Good afternoon, Mr. Chair and members of the committee. It is a true honour to speak to you today and to be part of this very important conversation we're having this afternoon.
I feel that Bill C-54 presents many unique opportunities to change the law in this area, and I want to discuss the implications of this bill and some of the potential consequences it could have.
When Minister Nicholson was before this committee on Monday, he spoke about a need for a balance in what the Supreme Court has called the “twin goals” of the NCR regime. That is on the one hand public safety, and on the other hand, fair treatment of the NCR accused.
However, if balance is the issue, then the Canadian Bar Association respectfully submits that Bill C-54 gets that balance wrong. This imbalance here is significant, because getting it wrong ultimately puts long-term public safety in jeopardy.
No one denies the pressing need for adequate protection of the public. However, true protection of the public requires much more than detaining the NCR accused. Long-term public safety is best achieved through treatment and reintegration into society. Unfortunately, Bill C-54 does little to encourage this. The CBA supports some provisions of Bill C-54 but recommends against others.
I will now discuss the three major amendments proposed by the bill.
First, the CBA supports the proposed requirement that victims be notified, if they so choose, of the NCR accused's discharge, as well as the option for review boards to issue no-contact orders.These amendments fill a gap and have the laudable goal of addressing the needs of victims in the NCR regime. These build upon the introduction of victim impact statements in 2005, and the CBA fully supports them.
The second amendment I want to discuss is the removal of the “least onerous and least restrictive” requirement. The CBA recommends against this.
Under the current regime, review boards must make a disposition that is the least onerous and restrictive to the NCR accused, taking into consideration public safety, the mental condition of the accused, their reintegration into society, and their other needs. Public safety is already a fundamental consideration for review boards when deciding whether to release or detain an NCR accused. It's front and centre.
In the words of then Justice McLachlin in the Winko decision, “it ensures that the NCR accused’s liberty will be trammelled no more than is necessary to protect public safety”.
This requirement of being the least onerous and least restrictive is thus an important component of the balanced approach of the current regime. The Supreme Court has repeatedly said that the “least onerous and restrictive” requirement is at the heart of the constitutional validity of the NCR regime. Several cases going back nearly 15 years have affirmed this standard as essential for compliance with the Charter of Rights and Freedoms.
The proposed amendment to remove this language would bring that constitutional validity into question. Introducing the new and untested language of “reasonable” and “necessary” in the circumstances serves to negate the goal of consistent application of the law by review boards across the country.
Likewise, the proposal to make public safety the primary consideration in the bill disturbs the crucial balance between public safety and fair treatment of the NCR accused by making one more important than the other. This is another component that the Supreme Court has repeatedly identified as central to the current regime.
The CBA therefore recommends that the committee not remove the “least onerous and the least restrictive” requirement.
The third and final amendment I wish to discuss is the proposed addition of a designation of high risk that would apply to some NCR accused. The CBA submits that this addition is not only self-defeating but counterproductive to the goal of enhancing public safety.
First, the proposed high risk regime suggests that just because the NCR accused has committed one serious offence, they will do so again. Existing evidence suggests the exact opposite. Furthermore, the Winko decision is clear that there can be no presumption of dangerousness. We moved away from the stereotype of the mad offender in the Swain decision nearly 20 years ago.
Second, the proposal risks being overbroad. That means the means to achieve its objectives are broader than necessary. This brings its constitutionality into question. The consequence of being designated high risk is that the NCR accused falls into a different custody regime.
It is unclear how this furthers the goal of enhancing public safety. The extra restrictions placed upon a high risk NCR accused could be characterized as punitive in nature. The objective ought not to be punishment because the accused has not been convicted of a crime.
However, if enacted, what does the CBA propose? We have three recommendations.
First, we recommend eliminating the proposed subsection enabling courts to designate an NCR accused as high risk if it is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.
Second, if this proposed subsection is not eliminated, then the CBA recommends that it should be redrafted to provide greater clarity, including a definition of “brutal nature” and a statement that the focus is on future conduct.
Finally, if the high risk regime is enacted, the CBA recommends adding a procedural mechanism to permit the NCR accused to apply directly to the court on an annual basis to remove the designation. This would encourage his or her progress and treatment.
I'd like now to offer some concluding remarks for the committee's consideration.
Our understanding of treatment and societal acceptance of mental illness have come a long way. We must always remember that the NCR accused is not a prisoner but a patient who needs effective treatment. That treatment is how we ensure public safety in the long term. Bill C-54 must recognize this essential point: an NCR verdict is not an opportunity to exact retribution on an immensely ill offender.
Thank you, Mr. Chair. I look forward to the committee's questions.