Justice Committee on June 5th, 2013

[Paul Burstein]

That's an excellent question.

Part of the concern of the high-risk offender designation is that it really is overly broad. By incorporating the definition of “serious personal injury offence” in, and I can't remember the section, but it's the one that's in proposed section 202.161, which includes use of violence or threatened use of violence. Incorporating that will capture anyone who is up on a charge of assault, simple assault, who arguably could benefit from perhaps an NCR verdict in terms of getting into the mental health system.

Now, with their being at risk of being designated as a high-risk offender and thereby being disentitled from a review until three years down the road, I can't imagine a single defence lawyer advising their client facing a simple assault charge where, if they are found guilty, they are unlikely to go to jail for anything more than six months—these are summary conviction offences—to take an NCR verdict where they were going to end up with a high-risk offender designation and be detained for three years. It will most certainly deprive a significant number of accused who are in need of an NCR designation and treatment from pursuing that kind of verdict.

If you look at Crocker's report, for a significant number of offenders, about 40%, their first contact before they committed a very serious offence was for some minor offence, assault, theft, or something like that, something that otherwise they could have been caught up with in the mental health system if they had voluntarily sought an NCR verdict.

So it's a bad idea.

[Irwin Cotler, Liberal, Mount Royal, QC]

—and ultimately prejudicial to the public safety?

[Paul Burstein]

Absolutely.

[Irwin Cotler, Liberal, Mount Royal, QC]

I have a question now for Mr. Parry.

The minister, when he came before this committee on Monday, said that the high-risk designation is sure to be narrowly applied. You mentioned today that the high-risk designation could be characterized as overly broad.

On what basis do you think the minister could have made such a statement, and would you agree with that statement?

[David M. Parry]

The reason the CBA thinks that this could be overly broad is that there is no specific definition given to the brutal nature of the offence. That is extremely problematic, because one of the fundamental principles of our Canadian criminal law is that the law has to be certain; otherwise, one of our fundamental concepts in criminal law, that the law has to be clear for you to be convicted of breaking it, just won't be present.

I think the danger with the high-risk designation is that because it is unclear, it could start to be applied to more and more offences. That is problematic, because we're then shifting the focus away from looking at the treatment of the accused—what the accused's mental condition actually is—towards the nature of the offence that was committed. That goes against the whole purpose behind Bill C-54, which is to shift attention to public safety.

[Irwin Cotler, Liberal, Mount Royal, QC]

What would give the minister a basis to believe that the high-risk designation would assuredly be narrowly applied?

[David M. Parry]

When the minister spoke here on Monday, he said that the high-risk designation would really apply to a very small percentage of the NCR population. As we've heard from the witnesses today and as we all hear in the news, there are individuals who commit horrible acts and create victims who have to suffer serious psychological distress, but we have to remember that this is a very small percentage of the NCR population, and we cannot use that small percentage of the NCR population to set policy for the vast majority of other NCR accused who are out there.

[The Chair, Conservative, Mike Wallace]

That's your time. Thank you very much.

Our next questioner, is Mr. Armstrong from the Conservative Party.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Thank you, Mr. Chair, and I want to thank our witnesses for being here.

Mr. Burstein, you said you have been working with those with mental deficiencies since the start of your career, a day after you started as a lawyer. How many years is that, again?

[Paul Burstein]

It's more than 20 years, 21 or 22 years.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Over that time, can you roughly guess how many offenders you would have worked with as a defence attorney?

[Paul Burstein]

It might be between 100 and 200.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

It's up to 200. Of those, I'm assuming many were eventually released back into society after they had received their treatment.

[Paul Burstein]

I wouldn't say many, but some yes, some no.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Did any reoffend? Did any leave and then reoffend and stand defended again?

[Paul Burstein]

Typically, those at greatest risk of reoffending are those who, I'll say, are often living on the streets. Absolutely they reoffend. But we're talking about people who come up....

