteriorating, and that he attended a walk-in clinic just a day before the killing with his main presenting complaint related to his thinking, I could not help but wonder what happened at that walk-in clinic.

Disordered thinking is a main characteristic of schizophrenia and this man was seeking assistance given his disordered thinking. Why was he not admitted for further assessment and treatment of his complaints and psychiatric status? Would it have taken too much time and effort? Were there no psychiatric beds available? Did the attending physician carry out a proper assessment? Did he have the knowledge to make an accurate diagnosis, or did he consider a referral? I can't help but ask, as I did some 16 years ago, did a faulty mental health system fail the families of the victim and the individual who committed the crime due to his mental illness? We must remember both families are victims.

Bill C-54 seeks—it claims—to protect the public and support victims. The mental health community supports the amendments related to victims' involvement. To this end, I can say that as a victim, I have been treated with respect and consideration. No one is arguing against the amendments pertaining to victims' involvement. Other components of the bill, however, are ill-informed and not evidence-based. As I have already indicated, they are stigmatizing and punitive and lead the public to believe that people with mental illness commit these acts because of ill intent created out of a sound mind. It is the mental illness that leads to the act.

Understanding Zachary's murder was not easy for me even as a psychologist. Understanding mental illness is complicated, and for victims such as myself, there is a strong need to hold someone accountable for the murder of their loved ones. The “lock 'em up and throw away the key” approach, however, has a vengeful nature and points the finger in the wrong direction. It does not reflect any attempt to understand the complexity of mental illness. Until the government directs its efforts at improving the mental health system versus creating a bill like Bill C-54 which will not protect Canadians, we are no better off.

Zachary was murdered over 16 years ago. Over these years, I strongly hoped our government would take leadership in helping people with mental illness so they would never get to the point of committing a crime. Instead, Canadians are presented with a bill that will not protect the public or help prevent a crime committed by someone with a mental illness.

As a victim, I ask this government to work with both the mental health community and victims to create a bill that will actually be effective in enhancing public safety rather than one that will only negatively impact people with mental illness.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you very much for your presentation.

We'll go to questions now. Our first questioner, from the New Democratic Party, is Mr. Mai.

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

Thank you, Mr. Chair.

Thank you to all the witnesses for being here and especially, thank you, Dr. Triano-Antidormi. I'll let Mr. Marston ask some questions later, but I just wanted to say how lucid your testimony was. I really appreciate it.

I'll start with Dr. Summerville. You mentioned that nine other organizations were not consulted. I think what we heard from all the witnesses here is that this bill is not evidence-based in terms of how they put things forward.

Can you talk to me about which organizations were not consulted, and maybe why?

[Chris Summerville]

The organizations were the Canadian Psychiatric Association, the Canadian Psychological Association, the Canadian Mental Health Association, the Mood Disorders Society of Canada, the Canadian Association of Social Workers, the Canadian Association for Suicide Prevention, the National Network for Mental Health, the Centre for Addiction and Mental Health, and the Schizophrenia Society of Canada. Furthermore, the 19 members of CAMIMH, the Canadian Alliance on Mental Illness and Mental Health, of which all of these are members, were not consulted either.

I cannot tell you why the federal minister did not consult with us.

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

When we look at a bill that technically deals with mental illness, this is what it's all about. We've talked about crime. We've talked about public safety which is obviously very important. We've also spoken about victims. When we talk about what's happening here, it's mental illness.

Dr. Latimer, can you talk to us a little bit more about consultation? I'll ask Dr. Summerville to also talk about why it is important for us to have consultations, especially when we deal with a bill like this.