Justice Committee on June 3rd, 2013

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, I'm going to call this meeting to order. This is meeting number 75 of our Standing Committee on Justice and Human Rights. Today we will be dealing with Bill C-54, an act to amend the Criminal Code and the National Defence Act (mental disorder).

Just before we begin with our very special guest, the Honourable Minister Nicholson, Minister of Justice and Attorney General of Canada, we are meeting because of the seventh report of our Subcommittee on Agenda and Procedure. So to be official, I would like somebody to move this because this is what we said we were going to do.

[An hon. member]

I so move.

[The Chair, Conservative, Mike Wallace]

All those in favour?

(Motion agreed to)

We'll move on.

Thank you, Minister, for joining us. You have one hour, until 4:30, to talk to us about Bill C-54. We'll give you time for an opening statement and then we'll go question by question.

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

Thank you very much. I'm pleased to be with Julie Besner and Carole Morency, whom you have probably met or known over the years, who have testified and provided information to the committee.

I am very pleased to come before the committee today to discuss Bill C-54, the Not Criminally Responsible Reform Act.

Before I discuss what is in the bill, I would like to mention what is not proposed by this legislation.

First, the proposed reforms do not seek to punish individuals who have been found by the courts to be not criminally responsible on account of mental disorder.

Second, nothing in the bill would impact mentally disordered accused's access to mental health treatment. Bill C-54 seeks to provide guidance to those who are involved in the decision-making process for accused persons who are found by a court to be either not criminally responsible on account of mental disorder or unfit to stand trial. These individuals are referred to as mentally disordered accused and are dealt with according to the powers and procedures set out in the Criminal Code mental disorder regime.

I would like to speak first to the difference between these two verdicts. When an accused person suffers from a mental disorder that prevents them from understanding the court proceedings and communicating with their lawyer, the trial cannot take place and the court enters a verdict of unfit to stand trial. On the other hand, if the accused person is tried and is found to have committed the act or omission that constitutes an offence, but lacked the capacity at the time of the offence to appreciate what they did or know that it was wrong, the court enters a verdict of not criminally responsible on account of mental disorder.

A finding of NCR or unfit to stand trial are special verdicts, as those accused persons are neither acquitted nor convicted. Instead, orders referred to as dispositions are put in place to set out whether the accused will be detained in the custody of a hospital; discharged with conditions; or in the case of those found NCR, if they do not pose a significant threat to the safety of the public, discharged absolutely.

Bill C-54 proposes to amend the provision in the Criminal Code that sets out the considerations that the court and review board must take into account in making dispositions with respect to NCR or unfit accused persons.

One of the key proposals in Bill C-54 is the amendment that would clarify that public safety is the paramount consideration in the disposition-making provision. This is an amendment that has been strongly supported, you will be pleased to know, by my provincial and territorial attorneys general.

Codifying this principle would ensure that it is applied consistently across this country in all jurisdictions, and it would also be consistent with the Supreme Court of Canada jurisprudence, most recently in the case of Regina v. Conway, in 2010. In that same provision, Bill C-54 proposes to replace the term “least onerous and least restrictive to the accused”, with the requirement for the courts and review boards to make a disposition that is necessary and appropriate in the circumstances. This wording is easier to understand and is intended to be consistent with the Supreme Court of Canada's interpretation of this principle in Winko v. British Columbia. That is, in essence, that the accused's liberty shall be limited no more than is necessary in order to protect the public.

Bill C-54 amends the Criminal Code to enhance the safety of victims and provide them with opportunities for greater involvement in the hearing process. The bill provides that victims be notified when an accused is discharged if they so requested, and it allows for non-communication orders between an NCR accused and the victim. The bill also requires the courts and review boards to give specific consideration to the safety of the victim in determining whether or not an accused poses a significant threat to the safety of the public.

In addition to the amendments seeking to clarify the provisions of the Criminal Code, the bill proposes a new procedure for increasing public safety in cases where the public is at higher risk.

