An Act to amend the Criminal Code (mental disorder) and to make consequential amendments to other Acts

This bill was last introduced in the 37th Parliament, 3rd Session, which ended in May 2004.

Sponsor

Irwin Cotler  Liberal

Status

Not active, as of May 3, 2004
(This bill did not become law.)

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Criminal CodeGovernment Orders

May 12th, 2004 / 4:25 p.m.
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Anjou—Rivière-Des-Prairies Québec

Liberal

Yvon Charbonneau LiberalParliamentary Secretary to the Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness (Emergency Preparedness)

Mr. Speaker, I am very pleased to rise to recommend that Bill C-35 be referred to a committee, as suggested by my colleagues. I think that all the parties in the House support the national DNA data bank and want to make it a tool that is as effective as possible to implement the act.

As hon. members know, DNA evidence has had what some are calling a revolutionary impact on the legal system. Canada can be proud of its DNA data bank. Indeed, our country is a world leader in this area and it has developed methods to protect privacy which, apparently, are being copied all over the world. However, while the DNA data bank is a success, it must be recognized that some difficulties have been encountered when using it, and the implementation of the act has also run into problems in court.

As hon. members know, the legislation that initially established the DNA data bank provided for a parliamentary review within five years of the coming into effect of this measure, that is by June 30, 2005. This is why I think the government acted responsibly by introducing Bill C-35 at this point in time. Indeed, we do not know when the review will actually begin and, more importantly, when it will be completed.

The problems that we are trying to solve with this legislation were raised by the Uniform Law Conference of Canada, by the provincial governments, which deal with the overwhelming majority of cases involving a DNA data bank order, and by the RCMP, which is responsible for the bank.

Every year, the criminal justice section of the Uniform Law Conference of Canada brings together federal and provincial government officials and also defence counsel to discuss various resolutions on changes to the Criminal Code and other acts relating to criminal law.

In August 2001, the criminal law section of the Uniform Law Conference of Canada adopted a number of resolutions that called on the Department of Justice to consider, in consultation with the provinces, the territories and other interested stakeholders, amendments relating to the scope and application of the DNA data bank legislation in the Criminal Code. In particular, it recommended that seven issues be addressed on a priority basis. Subsequently, these proposed amendments were studied thoroughly by the Department of Justice, particularly during its legislative consultations in the fall of 2002. The amendments were discussed with the provinces and they urged the federal government to make the changes.I am pleased to advise the House that all seven of the priority items have been addressed in Bill C-35.

The bill will make significant amendments to the DNA Identification Act which governs the operation of the DNA data bank. While these changes are important, I will restrict my remarks to the main proposals for change in the Criminal Code, which, in my view, are the most significant: the inclusion of the offences of indecent assault female, indecent assault male and gross indecency in the list of designated offences and the list of sexual offences.

Moreover, there are persons who should be in the DNA data bank as a result of having committed a series of these offences prior to the legislation coming into force. The Criminal Code does allow for persons convicted of two or more sexual offences to be sampled so this change to the definition of sexual offence will allow the Crown to apply to a judge to have them included.

The Uniform Law Conference and the provinces also proposed the inclusion of those individuals found not criminally responsible by reason of mental disorder within the DNA data bank scheme. We currently have in the House Bill C-29 which proposes important changes to the provisions of the Criminal Code dealing with the mentally disordered offender.

While those accused are not convicted of the crime, the court has found beyond a reasonable doubt that they have in fact done the act that constitutes the physical element of the offence. While they should not be sentenced to jail, it is clear they may be very dangerous. They are therefore put under the jurisdiction of a provincial review board. By making it possible for a judge to order that they DNA profiles be included in the DNA data bank, we may be solving crimes that they committed in the past. More importantly, if they should be released and commit a crime where they leave their DNA, we may solve that crime.

Members should remember, however, that having their DNA in the data bank could be a benefit to a mentally disordered offender who has been released into the community. These offenders are likely to be suspects, but if their DNA does not match the DNA from the crime scene, the police will know they are innocent.

The bill also contains a process, which the Criminal Law Section and the provinces wanted, for compelling the offender to attend in court at a hearing to determine whether a DNA data bank order should be made. Usually, this hearing takes place as part of sentencing, but there are occasions where the parties are not ready and the matter should be set over to another date. The bill contains a provision which ensures that the judge retains jurisdiction to order the person to show up for the hearing and, if the person does not show up, for a warrant for the person's arrest to be issued.

The Criminal Law Section and the provinces also recommended creating a process that would permit a judge to make, upon request, a second DNA data bank order, where the national DNA data bank has declined to process the first one because of police error in completing the forms that must accompany the bodily substances submitted for analysis.

The Criminal Code contains a provision permitting such a second sample if, for some reason, a DNA profile cannot be derived from the bodily substance. It is entirely appropriate if there has been a clerical error, for example in mixing up bar codes making identification of the offender impossible, that it should be possible to seek another order. Again, this bill will make this possible.

The provinces also wanted a mechanism to require the offender to appear for the purpose of providing a DNA sample. The law, as it currently stands, only makes provision for the DNA sample to be taken when the order is made. This has proven to be impractical. The police simply cannot have trained personnel in every criminal courtroom in the land. It is far more practical for the court to order the person to go to the police station at a fixed time. The bill provides for such an order and enables the judge to issue an arrest warrant, where necessary.

The bill also proposes changes in the list of designated offences covered by the DNA data scheme. Probably the most important additions to the list will be uttering threats and criminal harassment. As these will be secondary offences, the crown will have to apply for the order. People who engage in these activities present an elevated risk of subsequent violence, particularly to the victim of the offence. Having their DNA in the data bank may assist in deterring them.

The bill also proposes to move robbery and break and enter into a dwelling house from the list of secondary designated offences to the list of primary designated offences. This should increase the likelihood that a court would make a DNA data bank order in the case of these very serious offences.

I believe this review of the highlights of Bill C-35 shows clearly how important it will be in promoting the safety of the public and how it responds to the suggestions made by the provinces.

