Justice Committee on June 12th, 2013

[Justice Richard D. Schneider]

Various decisions through courts of appeal and the Supreme of Canada over the last decade or more have underlined that, of the four considerations at the front end of section 672.54, safety of the public is paramount. I can tell you, sir, that was the board's reflex prior to that articulation by the courts. So we take no position, because that is indeed the law. It won't change tomorrow if that's codified. As well, it's the way the review boards have always operated.

I might have missed your point, though, on the fact that some of the provincial or territorial review board chairs may not be judges. I think it's about half and half presently.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

That's my point. They're not all presided over by judges of a superior court of what have you. If anything, my thought is that—and perhaps this is stating the obvious—not everyone is as well versed as a judge is in the actual state of the law.

[Justice Richard D. Schneider]

I don't know. Frankly I really can't say that when I was appointed to the bench I became more of a legal scholar. That may be the case. The chairmen of the provincial and territorial review boards are, by a statutory definition, either superior court justices, retired superior court justices, or individuals qualified to be superior court justices, which of course in Canada means lawyers with a minimum of 10 years' experience.

I take your point, but I really can't comment as to whether jurisdictions that have a judge as a chair are doing better on the legal front than are jurisdictions that don't.

[Bernd Walter]

For the record, sir, I've been chairing the review board for 17 years, and I'm also chair of the B.C. Human Rights Tribunal, and in our province at least, we probably do more business than the average court registry. While I have no objection to having a judge at the helm of the review board in our province, I think I've written my share of decisions that have withstood scrutiny at the Supreme Court of Canada and elsewhere.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Not to split hairs, but Mr. Justice Schneider is deemed to know the law, and the commoner, or perhaps the one who is maybe a lawyer, who's not a judge, is not deemed to know what the law is. On appeal sometimes that can be helpful, but that's really splitting hairs.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and those answers.

Our next questioner, from the Liberal Party, is Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

I'll begin with a question to Ms. O'Sullivan. It's good to have you with us, and I thought the testimony on all sides was very helpful.

During these hearings the committee has had the opportunity to hear from the victims themselves. Their testimony has been very moving and compelling, as we've heard today, particularly given their profound emotional attachment to the issues, and understandably so. But what I've noticed is that people, as we've heard today again with Mr. Shreeve, are not out for revenge. Indeed, while concerned, again understandably, with the needs of the victims and the need for public safety, they also recognize the importance of effective treatment for the mentally ill, including NCR-accused. At the same time, the mental health and legal groups who oppose this bill have demonstrated as well genuine compassion for the victims, while acknowledging the need for public safety to be, as our witnesses said today, in the legislation itself.

Do you believe that with consultation and good faith on all sides we can devise a framework, a system, that could meet with the general approval of all concerned?

[Susan O'Sullivan]

I think that when you talk about victims of crime—as I spoke to earlier, and I think everyone here has heard this at the committee—when it comes to public safety being paramount, and when it comes to more information for victims so they can have the information they need to feel safe, there is a consensus around that. What we hear where perhaps there is some divergence.... You've heard from many victims before this committee that in order to feel safe they feel the high-risk designation is important to them.

My answer to you is that what makes victims feel safe is something that is unique to those victims. They're going to come from their own experience. Many of the victims here have said they feel the high-risk designation is important, yet we've also heard from a victim who feels another way. What we all strongly support is that people with mental health illness in our communities across this country need to have the supports in place to ensure, in a timely way, that hopefully we can prevent any tragedies from happening in the future. So particularly when it comes to information, and it comes to the views of victims, they also need to have choice and options. I know there was a comment made here that most victims don't ask for the information. I will also tell you that I speak to victims across this country who aren't even aware they have the rights to access certain things.

That was my comment about needing to ensure consistency across the country. You are right to say some victims will choose not to participate in that. But in order to make that choice they must know about it. They must know what their rights are. They must know what they have access to. We also carry that responsibility. I did speak to the fact that it was provincial and federal.