The bill proposes a new scheme that would permit the courts to designate certain NCR-accused as high risk. A high-risk NCR-accused scheme would apply to a small number of accused who have been found NCR and who pose a higher threat to public safety. A successful high-risk designation would follow certain steps.

First, an accused must be found NCR for a serious personal injury offence. This type of offence is currently defined in the mental disorder regime as an indictable offence involving the use or attempted use of violence or conduct intended to endanger the life or safety of another person, or a number of sexual offences. Second, the prosecutor must make an application to the court for a finding that the NCR-accused is a high-risk accused. Third, the court would hold a hearing to determine if the NCR-accused is high risk.

An NCR-accused may be found to be a high-risk NCR-accused in one of two situations. The first situation is that the court is satisfied that there is a “substantial likelihood” the accused will commit violence that could endanger the life or safety of another person. Substantially likely is a higher test or threshold than is currently required to maintain jurisdiction by a review board over an NCR-accused. This latter test is defined as “a significant threat to the safety of the public”.

The second situation where a high-risk designation may be made is if the court is of the opinion that the serious personal injury offence was of “such a brutal nature as to indicate a risk of grave...harm” to the public. Although the level of risk posed by an NCR-accused designated under this category would be different from the first situation, the nature of the actions that form the basis for the application, coupled with the serious potential harm should the accused reoffend, indicate a need for increased protection and restrictions.

An important limitation on a high-risk NCR scheme is that it would only apply to those found NCR. It would not apply to those found to be unfit to stand trial. There are two reasons for this. First, an unfit accused has not yet been tried for the offence, and therefore it has not been proven that they committed the act. Second, an individual who is not fit to stand trial would also not be fit to participate in a hearing to determine whether they should be designated as a high-risk accused.

A second limitation on the scope of the high-risk NCR-accused designation is that it would only apply to an accused who is over the age of 18 years at the time of the offence. The Youth Criminal Justice Act contains special provisions to deal with youth accused who suffer from mental disorders, including the imposition of an intensive rehabilitative custody and supervision order on young people with mental health issues who have committed serious violent offences.

The result of a high-risk designation is that the accused must be detained in a hospital. The review board would not have the discretion to order an absolute or a conditional discharge, nor could a high-risk accused be absent from the hospital except for medical purposes or for any purpose that is necessary for their treatment. Any absence would require an escort and a structured plan to address any risk to the public related to the leave.

A high-risk designation may also impact the time period between review hearings. Currently, mentally disordered accused persons have their cases reviewed on an annual basis, though this may be extended up to two years in certain circumstances, i.e. upon the consent of the accused and the Attorney General, or if the review board is satisfied that the condition of the accused is not likely to improve and the detention remains necessary for the period of the extension. A high-risk NCR-accused may have their review period extended by the review board up to three years.

Finally, a high-risk NCR-accused designation would not be permanent. It may be revoked by a superior court of criminal jurisdiction. The process would begin with a recommendation by the review board that the high-risk NCR-accused no longer presents a substantial likelihood of committing violence that could endanger the life or safety of another person.

Upon the recommendation of the review board, the court would hold a revocation hearing. After considering all of the evidence, the court would determine whether there is no longer a substantial likelihood that the accused would commit violence that could endanger the life or safety of another person. If the court is satisfied that the high-risk accused no longer poses an elevated risk, the court must revoke the high-risk finding. Upon revocation of the high-risk finding, the accused would be dealt with as a regular NCR-accused and continue to be supervised by the review board as appropriate.

I would like to underscore the importance of these amendments for all Canadians, especially victims who desire that public safety should come first in the mental disorder regime. Bill C-54 intends to strike a better balance between the need to protect society against those who pose a significant threat to the public and the need to treat mentally disordered accused persons appropriately.

Thank you, Mr. Chairman.

[The Chair, Conservative, Mike Wallace]

Thank you, Minister, for that presentation.

I'm sure there are questions.

Our first questioner is from the New Democratic Party, Mr. Mai.

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

Thank you, Mr. Chair.

Mr. Minister, thank you for coming here today to give us your presentation and answer our questions.

