Mr. Chair, members of the committee, thank you for having us. I am here on behalf of the Barreau du Québec. I am joined by Lucie Joncas.
The Barreau du Québec is a professional body that represents almost 24,000 lawyers in Quebec. Its positions are taken by elected bodies, following the studies and recommendations of its advisory committees.
To fulfill its mission of protecting the public, the Barreau du Québec seeks to forge bonds of trust between lawyers, governments and the public. In the pursuit of that goal, the Barreau du Québec oversees professional legal practice, supports member practitioners, fosters a sense of belonging within the membership, and promotes the rule of law.
The Barreau du Québec feels that this bill amends the mental disorder regime in the Criminal Code and the National Defence Act to specify that the paramount consideration in the decision-making process is the safety of the public. It creates a mechanism for ensuring that certain persons who have been found not criminally responsible on account of mental disorder can be designated as high-risk accused. It also enhances the involvement of victims in the regime and makes procedural and technical amendments.
The Barreau du Québec feels that, when a court finds an individual not criminally responsible, but the individual poses a significant threat to the safety of the public, it is appropriate to take action to protect public safety.
However, we think that it is important to refer to the principles identified by the courts. In Winko v. British Columbia (Forensic Psychiatric Institute), the Supreme Court addressed the issue of public safety in situations involving individuals found not criminally responsible. The court stated the following:
Part XX.1 protects society. If society is to be protected on a long-term basis, it must address the cause of the offending behaviour—the mental illness. It cannot content itself with locking the ill offender up for a term of imprisonment and then releasing him or her into society, without having provided any opportunities for psychiatric or other treatment. Public safety will only be ensured by stabilizing the mental condition of dangerous NCR accused.
Part XX.1 also protects the NCR offender. The assessment-treatment model introduced by Part XX.1 of the Criminal Code is fairer to the NCR offender than the traditional common law model. The NCR offender is not criminally responsible, but ill. Providing opportunities to receive treatment, not imposing punishment, is the just and appropriate response.
The teachings of the Supreme Court indicate that providing treatment to mentally ill individuals is the most just and equitable approach to protecting the public. In addition, the court cites another ruling as follows:
[T]he treatment of one unable to judge right from wrong is intended to cure the defect. It is not penal in purpose or effect. Where custody is imposed on such a person, the purpose is prevention of antisocial acts, not retribution.
Section 672.54 of the Criminal Code is subject to a major amendment. The section currently states:
672.54 Where a court or Review Board makes a disposition under subsection 672.45(2) or section 672.47 or 672.83, it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused: ...
That is how public safety and the needs of the mentally ill person are taken into consideration. This is an important balance, a balance that we need to strike and strive for in a free and democratic society.
The proposed amendment creates the concept of high-risk individual. The wording of section 672.54, instead of talking about the “least onerous” disposition, places the “safety of the public” above any other criteria connected to the individual situation of the accused. In so doing, the amendments diminish the importance of the recognized objective of ensuring that the condition of the ill NCR person has improved as being the most just and equitable way to protect society.
In addition, the proposed amendments amend the current assessment and treatment system set out in Part XX.1 of the Criminal Code, to be more similar to a punishment system than a system that provides treatment to someone suffering from an illness. To use the Right Honourable Beverley McLachlin's words, we believe that “the regime established in Part XX.1 of the Criminal Code”, meaning the part currently in force, “appropriately balances the need to protect the public from those mentally ill persons who are dangerous and the liberty, autonomy and dignity interests of mentally ill persons”, and we are afraid that some aspects of Bill C-54 will open up debate on the constitutionality of the new wording set out in the bill.
Bill C-54 also sets out that a court martial may find the accused person to be a high-risk accused if:
(a) the court martial is satisfied that there is a substantial likelihood that the accused person will use violence that could endanger the life or safety of another person; or
(b) the court martial 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.
This second criterion is concerning, since it does not take into account the person's condition. In our view, the second criterion presents constitutional weaknesses. The brutality of the acts that constitute the offence refers to the violent nature of the offence for which the accused was found not criminally responsible, not to the accused's mental health or how dangerous the individual may be.
A basic principle of criminal law states that criminal responsibility requires an operating mind. We understand that victims of violent and brutal acts actually need active physical and emotional support from the government and society. Those issues need to be addressed.
The Barreau du Québec has always promoted victim support and assistance services at every level. Their participation, their presence and their voices are important, but a democratic society also has a responsibility to create a fair balance. Punitive measures must be avoided, because the emphasis has to be on healing to protect society.
My colleague Ms. Joncas and I are here to answer your questions, and we would be happy to do so.