Justice Committee on June 12th, 2013

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

I'm glad you've brought up the three years, sir, because you actually have, under the current Criminal Code, in section 672.81(1.2):(1.2) Despite subsection (1), at the conclusion of a hearing under this section the Review Board may, after making a disposition, extend the time for holding a subsequent hearing under this section to a maximum of twenty-four months if (a) the accused has been found not criminally responsible for a serious personal injury offence;

So right now you have that authority. This would just allow an extra 50% of what is currently mandated. It's up to but does not necessarily negate the flexibility of a review board. Again, it's up to 36 months.

Could you just state that—that there's currently a 24-month timeframe that you can extend up to 36 months?

[The Chair, Conservative, Mike Wallace]

I'd like you to leave him a chance to answer. Your time is going to be up in a few seconds.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Thank you, Mr. Chair.

[Bernd Walter]

There are so many questions there, I don't know how to answer other than to comment on the section you read to me about those very restricted times when a person can actually go out. For three years there's no less restriction on somebody's liberty. So they're not tested the way they currently are, and we're saying that spectre will cause people to avoid the NCR verdict and opt for a brief jail time as opposed to getting treatment.

[The Chair, Conservative, Mike Wallace]

That's your time, sir.

Thank you, Mr. Albas.

Thank you, witnesses, for your presentations.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I was invited by the committee. Am I allowed to ask any questions?

[The Chair, Conservative, Mike Wallace]

I'll explain it to you.

The answer is no. The invitation was for you to sit and listen to the witnesses as an independent. If an independent wishes to ask a question of a witness within the timeframe, a party that has standing can give its time to you, or a motion can be passed by the committee to give you time. I obviously will respect the will of the committee, but in this case that did not happen in this first hour.

So thank you, witnesses, for coming, and we will suspend for two minutes while we get the next panel in place.

[The Chair, Conservative, Mike Wallace]

I'd like to call this meeting back to order. It's our second panel.

While the panel is getting set up, I will let just let you know, as I'm sure members are aware, that the bells will start ringing at five o'clock. Our tradition during this study is to continue to sit through the bells.

My goal is that each group will get 10 minutes. We'll get through that and then we'll have to break to go and vote. It will take about eight or nine minutes to actually vote and get back here. Then we'll do one round of questions, as we have done with every panel.

If everybody is ready, our first panellist is Ms. Christine Russell, appearing as an individual.

Are you ready to go, Ms. Russell?

[Christine Russell, As an Individual]

Yes, absolutely.

[The Chair, Conservative, Mike Wallace]

You have 10 minutes.

[Christine Russell]

Thank you.

Bonjour. My name is Christine Russell. Exactly two and a half years ago, my husband, Toronto police sergeant Ryan Russell, was murdered. At 34 years of age, I became a widow. Our two-year-old son Nolan lost his dad, perhaps the biggest crime of all. I'm going to show you a picture of my husband Ryan.

On January 12, 2011, Ryan was on duty, doing what he loved most: serving and protecting the people of Toronto. That morning, a man named Richard Kachkar stole a snowplow and went on a rampage. Richard Kachkar deliberately aimed the snowplow at Ryan and his police cruiser and drove into him. Ryan was dressed in full police uniform, and his police car was marked and had the lights flashing.

Ryan was killed in the line of duty. He was left to die alone on Avenue Road, while Kachkar drove off, continuing his acts of violence. When the snowplow was finally stopped by the emergency task force, Kachkar attempted to continue driving. Police tasers did not stop him. The only thing that stopped him that morning was being shot. This is how dangerous and violent Kachkar is.

Richard Kachkar's actions that day have led me here to speak to you about my loss and my experience, the impact this has had on me and my family, and the legal process concerning a verdict of not criminally responsible.

