Mr. Speaker, I am very pleased tonight to be speaking to Bill C-54.
As a member of the justice committee, I had the opportunity to review the legislation in detail. I had the benefit of hearing witnesses who came to the committee to testify with respect to this piece of legislation. We heard from people who were strongly in favour of the legislation, people who had been victimized by those who ultimately became NCR accused. They had certain things that they thought this legislation would do to help them. They had some other comments.
We also heard from some people who had concerns with respect to the legislation. I would respectfully submit that when we deconstructed most of the concerns that people raised at the committee, they were a result of either not understanding the legislation or not having read the legislation, or perhaps a combination of both, because most of the criticisms really did not withstand an examination by members of the committee.
I want to talk a bit about what this legislation would do. I will start off by going through four of the key changes.
In my view, one of the key changes in Bill C-54 starts off with making the safety of the public the paramount consideration when determining whether or not somebody who has been found not criminally responsible is going to be released into the public.
As I have often done when I get up and talk about these particular pieces of criminal justice legislation and many of the things that we have brought forward, I say that many of the things that we put forward actually just make common sense. When we talk to the average Canadian on the street, for example, or when I talk to people in my riding of Brampton West and explain some of these things and tell them this is the change that we are going to make with respect to this particular bill, often their response is, “Really? You have to make that change? Boy, it would just make common sense for that would be the law. Why would you have to make that change?”
Therefore, when we say that safety of the public is paramount, it means that when a court or a review board is going to make a disposition with respect to an NCR accused, it would take safety of the public as the paramount consideration. Not only would that make sense, but we would also be codifying some of the Supreme Court jurisprudence in that area. In R. v Conway, it was made very clear by the Supreme Court that safety of the public should be the paramount consideration, so when we amend section 672.54 of the Criminal Code, we would make it clear that:
When a court or Review Board makes a disposition...it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused,
—and here is the next change—
make one of the following dispositions that is necessary and appropriate in the circumstances....
Again, that just would make sense. We would make a disposition that is necessary and appropriate in the circumstances.
The next major substantive change would be incorporating what we call a “high-risk” accused.
There are have been many who have come to this committee and said, “Well, this is going to stigmatize people. I mean, how dare you call somebody “high risk”? This is a person who has perhaps a significant mental disorder, and you're stigmatizing that person.”
I would say the exact opposite. In fact, we would not be stigmatizing people who have mental health issues, because what we are actually doing is saying that there are a select few who might be high risk, and we are destigmatizing everybody else, because people would then know they are not high risk.
I went back to this at committee over and over. When people were raising concerns about these issues, I would say, “Let us look at the section.”
Quite clearly, proposed section 672.64 would state, “On application made by the prosecutor before any disposition to discharge an accused absolutely, the court may, at the conclusion of a hearing, find the accused to be [a] high-risk...”
There are a number of processes taking place here.
The first is an application that may be brought by a crown attorney. It is not saying a crown attorney would bring this application for every person who is found to be NCR. It is quite the contrary. I know crown attorneys. My wife is a crown attorney. They are hard-working people. They are not looking for extra work. They would not try and dig up case files just because they want to make a person high risk. That would be reserved for cases where there is a significant concern.
Even if a crown prosecutor had that significant concern, it would not mean that person would be designated high risk because there is a two-fold test: first, the crown prosecutor has to bring the application; and, second, he or she has to convince a judge that the high-risk designation is necessary in the circumstances.
If I go back to the proposed section, it states:
...at the conclusion of a hearing, [the court may] find the accused to be a high-risk accused if the accused has been found not criminally responsible on account of mental disorder for a serious personal injury offence...and...the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person;
When we really take the time to listen to that section, it is saying that for a person to be designated high risk a court has to be satisfied that there is a substantial likelihood that the accused would use violence that could endanger the life or safety of another person. That to me is absolute common sense. Why would we consider an absolute discharge where a person would be released into the community, if he or she may be a high risk and there is a substantial likelihood that he or she would use violence that could endanger the life or safety of another person? That is the part of the test that has been changed. I am quite sure it would be used judiciously by our judges and it would not be used by crown attorneys all the time.
The second way that someone could be found high risk is if the court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a grave risk of physical or psychological harm to another person. That is a proposed section that a number of people at committee have said is wrong and that, if it were a brutal offence, would mean that the person is high risk. That is not true. A number of witnesses made that statement at committee. I had to walk them through the proposed section. It does not just say “brutal”. We must look at the proposed section, which does not say that. It states:
[If] the court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.
It is saying that there has to be some correlation. It is not just brutal; rather, it is brutal such that there is a risk of grave physical or psychological harm to another person. Therefore, if people want to suggest that we are saying brutal is high risk, they are not being truthful or they did not take the time to read the proposed section and understand what it says.
That is not enough. It does not just mean that there must be an indication of a grave risk of physical or psychological harm to another person because under subclause (2), “Factors to consider”, it goes on to state:
In deciding whether to find that the accused is a high-risk accused...
That could be under that first part of the test I talked about or the second part of the test. In either case, the courts would have to be satisfied that they have considered all relevant evidence included in the list. However, the phrase “all relevant evidence” does not mean that they are constrained by the factors in the list for a judge to consider. It is a non-exhaustive list.
