Justice Committee on June 10th, 2013

[Stacy Galt]

Yes, actually. The amount of pain that goes along with the yearly review, having to write the statement and having to think about it coming up, is something that we just dread. We know every April that this is what's going to happen. If it were every three years instead of every year, it would give my cousin Darcie a chance to get her feet underneath her, to maybe even think about some sort of happiness, if she could ever find that again. Just to be able to get out of the house, feel normal and a part of society would be wonderful for her. But to live in constant fear of him being released.... I know there are people taking care of him, and they're very good people. They're not going to release somebody who shouldn't be released, but he should be....

My cousin's rights should be taken into account as much as his. Right now, the victims don't seem to have any say in anything. It would mean the world to Darcie not to have to do it every year, to have to do it every three years. Maybe I might be able to get my life back too, because it takes everything out of you.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you very much.

Mr. Seeback.

[Kyle Seeback, Conservative, Brampton West, ON]

Mr. Battista, you're one of a number of people who have come to this committee to say that we're putting in this section that says all you have to show is the crime was brutal, and that's very subjective and it might infringe on rights.

The problem I have with that statement is it's actually not very accurate. If you look at the section, it says quite clearly, “the court 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.” It's not just brutal. That's actually not factual in the statements that are being made.

Also, when making that decision, the court has to look at a variety of factors, not just the brutality. Those factors would include opinions of experts who have examined the accused, the accused's mental condition, and the pattern of repetitive behaviour. So it is not in fact brutal; there are many more factors that are considered.

Would you not agree with me?

[Giuseppe Battista]

I agree with you that.... As I said in my previous intervention, what we are glad about is that the courts are nonetheless given the discretion to evaluate these factors, and we certainly trust the courts to do the right thing. However, our concern is that because of the language of the legislation.... The principle is that legislators don't speak for no reason and therefore, when the legislator speaks, there is an intent there.

What we feel is that by referring to concepts such as the brutality of the action.... Because that's the question, there are factors to consider, but what the court will have to decide is the brutality and the impact that the action can have on other people psychologically. This is a very broad question to answer, and it may not in fact have any bearing on the reality of the risk for reoffending.

[Kyle Seeback, Conservative, Brampton West, ON]

But that's not the only factor. You also have to look at the opinions of experts, for example. I don't find it genuous to say that we're saying it's brutal and that's it.

Mr. Simpson, you made the allegation others have made that because of these changes people might choose not to be NCR accused to avoid the regime. I find that hard to believe because when you look at the section with respect to when somebody would be NCR accused, it refers to “a substantial likelihood that the accused will use violence that could endanger the life or safety of another person”. This is going to be someone who perhaps is very dangerous. It could be people like Mr. Turcotte, or the person we heard about from Ms. Galt, or even the person in the Tim McLean case. I highly doubt those people would choose to go through the regular court proceedings rather than NCR accused and face 25 years to life. I don't understand where you're coming up with saying that people would avoid that.

[The Chair, Conservative, Mike Wallace]

I'm sorry, Mr. Battista, you're not going to have a chance to answer. It's well over time.

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

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman. I want to send my appreciation to the witnesses. Ms. Galt, I know the pain that's engaged in your testimony today.

I have a question for Dr. Baillie.

If I still have time, I will ask Mr. Battista a question as well.

Dr. Baillie, you referred to the two drafts of a research report that was led by Dr. Anne Crocker from McGill University. As you indicated, there were significant differences between the two reports resulting from an error in the coding of the data.

To your knowledge, was the government made aware of the errors in the November draft of the report?

[Dr. Patrick Baillie]

If I may clarify, sir, I want to quibble with the term “significant errors”. There was one primary error that related to the coding of previous NCR cases. When we looked at research on recidivism, or the number of individuals found NCR, or the nature of the offences that led to the NCR, all that data remained the same.

We became aware of the error on March 14 and communicated that to the minister's office that day. The amended report was then provided to the research division on March 18 with an acknowledgement seeking clarification of the nature of the coding error. So the office was aware of that in March.

[Irwin Cotler, Liberal, Mount Royal, QC]

Would it surprise you to know that the incorrect data was subsequently cited by a government minister as late as May 27 and again last Wednesday by Mr. Armstrong in this committee?

[Dr. Patrick Baillie]

I think it is important for the committee to have accurate and up-to-date information on such a serious issue, and I hope that the report that was provided to the office in March can be made available to the members of this committee for their deliberations on this topic.

My position is the review boards are typically doing a very good job of making these decisions. They already have judicial oversight by virtue of the court of appeal provisions that are in the existing legislation, and the recidivism data as now corrected show, by and large, that review boards are making the right decisions.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Dr. Baillie.

Mr. Battista, could some parts of this bill be problematic from the perspective of the Canadian Charter of Rights and Freedoms?

[Giuseppe Battista]

As I said earlier, this is about the paramount consideration given to the deprivation of liberty in the case of someone who is clearly responsible for committing a serious crime, but is not responsible criminally.

The paramount consideration given to the deprivation of liberty is problematic. The concern for public safety must also include the individual's rehabilitation and reintegration into society. We must strive for that balance. But this bill does not do that. Instead, it gives precedence to public safety, without giving enough consideration to rehabilitation and reintegration. That is what we think. In some cases, reintegration is the best way to enable someone to become rehabilitated and to heal.

My colleague will add to my answer.

