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.

The House proceeded to the consideration of Bill C-54, An Act to amend the Criminal Code and the National Defence Act (mental disorder), as reported (with amendments) from the committee.

Not Criminally Responsible Reform Act

[The Acting Speaker, Bruce Stanton]

The hon. member for Saanich—Gulf Islands is not present to move her motions at report stage. Therefore, the House will now proceed, without debate, to the putting of the question on the motion to concur in the bill at report stage.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, I rise on a point of order with respect to Bill C-54 report stage amendments. In this regard I hope to be brief and I raise the matter, not to secure a ruling from you, Mr. Speaker, but rather for the completeness of the record and so you may take the matter under advisement in conjunction with the Clerk for further action as you both deem appropriate.

Briefly, Bill C-54 completed clause-by-clause review at committee Wednesday evening. I began contemplating report stage amendments immediately thereafter and made a request with the Legislative Counsel for the preparation of amendments with the belief that report stage would begin the House on Tuesday. On Friday, it became clear the debate would actually begin at report stage on Monday, today, and thus the amendments were needed by 2 p.m. Friday to comply with the exigencies of Standing Order 54. This was communicated by my office to the clerks preparing the amendments requested.

As I fully appreciate and understand, the amendments I sought were complex from a drafting point of view. Indeed, while I sought that one concept removed from the bill, this alone required the drafting of 32 separate motions to ensure that the statute would be intelligible if the House were to agree with this initiative. Unfortunately, it seems that the revised version of the bill, reflecting committee amendments, was not immediately available to counsel working on my amendments and as a result of the changed deadline, I was not provided with the amendments I requested before the Friday deadline had passed.

Indeed, I only received some of the amendments back this morning. I do not wish to fault anyone for this. Counsel could only work with the correct clause numbers after the bill had been reported since there were amendments. While I am making this point, I want to comment and commend all the hard-working individuals involved in the law clerk's office, in particular, Wendy Gordon, Marie Beauchemin, Anita Eapen and Doug Ward for their excellence and dedication. I know they are often underappreciated, particularly when asked to, as is often the case at report stage, draft amendments only to have them found inadmissible for procedural reasons.

As such, while there is a privilege issue to be advanced here because had my amendments been timely and ruled admissible, I could speak to them this morning, I simply wish to request that the Speaker and Clerk look into ensuring that the law clerk and parliamentary counsel have the staff and resources they require to complete the drafting task within the tight deadlines that I think only arise in exceptional circumstances such as this one.

While you look into this, Mr. Speaker, I would also ask that you investigate whether the e-notice system could be expanded to work with more browsers. While I acknowledge that I do not understand fully the technology terms, I gather that when the motions were received by my staff, they were unable to upload the amendments on my behalf remotely due to compatibility issues with e-notices and Firefox Chrome.

I realize these amendments, which for those curious would have removed the high risk designation and all references to it, may never yet see the notice paper. Indeed, they might have been ruled inadmissible upon introduction. That said, it is unfortunate that this situation occurred given the seriousness, yet complexity of my request and related deadlines involved.

I would therefore ask that you, Mr. Speaker, take the matter under advisement, while again expressing our support, and I believe all parliamentarians would join me in this for the hard work and dedication of the law clerk and parliamentary counsel's office.

Before I conclude, I am told that the only way these amendments could yet be considered, despite delay notice, which as I explained was unavoidable, is through unanimous consent. Therefore, and so that the hard work of the drafters involved is not completely forgotten, and the amendments proposed, I move: That notwithstanding any Standing Order or usual practice of the House in relation to the report stage of Bill C-54, An Act to amend the Criminal Code and the National Defence Act (mental disorder), that the notice requirement in relation to the 32 motions submitted to the Table by the member for Mount Royal be waived and that those motions that the Speaker would normally find admissible and selected at report stage be included for consideration at this same stage.

[The Acting Speaker, Bruce Stanton]

I thank the hon. member for Mount Royal for his intervention. On the first item, the request, I will certainly take that matter under advisement and get back to the House if necessary.

On the request for unanimous consent, does the hon. member for Mount Royal have the unanimous consent of the House to propose the motion?

[Some hon. members]

Agreed.

No.

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

moved that Bill C-54, as amended, be concurred in.

[The Acting Speaker, Bruce Stanton]

Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[The Acting Speaker, Bruce Stanton]

(Motion agreed to)

When shall the bill be read a third time. By leave, now?

[Some hon. members]

Agreed.

[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.