Mental health and crime are difficult matters. As we know, they involve families, victims and the community. Divisions can occur. As you mentioned, public safety must be the priority, but there must also be respect for the rule of law and for the Canadian Charter of Rights and Freedoms.

You mentioned the need to protect victims. That is important for us too. We continue to examine it today in the context of this bill. But we also get the impression—and this often happens with the Conservatives—that a political game is being played. If I am not mistaken, there has been a fundraising campaign in connection with Bill C-54. On our side, we feel no politics must be played with such an important issue. The Guy Turcotte case affected us deeply in Quebec. The public asked a lot of questions.

Under Bill C-54, in your opinion, would the Guy Turcotte case be considered high-risk? With this bill, you are creating a new category of accused. Would it apply to Guy Turcotte?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, I don't try any cases individually, but certainly there have been a number of high-profile cases in this country that have raised a number of questions, and indeed a number of issues with respect to the NCR designation. That being said, we have moved forward with this on a number of fronts. As you pointed out, we are concerned about victims. I'm very pleased with the provisions that deal specifically with respect to victims. Helping to ensure that victims are notified when an NCR-accused is discharged is an important component of this.

One of the things I've been careful with when I've spoken about it, Mr. Chairman, is that some victims do not want to be notified. They don't want to be a part of this. That is their prerogative. Again, I think this strikes the right balance in terms of protecting the public and ensuring the individual has the type of assistance they need. Again, that is consistent with the legislation we brought forward to better protect victims.

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

I understand that you do not really want to talk about specific cases, but, in press conferences, the Conservatives often refer to cases in the news. They put band-aids on major problems. Anything to do with the Criminal Code really is major. You have given us general explanations, but could you tell us what you consider would constitute a high-risk accused in not criminally responsible cases?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, I don't agree with the premise of your question with respect to meeting with victims' groups. Yes, we do meet with victims' groups, and indeed a number of these individuals have come forward with their concerns and have enumerated and set out either the notification that they have received or the lack of notification in some instances.

So again, it's critical that we move forward on this. We have indicated, as you point out, that we have a special category now with respect to high-risk individuals, but there is a procedure in place. After an individual has been found to be NCR, the crown could bring forward the application. This of course will be considered by the court and I think that's entirely appropriate, Mr. Chairman, because it's the court that initially makes the decision that the individual is not criminally responsible. So I believe it's appropriate that, within that forum, the courts then would make that decision. As I pointed out in my opening remarks—as the member will remember—we're talking about a small group of individuals who are particularly dangerous, not just to the public—I always say this—but they're a danger to themselves as well.

So we've put certain parameters around that category. As I indicated, it's not a permanent designation, but nonetheless, it's one that is appropriate and reasonable under the circumstances.

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

Let’s cut to the chase. We know that victims are worried, particularly in the Guy Turcotte case. Psychologists tell us, in fact, that he is not ill and that he does not pose a danger to the public. Would Bill C-54 apply to him? Would Guy Turcotte be considered a high-risk accused?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, I make no determination on any individual case, but needless to say, we are bringing forward a law, and it's my hope that it will be approved by this committee and enacted by Parliament. It will set out a regime for all those individuals who have found to be not criminally responsible or unfit to stand trial.

As you know, Mr. Chairman, it sets out the test in some detail for the individual to be found in the high-risk category. Again, these are all completely reviewed by the court, and indeed, for any individual who finds himself or herself in this, we of course have been very supportive of those individuals getting medical attention. That's obviously an important component, that individuals get the medical attention they need.

[The Chair, Conservative, Mike Wallace]

Thank you, Minister.

Our next questioner is Monsieur Goguen from the Conservative Party.

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

Thank you, Mr. Chair.

Thank you for appearing, Mr. Minister, and thank you for bringing your officials to cast some light on this important legislation.

Obviously, protection of the public is always paramount in the mind of this government. Certainly what's interesting about this bill is that it also takes into account the right of victims to be made aware of the release of very dangerous individuals. The bill also balances the treatment component of the individuals who have been found not criminally responsible so they're not left unattended to.

