Mr. Speaker, I am thankful to have the opportunity today to contribute to the second reading debate on Bill C-54, the not criminally responsible reform act. The bill proposes to amend the mental disorder regime in the Criminal Code and the National Defence Act to strengthen their ability to better protect the safety of the public, as well as do a better job at responding to the needs of victims in the mental disorder regime.
It may be useful to provide a bit of background on the existing mental disorder regime before I outline the amendments proposed in Bill C-54 and why they are important reforms.
A fundamental principle of our criminal law, including the mental disorder regime, is that a person must be morally blameworthy to be criminally liable for a wrongful act or omission. They must have the mental capacity to know and appreciate what they are doing and the mental capacity to distinguish between what is right and wrong. Also, they must be able to communicate and give instructions to their lawyer and understand the nature and consequences of a criminal trial in order to be tried.
If, at the time the act was committed, a person suffered from a mental disorder that rendered that person incapable of knowing what they did or that it was wrong, the trial court can find the person committed the act in question but order a verdict of not criminally responsible on account of mental disorder. If at that time of trial the mentally disordered person does not have the capacity to understand the nature and the consequences of the criminal trial, they may be found unfit to stand trial.
After either of these findings, the person will be dealt with according to the mental disorder regime, which is designed to balance the twin goals of public protection and fair treatment of the accused, usually by provincially appointed review boards. The review boards are composed of at least five members with legal and psychiatric expertise.
As I noted, the bill contains elements that address both public safety and victims. In terms of the public safety reforms, the bill would amend the Criminal Code and clarify that public safety is paramount in consideration for the review board decision-making process. Although the Supreme Court of Canada has said that public safety is already the paramount consideration, most recently in its 2010 judgment of Regina v. Conway, the proposed amendment would ensure consistent application in cases across the country.
The reforms would also codify the Supreme Court of Canada's interpretation of “significant threat to the safety of the public”, which is the current test for determining whether review boards can continue to supervise the not criminally responsible accused. The Supreme Court interpreted this phrase in the Winko case in 1999.
The amendment would also clarify that the accused need not pose a threat of violence, but must pose a real risk of physical or psychological harm to members of the public that is more than merely trivial or annoying and must be criminal in nature. This would ensure this test is applied consistently across all jurisdictions.
Bill C-54 also proposes to create a new high-risk mentally disordered accused designation scheme. This new scheme would only apply to the accused who were found not criminally responsible for a serious personal injury offence. The mental disorder regime would define a serious personal injury offence as an indictable offence involving the use or attempted use of violence, conduct endangering life or safety, or sexual offences. In these cases, the Crown would apply for the high-risk designation to be made by the court.
This designation could be made in two situations. The first would occur when the court was satisfied that there was a substantial likelihood that the not criminally responsible accused would commit violence that would endanger the life or safety of another person. The second situation would be if the court was of the opinion that the offence for which the not criminally responsible accused was found to be not criminally responsible was particularly brutal, so as to indicate a risk of grave harm to the public.
Accused persons who are found to be unfit are not included in this high-risk designated scheme because they have not yet been tried and determined by a court to have committed the act. The effect of such a judicial designation is to protect society from a high-risk individual and prevent the accused from being conditionally or absolutely discharged.
As well, a high-risk not criminally responsible accused would not be permitted unescorted passes in the community. This is particularly important. Escorted passes would only be permitted for medical reasons and only when a structured plan was in place to ensure the safety of the public.
It is important to clarify that the high-risk designation would not be permanent. Once a review board was satisfied that the high-risk, not criminally responsible accused no longer posed a substantial likelihood of committing violence that would endanger the life or safety of another person, it would make a recommendation to the superior court of criminal jurisdiction for review. The court would then hold another hearing to determine whether the designation should be removed. If it reached the same conclusion as the review board, the designation would be revoked. The accused would then become a regular not criminally responsible accused and would be dealt with under the regular procedures of the mental disorder regime. These are balanced proposals that seek to protect both the safety of the public and the rights of accused persons to fair and appropriate treatment.
I would like to return to the victim-related reforms. The mental disorder regime already offers many opportunities for victims to be involved in this process. They can attend hearings and present victim impact statements.
The proposed reforms would enhance victim involvement by providing that victims be notified, on request, when a discharge order has been made. This would ensure that victims have advance notice about the fact that they may run into the mentally disordered accused. This is especially concerning if the person is released into a small community.
The law would also be clarified explicitly to provide that the safety of victims be considered in the decision-making process. Further, Bill C-54 proposes to clarify that the review board shall consider whether it is desirable to issue a non-communication order between the not criminally responsible accused and the victim. The review board would also consider whether to order the not criminally responsible accused to not attend a specific place, such as the victim's home or place of work.
In closing, I would like to encourage all members to support this bill's passage at second reading. This is a bill that would provide balanced measures to protect public safety and enhance victim involvement in the mental disorder regime. These are reforms we should all support.