Mr. Speaker, it is my pleasure to rise today and speak in support of Bill C-29, an act to amend the Criminal Code with regard to mental disorder. This bill seeks to make a range of improvements to the law governing those found unfit to stand trial and those found not criminally responsible on account of mental disorder.
I will be focusing my remarks on the provisions of Bill C-29 that seek to repeal provisions of the Criminal Code that in fact were never proclaimed in force.
Hon. members may be curious why it is even worth mentioning, 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, these provisions are worth noting because the repeal reflects 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 we now agree do not reflect the goals of the regime governing mentally disordered accused.
Bill C-29 will repeal three provisions of the 1991 amending act that were never proclaimed. They are: capping, the dangerous mentally disordered accused, and the hospital order provisions.
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 period 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 they 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 after a cap would be subject to such legislation where necessary. However, provincial mental health law is not designed to supervise potentially dangerous persons and amendments were not pursued.
The standing committee has called for the repeal of the capping provisions. The current regime, in the absence of 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. 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.
Accused persons found not criminally responsible on account of mental disorder are 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 accused's mental condition and the risk to public safety. The nature of the offence may have no bearing on a disposition for those not criminally responsible on account of mental disorder. Capping should therefore be repealed once and for all.
The dangerous mentally disordered accused provisions were linked to the capping concept. They too should be and will be repealed. The DMDA provisions would have enabled the prosecutor to apply to the court after a finding of not criminally responsible, but before any disposition is made, to make a finding that the accused is a dangerous mentally disordered accused. The criteria and procedure parallel the dangerous offender provisions that apply to sane convicted offenders. 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. However, the provisions were very narrow in application and would have permitted an extended cap for only some 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 criminally unfit accused, will continue to reflect the goals of our criminal law, including that of 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 being 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 were 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 provisions reflects the government's commitment to fair and effective laws that are clear and up to date. I encourage all members to support Bill C-29.