Bill C-54 (Historical)

Not Criminally Responsible Reform Act

An Act to amend the Criminal Code and the National Defence Act (mental disorder)

This enactment amends the mental disorder regime in the Criminal Code and the National Defence Act to specify that the paramount consideration in the decision-making process is the safety of the public and to create a scheme for finding that certain persons who have been found not criminally responsible on account of mental disorder are high-risk accused. It also enhances the involvement of victims in the regime and makes procedural and technical amendments.

Not Criminally Responsible Reform Act

[Steven Fletcher, Conservative, Charleswood—St. James—Assiniboia, MB]

moved that the bill be read a third time and passed.

[Robert Goguen, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am pleased to participate in the debate in support of Bill C-54, the not criminally responsible reform act.

The bill would ensure the mental disorder regime under part XX.1 of the Criminal Code, which deals with persons found not criminally responsible, NCR, for their actions, would be mindful and responsive of the needs of victims. In my view, Bill C-54 would indeed reflect the voices of victims from across the country.

During the review of the bill, the Standing Committee for Justice and Human Rights received important submissions from several victims. In my remarks, I will be reviewing and reflecting on these submissions.

While the committee hearings demonstrated that victims had diverse perspectives about the NCR regime and even Bill C-54 itself, it was equally clear that the bill would address key concerns of victims and would include public safety, victim participation and the overall confidence and the administration of justice, while also respecting the rights of NCR accused.

On June 3, the justice committee heard from two victims who had lost loved ones due to tragic circumstances involving an NCR accused. These two brave women travelled to Ottawa to share their stories with the committee. They had experienced first hand the current way in which victims were dealt with following an NCR verdict and agreed that changes were necessary for the system.

One explained how members of the family had an encounter with the NRC accused who was involved in their case while out shopping in the community. She explained how this encounter had impacted her family and how the provisions of Bill C-54, with regard to the involvement and notification of victims, would go a long way in helping the victims.

Needless to say, she supported Bill C-54.

One of the core victim protections contained in the bill, the availability of no-contact orders, would help ensure that families like hers would have increased confidence in their safety as NCR accused were reintegrated into the community. No-contact orders, as proposed in clause 10 of the bill, can be imposed by either a court or a review board if it is desirable in the interests of security or safety of persons including victims.

These orders would prohibit an NCR accused from communicating directly, or indirectly, with victims or from going to specific places in the order, such as within the vicinity of the victim's residence. This is a targeted and important measure that should be supported.

The second victim who appeared at committee also expressed support for Bill C-54. She was very concerned that victims simply did not have enough information provided to them about the NCR accused, especially if the accused was released from secure custody.

In addition, she highlighted the importance of protecting the safety of the public through the NCR regime. She noted that while it was true that NCR accused were not criminals, in some cases, NCR accused did commit violent acts. There needs to be adequate safeguards in place to ensure that victims like her and her family, as well as the general public, are protected from such persons.

The availability of the “high-risk” designation in Bill C-54 would respond to this concern. Clause 12 of the bill proposes that where the court is satisfied there is a substantial likelihood that the accused will use violence that can endanger the life or safety of another person or where the court is of the opinion that the act constitutes the offence of such brutal nature as to indicate the risk of grave physical or psychological harm to another person, the court may designate an NCR accused as high risk.

The designation would increase the safeguards on that person to both ensure protection of the public safety and to ensure that the person would obtain the treatment that he or she would require to no longer present a threat to society. If treatment were successful and the risk was no longer present, Bill C-54 would require that designation be removed.

This provision is an appropriate response to address the concerns of these victims and will help ensure that the small number of NCR accused who pose such a high risk to the public safety will be subject to the appropriate and necessary restrictions on his or her liberty in order to protect the public.

I believe Bill C-54 maintains the crucial distinction between persons who are morally culpable for their conduct and found guilty and persons found NCR whose illness at the time of the offence rendered them incapable of appreciating the nature and quality of their actions or of knowing what they were doing was wrong.

