Thank you very much.
Evidence of meeting #76 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site.) The winning word was illness.
A video is available from Parliament.
Evidence of meeting #76 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site.) The winning word was illness.
A video is available from Parliament.
5:05 p.m.
Executive Director, Canadian Association of Elizabeth Fry Societies
We're in the midst of the Ashley Smith inquest. I guess I don't have to say more about how that—
5:05 p.m.
Conservative
The Chair Conservative Mike Wallace
Thank you very much.
Our next questioner is from the Conservative Party.
Mr. Albas.
5:05 p.m.
Conservative
Dan Albas Conservative Okanagan—Coquihalla, BC
Thank you, Mr. Chair.
I appreciate the testimony we've heard both from the previous panel and from those here now. This is a topic on which, as Ms. Dann pointed out, legislators need to take into consideration many different views and have panels reflecting a wide diversity of ideas and thoughts. I appreciate your testimony.
Ms. Dann, you mentioned that there are a number of issues. From your association's viewpoint, funding is an issue for other priorities. As Ms. Pate has pointed out, many of them are provincial. There is a tension between federal and provincial responsibilities.
As a legislator, I can't pretend to know what resources the Province of Ontario devotes to it, because I'm not in that particular area. From what I've seen, based on this piece of legislation, this is really the area in which as legislators.... We can only tackle what's in front of us.
I imagine that a judge would have the same kind of issues. It's my understanding that it's the judge who would actually give the designation “NCR”.
Is that correct, Ms. Dann?
5:05 p.m.
Member, Criminal Lawyers' Association
It is generally a judge; sometimes a jury will make the NCR finding.
5:05 p.m.
Conservative
Dan Albas Conservative Okanagan—Coquihalla, BC
That is based on evidence produced to show that the person did not understand, going back to the legal principle of mens rea or guilty mind under our principles. Is that correct?
5:05 p.m.
Member, Criminal Lawyers' Association
It's one of two things. Either they don't understand the nature and quality of their acts or they don't understand that what they are doing is wrong. That's defined in our Criminal Code.
5:05 p.m.
Conservative
Dan Albas Conservative Okanagan—Coquihalla, BC
Under the current structure and the way the legislation works, someone would look at the evidence, but they'd also look to the legislation or statute and then determine what, in that particular case, the law would be. Is that correct, that this is what they would determine?
5:05 p.m.
Member, Criminal Lawyers' Association
When they are making the decision whether or not the person is criminally responsible, they would likely consider medical evidence about the person's mental disorder. They first have to establish that the person suffers from a major mental disorder. Then they have to determine whether that mental disorder renders the person incapable of understanding the moral wrongfulness of their act or the nature and quality of the act.
Once that decision has been made, they are found NCR, and that's when we get into the regime we're discussing today, which is the review board regime.
5:05 p.m.
Conservative
Dan Albas Conservative Okanagan—Coquihalla, BC
Yes.
Once they go into that regime, from what we heard before in witness testimony, and from what some of the witnesses in the previous panel seemed to say, if the judge and the court or the jury put that NCR designation in place, what would be wrong with that same authority being able to designate them as a high-risk offender?
The reason I bring this up is simple. I want to empower judges to be able to look at the law, to look at a particular case, and to make a distinction in order to serve all the interests, not just taking into account the NCR but also taking into account the victims and taking into account the public interest.
I do know that the term “public interest” sometimes gets thrown around, but again, it evolves with the situation. I would hope that your organization would also see that as an empowerment of our judiciary, to be able to show discretion and to be able to move with the particular case.
Would you agree with that?
5:10 p.m.
Member, Criminal Lawyers' Association
I think our judiciary does exercise that power, and would do so responsibly. I do note that in our current jurisprudence, it's quite clear that our judges view our review boards as much better at determining the issue of significant risk.
In terms of jurisprudence—Mr. Burstein is perhaps more capable than I, as he's been present in many of those cases—our Supreme Court has said, in cases like Owen and others, that great deference is owed to the review boards, that the review boards consist of psychiatric, legal, and lay people who are experts in their field at determining the issue of risk.
I'm not suggesting that it's impossible for judges to make that determination—
5:10 p.m.
Conservative
Dan Albas Conservative Okanagan—Coquihalla, BC
I'll interrupt you, if you don't mind. I'm looking at the time.
5:10 p.m.
Conservative
Dan Albas Conservative Okanagan—Coquihalla, BC
Basically, I'm going to be asking this of as many people who can answer.
One thing I didn't hear from any of the groups was a mention of victims, other than just in answering questions. I find that interesting, because we want to take into account as many as we can.
These proposed changes include notifying victims on request when a discharge order has been made with respect to a mentally disordered individual.
Could you quickly say if you agree with that change? I do think victims need to be taken into account.
5:10 p.m.
Member, National Criminal Justice Section, Canadian Bar Association
We support it as well.
5:10 p.m.
Conservative
The Chair Conservative Mike Wallace
Thanks for those questions and answers.
Our next questioner is Mr. Cotler from the Liberal Party.
5:10 p.m.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Thank you, Mr. Chairman.
I also want to commend the witnesses for appearing before us and for their witness testimony, particularly as they each represent organizations that have a repository of experience and expertise in the area of their testimony.
I want to begin by putting a similar question to each of you in turn. I'll begin with Ms. Pate.
Has the Elizabeth Fry Society been consulted by the government on this legislation?
5:10 p.m.
Executive Director, Canadian Association of Elizabeth Fry Societies
No, we have not.
5:10 p.m.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Mr. Burstein, has the Criminal Lawyers' Association been consulted by the government on this legislation?
June 5th, 2013 / 5:10 p.m.
Director, Criminal Lawyers' Association
Other than being invited here, no.
5:10 p.m.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Mr. Parry, has the Canadian Bar Association been consulted by the government on this legislation?
5:10 p.m.
Member, National Criminal Justice Section, Canadian Bar Association
No, we have not.
5:10 p.m.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Thank you.
I'll now go to a different set of questions, and I'll begin with Mr. Burstein.
Would those who might otherwise plead NCR be less likely to do so as a result of this legislation, and would they therefore be more likely to plead not guilty? If so, how would this affect their prospects for proper treatment?