Justice Committee on June 10th, 2013

[Nathalie Des Rosiers]

The reality is that because of this removal of the least onerous burden, which we should always want for morality reasons, we should always want because it's cheaper for the system, because it's the right thing to do.... The way to better protect society is by ensuring that you adequately supervise people as they progress throughout their treatment.

There is a vulnerability there as well on the constitutionality. It was covered previously by many speakers, so I didn't touch on it. The Barreau du Québec has been quite explicit about this vulnerability as well.

[Irwin Cotler, Liberal, Mount Royal, QC]

My question is for Isabelle Malo and André Samson.

As you know, a number of mental health and rights groups have said when they've testified that they oppose this bill. They quoted figures and studies that seem to show that the measures under this bill will not be effective or fair.

How do you explain this difference of opinion? Do you question these figures or interpret them differently?

[Isabelle Malo]

I think that it would already be a big step forward. Nothing is perfect, of course, but you need to start somewhere. These people need special care. After experiencing this relentlessness for so many years, I don't think one year is enough.

We have not yet appeared before the mental disorder review board. We have no idea how it works. We haven't been given any information about that. All we know is that we are allowed to read a letter to explain why we oppose the person's release. I imagine that this is really a high-risk case. The fact that we can have a three-year reprieve before another assessment takes place is really important for us.

Life is important. Ronald did not have the right to defend himself. He doesn't have any rights anymore. It's up to us to take action. Protecting our lives and saving our mother's is what counts for us. Safety is paramount. We were really in the dark. We are doing what we can with what we have.

[The Chair, Conservative, Mike Wallace]

Thank you, Madame.

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

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Chair.

Nathalie, it's nice to see you. I was commenting that I was at Western law school when you were a professor there.

I find it interesting that I now get to ask the questions, which of course is very different from what happens in law school.

[Voices]

Oh, oh!

[Kyle Seeback, Conservative, Brampton West, ON]

I want to pick up on one of the comments you made in your opening address. You were talking about proposed subsection 672.64(1), which is the designation of a high-risk accused. You were saying that the assessment that's going to be made is in the wrong place because this is before treatment is done.

I have to say that I don't believe that's accurate. In fact, I believe it's completely false.

When you look at the proposed subsection, what it says is, “On application made by the prosecutor before any disposition to discharge an accused absolutely...”. This is before a review board; this is when it might be going to the review board. The person has been found not criminally responsible by a court. They've gone to have treatment at a hospital. When you look at the sections, people who are NCR go to a hospital for treatment. It's when the review board is going to absolutely discharge the person the crown may bring the application.

So your statement that there hasn't been treatment is false, actually, because there has been treatment, and sufficient treatment, to where a board is saying they think it's time to absolutely discharge the person.

I'm giving you the opportunity to maybe correct your evidence.

[Nathalie Des Rosiers]

I think the point I was trying to make was about the way in which it forces the court to make an assessment on the basis of probabilities and so on.

We will disagree on whether proposed paragraph 672.64(1)(a) is the appropriate test. In my view, proposed paragraph (b) is the one which we're particularly concerned about.

[Kyle Seeback, Conservative, Brampton West, ON]

We can disagree about whether the test is semantically perfect, but you'd agree with me that the statement that it's before treatment occurs wasn't accurate.

[Nathalie Des Rosiers]

Yes. I meant to say that it's outside the framework of therapeutic.... You're correct.

[Kyle Seeback, Conservative, Brampton West, ON]

Right.

A number of people have come to the committee and said that they have a problem with this assessment being that the act that took place was brutal and that's what they're going to use to determine whether or not a person should be released, but as I point out to many people, that's not actually what the sections says. It says as follows:

the acts that constitute the offence were of such a brutal nature

—this is the key part—

as to indicate a risk of grave physical or psychological harm to another person

It's more like a twofold test, but it doesn't stop there. The section then goes on to give a range of things that a judge can look at to determine whether or not it's going to meet that twofold test. Included among them are the opinions of experts who have examined the accused.

So it's actually not.... I mean, just saying that this crime was brutal, and that crime wasn't is not how the assessment is made. Is that correct?

[Nathalie Des Rosiers]

You are correct that the section goes on and is a full assessment—hopefully; otherwise it would be completely unconstitutional.

I think we have to say that obviously, it has to be a full assessment that does not disregard completely the therapeutic aspect or the concern for the illness. My concern is that it will be very difficult to use the criterion of “brutal” no matter how much it is modified here—

[Kyle Seeback, Conservative, Brampton West, ON]

It's not just “brutal”; it's “of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person”.

[Nathalie Des Rosiers]

That's true, and in my view, “brutal nature as to indicate a risk of grave physical or psychological harm” does not make it less ambiguous. That's my point.

I think you could remove the word “brutal”. You could raise the level. I think that proposed paragraph 672.64(1)(b) is problematic.

[Kyle Seeback, Conservative, Brampton West, ON]

Okay.

There's one final thing I want to comment on. A number of people seem to say there's a problem with the term “paramount consideration”, that public safety is the paramount consideration. A lot of people are saying that's a big problem with this legislation.

But as far as I know, in R. v. Conway—

[Nathalie Des Rosiers]

It's already the case.

[Kyle Seeback, Conservative, Brampton West, ON]

—the Supreme Court of Canada , as recently as 2010, said quite clearly that public safety is the “paramount consideration”.

We're only codifying an existing Supreme Court of Canada decision. Is that correct?

[Nathalie Des Rosiers]

Well, somebody would say that it is not necessary, that your legislation is not necessary, because the case law has already said that public safety is paramount.