Of course, identical changes are being made in the National Defence Act to ensure that the military justice system remains consistent with the Criminal Code.

The sooner that review begins, the better. Therefore, I urge members to send Bill C-35 to committee.

Criminal CodeGovernment Orders

May 3rd, 2004 / 3:05 p.m.
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Liberal

Don Boudria Liberal Glengarry—Prescott—Russell, ON

Mr. Speaker, I will only take a few minutes to conclude the debate on the bill which was before the House prior to oral question period. I simply want to say that I support the government bill we are debating today, namely Bill C-29.

This morning, on several occasions, our colleagues asked us to support the proposed amendments to the Criminal Code. Just before oral question period, one of our colleagues concluded his remarks on the bill regarding mental disorder. Later today, we will have the opportunity, I guess, to pass the bill either unanimously or through a recorded division.

The bill is entitled an act to amend the Criminal code (mental disorder) and to make consequential amendments to other acts. Some of the amendments were necessary, as you know, because certain acts that have been in force for a number of years have become obsolete or have never been used. And some were never promulgated even though they received the royal assent.

The department saw fit to take these housekeeping measures last spring. I was the Leader of the Government in the House of Commons when I first became aware of the bill. Unfortunately, its formal introduction in the House of Commons was delayed.

At that time, there were several justice bills before the House, which limited the amount of time we had to review it. Fortunately we now have a bit more time, so that members in the House can review it today.

I join all those, on this side of the House at least, who have indicated their support for Bill C-29 earlier today. I know that we will vote on it later today. Thus, since I will probably be the last one to speak on the bill, it will be put to a vote so that it can be referred to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.

Finally, I hope that the parliamentary committee will have the time, despite its very busy schedule, to study it very soon and to send it back to the House, so that we can proceed to its final adoption soon and refer it to the other house.

I conclude my comments by adding that I still support the bill.

Criminal CodeGovernment Orders

May 3rd, 2004 / 1:40 p.m.
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Liberal

John Maloney Liberal Erie—Lincoln, ON

Mr. Speaker, it is my pleasure to rise today and speak in support of Bill C-29, an act to amend the Criminal Code with regard to mental disorder. This bill seeks to make a range of improvements to the law governing those found unfit to stand trial and those found not criminally responsible on account of mental disorder.

I will be focusing my remarks on the provisions of Bill C-29 that seek to repeal provisions of the Criminal Code that in fact were never proclaimed in force.

Hon. members may be curious why it is even worth mentioning, since the repeal of unproclaimed provisions merely clarifies the status quo. It is true that the repeal of the unproclaimed provisions will not change the applicable law. However, these provisions are worth noting because the repeal reflects the government's belief that these provisions are not needed and will not be needed in the future. The repeal will bring certainty and clarity to those who may hold out hope for these old provisions, which we now agree do not reflect the goals of the regime governing mentally disordered accused.

Bill C-29 will repeal three provisions of the 1991 amending act that were never proclaimed. They are: capping, the dangerous mentally disordered accused, and the hospital order provisions.

Capping provisions were originally designed to ensure that the supervision of those found not criminally responsible would not be longer than the maximum sentence available through a criminal conviction. The maximum period or “caps” would depend on the offence committed and would range from life to two years or less.

Capping provisions were included as part of the 1992 reforms. The initial postponement in proclamation was necessary to permit a review of all persons held under a Lieutenant-Governor's warrant to determine whether they should be subject to an increased cap. The delay was also intended to allow the provinces to make necessary amendments to their mental health legislation to ensure that those discharged after a cap would be subject to such legislation where necessary. However, provincial mental health law is not designed to supervise potentially dangerous persons and amendments were not pursued.

The standing committee has called for the repeal of the capping provisions. The current regime, in the absence of capping, provides the appropriate balance between the accused's rights and the public's right to safety.

Several accused persons have appealed their dispositions, arguing that if they had been convicted they would have served a short sentence. The Supreme Court of Canada has clearly established that sentences for convicted offenders should not be compared with dispositions imposed where an accused is found not criminally responsible on account of mental disorder.

Accused persons found not criminally responsible on account of mental disorder are not punished. Rather, they are assessed, treated and supervised until they can be absolutely discharged. The absolute discharge may be appropriate soon after the verdict or years later, depending on the accused's mental condition and the risk to public safety. The nature of the offence may have no bearing on a disposition for those not criminally responsible on account of mental disorder. Capping should therefore be repealed once and for all.

The dangerous mentally disordered accused provisions were linked to the capping concept. They too should be and will be repealed. The DMDA provisions would have enabled the prosecutor to apply to the court after a finding of not criminally responsible, but before any disposition is made, to make a finding that the accused is a dangerous mentally disordered accused. The criteria and procedure parallel the dangerous offender provisions that apply to sane convicted offenders. The court could have then increased a 10 year cap to a maximum of life, but only for serious personal injury offences, including various sexual and violent offences. However, the provisions were very narrow in application and would have permitted an extended cap for only some offences.

The DMDA provisions and capping provisions are interdependent and are therefore being repealed together. The repeal of capping and the related DMDA provisions, coupled with the amendments to better protect the rights of criminally unfit accused, will continue to reflect the goals of our criminal law, including that of protecting the public.

The hospital order provisions would have applied to convicted offenders, not those found not criminally responsible on account of mental disorder. These provisions are also proposed for repeal. Hospital orders were intended to provide a mechanism for short term treatment of a convicted offender who at the time of sentencing was in an acute phase of a mental disorder and in urgent need of treatment to prevent further mental deterioration. An offender meeting this criterion would be sent to a psychiatric facility for a period of up to 60 days rather than being jailed.

The provisions are being repealed because there is a general view among stakeholders that the current system can accomplish the intended purpose of hospital orders without a statutory provision. In addition, the code provisions were too narrow in their application to address the nature and range of mental disorder present in the convicted offender population. Proclamation of the hospital order provisions would not address the larger problem.

The repeal of these provisions reflects the government's commitment to fair and effective laws that are clear and up to date. I encourage all members to support Bill C-29.

