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

[Kyle Seeback, Conservative, Brampton West, ON]

Mr. Speaker, I thank my colleague for the question. She certainly raised an interesting point.

Changing the system of how one is designated an NCR accused was certainly not discussed at committee. However, from listening to evidence from witnesses who were victims, I can say there certainly is a concern about how people are designated as NCR accused.

I am paraphrasing to an extent, but I think that many victims felt the NCR accused designation is applied too easily and too liberally. Of course, this legislation has nothing to do with that determination, but I can certainly understand and sympathize with victims who feel that way. To an extent, they feel there is no one who is therefore responsible, in some cases, for the murder of one's children.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, in debating Bill C-54, there are two issues that come to mind for me personally.

One issue is regarding the issue of victims. I, for one, in representing Winnipeg North, am very much concerned about victims. In fact, I believe the Conservative government is doing very little to prevent people from becoming victims in the first place. It has not been progressive in terms of coming up with ideas to deal with the causes of crime in the first place. It is something in which the government has fallen short.

Speaking specifically to the bill, could the member provide a brief comment regarding the Chief Justice of Canada, who has indicated that the bill is not necessary to deal with the mental disorders and NCRs? I would appreciate a comment on that.

The other issue is on why it is that again we have the bill being rushed through in this fashion. We have seen this disturbing behaviour from the Prime Minister's Office of wanting to prevent members from having proper debate on important issues that Canadians want us to address.

Could the member could provide comment as to—

[The Acting Speaker, Bruce Stanton]

The hon. member for Brampton West.

[Kyle Seeback, Conservative, Brampton West, ON]

Mr. Speaker, I find it a bit rich that a member from that party is somehow suggesting we are not doing enough for victims. It would be funny, if it were not so tragic.

We do a lot for victims. We could talk about the victims ombudsman. We could talk about doubling the victim surcharge. These are just a couple of things off the top of my head. This party has put in significant reforms within the NCR regime to support the requests of victims, so that they are not revictimized by the system.

The Liberals are going to vote against this bill, which would enshrine significant rights for victims. I do not what the comment is about in saying “We're not supporting victims”, but they are going to vote against this legislation.

Yes, there has been a critic, and a good critic obviously, a former Supreme Court justice; however, I respectfully disagree. I think this bill is necessary, reasonable and prudent. Bill C-54 is a second check to make sure that we have things right. I do not see how it cannot be supported.

[Mike Wallace, Conservative, Burlington, ON]

Mr. Speaker, I thank my colleague in the Conservative Party, who is a very good member of the justice committee. I mentioned that to make sure people know that just because he sits on that side of the House it does not mean he is not a Conservative. In fact, he is more Conservative than many of us on this side of the House.

The member is good at reading legislation placed in front of a committee and challenging witnesses on statements. Why is it important to have the facts in front of witnesses, or a member of Parliament, when dealing with a legislative committee like the justice committee?

[Kyle Seeback, Conservative, Brampton West, ON]

Mr. Speaker, the member has asked a good question.

I was exceptionally disappointed with the number of witnesses who came to committee to help us make our decision with respect to this legislation. It was clear that they had not read the legislation, or if they had read it, they did not understand it.

In my speech, I raised the issue of brutality. Members said that if it is brutal it is going to be high risk. That is not true. Members said we are going to put NCR accused people in jail. That is not true. They said we are going to mandatorily make these assessments go on for three years. That is not true.

The justice committee works very hard. We sat for extended hours to make sure we had as many witnesses as possible come forward and to make sure we looked at different ways to perhaps improve this legislation. However, the majority of people who had concerns or objections to the legislation did not seem to understand it or had not read it. That was disappointing.

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, a lot of concern has been raised about the possible stigmatization arising from bills like this, so I think it is important to put in perspective the kind of numbers we are talking about.

There was evidence that in Ontario only 0.001% of those convicted of a crime are found not criminally responsible. That is about one in 100,000 people, and of those the recidivism rate is between 2.5% and 7.5%. For other people who are convicted of a crime, the recidivism rate is between 41% and 44%. For those who think this is about mentally ill people being the problem in society, the other 99,999 people who are before the courts do not have any mental illness. This is not really about mental illness. A very small percentage of people are involved, and a small percentage of them would be considered potential high-risk offenders.