My husband Ryan was murdered. I was told this in the hospital, without any friends or family at my side. I was not allowed to touch Ryan, as his body was a crime scene. My family was immediately thrown into the public spotlight, and they continue to be. My life was in chaos, as I had to plan a funeral and handle all of the affairs. I did not return to work, as I had to care for my own well-being and for our two-year-old son, who is now growing up without a father. My life was put on hold in waiting for the trial to begin. It consumed me and caused me to grieve again.

On February 4, 2013, Richard Kachkar's first-degree murder trial began. Throughout the seven-week trial, the life of the accused was in the forefront. I had to endure hearing my husband's voice for the very last time. The last words he ever spoke were: “He's coming at me, hold on.” Painfully, I had to view the dashboard video of the crash, and I had to bear the graphic description of his severe injuries and relive these moments as they were replayed in the media.

On March 27, 2013, the jury found Richard Kachkar not criminally responsible for murdering my husband. Kachkar was 44 years old when he killed my husband. He had no history of mental illness and no diagnosis of mental health issues, yet there he was, not criminally responsible for murder.

Digesting this verdict has been very difficult. A verdict of not criminally responsible has far too many loose ends. There are no set guidelines or terms, no punishment, no accountability, and no criminal record.

Thirty days after Richard Kachkar was found not criminally responsible, he came before the Ontario Review Board for his first review board hearing. We were told that there was an agreement between the Attorney General of Ontario and the Kachkar defence attorney. The joint submission provided that Kachkar be detained pursuant to a detention order in the secure forensic unit at the Ontario Shores Centre for Mental Health Sciences in Whitby, with only hospital and hospital grounds privileges. There were to be no privileges to enter into the community.

The considered joint submission of the crown and the defence acknowledged and recognized that Richard Kachkar was dangerous and that he represented a significant threat to public safety and required a psychiatric assessment and treatment in a secure detention setting. That would occur over the next 12 months before a different disposition could be considered, if at all, at his next review board hearing.

We were quite concerned that Kachkar, having murdered my husband, was being sent to a medium secure facility rather than the maximum secure facility in Penetanguishene. We were powerless to influence this. We had to accept this joint submission. We thought that, at the very least, spending a year at a maximum secure facility until the true nature and the degree of his mental illness were assessed made sense.

At the hearing, I, along with my parents, Ryan's dad, and a representative of the Toronto Police Service, was finally given an opportunity to read a victim impact statement. We were not permitted to read victim impact statements at the trial because of the verdict of not criminally responsible. All of our statements were scrutinized and edited before the hearing, so as not to offend Mr. Kachkar. It just added insult to injury to not be able to truly voice our hurt and our pain.

I was appalled that the board was entirely unaware of and insensitive to the expectation that I had to actually sit next to my husband's murderer, only two feet away, while delivering my victim impact statement. Review boards should be alert to this painful and extremely uncomfortable dynamic.

On April 29, 2013, the Ontario Review Board delivered its disposition. I was stunned to learn that the board went beyond the joint submission without once questioning or challenging the joint submission and without ever alerting counsel for the Attorney General that the board intended to give privileges that Kachkar did not ask for. The Attorney General of Ontario did not have the opportunity to address the public safety issues and call evidence on the issue.

Notwithstanding that, the board agreed that Richard Kachkar was dangerous and represented a significant threat to public safety; he suffered from a major mental illness, namely psychosis not otherwise specified; he was paranoid and likely schizophrenic; and his major illness was complex, with much remaining unknown.

At the sole discretion of hospital staff, the board authorized Kachkar to enter the community of Whitby, either escorted by hospital staff one on one or escorted by hospital staff with one or two staff for five patients. These are hospital staff, not security guards or armed guards. If Kachkar takes off, all they can do is call 911, and this is a man who could only be brought down by bullets when tasering failed.

This is an absolute insult to my husband, an insult to me and my family, an insult to the police community, and an insult to our public. This is precisely the nonsense that creates public cynicism and disrespect towards the administration of justice.