The government also acknowledges that while providing mental health services generally falls within provincial and not federal jurisdiction, the government has taken concrete measures in this area. For example, it has increased transfer payments to these levels of government, through the Canada health and social transfer, and also has supported the creation of the Mental Health Commission of Canada to help combat the stigma of mental illness.

At its June 10 meeting, the justice committee had the opportunity to hear from more victims. One victim, speaking on behalf of her cousin, shared the heartbreaking story of her family's loss. No doubt, it was very difficult for her to make this presentation and one that was difficult for committee members to listen to.

But her insights were invaluable. She emphasized that the current process of annual review hearings of an NCR accused disposition has had the effect of re-victimizing her family. In particular, the annual review hearing process for assessing the disposition of an NCR accused, at least in serious cases such as her family's where the underlying act was the killing of three children, has made it more difficult to heal. Every time her cousin, the mother of those children, begins to make some progress a yearly review comes up. In her particular case, the month of review is also the anniversary of the tragedy. This particular example illustrates why Bill C-54's victim-related reforms to the NCR regime in the Criminal Code are necessary.

Clause 15 of Bill C-54 aims to address the concern raised by this victim by empowering review boards to extend the time for holding a hearing in respect of a high-risk NCR accused to up to 36 months if the review board is satisfied that the person's condition is not likely to improve and the detention remains necessary for that time period.

This longer review period may also be imposed with the consent of all parties, including the NCR accused. This measure respects the rights of the NCR accused as it would continue to be based on an individualized assessment of treatment, progress and circumstances. However, it would also allow, in appropriate cases, for review periods to better align with realistic medical expectations regarding a particular NCR accused and in so doing, reduces the burden on victims.

This proposal would also respond to the concerns of the final victim who appeared before justice committee on June 10. He described his frustrations with the NCR progress. Bill C-54 would increase the flexibility and discretion for review boards in determining the appropriate review period for high-risk accused. This should help put victims at greater ease that painful hearings would be held at sufficient intervals to ensure that they are meaningful and enough time has elapsed to ensure how a high-risk accused has responded to treatment received in forensic care.

Also on June 10 the committee was able to hear from a victim via teleconference. This victim explained how his brother and his brother's spouse were killed by a person who was later found to be NCR. The victim explained how after the incident he was not informed of key information about the process and the disposition of the NCR accused. This lack of information added to his feeling of powerlessness and victimization.

While every victim is different and not all want to be involved in subsequent proceedings, for this person it was very important to his healing that he be afforded the chance to learn about and participate in the process. He also expressed how not knowing when the NCR accused was released caused his family, and particularly his parents, to feel unsafe. As I mentioned earlier in my remarks, the no-contact provision proposed by Bill C-54 would help families such as these victims to feel safer.

More than that though, Bill C-54 would also enhance the quality of the information provided to victims and ensure that they would be able to properly observe and participate in proceedings following an NCR verdict. For example, Bill C-54 would make it mandatory for courts and review boards to inform victims of their right to make a victim impact statement before an initial disposition is made or if a high-risk NCR accused designation is referred to a court for review.

Bill C-54 would also require, at the victim's request, that victims receive a notice of discharge from the review board if the NCR accused receives an absolute or conditional discharge.

By strengthening the information and participation rights of victims, Bill C-54 would go a long way toward addressing the concerns that were raised at the justice and human rights committee.

Also on June 10, a further victim addressed justice committee and shared with members the devastation caused to her family by the death of her stepfather after he was killed by a person found NCR. She expressed unqualified support for Bill C-54. In her view, public safety has to be more clearly set out as a central value in the legislation that deals with NCR accused. She expressed concern and fear for her family and the families of others in the future, particularly if the NCR accused involved in her matter were allowed to be released on unescorted passes into the community. For this victim, public safety must be the paramount consideration in the mental disorder regime.