Criminal CodeGovernment Orders

May 3rd, 2004 / 1:30 p.m.
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Liberal

Sarmite Bulte Liberal Parkdale—High Park, ON

Mr. Speaker, it is my pleasure today to speak in support of Bill C-29 and to encourage all members of the House to support these reforms following the proposed review by the appropriate parliamentary committee. The need for these reforms are known to the hon. members who have participated in the review by the Standing Committee on Justice and Human Rights on the mental disorder provisions of the Criminal Code.

The criminal law governing persons found not criminally responsible on account of mental disorder and those found unfit to stand trial is not well known and in fact, is often misunderstood. Some may think that a person who commits an offence and is found not criminally responsible gets away with the crime. Some may think that there are in fact no consequences. However the law governing persons found unfit and not criminally responsible on account of mental disorder does provide for consequences. Usually those include treatment and also supervision.

The Criminal Code contains a whole section, part XX.1, dedicated to mental disorder. This part includes the law and procedure governing persons found not criminally responsible on account of mental disorder and now are found unfit for trial. Part XX.1 is complex and in parts is very technical. However this part of the Criminal Code provides a regime that fairly and effectively provides for the supervision and treatment of a mentally disordered accused and for the protection of public safety.

For victims of crime, the criminal law and the criminal justice system is confusing, complex and often quite unwelcoming. Where the accused is found unfit to stand trial or not criminally responsible on account of mental disorder, victims of crime face additional impediments to achieving a resolution of the offence. Victims of crime desire and deserve information about the justice system and about the case in which they are personally involved.

Law reforms coupled with changes in policies and expansion of services have given victims a greater role in criminal proceedings. For example, amendments to the Criminal Code back in 1988 introduced the notion of a victim impact statement as a mechanism for victims of crime to describe the harm and loss suffered because of the crime. Publication bans to protect the identity of sexual assault victims were also enacted in 1988. Subsequent amendments to the Criminal Code over the last 15 years have enhanced the role of victims of crime while respecting the rights of accused persons.

In response to the 1998 report of the Standing Committee on Justice and Human Rights, “Victims' Rights--A Voice, Not a Veto”, the government enacted a package of reforms to the Criminal Code in 1999 to, among other things, ensure that victims were made aware of the opportunity to submit a victim impact statement; ensure that the safety of the victim was considered in judicial interim release decisions; fix the amount and clarify the automatic imposition of a victim surcharge; and allow judges a discretion to order a publication ban on the identity of any victim or witness where necessary for the proper administration of justice.

The 1999 amendments also provided for a victim impact statement to be prepared and submitted to the court or review board at a disposition hearing for an accused found not criminally responsible on account of mental disorder. The court or review board is required to consider the statement in determining the appropriate disposition or conditions of a disposition “to the extent the statement is relevant to its consideration as a criteria set out in section 672.54”.

The victim impact statement is provided for in subsection 672.5(14) which states:

A victim of the offence may prepare and file with the court or review board a written statement describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

When an accused person is found not criminally responsible on account of mental disorder, the review board will decide how the accused is to be supervised. Victims of crime have been overlooked in many cases and receive little information about what will happen next, or whether they will have any role or access to any information.

The amendments included in Bill C-29 will enhance the role of victims of crime where the accused has been found not criminally responsible, but the new provisions for victims fully respect the differences between the laws that govern persons who are criminally responsible and convicted and those who are not criminally responsible.

The accused found not criminally responsible on account of mental disorder is not held accountable for his or her conduct. The appropriate disposition must take into account several factors, including the need to protect the public, the mental condition of the accused, and the reintegration of the accused into society.

The impact of the crime on the victim may be relevant to only some of the criteria. Where the court or review board is considering a conditional discharge, the victim's statement may be relevant to the crafting of particular conditions: for example, that the accused not contact the victim or that the accused not go certain places.

It should be noted again that the administration of justice is a matter of provincial responsibility. The provision of victims services as part of the administration of justice is also a matter of provincial responsibility. The provision of victim impact statement forms, assistance in preparing the statements, and the collection and submission of the statements to the Crown or the court are generally handled by the provinces' victims services programs, whether police based, court based or community based.

The standing committee recommended that courts or review boards conducting a review notify the victim where the victim has indicated interest in receiving such notification. It should be noted that after the initial disposition a review hearing would be held at least every 12 months. Review board administration varies from jurisdiction to jurisdiction and the capacity to advise victims as to the dates of review board hearings, locations, adjournments and outcomes will necessarily vary.

While similar provisions have been crafted to require a court conducting a disposition hearing pursuant to section 672.45, or a review board conducting a disposition hearing pursuant to section 672.47, to inquire of the Crown or the victim whether the victim has been advised of the opportunity to prepare a statement, other non-legislative initiatives are required to inform victims of crime about the provisions of the code which apply to them and about the relevant dates of proceedings, the terms of a disposition and other essential information.

In order to enhance the role of victims of crime, Bill C-29 includes the following provisions.

First, victims will be permitted to orally present their victim impact statement at the review board hearing. The statement would be prepared in advance and the victim could read it aloud or, in some cases, present it in another manner.

Second, following delivery of the verdict of not criminally responsible on account of mental disorder, the court or the review board chairperson must inquire whether the victim has been made aware that he or she indeed can submit a victim impact statement.

Third, the initial disposition hearing can be adjourned to permit the victim to prepare a victim impact statement if he or she so desires.

Finally, review boards will have new powers to impose a publication ban on the identity of victims and witnesses where such production is necessary for the proper administration of justice.

To the greatest extent possible, Bill C-29 includes provisions for victims which parallel Criminal Code provisions that apply where the accused is convicted and sentenced. The government places a high priority on addressing the concerns of victims of crime. The Bill C-29 amendments are a contribution of the evolution in our justice system that recognizes the role of the victims of crime.

I would also highlight the exceptional efforts of victims services agencies and both police based and court based services that are primarily provincial responsibilities. The Criminal Code cannot legislate all that is needed by victims. Provincial legislation governs services, and provinces are responsible for the administration of justice.

