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

[Alain Giguère, NDP, Marc-Aurèle-Fortin, QC]

Mr. Speaker, that is an excellent question. We are looking for justice. We propose laws that should, in theory, be in the spirit of justice. Unfortunately, we sometimes miss the mark. However, in the tradition of the English criminal law system, we have judges and juries. Sometimes, these people say that the law does not reflect their vision of justice, in the sense that it seeks to revenge or too harshly punish a crime, when what they were looking for was justice.

This does not mean that we will support and protect criminals. We must find a balance. Does Bill C-54 provide that balance? We will support this bill, even though we are very uncomfortable with the philosophy behind it. However, we will search for justice. That is the duty of every single member who sits in this House.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, it is my pleasure to rise to speak to Bill C-54, an act to amend the Criminal Code and the National Defence Act (mental disorder).

The key new measure provided for in this bill is a new power to designate a high-risk category of accused under both the Criminal Code and the National Defence Act.

The category of accused that has drawn considerable attention and loud calls for stricter punishment is exactly this category, particularly for more heinous acts where somebody is deemed to be not criminally responsible. In such cases, the accused is neither convicted nor acquitted. These cases are to be differentiated from an accused found unfit to stand trial. Once deemed fit, those accused may be tried for the offence and incarcerated. In both cases, the accused is normally incarcerated in the forensic unit of a mental hospital.

Current law obligates a court or review board to discharge an accused found not criminally responsible unless he or she poses a significant risk to public safety. In rendering the decision, they must give consideration to a number of factors: the need to protect the public from dangerous persons; the mental condition of the accused; reintegration of the accused into society; and other needs of the accused.

The proposed new law makes the safety of the public the paramount consideration. In other words, it means sidebarring the mental condition of the accused or any efforts made to eventually reintegrate the accused into society, which will happen eventually.

What has attracted the most public controversy are cases where the accused has committed violent acts, is deemed not criminally responsible, is detained in an institution and is then released. Some are complaining that these are unjust punishments and that they merit harsher responses and retribution. Concerns have been raised about the potential of continued endangerment of the community.

The fact that an accused may be found not criminally responsible absolutely does not diminish recognition of the heinous character of any violent act. It does not in any way diminish the impact of that act on the victims, their families or their communities.

Yet in law, an accused must be accorded his or her full rights under the law and the Charter of Rights and Freedoms. To not do so means that the matter may be referred to the courts. This is particularly the case for NCR accused who are neither convicted nor acquitted of an offence. It is critical to the rule of law.

The challenge in addressing crimes arising from short-term or long-term mental disorders is determining the appropriate judicial and treatment response that addresses the mental state of the accused, the harm caused, the potential for reoffending, the deterrent effect, and the challenge of responding to crimes arising from short- or long-term mental disorders.

Bill C-54 proposes three key reforms for these accused.

The first is to put public safety first by making explicit that this is the paramount consideration for the court and the review boards. Again, that sets aside equal consideration of the mental state of the accused and the rehabilitation to enable them to return safely to community.

The second is to create a high-risk designation. It would empower the courts and the review boards to impose a high-risk designation for any accused found NCR of a serious personal injury offence and where there is a substantial likelihood of further violence that could endanger the public or where the acts were of such a brutal nature as to indicate significant threat of harm to the public. It is that second factor that a number of organizations, including the Canadian Bar Association, would like to have removed from the bill.

The third is to have “significant threat to the safety of the public” be defined in the code.

Such accused are to be denied any conditional or absolute discharges. The designations are only to be revoked by a court order, on the recommendation of a review board. Again, the Canadian Bar Association is objecting to that, saying that the more appropriate body to be deciding the mental state of the accused, vis-à-vis safety to the community, is a review board in consultation with psychiatrists, not a court.

Also there would be stricter controls on community visits. Again, a number of associations, including the Psychiatric Association of Canada, have said that this is exactly the kind of measure, if appropriately accompanied, that could help to gradually rehabilitate people and bring them back into the community.