To respond to concerns of Canadians like the victims I just referred to, Bill C-54 would clarify that public safety is the paramount consideration in determining the appropriate disposition for an NCR accused.

In addition, Bill C-54 would help make the law more accessible and easier to apply. It would introduce the phrase “necessary and appropriate” to describe the permissible restrictions on an NCR accused that may be imposed in order to protect the public safety. This proposal would maintain the existing test provided by the Supreme Court of Canada, but would simplify its articulation and thereby more clearly signal to all Canadians, including victims, that in carrying out their work, review boards must give due consideration to public safety and security.

Also, Bill C-54 would explicitly specify that when review boards assess whether a given NCR accused is a significant threat to the safety of the public that they are to consider any risk posed by that person of serious physical or psychological harm to victims, witnesses and persons under the age of 18, as well as other members of the general public. This proposal speaks directly to the concern we have heard from several victims. Bill C-54 would thus increase confidence in the NCR regime and in the administration of justice more generally.

In addition to individual victims, on June 10, the committee also had the opportunity to hear from l’Association des Familles de Personnes Assassinées ou Disparues, which in English is the Association of Families of Persons Assassinated or Disappeared. It is referred to as AFPAD. It is a victims organization that since 2004 has advocated for families who have survived horrible tragedies. AFPAD supports Bill C-54. It noted that while primary prevention is important in cases involving persons found NCR, secondary prevention must also be meaningfully addressed. Secondary prevention, in this context, means taking reasonable steps to ensure that a person who has been found NCR is not able to commit another serious crime. Bill C-54 would ensure that NCR accused receive the care they require so their illness no longer renders them a threat to society.

I have also addressed several aspects of the bill that would respond to AFPAD and to other concerned victims in this regard. Let me also point out that Bill C-54 maintains important judicial oversight. For example, the proposed high-risk designation can only be imposed by a court and can only be removed by a court acting on the recommendation of a review board. This is important because such judicial oversight would ensure that a high-risk designation is only used in appropriate circumstances, which makes it a proportional and reasonable measure. In addition, Bill C-54 would also empower judges who are experienced in assessing competing rights and interests to carefully balance the liberty of the high-risk NCR accused against the need for public safety. While the review board's recommendation would likely carry a lot of weight in hearings to change or remove a high-risk designation, Bill C-54's proposed scheme of allowing for additional judicial scrutiny of these designations would help preserve the public interest and confidence in the NCR regime overall. Victims and Canadians would demand no less of important decisions that can have severe impacts on public safety and the liberty of the NCR accused.

On June 12, the final day of the justice committee hearings on this bill, members had the opportunity to hear from more courageous victims who stepped forward to share their stories with us. One victim mentioned his experience with review board hearings. He noted that he has had no standing at all at these hearings and that the crown attorney has even been lectured to by the review board for raising the issue of victim safety. Bill C-54's proposed new guidance to review boards, which I referred to earlier in my remarks on the need to take victim safety into specific consideration, would arguably help change the culture of the review boards so they are more receptive to this evidence in future.

That individual also supported the high-risk designation in Bill C-54 overall, noting that each NCR case is unique and that the law must contain the necessary tools to allow review boards and courts to tailor their responses to meet the needs of diverse situations. By adding new tools like the high-risk designation into the mental disorder part of the Criminal Code, Bill C-54 would respond to these concerns.

On June 12, the committee also heard from another victim who raised the common concern that under existing law her participation rights were severely limited. The victim noted that, even though it is very painful reading and presenting victim impact statements, it is critical because it ensures that a victim's voice and perspective are not forgotten by review boards. Without these perspectives, review boards may not make the most appropriate decision in the circumstances, and public confidence in the whole NOR regime could suffer. I mentioned earlier that, if Bill C-54 is enacted, victims would have increased rights to give victim impact statements and to ensure that interests would be taken into account by review boards. This government is listening to victims.