The standing committee, in its consideration of the mental disorder law, highlighted that victims of crime should receive notice of hearing dates, notices of disposition and information about the terms and conditions. There is no doubt that victims need all this information and even more.

Bill C-29 is a positive step for victims and that, I hope, will encourage our provincial counterparts to complement this legislation to address these information requirements.

In conclusion, I would encourage all hon. members to support Bill C-29. These amendments in fact provide greater protection for mentally disordered accused persons and, most important, a greater role for victims of crime in our society.

Criminal CodeGovernment Orders

May 3rd, 2004 / 1:20 p.m.
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Liberal

Paul MacKlin Liberal Northumberland, ON

Mr. Speaker, it is my pleasure today to speak in support of Bill C-29, which is an act to amend the Criminal Code. It deals with the issue of mental disorder.

The current motion seeks to refer the bill to committee for review now. I am confident that all members should be able to support this motion.

As the Parliamentary Secretary to the Minister of Justice indicated on April 28, Bill C-29 is to a great extent the product of a study conducted by the Standing Committee on Justice and Human Rights, as it was then known. That committee recommended improvements to the criminal law governing persons found unfit to stand trial, or not criminally responsible on account of mental disorder.

The committee review will likely focus on how Bill C-29 responds to the issues that were raised before that standing committee by the many witnesses that it heard. Bill C-29 responds to those issues and includes additional amendments to ensure an effective, efficient and fair regime. There are a few aspects of Bill C-29 that I would draw to the attention of hon. members.

First, in dealing with persons found unfit to stand trial, under the current law a person found unfit to stand trial cannot be absolutely discharged. The law governing mental disorder requires an individual assessment of an accused to ensure that both the needs of the accused for treatment and rehabilitation and the need of the public for public safety are taken into account. An unfit accused person cannot be absolutely discharged because there has been no opportunity for the Crown to establish that they have committed an offence. However, the unfit accused who does not pose a risk can be placed on a conditional disposition with minimal restrictions, if appropriate.

Many persons found unfit will become fit through treatment and once fit, will proceed to trial. Some others will not become fit for years, or perhaps they will never become fit, and cannot be tried. Our law already includes many safeguards for this group.

Bill C-29 will provide an additional safeguard to ensure that persons found unfit to stand trial who are likely to remain unfit and who do not pose a significant threat to the safety of the public can have their situation reviewed by the court. The court, and only the court, will have the authority to order a judicial stay of the proceedings for the unfit accused.

I want to assure hon. members who have voiced their concerns about public safety that the government shares their concerns about public safety. Bill C-29 has been very carefully drafted to protect public safety. A judicial stay of proceedings for an unfit accused will not be an option where the accused poses a threat to public safety.

The amendments include new provisions to ensure that an unfit accused who is not likely to ever become fit to stand trial, for example, a person who has an organic brain injury, and who does not pose a significant threat to the safety of the public may be brought to the court's attention.

A review board will be able to make a recommendation to the court to hold an inquiry into the status of the unfit accused where, in their opinion, and based on an assessment, the accused is not likely to ever be fit to stand trial and does not pose a significant threat to the safety of the public.

The court may hold an inquiry, hear from all parties, particularly the Crown, and determine whether a judicial stay of proceedings should be ordered in the interests of the proper administration of justice. The court will consider several factors in deciding whether to order a stay, including whether the Crown has had an opportunity to make its prima facie case against the accused, as it is required to do every two years. This is the current requirement in our law, that the Crown does establish that sufficient evidence can be brought forward to put the accused on trial.

The proposed amendments will address the situation of the permanently unfit accused who poses no risk and will permit the court to order a stay of proceedings. However, an unfit accused who poses a risk to safety cannot--I repeat cannot--be granted such a stay. Our law must ensure that the rights of the accused and the rights of the public to safety are balanced. The proposed amendments will do so.

Bill C-29 sets out a very detailed scheme to permit a judicial stay for an unfit accused. First, the review board, after holding one or more annual review hearings for an unfit accused, must come to the opinion that the unfit accused is not likely to become fit and that the unfit accused does not pose a significant threat to the safety of the public. The review board can order that the accused person's mental condition be assessed by a psychiatrist to assist the board in making this recommendation.

The review board then may make a recommendation to the court to hold a hearing to determine whether a judicial stay of proceedings is in the interest of the proper administration of justice. Where the court agrees to hold such a hearing, the hearing will provide opportunities to all parties to make their submissions. The Crown, who represents the public interest, could make submissions on the nature of the case against the accused, public safety and the mental condition of the accused. The accused and the treating hospital or physician could also make submissions.

I would also highlight that where the court agrees to hold a hearing, the court must order yet another assessment of the mental condition of the accused. This requirement will ensure the court has the most up to date information about the accused when determining, first, that the accused is not likely to become fit to stand trial, and second, that the accused does not pose a significant threat to the safety of the public.

Ultimately, the court must decide whether the judicial stay of proceedings is necessary in the interest of the proper administration of justice. Bill C-29 sets out several factors for the court to consider in this process, including the nature and the seriousness of the offence committed. This new provision will address the concern that some people could be caught up in the criminal justice system because they are mentally ill, although they pose no threat to public safety.

Our law cannot permit the potential indefinite detention of persons who have not been tried and convicted. Bill C-29 provides a carefully crafted approach to prevent this indefinite detention, but only for those who do not pose a significant threat to the safety of the public.

I have one final point regarding the new provision. Where the court orders a judicial stay of proceedings for an unfit accused, the Crown may appeal the order. However, there is no right of appeal for the accused where the court does not order a judicial stay. This is because this is a discretionary provision. It is not a process that the accused can initiate. The review board must make a recommendation to the court and the court will then consider the issue.

In conclusion, I hope that my comments have addressed any concerns hon. members may have. I have highlighted why this new provision is necessary. Bill C-29 includes many reforms, all designed to address the balance between protecting the rights of the accused persons who are mentally ill with the rights of the public to public safety. Clearly, we have struggled with this issue over time. There is no question that this has challenged us, the judiciary and our social services within this country to properly deal with issues of this nature. I know that many hon. members have struggled with this, both here in the House and also at committee, to try to find ways and means to meet the needs of those who are mentally ill and yet face the justice system.