[Lucie Joncas, Lawyer and Member, Barreau du Québec]

One point is being missed in this debate. Someone found not criminally responsible today would normally be detained three to 30 times longer than someone who pleaded guilty. We must not ignore that fact. It is absolutely false that someone found not criminally responsible suffers fewer consequences.

The protection of society depends on rehabilitation and treatment. We have provided you with numbers on this. People with mental disorders who go to jail have a higher recidivism rate than those found not criminally responsible who stay in hospitals.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you.

[The Chair, Conservative, Mike Wallace]

You have one more minute.

[Irwin Cotler, Liberal, Mount Royal, QC]

Okay.

Dr. Simpson, are the facilities that treat the NCR accused able to accommodate an increase in the number of patients, and what might be the consequences of overfilling these institutions?

[Dr. Alexander Simpson]

I can only speak directly from my own organization, but I'm also co-chair of the Canadian Forensic Mental Health Network, so I'm familiar with some pressures across the country.

Most forensic services nationally are at or near capacity. If you look at Ontario, most of us are running over capacity. Clearly, if one gets overcrowding within secure mental health facilities, the risk of violent behaviour, both patient to patient and patient to staff, rises and those environments become more dangerous and less therapeutic.

We then get further problems of people waiting to gain access to forensic beds having to wait in remand in provincial prisons, and that results in other negative outcomes for both the offenders and the prisons they're in.

An increase in demand for forensic beds coming from people taking longer to rehabilitate would require an increase in forensic in-patient capacity. They are the most expensive beds in the mental health system.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

Our final questioner is Mr. Albas from the Conservative Party.

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

Thank you, Mr. Chair.

I want to thank all of our witnesses for being here today, particularly Ms. Galt. Your testimony today was very captivating. These are things that legislators need to hear. We have all these laws we keep in place, but we don't always keep in mind the people who suffer because of some of these acts, so I appreciate your being here today.

Among other things, Bill C-54 would create a new scheme for the courts to designate certain not criminally responsible individuals as high-risk mentally disordered accused. This order would then be made on application by the crown in cases in which mentally disordered individuals were found to have committed a serious personal injury offence. When one of these designations is made by the court, provincial review boards would be required to order a custodial disposition, with the condition that the person not be granted unescorted passes in the community. The existing mandatory review period of 12 months could—and I believe in the legislation it says “may”—be extended by the review board up to 36 months for those designated as high-risk MDA.

First of all, Ms. Galt, I believe you mentioned to Mr. Wilks that you're in support of that. I'd also like Mr. Teixeira to answer that.

[Dave Teixeira, President, Dave.ca Communications, As an Individual]

Sure. Thank you very much.

By way of introduction, I've been working with the family for about two and a half years. I saw this in the newspaper in my local community, and I volunteered my time, my company's time, to do government relations, public relations, and media relations, because I saw the travesty going on within the system.

We've also worked on not only this part of the legislation, but we also worked to correct some of the domestic violence laws that are in British Columbia. In fact, we had Premier Christy Clark present an apology to the family last year, and also to provide a report to ensure this doesn't happen again. We're looking at all sides of the spectrum.

With regard to the up to 36 months provision, I can tell you I've seen the pain this family goes through. The other thing this committee may or may not be aware of is that on a whim, the NCR accused can change the date of the hearing. For example, in April 2011, Mr. Schoenborn set the date, wanted to change it, then did not show up for his own hearing. In 2012 he decided he didn't want his date.

By the way, the family has been trying to move the date from the anniversary of the murders. They were told no, that the patient has to agree.

In March 2012, he wanted to move it to Christmas. Of course, we put up a fight. The crown agreed. He moved it to November. In November, four days before the hearing, he decided he didn't feel like that date was sufficient, so he moved it to Valentine's Day. That was convenient for the NCR accused.

This is the pain the family goes through. If it were every three years, the family could heal. Between hearings, it's like an election. Once you win your election, you're gearing up for the next election. Once they finish a hearing, they're gearing up for the next hearing. There's no time to heal. Three years would give the accused an opportunity to get better, and it would give the family an opportunity to heal as well.

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

Your opinion right now, then, is that the system actually allows, in this case, the person who's held not criminally responsible to actually use the system in a way that victimizes the victims again and again.

[Dave Teixeira]

Absolutely it does. In fact, the current system.... When I hear from experts that this bill stigmatizes the mentally ill, I'm shocked. The current system stigmatizes the mentally ill, because there's one classification: there's NCR. Whether you throw a brick through a window or you murder three defenceless children, you're NCR. This new legislation destigmatizes and says to everyone, reaffirms, that the mentally ill are not dangerous, that NCR people are not dangerous.

However, we need to get rid of the political correctness. There is a subsection of society that is dangerous, and this legislation acknowledges that and gives protection to society, gives victims time to heal, and allows the NCR accused to get the help they want, so up to 36 months is excellent.

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

The crown would therefore be making this application to have someone given this designation of high-risk mentally disordered accused.

If I look at the actual legislation proposed paragraph 672.64(1)(a) says, “the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person...”. It sounds very much like what your cousin has gone through. Then proposed paragraph 672.64(1)(b) says, “the court 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”.

There are other factors the court has to consider. To me it only makes sense, as Dr. Baillie has mentioned, that these are a small number of cases, but the fact is the crown would only seek it if it was in the public interest.

[Dave Teixeira]

Yes.

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

Thank you.