In addition to hearing from victims, on June 12 the justice committee also heard from victims' advocates from such groups the Office of the Federal Ombudsman for Victims of Crime, which this government established in 2007 to ensure that victims of crime had a voice at the federal level. The Canadian Resource Centre for Victims of Crime was also represented. Both of these groups supported Bill C-54. The ombudsman's office representative acknowledged that Bill C-54 reflected victims' concerns regarding their safety as well as a desire for increased notification and participation. Bill C-54 would provide review boards and courts with new tools to make public safety the paramount consideration.

While no individual bill can completely solve all the challenges faced by the courts, review boards, experts and victims, it could make the needed improvements to properly balance public safety and the liberties of the NCR accused. In my view, Bill C-54 would do just that.

At the justice committee, we had the privilege of hearing diverse perspectives from victims and their advocates. These individuals did not come to Parliament to seek the spotlight, and even appearing before the committee in such a public forum would have necessarily involved a degree of hardship. Rather, the witnesses appeared to share their stories to help us as lawmakers to produce a better NCR system for Canadians. I cannot overemphasize how the experiences of these persons plays a valuable role in forming our debates and decisions of this House. By carefully listening to victims, the government has crafted a bill that would be constitutionally sound and would not detract from the rights of the NCR accused, and yet also would manage to improve victim notification, involvement and protection in the context of the NCR regime. This is a worthwhile initiative that deserves the support of this House.

[Fin Donnelly, NDP, New Westminster—Coquitlam, BC]

Mr. Speaker, the member referred to Darcie Clarke who lives in my riding. She was the victim who lost her three children to her husband at the time, Allan Schoenborn. That was a very public case, and I understand this legislation would address some of the problems associated with the Schoenborn case; obviously not all but it would be a move in the right direction.

I know there are certain groups across the country that have expressed their concerns with this legislation. In fact, we had made some suggestions at the committee, but overall Bill C-54 would improve the circumstances for victims.

Once the “high risk” designation is assessed, I understand the judge has discretion for providing a term of up to three years before the review is deemed necessary. Could the member comment on that time frame, how that works and where it could be one year, which is what I understand it is now, and where three years may be appropriate?

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

Mr. Speaker, the designation of “high risk” could impose a period where there would be no review for up to three years. Under the current system it is reviewed annually. However, when the “high risk” designation is put into place, first the Crown bears the burden of proving that such a designation should be put in place, in other words that the person is an additional risk to society, and we know that the number of people who would probably fit into this category is very few and far between.

However, what is assessed is also how much time it would take for the person to be treated. Medical and psychological evidence are considered in determining the length of time it would take to treat the person. If it is longer than one year, it could be up to three years. Forensic treatment is put into place to treat the person and reassessed if he or she can be reintegrated into society. It would be discretionary and based on hard evidence of experts.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Mr. Speaker, I thank my colleague, not only for his leadership on the committee as parliamentary secretaryparliamentary secretary, but also for the collegiality he has shown in welcoming me to the committee.

We have studied the bill, and I can say that in the seven years I have spent as a member of Parliament, I have never heard more gut-wrenching testimony from witnesses than I have from the victims who appeared before the committee. The victims, virtually unanimously, want the changes.

The defence lawyers association, the bar association and so on have some concerns. One of their concerns is that because of the changes we are proposing, defence lawyers will be advising their clients to go through the criminal path, which could see terms of 25 years' imprisonment to life, for certain offences, in order to avoid the stigma of having a three-year review through the not criminally responsible path.

I do not think that argument holds weight. I wonder if the parliamentary secretary could share his views as to whether that would seem to be a lucid or rational argument from the other side.

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

Mr. Speaker, I thank the member for his question and for his fine work on the justice and human rights committee.

It is perhaps no surprise that I do not find the argument holds weight. Let us face it. These are practising lawyers, usually with a degree of specialization when they take these cases on. I cannot see that ethically they would have a client who was suffering from a mental disorder that would qualify them as being not criminally responsible and they would try to put them into the regular criminal system where they would get less treatment.