Clearly, from the perspective of those who are caught in what is sometimes described as a revolving door problem, there has to be a way to assess their ability to recover from their illness, to go forward and to face the charges that have been brought to bear within the court system.

As far as I am concerned, the bill moves forward the process of being able to deal with those who are mentally ill and find themselves before our criminal courts. I hope that hon. members will find that, in going forward to the committee, the bill will receive proper and due consideration and will come forward to the House for passage so that we may solve this problem.

Criminal CodeGovernment Orders

May 3rd, 2004 / 1:10 p.m.
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NDP

Wendy Lill NDP Dartmouth, NS

Mr. Speaker, it is a pleasure to speak to Bill C-29. I want to begin by saying we would like to see the bill returned to committee for further study.

The bill deals with accused who are basically unfit for trial, although it took a lot of reading to figure that out. I am not a lawyer and I do not think Parliament should be writing legislation that only lawyers can decipher. My colleague, the justice critic for the NDP, has put forward a bill asking for plain language policies in the House and in the drafting of our legislation.

Just very briefly, this is one of the most complex pieces of legislation before the House, mostly because of the intricate obtuse language in which it is written. The justice committee will need some time to review the bill to ensure that the offenders described in it do not lose the rights other offenders enjoy simply because they suffer from mental illness. It is a major concern because these are often the offenders who do not have adequate access to justice. I will borrow some information from my colleague from Regina—Qu'Appelle who has studied this problem in detail. Section 15 of the Canadian Charter of Rights and Freedoms states that:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination....

Imagine that the rights conferred by the Charter of Rights and Freedoms were only available if they were affordable. Imagine if our rights to life, liberty and security were available only if we were sufficiently wealthy to secure them for ourselves. What if the right to have a court proceeding translated into a language that we understand were violated because the government stance is that only those who can afford to hire their own translators can enjoy these rights? What if our right to be fairly represented by counsel amounted to nothing more than our ability or inability to hire the best lawyer we could afford?

Naturally these requirements sound absurd, and so they should. Each of these situations is a violation in and of itself that no court of law should be allowed to tolerate. Luckily for Canadians the charter does not guarantee the rights and freedoms set out subject only to how much we could afford, at least not in theory. That is because the charter forms part of the Constitution, making it inviolable and uninfringeable. Truly it is the supreme law of Canada. Accordingly to this, then, none of the above mentioned absurdities could be allowed to arise or persist.

As with many things, that which is true in theory often fails to translate into truth in practice. In practice, the absurdities mentioned above represent realities for many Canadians who come into contact with the justice system. The reality is that governments at both the provincial and federal levels are currently subjecting our rights to their affordability.

This has been allowed to happen because disparities across the provinces, stemming directly from funding problems, are compromising our right to equal protection and benefit under the law. It is about time we actually practise what we codify as law. Pretty words will get chucked at the Bar and justice will too if we do not take action to restore accessible and affordable legal services across the provinces and territories.

Justice should not and cannot continue to be limited only to the rich and well off. If our legal system does not reflect that point, we run the risk of losing the validity of one of the most important pillars of a democratic society. The Constitution does not simply say that all Canadians are equal under the law. It also says that Canadians have the right to equal protection and equal benefit under the law.

Can it be said that a person who has a public defender appointed to them enjoys the same protection and benefit of the law as the defender who assembles a team of high profile lawyers? I would say not. It cannot be said that a person in British Columbia who is denied legal aid with their child custody and support claim receives the same protection and benefit of the law as the person in Manitoba, where those services are offered by legal aid. Nor can one pretend that the law offers equal protection and benefits to everyone when some people are forced to sacrifice more than others in order to have equal access to the courts. This, however, is a reality in Canada for far too many Canadians.

Therefore, this is what we believe needs to be done. First, we need to standardize legal aid coverage across the provinces. Differences between the provinces means differences between Canadians. Disparities in services mean that the likelihood of obtaining justice is dependent more on the administration of the law rather than the law itself.

If a service is offered in any of the provinces or territories, it should be available and in every other province and territory. This is not to say that legal aid has to cover every matter, but it does rightly require that a legal service provided for Canadians in one region be provided in every region, as provided for under the charter.

We believe also that we need to standardize legal aid eligibility across the provinces. To illustrate the disparities or arguably the injustices in legal aid, by way of example, assume that a Canadian earns $20,000 a year. If that Canadian lived in British Columbia or Manitoba where the financial eligibility criteria is capped at $23,000 and $27,000 respectively, they would be eligible for free legal services. If, however, the same Canadian lived in either Ontario or Quebec where the cap is $15,000 and $17,500 respectively, they would be denied these essential and otherwise unaffordable services. Therefore, access to the legal system should not be denied to Canadians based on their incomes.

We also need to revise the financial evaluation process so that it recognizes that families have priorities other than just paying to obtain justice, such as keeping their families fed and housed. Current guidelines for financial evaluation set aside a modest exemption for personal assets. After that, however, governments expect legal costs to be paid out of personal assets, such as one's bank account, car, RRSP or home.

Can it still be considered justice if a family is successful in their legal battle but has done so by losing their home, their vehicle or their retirement savings? Obviously not. That is why guidelines need to be more equitable and sensitive to an applicant's responsibility to feed, clothe and shelter their families.

For most Canadians, the barriers to obtaining justice is the sheer cost of legal services provided by lawyers. Rather than have the public engage the legal profession in an adversarial debate over how much lawyers should earn or what their services are worth, it should be recognized that the government and the legal profession are in the position to enter into a mutually beneficial relationship with the goal of providing the public with valuable services.

It is time to provide tuition credits as well for law school students. One way to provide more affordable, accessible counsel would be to increase the numbers of lawyers available. To this end, the government must recognize the increasing cost of law school and should explore the possibility of providing tuition credits or refunds to law school students who enter practice after graduation.