The crown is appealing the decision, but it does serve to illustrate a serious and systematic problem. There is no public trust or confidence in this review board system when the board feels free and unrestrained to do as it pleases. After only 30 days post-verdict for Richard Kachkar, the man who brutally murdered my husband, left my son without his dad, and shattered our lives forever, this review board put him on a fast track to being discharged without proper diagnosis or any understanding of his mental illness.

You all need to understand how critical and essential it is for victims to attend review board hearings and read our victim impact statements at each annual hearing, year after year. To do otherwise is to abandon our loved ones and risk that the review board process becomes an academic exercise.

Victim impact statements provide for a critical reality check. Perhaps my family will be spared the trauma of annual review board hearings, because the board may be intent on only a short period of detention—an injustice in and of itself—but the issue of yearly reviews needs to be addressed. The victims of these violent and destructive acts need to have rights, and need to stop being revictimized. Changes are necessary to restore a level of trust and confidence in our justice system.

Bill C-54 is a necessary step in the right direction, particularly with the new designation of a high-risk offender. As you know, not all offenders are the same. People who murder police officers are not your typical “not criminally responsible” offenders. They need to be treated differently. A heightened level of security and scrutiny is necessary. The time they spend in secure detention for assessment, evaluation, and treatment for their own good and for public safety must be proportionate to the severity and brutality of their crime.

My husband is dead, and my child is fatherless. Whether Richard Kachkar was sane or insane does not matter; it will never change that fact. Either way, he is dangerous. The public has the right to be protected and feel that it is being protected. Without these changes, the public confidence and respect for this process evaporates, and the system continues to fail.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you, Ms. Russell, for sharing your story with us.

Our next presenter is Mike McCormack from the Toronto Police Association.

You have 10 minutes, sir.

[Mike McCormack, President, Toronto Police Association]

Good afternoon, everybody.

My name is Mike McCormack. I'm the president of the Toronto Police Association, where I represent 8,000 members of the Toronto Police Service.

First of all, I'd like to thank the Standing Committee on Justice and Human Rights for the opportunity to address the committee and to voice my association's and my membership's support for the proposed amendments to Bill C-54.

Before I start, I'd just like to put into context some of my comments regarding my support and my association's support for this bill. I'm just giving you a little bit about my background so you understand where I'm coming from.

I've been a police officer for almost 30 years. I've worked in the most difficult communities in downtown Toronto. A large percentage of the people living in these communities are living with mental disorders. I know first-hand the difficulties that the mentally ill deal with on a day-to-day basis and the challenges that police officers face when we are responding to persons who have mental illness issues.

I worked in 51 Division for most of my policing career. I've worked closely with the community, responding to crime issues, including drug trafficking, prostitution, gang activity, violent street crime offences. As I said, this area is home to a large transient population, families living below the poverty line, and individuals and their families dealing with problems created by substance abuse and treated and untreated mental illnesses. We have numerous halfway houses, hostels, shelters, and the police work closely with this community and with our partners in responding to the community's needs.

As a police officer, I have been directly involved in responding to the needs of the mentally ill. My experiences range from assisting mentally ill people in acquiring basic needs, such as food or shelter, to arresting or being in violent confrontations with people who are mentally ill simply because they had no access to medication and have committed violent criminal offences in a psychotic rage.

I share this information with you just to give you some context of my support and my association's support for the proposed amendments to Bill C-54. I'm going to reiterate some of the stuff that Christine spoke about involving one of our members, Sergeant Ryan Russell, and an offence committed against him by a person suffering from a major mental disorder. This is the case of Richard Kachkar, and as I said, Sergeant Ryan Russell.

As you heard, on January 12, 2011, Ryan died in the line of duty. He was standing in uniform beside his police vehicle, emergency lights flashing, when Richard Kachkar murdered him. Mr. Kachkar was arrested, charged, as you heard, with first-degree murder in Sergeant Ryan Russell's death. During a highly publicized trial, the jury found Mr. Kachkar neither had the mental capacity to appreciate the nature of the act, nor did he know that the act was wrong, and he was found not criminally responsible.

