Mr. Speaker, it is also my pleasure today to rise and speak in support of Bill C-10, an act to amend the Criminal Code, mental disorder. The bill, as has been pointed out, will make many improvements to the law that governs those persons who are found unfit to stand trial and persons found not criminally responsible on account of mental disorder.
I will focus my remarks on the provisions of Bill C-10 that seek to repeal provisions of the Criminal Code that in fact were never proclaimed in force.
Hon. members may be curious about why it is even worth noting, since the repeal of unproclaimed provisions merely clarifies the status quo. It is true that the repeal of the unproclaimed provisions will not change the applicable law. However, it is important to highlight the fact that the current reforms, which once and for all will repeal old reforms, reflect the government's belief that these provisions are not needed and will not be needed in the future.
The repeal will bring certainty and clarity to those who may hold out hope for these old provisions, which indeed we now agree do not reflect the goals of protecting public safety and providing treatment for the mentally disordered accused.
Bill C-10 repeals three provisions of the 1991 amending act that were never proclaimed. These are: first, provisions related to capping; second, the dangerous mentally disordered accused provisions; and third, the hospital order provisions. I will be dealing with each of these individually.
Capping provisions were originally designed to ensure that the supervision of those found not criminally responsible would not be longer than the maximum sentence available through a criminal conviction. The maximum periods, or caps, would depend on the offence committed and would range from life to two years or less.
Capping provisions were included as part of the 1992 reforms. The initial postponement in proclamation was necessary to permit a review of all persons held under a lieutenant governor's warrant to determine whether the person should be subject to an increased cap. The delay was also intended to allow the provinces to make necessary amendments to their mental health legislation to ensure that those discharged at the so-called cap would be subject to mental health legislation where necessary.
However, provincial mental health law is not designed to supervise potentially dangerous persons, nor is it designed to protect public safety. As a result, amendments were not pursued by the provinces and territories.
The standing committee in its 2002 review called for the repeal of the capping provisions. The current law in part XX.1 of the Criminal Code, without capping, provides the appropriate balance between the accused's rights and the public's right to safety. Several accused persons have appealed their dispositions, arguing that if they had been convicted they would have served a short sentence. However, because these accused were found not criminally responsible they may have dispositions that restrict their liberty for longer periods than any court sentence for the same offence.
The Supreme Court of Canada has clearly established that sentences for convicted offenders should not be compared with dispositions imposed where an accused is found not criminally responsible on account of mental disorder. The accused found not criminally responsible on account of mental disorder is not punished. Rather, they are assessed, treated and supervised until they can be absolutely discharged.
The absolute discharge may be appropriate soon after the verdict or years later depending on the mental condition of the accused and the risk to public safety. The nature of the offence may have no bearing on the disposition for a not criminally responsible on account of mental disorder. Capping should therefore be repealed once and for all.
The dangerous mentally disordered accused provisions, secondly, were linked to the capping concept. They too should be repealed. These provisions would have enabled the prosecutor to apply to the court, after the finding of not criminally responsible but before the disposition is made, to make another finding that the accused is a dangerous mentally disordered accused.
The criteria and procedure were modelled on the dangerous offender provisions that apply to sane convicted offenders. If the accused was found to be a dangerous mentally disordered accused, the court could have then increased a 10 year cap to a maximum of life, but only for “serious personal injury offences”, including various sexual and violent offences. These provisions were very narrow in their proposed application and would have only permitted the longer cap for some of the most dangerous and serious offences.
The DMDA provisions and capping provisions are interdependent and are therefore being repealed together. The repeal of capping and the related DMDA provisions, coupled with the amendments to better protect the rights of permanently unfit accused, will continue to reflect the goals of our criminal law system, including protecting the public.
The hospital order provisions would have applied to convicted offenders, not those found not criminally responsible on account of mental disorder. These provisions are also proposed for repeal.
Hospital orders were intended to provide a mechanism for short term treatment of a convicted offender who, at the time of sentencing, was in an acute phase of a mental disorder and in urgent need of treatment to prevent further mental deterioration. An offender meeting this criterion would be sent to a psychiatric facility for a period of up to 60 days rather than jailed.
The provisions are being repealed because there is a general view among stakeholders that the current system can accomplish the intended purpose of hospital orders without a statutory provision. In addition, the code provisions are too narrow in their application to address the nature and range of mental disorder present in the convicted offender population. Proclamation of the hospital order provisions would not address the larger problem.
The repeal of these three provisions reflects the government's commitment to fair and effective laws that are clear and up to date. I think all members of the House would agree with that objective.
While it may seem odd to dwell on these aspects of Bill C-10 that may seem of little consequence because they seek to repeal provisions that were never really part of our operating law, I hope members will agree that clarity is necessary and that our parliamentary record should reflect how and why our policy and law have evolved.
I encourage all hon. members to support these provisions that have been put forward in Bill C-10.