[Kyle Seeback, Conservative, Brampton West, ON]

Mr. Speaker, I hate to say it, but my colleague has made an excellent point. It is hard to give these praising statements. I have done it twice today, so it is a good day.

The member spoke the truth. First of all, the number of people who are NCR in the criminal justice system is quite small. Let us look at the other factors. First, a crown attorney has to bring the application. That is going to whittle that number down significantly, for the reasons I raised in my speech. Second, crown attorneys do not win 100% of their cases. Being the husband of a crown attorney, I wish they did win 100% of their cases, but they do not. That will whittle it down again, because the judge will determine whether or not the person should be high risk.

When we talk about things like stigmatization, it is not the case. I want to make it clear and have it on the record that this would not stigmatize mental illness. It would do the exact opposite because very few people are going to be designated as high risk. That means the Canadian public has no reason to fear people who are not designated high risk or to stigmatize them. They are not high risk. This legislation would destigmatize, not stigmitize.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, I will be splitting my time with the member for Montmorency—Charlevoix—Haute-Côte-Nord.

I rise tonight to speak in favour of Bill C-54 at third reading. I must say that from the day the government first announced its intention to introduce this bill, I have supported the bill in principle. I believe the matters we are seized with in Bill C-54 are very important, even though the number of individuals affected is very small.

The unfortunate incidents which have brought us to this debate tonight are obviously extremely wrenching for all the victims and their families, yet, at the same time, there is a real danger that the very small number of extreme incidents resulting from mental illness will cloud our collective judgment when it comes to addressing the broader issues of mental health in Canadian society.

I believe the bill we have before us today is a reasonably balanced bill. It is certainly not as good as it might have been, but it is better in some key ways than what was originally introduced.

To me, the most important improvement was the addition of an amendment proposed by the NDP to add a mandated five-year review of the legislation by Parliament. This is a very good way to make sure we have this right. We will look at it again in five years to see what the impacts have been.

However, the most important reason for supporting this bill is the significant progress it makes in enhancing victims rights, especially in the cases where the accused is found not criminally responsible for his or her actions.

I want to draw attention to four ways in which the rights of victims, and in particular their safety, are improved in Bill C-54.

The most important one is the entrenching in law of the right of victims, upon request, to be notified when the perpetrator is discharged. We have had one case when someone ran into someone in the community who they thought was still in custody. Obviously, that could be very shocking It would be upon request, but victims should certainly have that right.

Second is the provision to allow orders to be made that forbid communication between the perpetrator and the victim.

Third is the provision that adds a requirement for the review boards that makes these decisions about the release of perpetrators to consider the safety of victims when decisions are being made about the perpetrator.

The fourth major improvement, and again it was not in the original bill but was added via an NDP amendment, is the provision that is closely related to the first improvement. It would give victims the right to be notified of the address of the perpetrator if the perpetrator is released, thus making it less likely that they will have inadvertent contact with the perpetrator, which can obviously be very traumatic.

The second reason I have for supporting this bill is the fact that it now makes public safety the paramount consideration for provincial review boards in decisions relating to those found unfit to stand trial or found not criminally responsible for their actions.

The change here is that public safety becomes the most important consideration; it is not just one item on a list of considerations. Our criminal justice system always ought to function with public safety in mind, so these cases should be no different. We also need to remind ourselves that public safety, as the main priority, does not diminish our responsibility to consider these cases and to make sure they function within the bedrock of our legal system, which is the Charter of Rights and Freedoms.

The third reason I have for supporting this bill is the fact that it creates a high-risk designation for those who are found not criminally responsible for the most violent incidents. I want to stress that we are talking about a very small number of cases where the perpetrator is found not criminally responsible. It starts with a small number of those decisions, and then there is a very small number among that group.

