Thank you, Chair and honourable members of the committee, for the opportunity to come here today and speak to you.
Time is fleeting, so I'm going to speak very quickly. The synopsis of my remarks has been passed out. I want you to also hear from my colleague Justice Schneider, who is not only a respected jurist but also a psychologist. He has authored many of the leading texts in Canada in this field, so he is an expert indeed.
The review board chairs who do this work on a daily basis have no wish to be pitted against or to appear to be opposing the interests of victims. We're all on the same side here. But there are provisions in this bill that the justices and review board chairs do not support. As well, as there is a judicial role in the bill, I should say that at least five of the current justices or chairs of the review boards of Canada are in fact sitting justices.
The bill does seem to pit decision-makers and clinicians against victims. Bill C-54 diminishes opportunities for the current system of incremental, stable, and monitored reintegration into the community, which we all know is part of the system, and instead will encourage treatment avoidance, eventually followed by possibly untested and unsupervised release situations.
The bill does not, as currently framed, accord with treatment science, risk-prediction science, or fiscal prudence. It will see more mentally ill offenders in jail and untreated. It's based on no evidence.
I've been watching the committee's work with interest, on CPAC, and it seems to me that many of the speakers who you get in, many of the very compelling situations that you're confronted with, are actually dealing with how an offender gets into a system, with how he or she gets the NCRMD verdict, as opposed to any evidence of problems with the system once the offender is in. There is no evidence that there is premature release, or of recidivism, once the person is in the system under the very careful scrutiny of the review board, so we feel that the bill has the potential, at least, to make the community less safe.
I'm not going to quibble with the highlight on public safety. I could name at least five Supreme Court judgments since 1999 that make that absolutely clear, but I understand the codification argument.
The additional criteria of “necessary and appropriate in the circumstances” replacing the “least onerous and least restrictive” criterion really has no sensible meaning. It is vague and fraught with interpretation difficulties. I think it encourages detention and restriction disproportionate to the individual's actual assessed risk.
The definition of “significant threat” and the other criteria in the new provision have at least five different definitions of risk, from significant, to substantial, to risk simpliciter. I really think that is a real challenge to consistent interpretation. The definition of “significant threat”, which is of course the threshold determination that we have to make in every single case, converts probability, to possibility, to risk simpliciter. In other words, any risk whatsoever may serve to detain. I think that will impose detention in cases of minor or even speculative risk and will also encourage the utilization of costly thousand-dollar-a-day hospital beds beyond the point when they are actually required to manage an individual's actual presenting risk.
The “high-risk accused” designation must be applied for before absolute discharge. It applies in defined “serious personal injury” offences, which in my view would be indictable offences possibly requiring more jury trial, burdening our justice system. It also requires the “substantial likelihood” of future violence, endangering “life or safety”, and also considers the brutality of the index offence. Risk assessment literature will tell you that brutality or past behaviour is not a good predictor in terms of the severity of recidivism. It just doesn't capture the essence, we think, of what you're trying to achieve, or the kinds of outlier cases that are actually mobilizing this particular bill.
I won't speak to the 36-month provision. I do think the requirement to go back to court to stop the high-risk designation will mean that once a person comes back from the court with that designation revoked, it may actually mean he's entitled to an absolute discharge when he or she gets back to the board. I think that's problematic.
I should say that courts are not experts in risk prediction. Courts look back. They try to assess evidence to see if something happened, if an offence occurred beyond a reasonable doubt. The review boards, with psychiatrists and with community members already on them, are the experts in future risk prediction.
We have no quarrel with particularly the victim provisions, although I should say that those provisions have been around since 2005 in Ontario and B.C. Every victim is provided with notice initially, with an option to continue to receive notice of hearings or to waive that. Since 2005 not a single victim has asked to read a victim impact statement in B.C., even though they're constantly being provided with notice and a brochure of their rights.
Finally, we think there's no persuasive evidence that the current system is wanting.
We think it's charter challenge rich. It sacrifices proportionality. It drifts, unfortunately, from treatment to punishment, and the three-year term may actually decrease scrutiny of the most dangerous and most concerning individuals in the system. The bill is also, I should say, at odds with the Mental Health Commission's own study on recidivism by mentally disordered offenders.
I'd like Justice Schneider to have some time.