The cases of Vince Li, Allan Schoenborn, and Guy Turcotte brought the issue of being not criminally responsible to the forefront in Canadian society. We know that it's a fundamental principle of criminal law that a person must possess a guilty mind, the mens rea, to be criminally responsible for a wrongful act. Of course, in order to be tried people must be able to communicate and give instructions to their lawyers and understand the nature and the consequences of a criminal trial, because their liberty is at stake.

So if a person is found to have committed an act that constitutes an offence, but lacks the capacity to appreciate why he or she committed the offence or know that it was wrong due to a mental disorder at the time, we understand the court makes a special verdict of not criminally responsible on account of mental disorder. Such people are not tried and they're not convicted.

Could you please explain what happens to someone who is found not criminally responsible, Minister?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, an individual is turned over to provincial authorities and they become eligible for the kind of treatment that they have to have. In normal circumstances that individual will be assessed by a board that has been set up by the province, and they will make a number of determinations. The individual could be detained in the hospital, the individual could be absolutely discharged, or the individual could have a third finding, to be released with certain conditions. That is what happens to the individual. They have a review of the case involving them every year, or it can be extended up to two years, as I indicated in my opening remarks.

That is the regime. That's the framework we've had in place in Canada, to have individuals get the help they need within the provincial health system. What we have done for a small group is to have another designation with respect to the high-risk individual. As I indicated to your colleague across the aisle, there are a number of criteria to decide whether the individual comes within that category. This has complete judicial oversight. In fact, it's the courts that make that determination. If there's any change, the courts make that determination.

We do get the courts involved at the beginning. Indeed, with respect to high-risk individuals, we get them involved if there's any change to that. But the individual who loses the high-risk designation, or the individual who doesn't get it in the first place, is within the provincial health care system in terms of getting the treatment they need.

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

You talked about the high-risk designation. Of course, not everyone who's found not criminally responsible will have this designation. I believe you said that the crown had to make application to have this designation applied and they would bear the onus of proving that this person—

[Rob Nicholson, Conservative, Niagara Falls, ON]

Well, exactly. That's a very good point. They would have to demonstrate to the court that the individual should carry this high-risk designation. There are a number of elements to that. I think I indicated in my opening remarks that, first of all, it would have to be a serious personal injury offence. That's what we're talking about.

There are a number of criteria that you'll hear about and I'm sure you're completely aware of, Mr. Chairman, as to how and when this designation would be appropriate. But you're quite correct that it's the crown that will bring forward that designation. Again, that happens after the trial and after the individual has been found to be not criminally responsible.

It's a very reasonable proposal to make sure that the protection of the public, first of all, is paramount and that the individual gets the assistance they need. They are protecting the public, but indeed protecting the individual from committing some of these actions. It's been well received by my provincial counterparts, and I've been very pleased about that. On a number of occasions, as you know, they have come forward and asked us to move in this direction.

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

While I understand the crown will bear the onus for proving this, of course, the defence counsel will have the comfort of knowing that the test has been set out.

I understand that the test has been codified by the Supreme Court of Canada, Mr. Minister.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's a very good point.

Again, we were very careful in the drafting of the bill. Indeed, as you have pointed out, we have codified parts of the decisions that have been already rendered by the courts. I think that's entirely appropriate. As you say, this is a reasonable response to a challenge that we've been handed.

[The Chair, Conservative, Mike Wallace]

Okay. Thank you for those questions and thank for those answers.

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

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chairman.

Mr. Minister, several weeks ago there was an alliance of mental health groups who stated their opposition to this bill and complained that not one single mental health organization was consulted during the creation of Bill C-54.

My question, sir, is why not?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, I do consult widely on these, and when I get together with my provincial counterparts, who have responsibility for the mental health components of this, I always ask them for their input because they ultimately have the responsibility for the hospitals. They set up the boards that review the dispositions of the individuals found to be not criminally responsible, and for the most part, the treatment these individuals receive is administered by provincial agencies. So I do consult very closely with them, and indeed I certainly appreciate and rely on the input they make to, quite frankly, not just this piece of legislation but a number of pieces of legislation that we have heard.