It is also time to provide tax incentives for pro bono work. In the interests of providing a greater number of lawyers to those who cannot afford it, the government should provide lawyers with greater incentives to represent those with lower incomes on a pro bono basis. This could be achieved by something as simple as a tax incentive or rebate for those lawyers who engage clients in the type of work.

Unless I have misread the charter, I thought the rights and freedoms of Canadians went far beyond provincial jurisdiction and I did not think we had to shell out our savings simply to look after inequitable legal costs in various provinces and not in others.

In closing, the NDP supports having this bill sent to committee for further study and further improvement, and we look forward to being involved in that process.

Criminal CodeGovernment Orders

April 29th, 2004 / 5:25 p.m.
See context

Bloc

Benoît Sauvageau Bloc Repentigny, QC

Mr. Speaker, I thank the whip for having corrected this small error on our part.

I was saying that people might be surprised to see the Bloc Quebecois supporting a government bill. When it is a good piece of legislation that needs no changes because it is done properly, we can support it.

The Bloc Quebecois is in favour of the principle of Bill C-29, however we must ensure that the proposed amendments will effectively protect the rights of people suffering from mental illness, while protecting society.

To do this, we must understand why the federal government did not adopt all the recommendations of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.

At this point, I want to make a comment and propose that the government, through its committee on the democratic deficit, consider what happens to unanimous committee reports. We are talking about addressing the democratic deficit and increasing the role and responsibilities of members in the House; all too often, unanimous reports are written and voted on after the committee has heard from numerous witnesses and often after the members have travelled across Canada to consult lobbyists and the public.

This afternoon, we were discussing the budget for the committee dealing with prebudget consultations. After spending $100,000, $200,000 or $500,000, after working on a report for one, two or six months, when all the parties recognize that the recommendations are supported unanimously, why is the government all too often taking this committee report and shelving it? In this case, I think that the recommendations are almost totally supported.

However, I am talking in general terms, but, in the committee study on the democratic deficit, I think that we should focus on the use that we are making or not making of unanimous reports of the House. I believe this is like when there is a vote on a motion where two-thirds of members in the House are in favour—such as the motion on the Armenian genocide—and the government says: “We will not change our position on this situation or issue”. The democratic deficit is there and can be corrected. I will now return to Bill C-29 to give a little background.

On March 29, the Minister of Justice introduced BillC-29, an act to amend the Criminal Code (mental disorder) and to make consequential amendments to other acts in the House of Commons. The purpose of this bill is to modernize the Criminal Code provisions respecting persons not criminally responsible or found unfit to stand trial on account of mental disorder. This bill is in response to the recommendations made by the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, which examined the Criminal Code provisions relating to mental disorder in a report tabled in the House of Commons on June 10, 2002.

At the time, the Bloc did not produce a dissenting report. In conclusion, I want to recognize the enormous work done by the member for Charlesbourg—Jacques-Cartier on the issues examined by the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness and, among others, on Bill C-29.

Criminal CodeGovernment Orders

April 29th, 2004 / 5:25 p.m.
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Bloc

Benoît Sauvageau Bloc Repentigny, QC

Mr. Speaker, I too am pleased to rise on behalf of my party to speak to Bill C-29. I will say right away that the Bloc Quebecois supports Bill C-29.

Often people who listen to us, even the Conservatives, believe that the Bloc Quebecois, being in the opposition, is always opposed to everything coming from the Liberal Party or the government. Today we are proving it is not so.

Criminal CodeGovernment Orders

April 29th, 2004 / 5:15 p.m.
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Canadian Alliance

Vic Toews Canadian Alliance Provencher, MB

Mr. Speaker, I would like to add my comments to this very important bill. The stated purpose of the bill is to modernize the mental disorder provisions of the Criminal Code to make it both fairer and efficient while preserving the overall framework of these provisions.

In June 2002 the standing committee tabled its report, calling for legislative reforms and looking at Department of Justice consultations on the mental disorder provisions of the Criminal Code. The extensive committee review that was conducted was as a result of the statutory requirement under Bill C-30, which had been introduced in 1991, after many years of consultation.

The report that was put forward in 2002 was approved by all parties. In fact the results of this review is an important example of how committees, when they are focused on the issue rather than politics, can work in a cooperative fashion. This report is a demonstration of that.

Bill C-30 had a significant reform provision relating to persons not considered criminally responsible. That bill replaced references to terms such as “natural imbecility” or “disease of the mind” with the term “mental disorder”. It extended its application to cover summary convictions for less serious offences as well. Instead of being found not guilty by reason of insanity, an accused could now be held not criminally responsible on account of mental disorder.

Such a finding no longer resulted in an automatic period in custody. That automatic period of custody was found to be unconstitutional in the Swain decision in 1991. Instead the court could choose an appropriate disposition or indeed defer the decision to a review board.

Furthermore, under that provision, the courts and the review boards were obliged to impose the least restrictive disposition necessary having regard to the goal of public safety, the mental condition of the accused and the goal of his or her reintegration into society.

Bill C-30 came into force in February 1992. The proclamation was delayed for three major initiatives. First was the capping provision that was referred to earlier. Second was the dangerously mental disordered accused provisions that would allow the courts to extend the cap to a life term. The third was the hospital orders provisions for convicted offenders who at the time of sentencing were in need of treatment for a mental disorder.

This bill takes into account the recommendations of the justice committee of June 2002. Bill C-29 addresses six key areas. These are all issues that were thoroughly considered by the committee. I understand that these are not necessarily exactly the way the committee has recommended them and that is why the committee will no doubt examine very carefully what has been put into the bill.

However, indeed the amendments address six key areas: first, the expansion of the review board powers; second, permitting the court to order a stay of proceedings for permanently unfit accused; third, allowing victim impact statements to be read; fourth, the repeal of unproclaimed provisions; fifth, streamlining of transfer provisions between provinces; and sixth, the expansion of police powers to enforce dispositions and assessment orders.

A couple of concerns have been raised with respect to some of these key areas, for example, the allowing of victim impact statements to be read.