It would also give the power to the review board to extend the review period from one to three years. In other words, there is the potential to not allow the release of the person, even if he or she is then found to be mentally competent to go back to his or her community.

Access to treatment under the law is not to be affected.

The provision in the law that most support is being found for is the provision for enhanced involvement of the victim in the proceedings. There would be notice, upon request, when the accused is discharged. It would provide for orders of non-communication between the accused and the victim, and any decisions related to the accused would give due consideration to the safety of any victims.

The current law already requires courts and review boards to consider the need to protect the public from dangerous persons, the mental condition of any accused, reintegration into society and other needs of the accused. These reforms may, in some small way, appease some members of the public. However, would they have any appreciable effect on reducing the number of violent crimes perpetrated by persons with long-term or temporary mental conditions? Statistics suggest otherwise.

Recidivism rates for NCR accused range from 2.5% to 7.5%. That is to be compared with a 41% to 45% rate of recidivism for other offenders. Therefore, the NCR accused are the most highly unlikely to reoffend. How then can we rationalize detaining them for more extended periods? Can any extension ever satisfy those distressed by the crime? Eventually they will be released, so is increased incarceration in a forensic unit, with potentially limited psychiatric care, the answer? As has been pointed out by other members, are the courts the appropriate authority to be making a decision on the rehabilitation of the mentally disordered person? Should that not remain with the review boards and psychiatric care?

Is a better, or at least additional, solution to ensure more resources for Canadian mental health detention facilities, as the experts have called for? It is important to examine the case law and to hear from legal and medical experts, and as others have suggested, to examine whether each provincial or territorial jurisdiction has the appropriate facilities to detain these accused for extended time periods and to provide the necessary psychiatric support.

It will be helpful for the government to release its opinion on the potential charter challenges the bill may pose so that those matters may be addressed before any reforms are enacted. It will be important to hear testimony on the cost implications of the bill compared to other alternatives, as incarceration is normally the highest-cost alternative. An obvious question is whether the provinces and territories have been consulted, as these costs will most certainly be downloaded to them for extended periods of detention, the provision of psychiatric services and the duty to notify and track victims and the accused.

What have other medical and legal experts said so far about the proposed law? All have expressed concern that they have not been consulted in the development and drafting of this law. The Canadian Psychiatric Association recommends against the high-risk designation, as no evidence exists that these policies pose undue public risk. They also point out that the recidivism rate is very low for the NCR accused. They state that it would impose a substantial drain on already scarce forensic resources while delivering little increased public safety. They say that it merely reinforces punishment and retribution while removing valuable therapeutic tools. They also say that the unintended consequences of the high-risk designation contradicts campaigns, including by this House, to open dialogue on mental health, removing the stigma and enabling early treatment. They recommend the removal of brutality of the offence as a criterion, as does the Canadian Bar Association. They say that they should permit escorted passes and should remove the power to extend the review period.

The Schizophrenia Society endorses exactly what the Psychiatric Association has said. The John Howard Society and the Elizabeth Fry Society raise serious concerns about these proposals, except for the notice provisions.

The Canadian Bar Association National Criminal Justice Section opposes the high-risk designation as unconstitutional, so we can anticipate court challenges. If enacted, they recommend that the “brutal nature” of the act category of consideration be removed and that there be added a right of the accused to apply to the court to remove the high-risk designation. They also support the notice requirements.

As legislators, it is of utmost importance that in making any new laws, particularly criminal laws, we take the time to consult and consider the opinions and advice of informed and experienced experts. It is for that reason I will be supporting this bill at second reading. It is so wise counsel can finally be publicly revealed and considered.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Mr. Speaker, all this bill would do is give judges a little more discretion. Whenever we want to reduce a judge's discretion to provide public protection and victim recognition, the New Democrats get up in arms and say that we cannot reduce judges' discretion and that we have to trust judges.