Even if we accept the argument, “brutal”, we would then go down and look at what else has to be considered: the nature and the circumstances of the offence; any pattern of repetitive behaviour which the offence forms a part; the accused's current mental condition; and the opinions of experts who have examined the accused.
Even if someone tried to bring an application under the so-called “brutal nature” section, a court would have to look at all the evidence, which would include such things as the opinions of experts who have examined the accused.
The criticism that this might lead to a brutal crime, meaning the person is high risk, does not hold water. It is not a legitimate argument because a section in the statute says something very different.
Another issue that was raised at committee was that if a person was designated high risk, that person had to wait three years for his or her review and this was not a good thing. That is absolutely not true. It is not automatically three years. In certain circumstances, the review for a person who has been designated high risk can be moved to three years, but it is not automatic.
It is interesting, because the person who raised the matter of this being an automatic three years was Justice Richard Schneider, who came to the committee to provide us with his evidence on this and suggested that the three years was mandatory. I asked him if he could show me where it said that in the section. I understand there was constraints of time and we were talking, but he could not find it. However, when I look at the section, which is on page 8 of the statute around line 20, there are two ways in which this can be extended to three years.
First, it can be moved to 36 months after reviewing a disposition if the accused is represented by counsel and the accused and the attorney general consent to the extension. It has to be with the consent of the accused. Because we are dealing an accused, and in this case in particular an NCR accused, it has to be represented by counsel and with consent of the attorney general because we want to ensure we have real and legitimate consent to extend something to 36 months.
The other extension goes to the section again. I keep going back to this because we have to read the section before we decide to make the commentary. It says:
—at the conclusion of a hearing under subsection 672.47(4) or this section in respect of a highrisk accused, the Review Board may, after making a disposition, extend the time for holding a subsequent hearing under this section to a maximum of 36 months...
Here is the reason. If the review board is satisfied on the basis of any relevant information, including disposition information, in an assessment report made an offer under certain paragraphs, and this is key, “That the accused's condition is not likely to improve and that the detention remains necessary for the period of extension”. There is a burden of proof that has to be met in order to do that extension.
One of the things that was quite clear at committee, and this was virtually unanimous, was that review boards did good work. They work hard. They understand the law and we are putting that decision, the 36 months, back with the review board.
It is interesting because we did have a witness who came to the committee and who suggested that there was a problem with this 36 months review. When we look at the section, it is only if the accused's condition is not likely to improve and that detention remains necessary for the period of the extension.
Interestingly enough, when I had the opportunity to discuss that with Catherine Latimer from the John Howard Society, her response was, “Yes, I noticed that, but you will find that if you give very burdened organizations and review boards an option to extend the review periods, they always take it to the outer limit”.
Ms. Latimer was basically suggesting that review boards do not care what the test is. They do not care if the accused person's condition will or will not likely improve. The boards will do it at 36 months, because they do not want to work, because they have too much work. Ms. Latimer was one of the people who came to the committee and suggested that this bill should not pass. That was the argument. I vehemently disagree with that position.
I am going to talk briefly about the rights of victims, which is an important aspect of this legislation. I can say that I heard what I consider to be, in many circumstances, absolutely heartbreaking testimony from people who came to talk about family members who had been killed by an NCR accused person. They talked about their children being killed. We heard these things, and it was very difficult to listen to that kind of testimony.
I can tell you some of the things they were unhappy with that we wanted to fix. We cannot fix what happened. We all know that.
I cannot remember who told this story, but a person was walking in a mall and bumped into the NCR accused person who had committed the acts of violence against his or her family member. The person was in a panic. One of the revisions in this act would give the victim notice of the discharge of an NCR accused. The victim would receive notice when the NCR accused was going to receive an absolute discharge. That would be a huge step up.
The bill would make victim impact statements mandatory. If victims wanted to make statements, they would have to be considered before a disposition was made. Non-communication orders would also be mandatory. If victims did not want communication from an NCR accused, they would not have to have it. It is common sense.
I have a great example of the bipartisanship at the committee. An amendment was put forward by my colleagues in the NDP on letting victims know the intended place of residence of NCR accused people. That goes back to the story of someone bumping into the NCR accused in the mall. If victims know that they are being discharged and where they are being discharged to, the chance of having those unfortunate incidents would decrease.
Another point raised at committee was that with this legislation, NCR accused persons would be put in jail. That was put forward by Dr. J. Paul Fedoroff. I asked him where in the legislation it said that an NCR accused person would go to jail. He could not point it out. I then walked him through the section and talked about what would happen. When dealing with people deemed high risk, they would be put in treatment.
Going back to the terms of disposition, subsection 672.54(c) states that, “by order, direct that the accused be detained in custody”, and this is key, “in a hospital”. Somebody designated high risk would not go to jail. I do not know where that came from. It is not true. NCR accused persons would be put in a hospital for treatment.
When I pointed that out, the response was that before people were declared NCR, they would be put in jail, and that was the problem. The answer was that this is how the system currently exists. When people have committed serious crimes, are awaiting trial and do not get bail, they are put in jail. This legislation would not change that.
This is a piece of legislation that would be moderately used. It is a tool. I like to call it a double-check. When a review board was about to absolutely discharge an NCR accused person, there could be an application to the court to say that the person might be high risk and could reoffend and commit a violent act. The court could be asked to look at it to make sure that it was the right disposition. It would be a sensible, reasonable safety check. I hope that it has the support of all members of the House of Commons.