But quite apart from that, we do speak with victims' groups on a regular basis wherever I go in this country.

I would say to all individuals and groups having a look at this, look at the components of the bill. This is very reasonable in terms of clarifying what the law is, better protecting victims, and indeed, addressing the issue of a small number of high-risk individuals who are a risk to the public and a risk to themselves. That's all I'd say to groups that....

I have to say that I do appreciate the input I have had from provincial attorneys general and those who work with people in this area. It's been very satisfying and I've been very encouraged. Indeed, I've been very encouraged, since the introduction of this bill, that a number of them have come forward and said that they are supportive of the different elements of this.

The bill, overall, works and I hope, Mr. Casey—and I believe, Mr. Chairman, you'll be having a number of witnesses over the next couple of days—that certainly you'll come to the same conclusion I've had, that this is a very reasonable response to a number of issues that have been raised in this area.

[Sean Casey, Liberal, Charlottetown, PE]

Do I understand you to say that the responsibility to consult with mental health groups is one that rests with provincial attorneys general and not with the Government of Canada, which is bringing the bill forward?

[Rob Nicholson, Conservative, Niagara Falls, ON]

No, certainly they have a huge role to play, I don't have to tell you that.

But as you know, this government has sponsored the Mental Health Commission. You'll know of all the different efforts we have had, working with our provincial counterparts, in the whole area of mental health. Mr. Chairman, I'm sure you've heard evidence of that over the years on this committee, which has been very important indeed. The Mental Health Commission, instituted by the Government of Canada, is a perfect example of a major financial commitment on behalf of this government.

That being said, I never underestimate or belittle in any way the huge responsibility that the provinces have with respect to health care. As you know, they have the constitutional responsibility for that.

But again, this is why we have to be so careful crafting these pieces of legislation. We all have a responsibility to deal with these individuals, and again, what we are doing is very reasonable and it addresses those individuals who have had mental health issues. We are better protecting them and indeed the public. Yes, I agree, we all have a role to play, but I certainly never underestimate the huge role that the provinces have in administering health care, as they do of course under the Constitution.

I know we've just had a budget recently. I always look to see what money goes towards assisting the provinces in health care, and I'm very pleased that we've increased those amounts again this year. So yes, we're giving more for health care to the provinces. We've taken that responsibility very seriously. I've been pleased with the relationship at that level, and certainly, with the coming together of a piece of legislation like this.

[Sean Casey, Liberal, Charlottetown, PE]

Along that same line, Mr. Minister, you are aware that shortly after Bill C-54 was tabled in the House, my colleague, Mr. Cotler, brought forward an order paper question asking you about the treatment capacity in institutions where not criminally responsible individuals would be held. The government's answer to virtually every single aspect of his question was that only the provinces would have access to this information.

But a couple of the questions he asked, I would suggest to you, Mr. Minister, you should be able to answer. First, what steps are your government taking to ensure adequate capacity? Also, what analysis has your government performed of any potential need for increased capacity? I don't see why that type of information would be solely within the domain of the provinces.

So my question for you, Mr. Minister, is this. What, if any, analysis has the government performed to determine whether Bill C-54 will result in a need for increased capacity in treatment facilities?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Certainly, I obviously discussed these with my counterparts in terms of their administration of them, and we were very careful not to come forward with legislation that isn't consistent with a number of the priorities they have with mental health and all health issues, as I indicated to you in my first answer. I'm one of those who looks when the budget gets tabled by Mr. Flaherty. I always check what are we doing in terms of transfers to the provinces, and I can tell you I've been very pleased that we've continued to increase them.

I know the provinces are looking to make their requests for additional funds every year, so I've been very pleased that not only has the funding been maintained, but it has been increased every year, as you will know from the budgetary process. I think a lot of people recognize that this is helpful. Of course, it's not just dealing with mental health. Individuals and the provinces are confronted with a wide range of health issues.