Why does this member not trust judges when they get discretion to protect the public? Is it not the fact that all she is really opposed to is the government's agenda of public protection?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I am left confused, because the hon. member seems to be speaking out of both sides of his mouth at once. The very concern raised by the criminal bar and by the Canadian Psychiatric Association is that we are fettering the discretion of the judges. Right now there are a series of criteria to be considered both by the review board and the courts. The intent of this law is to fetter that discretion more thoroughly.

As it stands right now, the law balances the need to protect the rights of the accused with the obligation to protect the public and to consider the interests of the victims. As I said before, everybody appears to be supporting the expanded duty to notify and consult.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I too want to pick up on that last point. There is a great deal of support for the idea of non-communication with victims and of giving consideration to victims. It is an aspect of the legislation that would have support from all sides of the House and that I suspect would gain considerable support outside of the House, even from the different stakeholders she made reference to.

When government brings in legislation, there is often what is called a poison pill or something of this nature. Something is in the legislation that makes it difficult to support, even though there are aspects of the legislation that are encouraging or potentially positive.

Can the member provide further comment on what is currently in place that allows for special consideration being given to victims?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, there was a lot in that question.

On some occasions, the government actually allows for debate on bills. Fortunately, this is a government bill and we are having an extensive debate. However, it is regrettable that there was not sufficient advance consultation with those who could have advised on the drafting of the bill, including the Canadian Psychiatric Association, the Canadian Bar Association and even victims' organizations.

Indeed, as I have stated, as have many people who have commented on the bill, the law already provides a fair number of factors for the courts to consider. What we can hope is that the government might consider witness testimony and our suggestions for reform and that it would potentially accept the expanded notification requirements but take away the designation.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, I am interested in the notice requirements. Are these mandatory requirements, or can the victims choose not to be notified of any more events related to the incident they were involved with? In many cases, that may be what the victims would want. In cases where the acts of violence are completely random, the victims may not want to have this on their plates for any longer than the time it happened. What is the provision within the law in terms of notice?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, my understanding is that the intent is to provide that as optional. The victims of a crime would have the option of advising the government that they would like to be notified, and if so, they would be given notification. I am not sure how “victim” is being defined, but I am presuming that it also means the families of victims or anybody associated with the victims who may feel that they are at risk. I do not think anybody would object to that change being made.

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, in general we support this change to the Criminal Code. We support it at least going to second reading. It deals with the very real and perceived threats to the public that come from the not criminally responsible declaration by judges.

I say “perceived threats”, because part of what is driving this attempt to amend the law is to play upon the fears of Canadians. We think that should be left out of the debate. The other side is very good at playing upon Canadians' fear of crime, and fears generally. However, we need to look at this legislation in a clear and thoughtful way.

We need to look at this legislation and determine whether it is achieving a good public policy goal. Is it achieving it in a way that will not be a burden on the public or the provinces or the victims of crime? That is one of the very serious concerns we have about this legislation; it may in fact be a burden on portions of the criminal justice system, including the provinces.

As a review of what the system is now, there is a very small percentage of accused, and I am not saying criminals, who are actually found not criminally responsible in the course of their trial. We are told it is something like one in 100,000 individuals who are accused—not members of the public, but accused—and found not criminally responsible. That is an extremely tiny percentage. The Conservatives are spending a lot of time and effort in dealing with some perceived notions, some of which were created by recent events in the news and some of which are just general fears by Canadians. That very small percentage needs to be brought to the attention of both sides of the House.

By the way, Mr. Speaker, I will be sharing my time.

There are two basic definitions for individuals who are accused. Sometimes they are found unfit to stand trial, in which case we wait until they are fit to stand trial. Once they are at trial, if that individual was not criminally responsible by reason of a mental disorder at the time of committing the crime, that person can be, and sometimes is, declared not criminally responsible at the time of committing a crime. Therefore, rather than a prosecution, they are shifted into the mental health system.

The mental health system includes a review board. It includes judges. It includes mental health professionals. The mental health system, the review board and the judges determine when a person is not criminally responsible, at what point that individual is no longer a threat to society. If they are no longer a threat to society, at that point they can be given either a conditional or an actual discharge. They can also be sent to hospital, to be held and restrained in hospital, like a jail. We are aware of lots of them. It is those individuals the bill is attempting to deal with.