The evidence that we heard at the trial confirmed that Mr. Kachkar suffered from a major mental illness at the time of Sergeant Russell's death and that he suffered from depression, schizophrenia, and he may have suffered from a personality disorder.

In February 2013, Prime Minister Stephen Harper announced the introduction of Bill C-54, the not criminally responsible reform act. It appeared to us that the primary objective of this bill is to ensure that public safety is and should be a priority in the decision-making process with respect to accused persons who are found not criminally responsible. This would be a way to enhance victim safety and promote greater victim involvement in the Criminal Code mental disorder process.

First of all, I'd like to say the police association supports the reforms that Bill C-54 will make and agrees that public safety is and should be the overriding consideration when decisions are made about persons found not criminally responsible by the courts. The public has a right to feel safe in their communities and to be protected against dangerous and violent offenders like Mr. Kachkar.

Second, the association supports a new high-risk “not criminally responsible” designation introduced by Bill C-54, which proposes to allow the courts to designate the most violent not criminally responsible offenders as high risk. The NCR defence is rarely used. It appears only in two out of every 1,000 criminal cases and is less commonly linked to violent offenders, who account for an estimated 10% of all NCR cases. The high-risk NCR designation would only apply to the small number of accused who have been found not criminally responsible and who pose a higher threat to public safety.

The Hon. Rob Nicholson provided some interesting facts in the House of Commons debate on March 1, 2013, about persons found not criminally responsible, when he stated that:

A little over 27% of individuals found not criminally responsible have had a past finding of not criminally responsible; 38% of those found not criminally responsible and accused of a sex offence had at least one prior NCR finding; 27% of those accused of attempted murder had at least one NCR finding; and, 19% of those accused of murder or homicide had at least one prior finding of not criminally responsible.

Under the proposed amendments to Bill C-54, high-risk offenders would not be discharged unless a court agreed to lift their high-risk designation, which we agree with; would be ineligible for unescorted passes into the community; and their mandatory review period could be extended from one year up to three years.

Having seen first-hand the revictimization of our victims going through this process year after year, we support all these amendments. The association endorses the enhancement of victim safety and victim involvement in the mental disorder process. This bill gives victims of crime a greater role by requiring that the courts and review boards consider the safety of the victim when they make decisions with respect to persons found NCR, and require the review board to notify the victim, upon request, if the accused person is to be released into the community.

I recently attended the ORB hearing with Christine and her family. I sat there for hours wondering what weight the victim impact statement currently had in this process, and I couldn't find any.

On April 29, 2013, after hearing his case, the review board ordered Mr. Kachkar to be sent to Ontario Shores Centre for Mental Health Sciences. This exposed serious systemic problems and serious flaws in the current review board system. The board was unanimous that Richard Kachkar suffered from serious mental illness and represented a significant threat to public safety. During the course of the hearing, a board psychiatrist asked Dr. Klassen, vice-president of medical affairs at Ontario Shores, why he was recommending putting Mr. Kachkar on anti-psychotic drugs at this time, 30 days after the NCR verdict, keeping in mind that this was not done in the previous two years that Mr. Kachkar was in custody, pending trial for Sergeant Russell's death.

In the absence of proper assessment, the review board gave the hospital—and this is key—the power to give Mr. Kachkar privileges in the community, escorted and accompanied by hospital staff. The hospital medical staff were going to be escorting this gentleman into the community if they felt they should do that—not security, not police.

The proposed legislation outlines that a high-risk NCR person would not be allowed to go into the community in this instance, and that they would not be able to go either unescorted or escorted, and only would be allowed in narrow circumstances, and subject—and this is key to us—to sufficient conditions to protect public safety.

What we found absolutely shocking was that these were conditions that Mr. Kachkar's counsel had not asked for, and they were granted without the understanding of the depth of his mental illness. He had not even been fully diagnosed. His mental health issues were major and he represented a significant threat to public safety, yet the ORB was going to allow him into the community.

