The work done, the research, the process and the jurisprudence have so far made it possible to reduce arbitrariness, comply with sections 1, 7, 9 and 15 of the Canadian Charter of Rights and Freedoms, create section XX.1 of the Criminal Code and prioritize release.
The introduction of the “high-risk accused” notion and the amendment of the procedure to include that notion are more consistent with a punitive process, especially when it comes to various provisions.
The first provision has to do with the high-risk designation. That measure could become the usual procedure for any accused individual and result in their being automatically deprived of their freedom and detained in a hospital. As my colleague was saying, this measure establishes a link between mental health and dangerousness by elevating the likelihood of recidivism as it relates to the brutality of the action.
The second provision has to do with the possibility of amending the review time frames, and thereby extending the detention period from one year to three years.
The automatic deprivation of freedom and detention in a hospital constitute a third provision.
As we said, it is also a matter of the following: the addition of the definition of “significant threat to the safety of the public”; the inclusion of the past and expected course of the accused’s treatment, including the accused’s willingness to follow treatment; and the impossibility of the high-risk accused being absent from the hospital, whereby detention becomes the norm.
Legislation—and even less so the Criminal Code—cannot be arbitrary and move away from the rule of law and the spirit of the Canadian Charter on Rights and Freedoms. This legislation is excessively broad in its scope and directly threatens the spirit and the scope of part XX.1 of the Criminal Code.
These measures reflect a certain inaccuracy, especially in terms of the factors that need to be taken into consideration to designate someone as a high-risk accused. Mental health is based solely on a series of symptoms and behaviours. Therefore, we are talking about a field conducive to subjectivity.
These measures will increase the vulnerability of people who are living with or have lived with a mental health issue by stigmatizing them.
Finally, some consistency would be appropriate with the spirit of the Canadian strategy presented to us this afternoon by the Mental Health Commission of Canada, which was created in 2007 by the current government.