As I said, only one in 100,000 accused are actually not criminally responsible, and a smaller percentage are those individuals who end up in a hospital setting or in a mental health process.

The changes that are being proposed are by and large welcome, but they need discussion and analysis. We need the mental health and the criminal justice professionals in this country to advise us on whether these provisions would create unintended consequences or injustices in the system.

For example, one of the changes is that the review board must now move its analysis of not criminally responsible individuals and take public safety as their paramount consideration.

Is that a good thing, or is it now skewing, changing, or putting fetters, as the member for Edmonton—Strathcona said earlier, on the justice system? Is it in fact restricting the ability of an individual judge or the review board to consider matters fairly and reasonably?

We need more counsel. We need more advice from both the criminal justice system and the medical profession as to whether or not that is going to change the outcomes in a meaningful way that is more protective of the public. I do not know the answer to that question; it certainly sounds like it on the face of it, but maybe that change will in fact cause other problems.

The bigger change to this bill is the creation of a definition of “high risk”, which will now add to the panoply of definitions by which a significant threat to the safety of the public could be attached to an individual. Again, what is the purpose of this change? What is the end result of that change? It may be a good thing, but we need more advice, more counsel, and we need not to do it from a surfeit of fear.

We need to not take this new definition out of the context of what this law is attempting to provide in the first place. It is attempting to provide a system that not only protects the public generally but also provides the mechanisms and means to rehabilitate.

For criminals in the criminal justice system who are not found to be not criminally responsible—in other words, those who are criminally responsible—the purpose of the justice system is to make them into better citizens, but we find that the recidivism rate amongst those who are in that system is between 41% and 44%, so we are not doing a very good job of protecting the public with the regular criminal justice system.

In the not criminally responsible justice system, the recidivism rate is around 2.5% to 3%, so we are doing a good job there. We are finding that if individuals with a mental disorder are properly treated, those individuals can return to be productive members of Canadian society, which is what we ultimately want.

We need to examine both halves of the justice system, and whether or not we are actually doing a good job in it.

The third major part of this legislation is to indicate that victims are now to be a major part of the regime. The victims themselves have already suffered at the hands of the perpetrator, at the hands of the person not criminally responsible. With good intent, we are asking that the victims be notified when those individuals are discharged. The individuals who are being discharged could have a non-communication order attached to them if they are not allowed to deal with the victims. In addition, the safety of the victims needs to be taken into account when a decision is made about the release of an individual back into the public.

We think that portion of the bill needs a lot of attention. We agree that victims are by far the paramount consideration in any justice system legislation, but we do not spend enough time now looking after victims. I doubt that there is enough time, effort and money in the mental health resources of the provinces to give the victims of serious crime the help they need in getting over it. We should be looking at that as well.

We also understand that this is a very difficult issue for victims. What if victims do not want to have any reminders whatsoever of this individual? Do we put them in an awkward position of having to say “No, I do not want to be reminded”? They would actually have to be asked if they wanted to be reminded, and then they have to refuse to be reminded.

It is a very difficult position for the victims to be in. The victims would be in a position where they were not necessarily receiving the appropriate attention and help from the provincial medical system, but those victims would be asked for their opinion on this, and it might in fact be difficult for them.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Mr. Speaker, I was listening intently to both the previous speaker from the NDP and the question from the member from the Northwest Territories, which was to the effect that somehow we are bothering or burdening victims by telling them the situation with regard to the person who aggrieved them.

After 30 years of policing and seven years as a member of Parliament listening to victims and working with victims and knowing how they feel, I do not know of one instance, not one in 37 years, in which a victim has said he or she really did not want to know what was going on. Maybe it has occurred, but I have never experienced it, nor do I know a fellow police officer who has. If I were to add up all of our experience, it would be hundreds of years, and a victim has never said that.