Our concerns are that without discussion and without evidence, this is the way the board was behaving. He was going to be allowed back into the community in 30 days. In considering Bill C-54, we urge you to look at providing further statutory guidelines to the review board—the issues of public safety as well—guidelines that establish proper evidence-based balance between the need to protect the public and the requirement to treat people with mental illness who commit criminal offences.

The Toronto Police Association supports the initiatives reflected in Bill C-54. We are not insensitive to the difficulties of persons living with mental illnesses. We understand first-hand the devastating impact that mental illness has on the mentally ill, their families, their communities, and in this tragic case, Sergeant Ryan Russell, Christine, and her family, who became unwitting victims in this struggle with mental illness.

This bill does not target persons with mental disorders, those whose illnesses are non-threatening to others, nor does it seek to impose punitive consequences on persons found to be NCR due to mental illness. This bill speaks to the people who commit horrendous heinous crimes and who, like Mr. Kachkar, are found to be NCR.

We in the policing community are committed to protecting our communities. Our challenge is to find a way of reducing the potential for those found NCR to reoffend as well as to protect future victims.

As key stakeholders in the mental disorder regime, we want to ensure that people are taking their medications, that they do not have contact with victims, and that there is a support system in place to monitor mental health and reduce the likelihood of reoffending.

At least through the core process there should be an ability to impose conditions to assist in these protections—conditions that may include boundaries, living arrangements, participation in treatment plans, abstinence from illegal drugs and alcohol, and conditions to stay away from victims to prevent their revictimization.

[The Chair, Conservative, Mike Wallace]

Wrap up please, Mr. McCormack.

[Mike McCormack]

Under the current NCR there is no ability to impose these conditions upon release. The proposed reforms are designated to protect the community and to protect the person suffering from the mental disorder from themselves.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you, sir.

As you see, ladies and gentlemen of the committee, the bells are ringing. According to my BlackBerry time, they started ringing at 5:02. It is 5:10 now, so that's eight minutes. I need unanimous consent to continue. I would like to hear our final witness and then we can decide what we do after that.

Is that agreed?

[Some hon. members]

Agreed.

[The Chair, Conservative, Mike Wallace]

Very good.

Ms. Illingworth, you have 10 minutes. The floor is yours.

[Heidi Illingworth, Executive Director, Canadian Resource Centre for Victims of Crime]

Thank you.

I represent the Canadian Resource Centre for Victims of Crime and I'm grateful for the opportunity to appear before you this afternoon.

The CRCVC is a national, non-profit, non-government advocacy group for persons impacted by serious crime. We provide resources and emotional support to victims across the country, as well as advocating for public safety and improved services and rights for crime victims.

We are pleased to support Bill C-54 today. Our clientele includes families and individuals impacted by persons who have been found not criminally responsible. We remain very concerned about serious acts of violence committed by this small population of offenders and their lasting impacts on victims.

We believe mental illness should be treated as a medical and health issue outside of the criminal justice system, so that patients are stabilized and no longer suffer from symptoms. But we are particularly concerned with medication compliance and the ongoing community supervision of forensic mental health patients.

We support the amendment that would make public safety the paramount consideration by review boards in their decision-making process. Although there have been Supreme Court rulings in this matter, we understand the current approach basically balances four factors, namely the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society, and other needs of the accused.

We support the proposed reforms to codify the meaning of the phrase “significant threat to the safety of the public”, which is the test stated by the Criminal Code to determine whether the review board can maintain jurisdiction and continue to supervise a mentally disordered accused. Consistent with the Supreme Court of Canada’s interpretation, the phrase means a risk of physical or psychological harm to members of the public resulting from conduct that is criminal in nature, but not necessarily violent. The codification aims to ensure more consistency in the application of this test.

We are very supportive of the measures that will enhance victim safety and provide victims with opportunities for greater involvement under the Criminal Code mental disorder regime, namely, ensuring that they are notified, upon request, when the accused is discharged; allowing non-communication orders between the accused and the victim; and ensuring that the safety of the victims be considered when decisions are being made about an accused person.

