Good afternoon, Mr. Chair, members of the committee, and my fellow witnesses, most especially Ms. Galt. Her account to us this afternoon reminds us of the nature, the severity, and the magnitude of the issues we're talking about.
I am Dr. Alexander Simpson. I'm a psychiatrist. I'm the chief of forensic psychiatry at the Centre for Addiction and Mental Health in Toronto, and I'm head of the division of forensic psychiatry at the University of Toronto.
CAMH is Canada’s largest mental health and addictions academic health sciences centre. Our forensic program provides care to and supports individuals designated as NCR, or unfit to stand trial. We care for over 30% of Ontario’s NCR accused persons and accordingly have a keen interest in the amendments to the NCR legislation that will affect our patients and our ability to provide them the best possible mental health care.
I would like to address three specific aspects of Bill C-54.
The NCR regime has been in existence in its current form for 21 years. NCR is a rare disposition, though it has been more commonly applied in the last two decades. It is effective and successfully rehabilitates people with a mental illness that has caused them to offend. NCR accused persons present less risk to others than similar persons who are criminally responsible for their offending and are sent to prison.
The current controversies that have given rise to the reasons for this legislation are a small number of high-profile offences of a grievous nature, as we've heard. The victims are understandably deeply traumatized and find the thought of community reintegration of perpetrators horrifying.
This isn’t about the current risk, however; it is about the nature of the trauma that occurred over past incidents. This presents a real difficulty for Parliament and for those of us involved in the care of NCR accused persons: how to be sensitive to the needs of victims without punishing the illness. Thus, the factors driving this bill are real and difficult ones; however, in my view, two-thirds of the answers in this bill are the wrong ones.
First, with regard to victim safety and involvement, CAMH supports Bill C-54's commitment to victim safety. Victim safety is always at the forefront of the decisions made by review boards and by forensic mental health programs and treatment planning. This part of the bill makes explicit powers that already exist.
Victim involvement in the review board process is also very important, and we agree that victims should continue to be included in that process if they choose to be so. However, addressing victim needs must be broader than simply notification. New approaches, such as issues of restorative justice, may be of equal value.
Second, on the creation of the “high risk” designation, Bill C-54 proposes a “high risk accused” designation. CAMH has concerns about how this new designation can be determined and its severe restrictions on those considered to be high risk.
High risk is about the possibility that future violence may occur. Counterintuitive though it may seem, the brutality of the person's index offence is not an effective way of telling if somebody is going to be at high risk of future offending. Instead, it looks only at the past. Therefore, a high-risk regime built around a single severe act of violence alone is not evidence-based or scientifically based and may thus be seen as arbitrary in a non-punishment regime. If brutality is not to be used, one must ask, then, what the proposed “high risk” category adds.
First, there are clearly some NCR accused persons who are of high risk. Currently, they may spend many years in conditions of high security, without community contact. One only gains access to the community if one's risk has fallen to such a degree that community contact is a safe option, so the available security proposed in the “high risk” category already exists for a significant number of NCR accused persons. Second, implementing the “high risk” category decreases the expert oversight of the person's care and limits therapeutic opportunities. This will delay progress or increase risk and will not assist public safety.
For these reasons, it is both ill-designed and wrongly targeted, and CAMH recommends that the “high risk” designation be removed from the legislation.
Tightening of the criteria for all NCR accused is third. Of great concern to CAMH is the Bill C-54 recommendation to change section 672.54 of the Criminal Code. This will tighten the criteria for progress and release for all NCR individuals. Bill C-54 makes safety the paramount consideration when a disposition order is made. While similar wording already exists in case law, changing the wording in the Criminal Code clearly signals the desire to shift the emphasis of the entire NCR regime. The original intent of the NCR legislation was to balance public safety with the treatment of rehabilitation needs of the mentally ill offender. Shifting this balance will prevent the NCR individuals from receiving the best possible mental health care while cognizant of public safety.
The bill also amends the current NCR legislation requiring review boards to make disposition orders that are the “least onerous and least restrictive”, to make orders that instead are “necessary and appropriate in the circumstances”. Given the context of Bill C-54 and its primary focus on public safety, it is likely the necessary and appropriate dispositions will be more restrictive, and that more NCR individuals will be detained in forensic units for longer periods and in higher-security units than is actually necessary. Not only will this compromise rehabilitation and community reintegration for any NCR individuals, but the widespread application of this amendment will lead to increased pressure on forensic mental health programs which are already operating over capacity.
Clause 10 of Bill C-54 introduces a new statutory regime of significant threat. It no longer requires the word “real” in relation to potential harm or violence, therefore lowering the risk threshold necessary to maintain the jurisdiction of the NCR over individuals. Given the impact of these changes on the NCR regime as a whole, CAMH recommends that section 672.54 remain as it currently stands in the legislation.
We fear significant unintended consequences of this legislation. We fear that the shift to increasing security and restrictions over treatment of rehabilitation will make the NRC regime much less attractive as a regime to go down. We fear defence counsel will argue to potential NCR accused not to go down this pathway, and instead plead guilty and go to prison. We think this will place increasing pressure on provincial and federal correctional services by having more mentally ill persons in prison, who will be released from custody at higher risk of reoffending than those people under the NCR regime. Thus paradoxically we fear that public safety will actually be compromised by this bill.
I thank you for your attention and will be happy to take questions.