We hear the opposition say that victims should be paramount. All we are asking is for a judge in the criminal justice system to look at the situation once more before someone is released into society. It is sort of a double check, so to speak. For the trivial 2% of people who are re-victimized or where there is recidivism, those are huge numbers in their minds when they have a loved one who has been killed or seriously hurt.

I think the opposition is just looking for an excuse to vote down another criminal justice bill.

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, in fact we said we support this bill at second reading, so we are not looking for an excuse. All we want to do is make sure that we do not unintentionally create a problem by amending a bill in a way that actually re-victimizes individuals. That is all.

Perhaps there are victims in the world who would not want to be told, “By the way, the person who did something brutal to you or caused you to become a victim of a crime, a person who was found not criminally responsible, is being released. Do you want to know about it?” If it is six or 10 years later and the victim has forgotten all about it and there is a chance it will be harmful, we simply want that possibility to be taken into consideration. That is all.

I am not suggesting that victims are not paramount; they are, and the NDP believes they are. We simply want to make sure we craft this bill in a way that does not cause injury to any victims.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I want to focus on the issue of mental illness. If the federal government were to work with the provinces and, between the two, invest in mental illness issues and provide the supports necessary, fewer crimes would be committed in our communities from coast to coast to coast in Canada.

In terms of priorities, would the member agree that the government needs to put a higher priority on that issue than on the many pieces of legislation, such as this, that it is bringing through, and that if more could be done on prevention in dealing with mental illness, it would make our streets safer across Canada?

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, that is an excellent question. The NDP has said on a number of occasions, and will continue to say, that crime prevention should be the number one focus of any government. In fact, creating fewer victims in the first place is what we should be aiming for.

I have a private member's bill coming up that will deal with 85% of the street crime in my riding, which is the theft of cellphones, and the government has said it is opposed to it. I am trying to prevent the crime before it happens, and the government has indicated that it is not willing to prevent the crime before it happens.

Maybe it wants to fill up the jails it built; I do not know, but our job should be preventing crimes in the first place. If a robust and effective mental health care system in each of the provinces prevents even one crime, then we have all done justice to the system.

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Speaker, I have the honour to rise in the House to speak on behalf of my constituents in Pontiac. Public safety is a rather major issue.

One of the objectives of Bill C-54 is to protect victims. The bill seeks to increase the safety of victims by providing them with more opportunities to participate in the Criminal Code mental disorder regime, by ensuring that they are notified on request when the accused is discharged, allowing non-communication orders between the accused and the victim and ensuring that the safety of victims is considered when decisions are being made about an accused person.

In addition, the proposed legislation would help ensure consistency in the interpretation and application of the law across the country. However, it is important to note that these reforms would not change the current eligibility criteria in the Criminal Code with respect to exemption from criminal responsibility on account of mental disorder.

The proposed reforms would also define the concept of significant threat to the safety of the public, which is a current test for determining whether a review board can maintain its jurisdiction and continue to supervise a mentally disordered accused.

The bill would clarify the fact that restrictions could be imposed on an accused who presents a public safety risk of a criminal nature, though not necessarily of a violent nature.

Protecting the public and victims of crime and violence is obviously a good thing. Everyone probably already knows this, but crime has its most direct impact on victims in every respect: physically, emotionally, spiritually and financially.

From a financial perspective alone, many researchers have attempted to estimate the intangible costs borne by victims of crime, but none of the studies are official. Still, most agree that the intangible costs are often the most onerous ones for victims.

Of the total estimated costs, $14.3 billion was incurred as a direct result of crime for such items as medical attention, hospitalization, lost wages, missed school days and stolen or damaged property.

While crime has its most significant impact on victims, others around them suffer as well. In its 2008 report entitled “Costs of Crime in Canada”, the Department of Justice estimated that intangible costs were about $68.2 billion, which increased the total cost of crime to $99.6 billion. That is astounding.