In the case of a criminal trial where a person has been found guilty the concerns of the victim of course are very relevant. They are necessary in the sentencing provision to determine whether the impact on the victim should also be reflected in the sentencing.

Here we are dealing with a substantively different situation because we are not looking at the guilty mind of an accused. We are dealing with a mentally disordered person. We therefore have to be careful how we use these victim impact statements in this context. I think it is important for victims to have a voice but we have to remember that this does not form exactly the same role that it does in a criminal trial where a criminal may not express any regret after having been convicted and it is important for the victim to have his or her say in that context.

The streamlining of the transfer provisions between provinces is another issue. It is important that there be the appropriate consent of the jurisdiction to which the individual is being transferred. I understand the bill attempts to ensure that there is the appropriate consent in that context.

The repeal of the unproclaimed capping provisions and the like are important. Why were concerns raised over these sentencing provisions? They were raised because it seemed that where a person was found mentally disordered, the period of incarceration could be a lot longer than a comparable sentence in the criminal courts. Somehow there was a suggestion that maybe it would be unfair to have a mentally disordered person subject to a longer period of custody than someone who had been in fact convicted of a criminal offence.

Here again is the difference in the intent. With the criminal conviction, obviously punishment is a key goal of the criminal justice system, as well as rehabilitation. When we talk in the mentally disordered context, we are not talking punishment. We are not talking about rehabilitation in the same way where there is a cognitive element in terms of rehabilitating an accused. In the mentally disordered context we are trying to deal with the health of the individual. Therefore if it takes longer to help the person, so be it. The capping provision is simply not appropriate.

The Supreme Court of Canada ruled in the Winko decision that a potentially indefinite period of supervision of a mentally disordered person was not unconstitutional since it was not for the purposes of punishment. However there is the review process that provides a mentally disordered person with some safeguards.

On the issue of the stay of proceedings for the permanently unfit accused, there is some concern related to how the safety of the public can be guaranteed. I look forward to that particular discussion at the committee, because even if the person is not personally responsible for his or her actions because of the mental disorder, there is still an onus on society to ensure that the individual does not cause further damage to his or her fellow citizens.

As I indicated, the objectives of the bill are generally consistent with the recommendations of the June 2002 committee report, a report which members of both the former Canadian Alliance and the Progressive Conservative Parties approved. I look forward to having the discussion in committee.

Criminal CodeGovernment Orders

April 29th, 2004 / 5:05 p.m.
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London West Ontario

Liberal

Sue Barnes LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, I am pleased to rise today to speak on Bill C-29, an act to amend the Criminal Code (mental disorder) and to make consequential amendments to other acts.

Bill C-29 proposes a range of reforms to the provisions of the criminal law to govern persons found unfit to stand trial and not criminally responsible on account of mental disorder.

Before highlighting the key features of the bill, I would like to provide members of the House some background, or history, of these provisions.

It is a longstanding principle of our criminal law that persons who suffer from mental disorder and do not understand the nature and quality of their acts or know that they are wrong should not be held criminally responsible. In 1991 Parliament made significant reforms to modernize the law that governed persons found not guilty by reason of insanity. The 1991 reforms reflected the need to balance the rights of the mentally ill and also to balance this with the protection of public safety.

The reforms included in Bill C-29 share the same goals as the 1991 reforms, to further modernize the law and to effectively balance the rights of the mentally ill who come into conflict with the law with the public's right to safety.

It is also worth noting that the 1991 amendments called for a parliamentary review of the legislation five years after proclamation. The Standing Committee on Justice and Human Rights conducted a comprehensive review of the legislation in the spring 2002. The committee received submissions and heard testimony from over 30 stakeholders, including members of the Bar, crown attorneys, psychiatric hospital administrators, review board chairpersons, service providers and mental health advocates.

It is fair to say that, in general, witnesses appearing before the committee agreed that the legislation was working very well. However, they noted that further refinements would ensure that the law continued to work very well to govern persons found unfit to stand trial and not criminally responsible on account of mental disorder.

In June 2002, the Standing Committee on Justice and Human Rights tabled its report and made recommendations calling for both legislative reform and other initiatives. Its report explains why reforms are needed and in some cases proposes a specific amendment.

The standing committee report included 19 recommendations. The key recommendations for Criminal Code reform called for, and this is in no particular order: the repeal of parts of the 1991 regime that were never proclaimed into forced, including the capping provisions that would have set the maximum time limit on the supervision or detention of the accused; streamlining the transfer of accused persons between provinces and territories; new provisions to deal with persons who are permanently unfit to stand trial; and enhanced protections for the victims of crime who attend review board hearings, for example, publication bans on their identity in appropriate circumstances and the opportunity to prepare a victim impact statement.

The committee also made recommendations calling for more indepth research and consultation on emerging issues, such as the appropriate standard to determine fitness to stand trial and whether professionals, other than psychiatrists, should conduct assessments.

The need to consult with provincial and territorial ministers of health was also recommended to review the resources available to meet the needs of the mentally disordered accused, and the availability of facilities for youth. This is very serious.

The standing committee should be commended for its thorough review of the mental disorder provisions. Bill C-29 reflects the advice and guidance provided by the committee and all of those who appeared before the committee.

Bill C-29 includes reforms that respond to the issues raised by the committee. In some cases the amendment is not exactly as the committee proposed. I am sure the committee will agree, following its consideration of Bill C-29, that its key recommendations have been addressed.

Bill C-29 also includes reforms that the committee did not specifically recommend, but that complement the committee's recommendations and also reflect issues raised in the case law, and also through very important consultations conducted by the Department of Justice with key stakeholders over the past 10 years.

The key features of Bill C-29 provide new powers for review boards that have been established in each province and territory to make key decisions governing mentally disordered and unfit accused. For example, review boards would be able to order an assessment of the mental condition of the accused to assist them in making the appropriate disposition. Victim impact statements could be read aloud by victims at review board hearings. The bill would be streamline transfer provisions to permit the safe and efficient transfer of a person found not criminally responsible on account of mental disorder or unfit from one province or territory to another. Courts would have new authority to determine whether a judicial stay of proceedings should be ordered for a permanently unfit accused who did not pose a significant threat to the safety of the public.

