Mr. Speaker, it is my pleasure to rise to speak to Bill C-54, an act to amend the Criminal Code and the National Defence Act (mental disorder).
The key new measure provided for in this bill is a new power to designate a high-risk category of accused under both the Criminal Code and the National Defence Act.
The category of accused that has drawn considerable attention and loud calls for stricter punishment is exactly this category, particularly for more heinous acts where somebody is deemed to be not criminally responsible. In such cases, the accused is neither convicted nor acquitted. These cases are to be differentiated from an accused found unfit to stand trial. Once deemed fit, those accused may be tried for the offence and incarcerated. In both cases, the accused is normally incarcerated in the forensic unit of a mental hospital.
Current law obligates a court or review board to discharge an accused found not criminally responsible unless he or she poses a significant risk to public safety. In rendering the decision, they must give consideration to a number of factors: the need to protect the public from dangerous persons; the mental condition of the accused; reintegration of the accused into society; and other needs of the accused.
The proposed new law makes the safety of the public the paramount consideration. In other words, it means sidebarring the mental condition of the accused or any efforts made to eventually reintegrate the accused into society, which will happen eventually.
What has attracted the most public controversy are cases where the accused has committed violent acts, is deemed not criminally responsible, is detained in an institution and is then released. Some are complaining that these are unjust punishments and that they merit harsher responses and retribution. Concerns have been raised about the potential of continued endangerment of the community.
The fact that an accused may be found not criminally responsible absolutely does not diminish recognition of the heinous character of any violent act. It does not in any way diminish the impact of that act on the victims, their families or their communities.
Yet in law, an accused must be accorded his or her full rights under the law and the Charter of Rights and Freedoms. To not do so means that the matter may be referred to the courts. This is particularly the case for NCR accused who are neither convicted nor acquitted of an offence. It is critical to the rule of law.
The challenge in addressing crimes arising from short-term or long-term mental disorders is determining the appropriate judicial and treatment response that addresses the mental state of the accused, the harm caused, the potential for reoffending, the deterrent effect, and the challenge of responding to crimes arising from short- or long-term mental disorders.
Bill C-54 proposes three key reforms for these accused.
The first is to put public safety first by making explicit that this is the paramount consideration for the court and the review boards. Again, that sets aside equal consideration of the mental state of the accused and the rehabilitation to enable them to return safely to community.
The second is to create a high-risk designation. It would empower the courts and the review boards to impose a high-risk designation for any accused found NCR of a serious personal injury offence and where there is a substantial likelihood of further violence that could endanger the public or where the acts were of such a brutal nature as to indicate significant threat of harm to the public. It is that second factor that a number of organizations, including the Canadian Bar Association, would like to have removed from the bill.
The third is to have “significant threat to the safety of the public” be defined in the code.
Such accused are to be denied any conditional or absolute discharges. The designations are only to be revoked by a court order, on the recommendation of a review board. Again, the Canadian Bar Association is objecting to that, saying that the more appropriate body to be deciding the mental state of the accused, vis-à-vis safety to the community, is a review board in consultation with psychiatrists, not a court.
Also there would be stricter controls on community visits. Again, a number of associations, including the Psychiatric Association of Canada, have said that this is exactly the kind of measure, if appropriately accompanied, that could help to gradually rehabilitate people and bring them back into the community.
It would also give the power to the review board to extend the review period from one to three years. In other words, there is the potential to not allow the release of the person, even if he or she is then found to be mentally competent to go back to his or her community.
Access to treatment under the law is not to be affected.
The provision in the law that most support is being found for is the provision for enhanced involvement of the victim in the proceedings. There would be notice, upon request, when the accused is discharged. It would provide for orders of non-communication between the accused and the victim, and any decisions related to the accused would give due consideration to the safety of any victims.
The current law already requires courts and review boards to consider the need to protect the public from dangerous persons, the mental condition of any accused, reintegration into society and other needs of the accused. These reforms may, in some small way, appease some members of the public. However, would they have any appreciable effect on reducing the number of violent crimes perpetrated by persons with long-term or temporary mental conditions? Statistics suggest otherwise.
Recidivism rates for NCR accused range from 2.5% to 7.5%. That is to be compared with a 41% to 45% rate of recidivism for other offenders. Therefore, the NCR accused are the most highly unlikely to reoffend. How then can we rationalize detaining them for more extended periods? Can any extension ever satisfy those distressed by the crime? Eventually they will be released, so is increased incarceration in a forensic unit, with potentially limited psychiatric care, the answer? As has been pointed out by other members, are the courts the appropriate authority to be making a decision on the rehabilitation of the mentally disordered person? Should that not remain with the review boards and psychiatric care?
Is a better, or at least additional, solution to ensure more resources for Canadian mental health detention facilities, as the experts have called for? It is important to examine the case law and to hear from legal and medical experts, and as others have suggested, to examine whether each provincial or territorial jurisdiction has the appropriate facilities to detain these accused for extended time periods and to provide the necessary psychiatric support.
It will be helpful for the government to release its opinion on the potential charter challenges the bill may pose so that those matters may be addressed before any reforms are enacted. It will be important to hear testimony on the cost implications of the bill compared to other alternatives, as incarceration is normally the highest-cost alternative. An obvious question is whether the provinces and territories have been consulted, as these costs will most certainly be downloaded to them for extended periods of detention, the provision of psychiatric services and the duty to notify and track victims and the accused.
What have other medical and legal experts said so far about the proposed law? All have expressed concern that they have not been consulted in the development and drafting of this law. The Canadian Psychiatric Association recommends against the high-risk designation, as no evidence exists that these policies pose undue public risk. They also point out that the recidivism rate is very low for the NCR accused. They state that it would impose a substantial drain on already scarce forensic resources while delivering little increased public safety. They say that it merely reinforces punishment and retribution while removing valuable therapeutic tools. They also say that the unintended consequences of the high-risk designation contradicts campaigns, including by this House, to open dialogue on mental health, removing the stigma and enabling early treatment. They recommend the removal of brutality of the offence as a criterion, as does the Canadian Bar Association. They say that they should permit escorted passes and should remove the power to extend the review period.
The Schizophrenia Society endorses exactly what the Psychiatric Association has said. The John Howard Society and the Elizabeth Fry Society raise serious concerns about these proposals, except for the notice provisions.
The Canadian Bar Association National Criminal Justice Section opposes the high-risk designation as unconstitutional, so we can anticipate court challenges. If enacted, they recommend that the “brutal nature” of the act category of consideration be removed and that there be added a right of the accused to apply to the court to remove the high-risk designation. They also support the notice requirements.
As legislators, it is of utmost importance that in making any new laws, particularly criminal laws, we take the time to consult and consider the opinions and advice of informed and experienced experts. It is for that reason I will be supporting this bill at second reading. It is so wise counsel can finally be publicly revealed and considered.