I believe that the law society members are highly ethical and that this is a tactic that, quite frankly, would not be used. If so, it would definitely be reprehensible.

We cannot forget that whether the period is one year or three years, during that period before which we would review the reintegration, treatment is ongoing. These people are not thrown into a cell and the key is thrown away. Treatment is ongoing. It is a balance of treatment and reintegration versus the protection of the public.

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

Mr. Speaker, I would like to thank the parliamentary secretary for his speech.

He talked about clause 12, which creates a new category of high-risk accused. This definition refers to offences of a brutal nature. The parliamentary secretary mentioned some victims' cases. When the Minister of Justice and also certain experts were asked about this, they said there was no definition of offence of a brutal nature. We therefore suggested we should rely on what was already in the Criminal Code.

I would like to know whether the parliamentary secretary can define “brutal nature” and tell us why he did not rely on what was already set out in the Criminal Code, as was requested by the Canadian Bar Association, the Barreau du Québec and several experts?

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

Mr. Speaker, the notion of brutality referred to by the member has been defined by the Supreme Court, and several cases have been interpreted based on that definition.

I would also like to point out that when a request is made to designate someone high risk, the decision-makers take more than just the brutal nature of the offence into consideration; they consider all relevant factors, including medical evidence and the circumstances surrounding the offence.

There is more than just a single, isolated factor at play, such as the fact that the individual committed a very brutal crime, as defined by the Supreme Court. All of the circumstances surrounding the individual and whether that individual can reintegrate into society without posing a risk to public safety must be taken into account.

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

Mr. Speaker, I thank the parliamentary secretary both for his speech and his work on committee.

Obviously this is an important piece of legislation. Questions have been brought up by members on both sides about the current process for NCR.

One thing I have found out through the process is that in the case of someone who has been designated not criminally responsible, the Criminal Code already allows the review to be extended up to 24 months by the Mental Health Review Board, in the case of a serious personal injury offence. By adding the extra 12 months of flexibility, it actually empowers the Mental Health Review Board.

There is a fine balance between making sure the safety of the public is paramount and that there is ample opportunity for treatment. Under this new high-risk designation, I would ask the parliamentary secretary if he feels there are sufficient provisions for both public safety and mental health treatment, to allow the NCR person to receive the treatment they need, while, again, balancing the aspect of safety.

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

Mr. Speaker, of course there is a balance when it comes to the treatment aspect.

When the period of time is determined for the review, whether it be one year, two years or three years, the main test is determining what length or period of time is going to be necessary for the treatment. If one year is sufficient, then that will suffice. However, to go beyond the two years, which is also provided for, and the three years in this case, there absolutely has to be evidence that the longer treatment will be needed.

When there is a need for longer treatment, there are provisions that these people cannot go into the community unescorted, and when they go into the community escorted, it will be for necessary and obligatory medical or mental health treatment so that they can be reintegrated.

Again, the key is not thrown away and these people locked up. They will not be able to go into the community unescorted because the paramount consideration is public safety. However, they will go, escorted, to necessary medical treatment.

[The Acting Speaker, Bruce Stanton]

Before I recognize the hon. member for Brossard—La Prairie, I must inform him that I will have to interrupt him at about 2:00 p.m. The hon. member has about seven minutes remaining. Of course, more time will be available when the House resumes debate on this motion.

The hon. member for Brossard—La Prairie.

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

Mr. Speaker, we are debating Bill C-54, An Act to amend the Criminal Code and the National Defence Act (mental disorder), at third reading.

The whole issue of mental health and crime is a very emotional subject. We saw this when we were examining it in committee. This subject really moved us.

I would especially like to thank my colleague from Gatineau, our justice critic, for all of her hard work on this bill.

Few of us are extremely familiar with the topic of mental health. We sometimes generalize. People have a certain idea of what this entails. However, we do not know everything we need to know.