More options are in the bill for police to enforce disposition and assessment orders that take into account the need for the accused person's treatment to continue. The provisions of the 1991 law that were never proclaimed will be repealed; capping and the related dangerous mentally disordered accused provisions and the hospital orders provision. Also, there are a range of clarifying and procedural amendments to ensure the effective application of the goals of the law.

This bill is not a whole scale reform of the law. Rather, the bill is the next step in ensuring that our laws are effective, efficient and fair in governing mentally disordered accused.

This is a very complex area of the law. However, make no mistake, these reforms are necessary. The provisions of the code have remained the same since 1991, but the case law has evolved, as has the application of the code. The Supreme Court of Canada has stated in several recent cases, including Winko and Tulikorpi, that the code regime has two goals: protection of the rights of the mentally disordered accused and protection of public safety. Punishment is not one of the goals. As I indicated earlier, our law does not hold the mentally disordered accused criminally responsible.

I look forward to the prompt consideration of this bill by a committee of the House. It is my hope that the committee will support these amendments and see their hard work reflected in the bill. Very good work has been done by the committee before. The ultimate goal is the speedy passage of any of these bills by the House. I hope all members will support the amendments.

I thank the House for the opportunity to start the discussion. I know we will have important discussion on the bill. While this gets ready to go to committee, we can have more indepth discussion at committee. I thank all the members of the House for their consideration.

Criminal CodeGovernment Orders

April 29th, 2004 / 5:05 p.m.
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Westmount—Ville-Marie Québec

Liberal

Lucienne Robillard Liberalfor the Minister of Justice and Attorney General of Canada

moved:

That Bill C-29, an act to amend the Criminal Code (mental disorder) and to make consequential amendments to other acts,be referred forthwith to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.

First Nations Fiscal and Statistical Management ActGovernment Orders

April 29th, 2004 / 5:05 p.m.
See context

Some hon. members

Agreed.

(Bill C-29. On the Order: Government Orders)

March 29, 2004--the Minister of Justice and Attorney General of Canada--Second reading and reference to the Standing Committee on Justice, Human Rights, public Safety and Emergency Preparedness of Bill C-29, an act to amend the Criminal Code (mental disorder) and to make consequential amendments to other acts.

Business of the HouseOral Question Period

April 29th, 2004 / 3:05 p.m.
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Brossard—La Prairie Québec

Liberal

Jacques Saada LiberalLeader of the Government in the House of Commons and Minister responsible for Democratic Reform

Mr. Speaker, it is a great pleasure for me to reassure my colleague and Canadians that we are working on a number of bills.

We will proceed this afternoon with third reading of Bill C-9, an act to amend the Patent Act and the Food and Drugs Act (The Jean Chrétien Pledge to Africa). This bill, which we introduced and which is now at third reading, makes it possible for us to send pharmaceutical products to help countries in Africa.

This will be followed by third reading stage of Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.

Then we will move on to report stage of Bill C-23, an act to provide for real property taxation powers of first nations, to create a First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority and First Nations Statistical Institute and to make consequential amendments to other Acts.

This will be followed by the debates on the motions for referral to committee before second reading of Bill C-29 and Bill C-32. I would like to point out that it is as part of our democratic reform that we are now regularly referring bills to committees before second reading, to allow them to review the legislation.

Therefore, before second reading, we will refer Bill C-29, an act to amend the Criminal Code (mental disorder) and to make consequential amendments to other Acts, and Bill C-32, an act to amend the Criminal Code (drugs and impaired driving) and to make related and consequential amendments to other Acts. We know that Canadians really want us to deal with the issue of impaired driving.

Of course, we will deal with third reading of Bill C-10, an act to amend the Contraventions Act and the Controlled Drugs and Substances Act.

This is for today. We may not have time to finish everything, because there is a lot to do. In any case, tomorrow we will deal with report stage and, if possible, with third reading of Bill C-30, an act to implement certain provisions of the budget tabled in Parliament on March 23, 2004.

Then, we will undertake our review of Bill C-28, an act to amend the Canada National Parks Act.

Of course, next week we will continue with any unfinished business.

Incidentally, Thursday of next week, May 6, will be an allotted day. I would suggest that hon. members get a good rest, because there is still a lot of work to do.

Business of the HouseOral Question Period

April 22nd, 2004 / 3 p.m.
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Brossard—La Prairie Québec

Liberal

Jacques Saada LiberalLeader of the Government in the House of Commons and Minister responsible for Democratic Reform

Mr. Speaker, this afternoon, tomorrow and Monday, we will continue with the business listed, namely third reading stage of Bill C-11, an act to give effect to the Westbank First Nation Self-Government Agreement, this reading of Bill C-12, an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, third reading of Bill C-15, an act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences and third reading of Bill C-10, an act to amend the Contraventions Act and the Controlled Drugs and Substances Act.

We will also continue with the report stage of Bill C-23, an act to provide for real property taxation powers of first nations, to create a First Nations Tax Commission, First Nations Financial Management Board, First Nations Finance Authority and First Nations Statistical Institute and to make consequential amendments to other acts, as well as debate on the motion to refer committee before second reading Bill C-29, an act to amend the Criminal Code (mental disorder) and to make consequential amendments to other acts.

Tuesday shall be an allotted day.

On Wednesday, we hope to be in a position to take up the final stages of Bill C-9, an act to amend the Patent Act and the Food and Drugs Act. I understand that there are some discussions under way that could make it possible to deal with this bill a bit earlier. The government would be prepared to cooperate with any such desire.

I hope that my colleague across the way, and all of his colleagues, are in excellent shape, because we have a lot on our plate.

Criminal CodeRoutine Proceedings

March 29th, 2004 / 3 p.m.
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Mount Royal Québec

Liberal

Irwin Cotler LiberalMinister of Justice

moved for leave to introduce Bill C-29, an act to amend the Criminal Code (mental disorder) and to make consequential amendments to other acts.

(Motions deemed adopted, bill read the first time and printed)