We understand that currently there is not always consistent interpretation and application of the law across the country. We particularly want to ensure that the information needs of victims are met. This means that they are informed about the accused if they wish, as well as having their personal safety concerns heard and understood by review boards.

Given our work with family members across the country who've been impacted by NCR rulings, we want to reiterate what we hear from the victims themselves, which is that they do not want what happened to them or to their loved one to happen to anyone else. Public safety is their primary concern.

In the most horrific cases, where serious personal injury or death has occurred, victims are often very upset by the fact that the accused person was free in the community prior to their offence and had not received proper help and treatment for their mental illness. They deteriorated. They were unable to recognize the early symptoms of their deterioration, and they caused serious harm or took a life. Victims are fearful that this cycle will repeat itself, especially when it comes to ensuring that the offender will remain on their medication for the rest of their life.

We support the proposed high-risk designation, which would be applied where the accused person has been found NCR and there is substantial likelihood for further violence that would endanger the public, or in cases in which the acts are of such brutal nature as to indicate a risk of grave harm.

We support the fact that they would not be granted a conditional or absolute discharge, and that the designation could be revoked only by the court, following a recommendation by the review board. We understand that this would apply only to those found NCR and not to persons found unfit to stand trial.

Lastly, we feel this amendment would only apply in a very small handful of very serious cases across the country every year, and that is our interest in supporting it as well.

We furthermore agree with the proposed amendment that the review board may decide to extend. We support this. It's not that they must extend the review period for up to three years, but they can choose to.

Again, we're pleased to be here. We're pleased that this high-risk designation would not affect access to treatment by the accused, as has already been discussed.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you very much for your presentation.

It is now 5:15. My suggestion—I'd be happy to have input—is that we recess, go and vote, be back in our seats at perhaps 5:45, and do a round of questions then. It would be cutting it pretty close if we started now.

I know that some of you may have flights or something, but if you don't, great. If you can stay until 5:45, we'll be back for a round of questions.

Thank you very much.

With that, we will suspend.

[The Chair, Conservative, Mike Wallace]

Thank you very much. We're back in session now for this last round of questioning on this panel. Thank you to our witnesses for hanging around and waiting for us to come back. Our first questioner is from the New Democratic Party and it's Mr. Mai.

You have five minutes, sir.

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

Thank you, Mr. Chair.

Thank you, witnesses, for being here and especially thank you, Ms. Russell, for your testimony. I know it must be difficult, but it's really important for us to hear about it. Thank you for your courage and thank you for sharing.

My first question would be to you. In terms of knowing once the accused has come out, in terms of victims being informed, would it be important for victims to know where the accused lives?

[Christine Russell]

Absolutely. I find it very important. Right now he's being housed in a facility that is very close to where I live and where a lot of my friends are living and a lot of the police officers who work in Toronto live. It is a bit alarming that this person could be out walking around in the community where I and my son may be going.

I think it's very important to know, if that individual is released, what community they're going to be living in, not only for community members but for me and my family. I don't want my son, who's only four, to have to run into somebody who I've told him is in jail. I don't want to have to re-explain that.

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

Thank you.

Mr. McCormack, thank you for your work and thank you to all the police officers for being there. I think you mentioned it in your testimony, but I think it's important to really emphasize why you think it's important for the safety of the public to be a paramount consideration. We believe in public safety. Why is it also important for you that this be in the bill?

[Mike McCormack]

It's important twofold. Public safety should be overarching any type of legislation like this. This is what we're all about, protecting the public, and the public has a right to be protected. It's very important for victims to have that sense of protection and to have some meaning in this system. Quite frankly, as I said earlier, going through this with Christine and watching what was happening at the ORB hearing, I think the victim in the current situation is marginalized even further through the current process. Public safety is not of paramount importance in the current process.