There's a court in Toronto at the downtown courthouse called Old City Hall, which is a designated mental health court. They come there on an assault charge, or a cause disturbance charge, or something like that. They get a sort of mental health diversion program put in place for them, and then they fall off the radar, fall off their medication, and yes, they reoffend. But in cases of serious offences, when they have proper support and treatment, no, I don't know of any who have.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

You brought up the Crocker report. I have in front of me a copy of the Crocker report, which was tabled in the House of Commons. I'm going to read a section of it from page 17. It says that of the total SVO, serious violent offence, sample that was looked at by Crocker, 46.1% had been previously convicted or found not criminally responsible. More specifically, 40.6% of the serious violent offence sample had at least one past conviction, and 27.3% had a past finding of NCR. Half of those that were accused of a sex offence had a previous conviction or NCR finding, 50% had at least one past conviction, and 38.1% a prior NCR finding. So among NCR individuals accused of murder or attempted murder, 44.6% had been previously convicted or found NCR. More specifically, 35.4% had at least one prior conviction, and 27.7% had at least one prior NCR finding. Finally, among NCR individuals accused of murder or homicide, 44.8% had a criminal history, 39.7% had at least one conviction, and 19% had at least one previous finding

There's a chart in this report that you have probably looked at before.

This shows that many of these individuals, even though they have received some treatment, are going back into society and reoffending. The ones that have been convicted of the most serious crimes, such as sexual offences and murder, are sometimes getting back into society and are reoffending. They have had previous convictions.

Don't you think that this legislation is going to protect society from some of these individuals who have previously been getting out and reoffending and who pose a threat to society?

[Paul Burstein]

I agree that's a very important statistic to look at. With respect, I just don't think you're reading it entirely correctly. You have to go to the appendices and break it down.

The vast majority of those percentages you're citing about people who have previously been convicted or had an NCR finding are previous convictions. There are a handful, yes, who have had a prior NCR finding, but most are just prior convictions, which is the very point I'm trying to make.

People come in contact with the criminal justice system, and they're identified as having a serious mental illness that was a factor in their offending on a lower level, certainly not something as serious as murder, assault, bodily harm, theft, robbery, and they don't get the treatment they need. They're let out back into society, unsupervised, unsupported, and they become very ill again. They deteriorate and then their crime escalates to something more serious.

If there were adequate resources to make sure those people were supported not just for the first six months after they come in contact with the criminal justice system but beyond that, they wouldn't then escalate and commit more serious crimes.

It actually makes my point, I think.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Here's one more: 38% of people who previously have been found with an NCR designation, who have committed some sexual offences, had a subsequent offence once they emerged. That's when they come out of treatment. They come out and the medical society has deemed them as not being a threat to society. They're released back into society and they reoffend, 38% of them, based on Crocker's numbers.

I think there have to be steps taken to make sure society is protected. Obviously, the regime we have in place now doesn't do it. You're saying what we need is more money at the front end, but these are people who have gone into the system, have had treatment, have gone back into society and have reoffended.

Don't you think that for the ones who have committed the most serious, violent offences, we have to change the system, once we give them that designation, to make sure there's a higher standard before they re-enter society?

[Paul Burstein]

I can only tell you from my experience appearing in front of the review board, that's applied. Anyone who's found NCR for murder or a really serious offence, there is a very high threshold that a review board applies before they ever let them back into society.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

But they're getting out; they are.

[The Chair, Conservative, Mike Wallace]

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

Our next questioner is Mr. Rankin from the New Democratic Party.

[Murray Rankin, NDP, Victoria, BC]

Thank you very much, Chair.

Thank you to all the witnesses for coming today.

I want to start with Mr. Burstein and Ms. Dann. I used to act for the B.C. Review Board, and I know of your reputation. I really welcome you to the committee.

I agree with Ms. Dann that review boards are often given deference by the courts in determining risk; there's just no doubt about that in the case law.

I want to ask both the CLA and the CBA a very simple question. If there were no amendments to Bill C-54, would you support this bill?

[Erin Dann]

If there were no amendments?

[Murray Rankin, NDP, Victoria, BC]

If there were no amendments as you proposed in your submission, would you support the bill in its present state?