Justice Committee on June 3rd, 2013

[Julie Besner]

As I explained, the courts will have to consider various elements of evidence. Among them, there is the testimony of experts and of psychiatrists. However, the decision remains with the court. The decision is not made by psychiatrists.

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

As I see it, brutality is quite subjective. Can you give us a definition of a brutal crime or action, with reference to other parts of the Criminal Code? Since this is a new criterion for a new category of accused, can you tell us how brutal is defined?

[Julie Besner]

The bill does not contain any definition of brutality; it simply sets out a provision requiring the court to consider the nature and circumstances of the offence. So the bill contains no definition of brutality as such. It would be up to the court to decide that case by case.

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

Is this already covered by case law, or other provisions of the Criminal Code, or is it completely new?

[Julie Besner]

It is not completely new. The concept actually appears in the part of the Criminal Code that deals with dangerous offenders. Perhaps it was interpreted in that context. In the future, it may well be interpreted in the context of people with mental disorders.

[The Chair, Conservative, Mike Wallace]

Okay. Thank you very much for those questions and those answers.

Our next questioner is Mr. Albas from the Conservative Party

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

Thank you, Mr. Chair.

I certainly appreciate our testimony from the witnesses today. I've actually received some correspondence from some of my constituents. I was actually hoping to ask the minister, but obviously, I am very happy to have you here. Some of the questions that have been brought up in regard to some of this legislation....

Again, I want to thank the analysts, Mr. Chair, for putting together so many good questions for us, because there are a number of questions I'd like to ask. Part XX.1 of the code came into force in 1992. This was in response to the Supreme Court decision in R. v. Swain. It was amended in 2005 in response to the court’s decision in R. v. Demers and the parliamentary review undertaken by the Committee on Justice and Human Rights in 2002.

The minister gave a very good analysis in his testimony, and actually, I think I'm going to take that testimony and send it to one of my constituents.

In your opinion, what impact would Bill C-54 have on cases like we've seen, such as Vince Li, Allan Schoenborn, and Guy Turcotte?

[Julie Besner]

I think the minister explained that he was not going to opine on any specific cases and on how the court would handle those cases. The legislation is intended to provide quite a bit of guidance on certain tests and thresholds for the new designation of high risk, or whether it's not in that designation but just in the paramountcy of public safety. I don't think I can elaborate beyond what the minister has already said in that regard.

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

Okay.

I had some consultations on Bill C-54. I know the minister had mentioned that he had quite a bit of support expressed by his provincial and territorial counterparts. Specifically, he did mention some victims' groups. Do you have any specific groups that were consulted on some of the provisions in Bill C-54?

[Julie Besner]

I can speak to some consultations that we held with our provincial and territorial counterparts. There is an FPT forum of senior officials, the Coordinating Committee of Senior Officials. Some of you may be familiar with that committee. It is represented by attorney general officials from the various jurisdictions. Some of the provisions in the bill were discussed at length with them, since around 2010. I think the minister indicated that the Attorney General of Manitoba had expressed a great interest in the importance of the paramountcy of public safety. That issue has been discussed at length in that FPT process.

In terms of victims' groups, I don't have a list, exactly, of all the victims' groups. I've read some reports of the minister and other officials having travelled to different parts of Canada. I'm not in a position to provide a detailed list in that regard of all the people they may have met with.

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

Okay. Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions. Thanks for those answers.

Our next questioner from the Liberal Party is Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

We tried in writing, and we tried with the minister. I'm going to try again. I think it's a simple question that just requires a yes or no answer. Has the government done any analysis to determine what the impact will be of the bill on the capacity of mental health care facilities? Yes or no.

[Julie Besner]

I heard the minister explain that he discussed with his AG counterparts the subject matter of the bill and that they shared the importance of moving forward with these amendments. That's what I heard earlier. In our forum, in the Coordinating Committee of Senior Officials, we discuss legal policy issues, legislative matters, with prosecutors. In this case we consulted with prosecutors who regularly appear before our review boards. Our consultations focused primarily on legislative, legal policy matters.

That's all I can add to what the minister said.

[Sean Casey, Liberal, Charlottetown, PE]

So if any has been done, it doesn't fall within your bailiwick, within your job description.

[Julie Besner]

We don't meet regularly or even not regularly with hospital officials, if that's what you mean.

[Sean Casey, Liberal, Charlottetown, PE]

Do you know whether any provincial jurisdiction has done any analysis into the impact that these changes will have on the adequacy of the capacity in those institutions?

[Julie Besner]

I don't know the internal discussions the provinces had with their counterparts in other departments. I'm not in those other governments.

[Sean Casey, Liberal, Charlottetown, PE]

So if we don't know of any analysis that has been done at the federal or the provincial level, can you tell me how much time the provinces are going to have to prepare for these unknown changes and challenges to capacity?

[Julie Besner]

Bill C-54 provides a coming-into-force date of three months after royal assent.

[Sean Casey, Liberal, Charlottetown, PE]

Three months.

[Julie Besner]

That's what's provided in the bill.

[Sean Casey, Liberal, Charlottetown, PE]

I'm going to step away from the issues of capacity in health care institutions and talk to you a little about constitutionality.

I'd like your comments on constitutional concerns in two respects. One, as my initial question suggests, if these changes result in an overburdening of mental health care facilities with more patients than they're equipped to accommodate, what are the constitutional concerns there? Two, are there any constitutional concerns with respect to continuing to detain an individual with a mental illness after that person has been found by experts not to pose a significant public safety risk?

[Carole Morency]

If I understand the question correctly, when the minister introduced the bill...it is introduced on behalf of the government and he has satisfied himself that the bill is constitutional. To the extent that there may be a challenge to a provision, which we see when criminal law reforms or other reforms come forward, the government can and will mount a vigorous and credible defence in support of these provisions.

We're not in a position to provide any analysis, for example, in response to your question of what would happen if there were a charter challenge as a result of the overburden, I think you said, on the forensic services in the provinces. Obviously, the government would defend in support of the legislation and presumably the provinces would as well. Remember, as the minister said, the provincial attorneys general have been supportive of coming forward with amendments, in particular to ensure that safety is given the paramount consideration.

So this is an issue of importance not just to the federal government but also to provincial governments and communities.

[The Chair, Conservative, Mike Wallace]

Mr. Casey, that is your time. Thank you very much.

We go now to Mr. Seeback from the Conservative Party.