One of the problems we noted in committee was the Conservative government's failure to consult with experts in the field with regard to this bill.

One example I have is from our committee on June 5. Chris Summerville, from the Schizophrenia Society of Canada, mentioned that nine associations were not consulted. We are talking about the Canadian Psychiatric Association, the Canadian Psychological Association, the Canadian Mental Health Association, the Mood Disorders Society of Canada, the Canadian Association of Social Workers, the Canadian Association of Suicide Prevention, the National Network for Mental Health, the Centre for Addiction and Mental Health, the Schizophrenia Society of Canada, and further, 19 members of the Canadian Alliance on Mental Illness and Mental Health, all of which are members and none of which were consulted either.

When I asked why, they did not understand. They are the first ones on the ground. They are the people who actually have the knowledge. It is very unfortunate that the government only decided to consult with them when we were working on and dealing with the bill, and then, when we had amendments, those amendments were not accepted by the government.

This is a very sensitive issue and victims have asked us not to make it a partisan issue. They have asked us not to play politics. Unfortunately, that is what the Conservatives are doing.

Jenni Byrne, the 2011 national campaign manager, sent an email dated May 29 that reads:

You probably remember the story of Vince Li—a man who, five years ago, beheaded and cannibalized a fellow passenger on a Greyhound bus. He was found to be not criminally responsible for his actions—and was even granted escorted leave in to the community by the Manitoba Criminal Code Review Board. This is an insult to his victim—and this is not what Canadians expect from their justice system.

She then asks for a donation to the Conservative Party.

This is the type of petty politics that we find very disappointing. It is absolutely deplorable to see the government use victims in order to raise money. In addition to what I was saying about the lack of consultation, the fact that the government keeps using cases like this is just as deplorable when it comes to stigmatization. The public does not necessarily understand mental illness. I encourage all Canadians to talk about it. In the House, I have talked about a friend of mine who committed suicide. It is important to talk about it. I think we need to talk about every aspect of mental illness.

Using high-profile cases to raise money is serious. It is not what responsible parliamentarians should do, but it is what the current government is doing. We are asking the Conservatives to show more respect.

Our approach to the bill is simple: this bill is important for victims. As the Conservatives have mentioned, this bill will provide a way to help us inform victims about what is going on with offenders. All the witnesses we heard from agree with this, including the Barreau du Québec, the Canadian Bar Association and mental health associations.

We support this bill and we did even more than that. What is surprising is that the Conservatives accepted one of our amendments to inform victims of the offender's place of residence. Once the offender is released from prison, the victim should be aware of everything that is going on. All of the victims we consulted asked for this. We therefore thank the government for accepting the NDP's amendment to ensure that these victims are better informed.

We are very sensitive to this situation, and we were touched by the victims who came to testify. I want to acknowledge these victims, who showed extraordinary courage. Talking about their problems and their experiences was very difficult for them. As I said, it is very emotional for members of the Standing Committee on Justice and Human Rights to hear people share their stories, but that is what pushes us to keep going.

One of the problems is the lack of consultation from a legal standpoint. The government proposed changes, but it is reassuring to know that the court will have the last word. That is why we supported some of the amendments proposed by the government. However, we would have appreciated it if the government had considered more of our amendments.

[The Acting Speaker, Bruce Stanton]

The hon. member for Brossard—La Prairie will have 14 minutes when the House resumes debate on this motion. Of course, he will have the usual 10 minutes for questions and comments.

We will now proceed to statements by members. The hon. member for Ahuntsic.

The House resumed consideration of the motion that Bill C-54, An Act to amend the Criminal Code and the National Defence Act (mental disorder), be read a third time and passed.

[The Acting Speaker, Bruce Stanton]

When we last debated this issue, the hon. member for Brossard—La Prairie had 13 minutes remaining.

The hon. member for Brossard—La Prairie.