However, even though this bill is important and may help victims, we have to keep things in perspective. We have to act according to facts, not fear. For example, in Ontario, Canada's most populous province, only 0.001% of individuals accused of a Criminal Code offence were deemed not criminally responsible on account of mental disorder. The recidivism rate for these individuals is between 2.5% and 7.5%, while the recidivism rate for other federal offenders is between 41% and 44%.

Contrary to what the government would have Canadians believe, there is not necessarily a correlation between the seriousness of a crime and the likelihood that the offender will reoffend or his ability to improve his mental health and live a normal, happy life.

Some recent high-profile cases suggest that the current approach may not be effective. Like my NDP colleagues, I would like to know how we can help the victims in the process. To figure out the best approaches, we need to talk to mental health experts, victims and the provinces.

It is also important to avoid politicizing this issue. We have to study the merits of the policy, and that study must be properly financed by the federal government.

In such a study it seems to me that it would be important to ask some of the following questions, as did my hon. Liberal colleague from Mount Royal.

What studies, case law and theoretical sources did the government rely in drafting this bill? What statistics did the government collect on persons deemed not criminally responsible on account of mental disorders? For each of the past 10 years by province, territory and type of offence, how many people were deemed not criminally responsible? Which persons deemed not criminally responsible and discharged were found guilty of a subsequent offence? What was the nature of the subsequent offence? What persons deemed not criminally responsible and discharged were deemed not criminally responsible for a subsequent offence? What was the nature of that subsequent offence?

With good answers and data on these questions, we as legislatures would be far more informed to ensure that the legislation passed was well crafted and would do the job we needed it to do.

We in the official opposition, despite supporting the bill at second reading, still have a few unanswered questions, which we hope the government will attempt to answer in the months ahead.

We agree that public safety must come first, but we must also ensure proper compliance with the rule of law and the Canadian Charter of Rights and Freedoms. We are open to change, but we must also ensure that the way in which we handle cases involving mentally disordered accused persons is effective in terms of the treatment of mental disorders. To that end, we must ensure that the provinces have adequate financial resources since they are the ones ultimately managing the situation.

With regard to the charter, we must always be careful that in our zeal to protect our fellow citizens we do not harm hard-won civil rights. It would be helpful to know whether Bill C-54 was reviewed by the Department of Justice to ensure its compliance with the charter and what measures the government took to prevent charter challenges concerning persons deemed not criminally responsible. If there was indeed a review, what were the review's findings?

I also wonder, on the role of victims, if consideration has been given to the fact that some people are unable to confront criminals who have victimized them. I mentioned the enormous cost burden to victims earlier because I also wonder why there are no provisions being made in the bill for more resources for the victims who have to live with the consequences of these criminal acts.

Also, what about financial support to the provinces? Is this new policy not being developed on the backs of the provinces? A spokesperson for the Department of Justice stated that the provinces would not receive any additional funding to address these new measures, yet we know there will be costs involved.

Despite these reservations, I agree that in order to protect our fellow citizens, there is a need for a mechanism by which certain individuals who are found not criminally responsible on account of a mental disorder may be declared high risk. I also agree that there should be an increase in the involvement of victims in this process. These are the reasons why I support the bill at second reading.

Truly, the voice of the voiceless should never be silenced, which is why I am happy again to support the bill at second reading.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, the matter we are discussing today in connection with Bill C-54 is very sensitive, in light of all the issues raised in the House.

We are clearly talking about crimes committed. We are also talking about the criminal responsibility of people ultimately deemed to be not criminally responsible.

We have already said that we will vote in favour of this bill at second reading, because we believe that it deserves to be reviewed in committee. However, I heard a few questions from government members, and I am concerned about how this issue is being dealt with.

Of course, it is a sensitive issue and it has to be handled with great tact. However, I really feel that the government is behaving as if it wants to make the issue much more political than it ought to be, especially if we truly want to examine it with cool heads. The government has addressed the issue twice at news conferences, announcing the bill to the media and the public.

I would like to hear what the hon. member has to say about the need for careful, reasoned and rational consideration of this issue.