One of the issues here is to avoid any changes in the message that will raise the danger of continuing to have misinformation about mental disorders. Particularly, the act does use the words “mental disorder” without specification, and I think that has contributed to the criticism that the act unfortunately perpetuates some of the stigmatization that identifies all persons suffering from mental illness as being dangerous or incurable.
Indeed, I think it's very important that the government take this step, because we know that to the extent there is increased stigmatization about mental illness, it decreases public safety because it decreases self-awareness, decreases self-referral, and it certainly increases discrimination and stereotyping, which is not a good thing.
I want to focus on the pièce maîtresse of this legislation, which is the definition of the “high-risk accused”. I will make a couple of points here. The language that is used has two flaws, in our view. The first is that if you look at the definition, it's one of either proposed new paragraphs 672.64(1)(a) or 672.64(1)(b).
The first is essentially whether “the court is satisfied that there is a substantial likelihood that the accused will use violence...”. It's inviting the court to do a prospective assessment of the potential for violence. I think this is the wrong place to do this, because the treatment has not begun. It's a little bit like putting the cart before the horse.
I think 672.64(1)(b) is the place where we have more concerns. It states, “the court is of the opinion that the acts that constitute the offence were of such a brutal nature...”.
I think the flaw here is that it will be very difficult to identify what the acts are that the minister wants to address here. I think it's a little bit of an “I'll know it when I see it” type of approach. Many of the tragedies that have been referred to evoke such a deep emotional response from all of us that we think we know. Our concern is that it will be very hard for any victim not to think they have been brutally aggressed. I could not ever imagine a victim of sexual assault or a family of a murder victim who would not say, “There was brutality here”.
Indeed, in trying to assess why this is the right word, we looked around the world to try to assess whether there were other uses of the word “brutal”. What does “brutal” mean? Is that the right word? In our view it's not the right word. We would suggest that proposed new paragraph 672.64(1)(b) be deleted because of the possibility of an unworkable definition that is unfairly vague and may lead to too many people being caught in this web.
In our view, the second part of the criticism is that the concept of “high-risk accused” may present a confusion between the approaches that are necessary. I think we have to remember that the reason there is "not criminally responsible” is when it has been deemed—and there could be mistakes at times—that the person is incapable of distinguishing between right and wrong, and therefore it's the illness that caused the crime and not the person. In that context we have a therapeutic approach that looks to correct the illness, as opposed to punishing the person. Focusing on the acts as opposed to the illness is a slippage in the way in which we should approach this problem.
Finally, I think it is absolutely crucial that there be a form of evaluation. I would suggest that this would be an appropriate amendment for this committee to make, to ensure that in five years there is a proper evaluation.
We've heard today that there are some differences of opinion as to whether or not this will have the perverse effect of diminishing the number of people who will opt for NCR and they end up in prison and all the problems increase. A prison is not the right place to treat serious mental illness. We know that. It creates tremendous problems for the prison system, and for the offenders and the guards. It's not the right place.
As we are assessing in our evaluation, the way in which the legislation is framed does not accomplish the goal. The use of the word “brutal” will not serve the victims well either. They will feel slighted if the acts that have been committed are deemed not to be brutal enough. In our view the intent will not be carried through by the concepts and language used in the bill.
In conclusion, we think, one, the government owes it to the Canadian public to counteract some of the messages with respect to mental health illness associated with this bill. Second, it should review the use of the word “brutal”, despite all the other examples. Third, an evaluation framework must be put in the legislation.