The definition that is provided in the bill is quite sound. It talks about applying a high-risk designation to those found not criminally responsible for serious personal injury offences where there is a substantial likelihood for further violence that would endanger the public, or where acts were so brutal as to indicate a risk of great harm to the public. We are not saying that all of those found not criminally responsible will end up falling into this high-risk category, but only those who provide a great risk to the public.

This is a designation that would be made by a court and that could only be removed by a court. The result of such a designation would be to deny granting unescorted absences from a secure health facility. It would place limits on the reasons for escorted absences. It would also provide the possibility, just the possibility, of lengthening the period for review of the status of the perpetrator from one year to a maximum of three years, again at the discretion of the court.

When we are talking about creating this high-risk designation, it is important to remember the context. When considering the case of someone found not criminally responsible, provincial review boards have three choices.

The board's first choice is an absolute discharge if the person does not pose a significant threat to public safety. This means release back into society with no restrictions or supervision. I emphasize that very few of those who are found not criminally responsible are granted an absolute discharge at their first hearing. This is due to the obvious necessity of taking time to allow therapy to work. In fact, at the annual reviews in B.C., only 18% of cases are granted an absolute discharge, while the rate in Ontario is even lower at only 5%. If we look over time, studies revealed that 35% of those found not criminally responsible spend more than 10 years in the system, so it is not true that those who are found not criminally responsible are released immediately as the system exists now. However, the change we would make here is to ensure that there would be additional consideration: a second set of eyes to look at those decisions when those high-risk designated perpetrators are considered for release.

The second choice available to the expert provincial review boards is a conditional discharge. Just as it sounds, this option allows a return to society under conditions which include things like specifying a place of residence, a treatment regime or reporting requirements. These are conditions very similar to those used in the parole system.

Finally, the third choice is to retain the perpetrator in custody in a secure health facility.

I know there are those who are very worried about the creation of this high-risk designation, but its importance here is the reassurance that it would offer to both victims and the public alike, as a person designated as high risk would not be eligible for conditional or absolute discharge until both the review board and the court are convinced that the perpetrator is no longer high risk.

There is no doubt that the current system has left the public and families of victims feeling exposed. This is true if we are talking about the case of the beheading of Tim McLean on a Greyhound bus in Manitoba in 2008, where the perpetrator was held in a facility where the grounds were not fenced, and was allowed out on his own onto those grounds very soon after the events; and where the perpetrator was allowed escorted absences that were perceived to be much too early and caused a very strong public outcry. Many people were not reassured by the explanation that the perpetrator was fine so long as he was taking his medications.

This reassurance is also needed if we are talking about a case like the three Schoenborn children who were killed by their father in B.C., again in 2008. His ex-wife was understandably concerned when the perpetrator was granted escorted absences in the same suburban Vancouver community where she lived.

From the moment the government introduced this legislation, I felt it would be in the public interest to adopt it in principle, and I believe we have had significant improvements at the committee level.

However, before concluding, I would like to take just a moment to address some of the concerns expressed by those opposed to the bill.

First, I would say there should be no confusion. This bill in no way would affect the availability or the use of the defence of not criminally responsible by anyone accused of an offence.

Second, I would say that I understand the concern that the focus on the most violent incidents involving mental illness may inadvertently contribute to the unfortunate stigma surrounding mental illness in our society. However, it is my hope that in fact this bill would accomplish the opposite by helping reduce the fears surrounding these extreme incidents.

Finally, I would say that I share the concern of all those who have pointed out the deficiencies in the way we deal with mental illness in our society, especially in terms of the lack of services and supports for those individuals and families struggling to deal with the impacts of mental illness on a daily basis.

In conclusion, I believe that in Bill C-54 we have before us a balanced bill, one that could have been further improved with the additional amendments that were offered by the NDP, but nevertheless a balanced bill. Most important, I believe that Bill C-54 would deal more justly with victims and their families in cases where the perpetrator is found not criminally responsible. We have a bill before us that would make it clear that public safety must be the paramount consideration in all these cases. Finally, we have a bill in front of us that would address those very few cases involving extreme violence and high risk of recurrence, and it would do so in a way that would ensure a thorough review of the case in order to guarantee public safety and to reassure the families of victims.