[Kyle Seeback, Conservative, Brampton West, ON]

But that's not the argument that's being made at this committee. They're saying it shouldn't be there.

[Nathalie Des Rosiers]

What it does, though, is it adds this new concept of a high-risk offender with the difficulty of interpretation that I've just pointed out. I think that's the key difference. This is not creating a new category of offenders, this is not codifying the Supreme Court of Canada's—

[Kyle Seeback, Conservative, Brampton West, ON]

Okay, but the Supreme Court of Canada clearly said that—

[The Chair, Conservative, Mike Wallace]

I'm sorry, but you can't argue with the professor any longer.

Thank you to the witnesses.

Thank you very much, Mr. Samson.

I hope you can hear me. Thank you very much.

We're going to suspend while we switch over.

[The Chair, Conservative, Mike Wallace]

I call this meeting back to order.

Before we begin with our witnesses in this final panel, we have to be out of this room at seven o'clock, so we may not have a lot of time for questions, unfortunately.

Just so you know, as I said, we will have two more panels on Wednesday. Then from 5:30 to 6:30, it will be the clause-by-clause study. It may take us longer than that.

We are going to be in this room. We were able to change the room, so that's good news, in a sense. We will be providing nourishment also.

If we are back next week, which we're scheduled to be, I will be calling James Bezan's bill. I forget the number, but it's the next one in reference to this committee. We will start with him as a witness and we'll see how far we get with that. That's what we'll start with next week, if we're back.

Thank you, ladies and gentlemen, for your patience. We're behind schedule so we'll do this as quickly as possible, but I'll make sure you all get your 10 minutes.

First, as an individual, is Mr. Ben Bedarf. The floor is yours for 10 minutes.

[Ben Bedarf, As an Individual]

Mr. Chairman, and members of the Standing Committee on Justice and Human Rights, my name is Ben Bedarf. I am here today to give you my opinion of proposed new legislation, and answer any questions you have.

I am a victim. My seven-year-old grandson was violently killed by his father with a knife on July 27, 2011. My daughter tried to stop him and in the process was badly cut up on both hands and forearms.

We received a call from the Campbell River Hospital at about 3 a.m. to come to the hospital. Nothing else was said and no information was given. As we drove past our daughter's house, which we also own, we noticed a considerable RCMP presence. We stopped and asked what had happened. No information was given to us except to go to the hospital.

On our arrival at the hospital emergency ward we were guided into the room where my daughter was being stitched up. Upon seeing me she said, “I'm sorry, Dad, I tried to stop him.” I gave her a hug and told the doctor to finish stitching her up. I then asked, “Where is my grandson?”, the joy of my life. Nobody said anything. Then I saw a nurse going by and I asked her, “Where is my grandson?”, and she said, “I'm sorry, he did not make it”, and she walked away. There was nobody in the hospital to turn to: no victims services, no victims counsellor, no priest, no help of any kind.

The doctor then appeared and said that we could take our daughter home. He gave her a couple of pain pills and a few prescriptions for pain and anti-depressants, and said goodbye.

Because this accident happened while my daughter was sleeping, she had on only a nightgown, which was soaked in blood. The hospital gave my daughter a clean gown and discharged her from the hospital. She had no shoes; only plastic slip-on covers were supplied. I had to take off my own coat so she could have something to wear going home.

Upon leaving, I asked to see my grandson's body, but was refused.

The next day we had to take our daughter shopping for clothing and toiletries. We couldn't go into her house and get any supplies because of forensics. The RCMP said that the house could not be entered until forensic services were done, which would take about four days. If it weren't for us, she wouldn't have had anywhere to go.

Forensics completed their work, and we were given approval to enter the house, but we were told not to go there until restoration services were called and had the house cleaned up and repainted because of the extreme severity of the blood splatter. Most everything in the house was disposed of, leaving the house completely empty of all furniture and of all clothing.

The next day RCMP victim services contacted us. This was vital because this gave us information on facts. The RCMP, because they are first responders, should be able to give all immediately needed assistance to secure the victim, including financial help through their victim assistance program.

Mr. Brent Warren was charged with first degree murder. He was found not guilty by reason of a mental disorder.

The situation now is that he is no longer in the criminal system but is a patient in a mental hospital and will be discharged when he gets better. This is in the opinion of the psychiatric board. The issue has gone from if he gets released to when he will be released. According to some learned professionals in that field, it could be as soon as two to five years.

So where do we go from here?

I recommend immediate funding for victims for expenses incurred and secure shelter supplied; access to the bank account in case the account is only in the spouse's name; immediate funding, in some cases, for travel to their parents' and/or grandparents' home, even if the family lives out of the province. There should be a fund available for long-term assistance for people in need, either through employment insurance, the Canada pension plan, disability insurance, or any fund that is appropriate for the long-term survival of the victim and possibly children, including teenagers.

Crown counsel should proceed in a timely fashion and not drag the case on, which could result in more anguish for the victims and their families.

In my opinion, when he is released, charges should be laid for injuries incurred by my daughter. None was filed. There should not be an expiry date for criminal charges under this scenario. There should be a minimum sentence of 10 years spent in custody in a mental hospital or any institution deemed necessary for anyone who has committed murder and was found not guilty by reason of a mental disorder.

There should be a do-not-contact order for anyone, if so requested. He should not be released in the province where the violent act occurred. I do not wish to meet him face to face on my daily walks. He knows what would happen.

I've submitted this for your consideration on June 10, 2013.

Thank you, Mr. Chair.

[The Chair, Conservative, Mike Wallace]

Thank you, sir, for your presentation.

Our next presenters are from the Canadian Mental Health Association. Please introduce yourselves. You have 10 minutes.