Justice Committee on June 5th, 2013

[Kyle Seeback, Conservative, Brampton West, ON]

One of the comments that you made at this committee today is that this legislation will cause people who have a high-risk designation to go to jail, or there's an increased likelihood that they will be put in jail. What section did you find that in?

[Dr. J. Paul Fedoroff]

That's my prediction based on the fact that the criminal justice system will now have to do extra things such as designate someone as high risk and deal with changes in status.

[Kyle Seeback, Conservative, Brampton West, ON]

Well, the legislation says the exact opposite, and I quote, “If the court finds the accused to be a high-risk accused, the court shall make a disposition under paragraph 672.54(c)...”, and that paragraph says, “...by order, direct that the accused person be detained in custody in a hospital...”.

A hospital is not jail.

[Dr. J. Paul Fedoroff]

In order to make that designation, the court is going to have to come to a determination that the person is high risk.

[Kyle Seeback, Conservative, Brampton West, ON]

Right, and then send them to a hospital.

[Dr. J. Paul Fedoroff]

Right, but before they get to a hospital, they will be in a jail.

[Kyle Seeback, Conservative, Brampton West, ON]

If that were true, that would not change the system as it currently exists.

The other comment that you're making, in that this is going to increase because there's not going to be treatment, I also find that to not make sense or jibe with the legislation. The legislation is quite clear regarding a person under proposed subsection 672.84(1). It states, “if it is satisfied that there is not a substantial likelihood that the accused—whether found to be a high-risk...”.

If a review board says that they don't think the person is going to be high risk anymore and then gets sent to a court and the court agrees, then that person goes back to the conditions under the review board which could be supervised release, but it's only when they are not considered to be a risk to the public.

I don't see how you see that as saying the person is not going to be treated, or treated less fairly. It combines the safety of the public with making sure the person gets treatment.

[Dr. J. Paul Fedoroff]

The reason I say that is that currently when a person is an NCR accused and they are put into a detention that is a psychiatric hospital, it's on the basis of their mental illness. This legislation will change that to being put into detention on the basis of the brutality of the crime.

[Kyle Seeback, Conservative, Brampton West, ON]

No. I'm going to disagree with you. That's not what the legislation says.

[The Chair, Conservative, Mike Wallace]

Thank you for the questions and answers.

I want to thank our panel for sharing their personal stories today. It's very important for us to do that, and I know it was very hard for you.

I also want to thank you, Mr. Fedoroff. You were up against the witnesses who have very personal stories. Thank you very much for your evidence this afternoon.

We're going to suspend to move from one panel to the next.

[The Chair, Conservative, Mike Wallace]

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

We're on our second panel. With us today we have Kim Pate from the Elizabeth Fry Society of Canada. From the Criminal Lawyers' Association, we have Paul Burstein and Erin Dann. From the Canadian Bar Association, we have David Parry and Terry Hancock.

Each organization has 10 minutes. We'll go by the listing on our order paper. Our first presenter will be Kim Pate from the Elizabeth Fry Society of Canada.

[Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies]

Thank you very much for the opportunity to appear before the committee.

I attend on behalf of the Canadian Association of Elizabeth Fry Societies, an association of 26 members who work with and on behalf of marginalized, victimized, criminalized, and institutionalized women and girls throughout the country. As many of you know, we provide services that range from early intervention for those who have been victimized right through to and including prison resettlement and after-care programs. My presentation will be very brief.

While the legislation provides an opportunity to shine a light on a very important issue, an issue that is underscored by some horrible tragedies that have been experienced by Canadians, the reality is that beyond that, there is a consensus that applying a new label of “high risk” will not be particularly helpful, and that unless there are additional resources to ensure there are supports in place to assist individuals who are given that label, they will likely end up with an unnecessarily long period of being incarcerated, or institutionalized—my apologies—in centres that will not necessarily be able to provide the sort of treatment that needs to be provided to individuals who have been labelled “not criminally responsible”.

We would hate to see a return to the asylums of the past or to institutionalized settings in which people remain for very long periods with limited review processes and few opportunities to access the treatment they require. We think it has implications for many others who might not necessarily be labelled as not criminally responsible, but might be identified as high risk.

I have several examples of those, and I'd be happy to talk more about that in answer to questions. That in sum is our submission.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you very much for that presentation. Our next presenter is the Criminal Lawyers' Association.

Mr. Burstein.

[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.

[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.

[The Chair, Conservative, Mike Wallace]

Ms. Dann, thank you very much.

Our final presenter for this panel is the Canadian Bar Association. Madam Hancock is giving the presentation.

The floor is yours.

[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.

[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.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Thank you for those presentations.

We are going to move to questioning now. I will remind my committee members that it's five minutes.

Mr. Jacob.

[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?

[Paul Burstein]

The problem with trying to do something for victims of mentally ill persons or mentally disordered offenders is that they start being victims long before an actual offence has been committed. If you look at the Crocker study, the vast majority of actual victims, that is the people who suffer physical harm in the sense that we understand a crime to be, are close family members or persons known to the mentally disordered person.

More importantly, I can guarantee, and I speak from experience as a criminal defence lawyer.... As I said before, I don't like doing this, but obviously the personal experience here has some bearing. As a parent, you're a victim in just having to deal with a loved one who is suffering, who acts out, who won't do what you want them to, even though you know it's in their best interest. For any number of reasons, they won't listen. The problem is that there just aren't enough resources in the community.

We're not here to blame the federal government. Health isn't your primary role; we understand that. But there's a shortage of money in the system, both in terms of the forensic system and the civil mental health system, and it just all gets backed up. It's all connected. If there's not enough resources in the civil mental health system—you've already heard this from other people—then the jails become the mental health facility.

You don't need the words on paper that this legislation represents. It is most certainly a laudable objective that you want to prevent crime, that you want to help victims avoid being victims, but this isn't going to do very much to do that. That is why we say you need to focus on the front end, which unfortunately is going to require a financial commitment more than just a legislative commitment.

That's what we would say.

[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?

[Kim Pate]

I am sorry, but I will speak in English.

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

No problem, go ahead.

[Kim Pate]

Unfortunately, I can't see any manner in which this would assist victims to have monetary or psychological support.

I would echo the comments of my colleagues on the panel and my own comments at the beginning, that really what we need to be seeing is more resources placed into health services. While I recognize that because of the division of powers this is not the jurisdiction of the federal government per se, through the transfer of tax dollars and the creation of health guidelines we could be seeing those supports.

Following the recommendations of the Mental Health Commission, as well as of many professionals in all the evidence that will likely be put forward and that has already been put before this committee, as well as the evidence that is out there, what we need is a resourcing of what Senator Kirby, as he then was, called the “poor cousin” of health care in this country, which is mental health care.

I'm sure there isn't one person in this room who doesn't have experience of a family member with mental health issues. As someone who has had to resort to using committal procedures for family in the past, I can say that it's certainly not something any of us wants to do. But one of the most problematic components of using those provisions is the lack of resources, once you get the person into the system.

I would urge that at every level there be a commitment to address these issues for victims, for those individuals who have mental health issues for which they are declared not criminally responsible, and for many more with whom I am vastly more familiar than those who have been declared not criminally responsible, who are in the prison system with mental health issues and who require support so that they do not end up in isolated conditions.