For these reasons, I will be supporting Bill C-54 at third reading.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Mr. Speaker, it is so often the case when Conservatives have brought forward so-called justice legislation that they get the balance completely wrong. They often take a hammer to a problem that is of small significance or has low numbers.

As it has been pointed out by my friend from Newfoundland, the actual number of Canadians that we are talking about in this case is incredibly small, yet these cases are important. They tend to be high-profile cases, often because of their violent or extremely violent nature in some regard.

I suppose what my friend has offered is that we do not want to sacrifice the good for the perfect. In seeking to find a way to better achieve the balance, we did not get all the way there, but we made a great stride.

In the general question about justice and how we write laws for that area, is this a good example upon which the government and opposition can build in order to strike a better and more equal balance with respect to things?

The fact that we are under time allocation on this motion does not speak to a lot of confidence on the government side that they do have the right balance. They have to invoke it so often. Today was the 50th time to shut down debate in Parliament.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, yes, I think there is some irony that the government quite often will not take yes for an answer.

We worked together in committee. We had a lot more improvements that we felt could have been made to further defend victims' rights in this bill and to further increase public confidence in what we were doing.

What saved it for me was the willingness of the government to accept the five-year review. Parliament will come back and look at this issue again. As the member says, we are making an improvement and we are taking a step forward.

It is not a perfect bill, but having a five-year review by Parliament will allow us to look at this issue again and see if we have in fact done the right thing or if there is more we could do to improve the situation.

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

Mr. Speaker, I am disappointed that the official opposition is supporting this bill as is.

I read it carefully and studied it, and I still do not find that it achieves the right balance in its approach to the not criminally response system. There is currently no empirical evidence whatsoever that the system is not working for Canadians.

I am very supportive of the sections that give advance notice to victims. I think we could have done a better job of balancing the interests for victims' rights. At the same time, we did not need to include, for instance, the word "brutal". “Brutal” is now a word that would mean one or the other for the high-risk accused. If the crime committed is of a brutal category, even if it does not result in death or another serious crime, the brutality of the offence is in the act as a single reason to put someone in the high-risk accused category.

The word “brutal” has no definition in criminal law, nor does it have a definition in the field of mental health or in academic and scientific understanding. Therefore, it creates a vast uncertainty for people who might be assigned high risk accused.

I ask my friend about that weakness in the bill.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, I am bemused when she says there is no empirical evidence of a need to do something with this bill. Has she not heard the voice of victims? Has she not seen the things that have happened with victims all across the country? I believe there is, in fact, a lot of empirical evidence.

I want to say again that this bill would actually help to reduce the stigma around mental illness by separating out these very few high-risk offenders who have committed what I would say are quite brutal acts. There is no way to describe a public beheading other than as “brutal”. It would also help assure the public that we have the measures in place to take care of those situations so that we can then turn our minds to the other mental health issues in society without being worried about these extreme cases.

[Shelly Glover, Conservative, Parliamentary Secretary to the Minister of Finance]

Mr. Speaker, I want to thank my colleague for his comments with regard to the case involving Tim McClean. Tim McClean's family is one that I am quite close to, and Carol de Delley will be very pleased to hear that the NDP member is supportive of this bill.

I want to assist my NDP colleague and friend by adding to the answer he just provided to our colleague from the Green Party. I remind her that the term "brutal nature" has in fact been interpreted to mean "conduct which is coarse, savage and cruel and which is capable of inflicting severe psychological damage on the victim...". That is from R. v. Langevin in the Ontario court of appeal.

I wanted to help my learned friend across the way from the NDP in answering that question and once again thank him for his comments with regard to protecting victims and supporting this bill.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, I thank the member for her comments. I struggled thinking about this speech and whether to talk about the individual cases of victims, because I know that it is often quite difficult for them to relive this over and over. My hope is that the use of these examples in the bill will help the victims' families feel that they have contributed something when we come to cases of future victims. I believe that they will make a contribution.

As when I talk about the criminal law, I rarely use the name of a perpetrator. I do not think that even in these cases perpetrators should become famous. It is the victims we should remember.