To answer your question, we all have to continue to work. Legislation is one piece of what we're trying to do in this country to ensure healthy and safe communities. Victims will come from their own unique perspectives. You have seen that before this committee as well in terms of your question.

I would say that, yes, we all need to continue to work beyond legislation to ensure that in our communities we have supports in place for people with mental illness but that we also continue to have a victims' lens, continue to ensure they have the information they need, and that they can participate fully in the process.

[Irwin Cotler, Liberal, Mount Royal, QC]

I have a quick question to either of the justices. The new high-risk designation created by this bill can only be imposed by a court and removed by a court. Is that appropriate, or in your view should review boards have the authority to impose and remove the designation themselves?

[Justice Richard D. Schneider]

As you may have gleaned, we don't think there should be the designation. Assuming the designation holds and the bill is amended somewhat, then for the reasons given by Bernd Walter earlier, and the awkwardness, if you will, of engaging two tribunals in one process, I would think all of it should be left to the review board.

[The Chair, Conservative, Mike Wallace]

Thank you. Our final questioner for this panel, from the Conservative Party, is Mr. Albas.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Thank you. I want to thank all of our guests here today for their testimony. Specifically I'd like to talk about the high-risk accused category, as well as some of the therapy that the review boards....

Justice Schneider, I'm going to start with you.

First of all, the application that is made for someone to be designated high risk is made from the crown asking for that application. Obviously they would do this in what they would believe would be the public's interest. Is that correct?

[Justice Richard D. Schneider]

I would trust so. I would expect the prosecutors are always operating with that as their guiding light.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Second to that, a justice like yourself would then take in all the testimony of evidence from the crown, from the defendant, from experts. Then, just as the case is right now with not criminally responsible, they would make that choice based on the application. Is that not true?

[Justice Richard D. Schneider]

They would—

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Whether we’re talking about NCR as a designation, or what I would say is a new tool that the crown can put forward in the public interest, which I would also say would empower the court for the high-risk accused…. That would be an additional empowerment of the court, would it not?

[Justice Richard D. Schneider]

It would just be the same. The courts now, for example, can make the initial disposition upon a verdict of unfit or NCR.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

In my mind, if they can give the designation of NCR—going back to Mr. Cotler's point—it seems to me reasonable that if they can set the conditions they would also be the receiving agency to release that and allow the review board to take it from that.

Let's switch gears and move on to the therapy comments of Mr. Walter.

Mr. Walter, you said you had some issues that this could actually prevent proper therapy of someone who's designated this, and is NCR. Sir, have you read the bill?

[Bernd Walter]

Yes, sir.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

On page 7, I'll just read it to you then:

(3) If the court finds the accused to be a high-risk accused, the court shall make a disposition under paragraph 672.54(c), but the accused’s detention must not be subject to any condition that would permit the accused to be absent from the hospital unless

—and this is where I get to the point—

(a) it is appropriate, in the opinion of the person in charge of the hospital, for the accused to be absent from the hospital for medical reasons or for any purpose that is necessary for the accused’s treatment, if the accused is escorted by a person who is authorized by the person in charge of the hospital; and (b) a structured plan has been prepared to address any risk related to the accused’s absence and, as a result, that absence will not present an undue risk to the public.

Would you say, sir, that this does address that therapy is important under this bill, but also that those people who are designated will work under a structure that also keeps in mind safety? So again, it balances the two. Is that fair to say?

[Bernd Walter]

If I may, I'd like to address your previous comment.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Actually, sir, I'd like you just to focus on the task at hand.

[Bernd Walter]

Yes, NCR and HRA actually pertain to the same person. So a person gets NCR first and then gets HRA. Okay? Both of those—

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Would both of those allow for that balance, though, to have a structured plan and to have someone be escorted under the direction of the director of the hospital? Do you think that's a balanced way to approach this to make sure that person receives therapy?

[Bernd Walter]

Well, for the three years of that initial designation—