THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Thursday, February 27, 2014
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-14, An Act to amend the Criminal Code and the National Defence Act (mental disorder), met this day at 11 a.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
The Chair: Good morning. Welcome colleagues, invited guests and members of the general public who are following today's proceedings of the Senate Standing Committee on Legal and Constitutional Affairs. Today, we're starting our study of Bill C-14, an Act to amend the Criminal Code and the National Defence Act (mental disorder.) This bill amends the mental disorder regime in the Criminal Code to specify that public safety is paramount in the decision-making process. The bill also creates a high-risk accused designation for some of those found not criminally responsible. It also enhances the involvement of victims in the review board process.
As a reminder to those watching, these committee hearings are open to the public and also available via webcast on the sen.parl.gc.ca website. You can find more information on the schedule of witnesses on the website, under "Senate Committees."
To begin our deliberations this morning, I'm pleased to welcome back before the committee the Honourable Peter MacKay, Minister of Justice and Attorney General of Canada. The minister is accompanied by Carole Morency, Director General and Senior General Counsel, and Julie Besner, Counsel, Criminal Law Policy Section from Justice Canada.
Minister, we'll begin with your opening statement.
Hon. Peter MacKay, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you very much, Mr. Chair, honourable senators. As was noted, I'm joined here today by very capable individuals from the Department of Justice. We hope to be able to answer your questions and present to you what we believe is a very important amendment and update of our criminal justice system vis-à-vis the "Not Criminally Responsible Reform Act."
As always, I am pleased to appear before the committee today to speak to Bill C-14, the Not Criminally Responsible Reform Act.
Let me begin by saying, honourable senators, that this bill is a reflection of the priority our government places on public safety and the safety of victims, more broadly. As well, it reflects the priority that the government places on improving the involvement and inclusion of victims in the criminal justice system.
Clearly, this is a very specialized area of our system. Specifically, the "Not Criminally Responsible Reform Act" processes and proposes amendments to the mental disorders regime both in the Criminal Code and the National Defence Act. The mental disorder regime deals with individuals who have been found either unfit to stand trial or not criminally responsible, or NCS, on account of mental disorder.
As senators know well, these are two separate verdicts that consider the mental capacity of the accused persons from two different points in time. For instance, the court may decide that a person is unfit to undergo a criminal trial because they are suffering from a mental disorder that prevents them, for example, from understanding the court proceedings.
To make this determination, the court considers the mental capacity of the accused at the time of the trial. However, if a person is tried and is found to have committed an act that constitutes a criminal offence but they lacked the capacity to appreciate what they did or know that it was wrong, the court then enters a verdict of NCR. In these deliberations, the court considers, among other things, the mental capacity of the accused at the time of the commission of the alleged offence.
In both of those circumstances, the accused person is neither convicted nor punished in the traditional sense of our criminal justice system. Rather, they are referred to a provincially established review board, which will make orders called dispositions respecting the appropriate supervision and treatment of the accused person. I believe you have an esteemed member of this committee who has served as a chair of one of those review boards in New Brunswick.
In determining the appropriate disposition, the review board can choose from three options: detention in custody in a hospital, usually a forensic or mental health unit; discharge subject to conditions; or an absolute discharge if the review board has determined that the accused person no longer poses a significant threat to the safety of the public.
This regime was introduced into the Criminal Code in 1992, and it has received significant support from those involved in the system who are dealing appropriately with a small number of persons — and I stress "a small number of persons" — who are found unfit or NCR.
However, recently this regime has come under increased scrutiny by Canadians, and they've questioned whether or not the existing legislation is clear enough or strong enough to adequately protect both the general public and victims of NCR-accused persons and, I would add, individuals themselves who are deemed to have been NCR or unfit.
Bill C-14 proposes amendments to clarify and improve certain aspects of the mental disorder regime in part to address these concerns. Some of these reforms focus on the key provisions of the Criminal Code mental disorder regime, which is found in section 672.54, the disposition-making provision. Among other things, this provision sets out factors that must be considered when determining which disposition to order. It also sets out the available dispositions and, importantly, the test to be applied when deciding which disposition to order.
Our Bill C-14 proposes three amendments to this decision-making process, so the crux of this bill. First, it would clarify that public safety is the paramount consideration in the decision-making process with respect to accused persons who have been found by a court to be NCR or unfit to stand trial. Currently the provisions state that courts and review boards must balance public safety as one of four factors. Although there is jurisprudence from the Supreme Court of Canada that the public safety factor is, in fact, the paramount consideration, the principle is not being applied consistently across all jurisdictions and was, therefore, a concern for provincial and territorial attorneys general. Therefore, there was, I would submit, a need for codification of this principle.
The second change is to the disposition-making provision as it relates to the terms "least onerous and least restrictive." Currently, when deliberating about the appropriate disposition of an NCR accused, the review board must make a disposition that is "the least onerous and least restrictive" to the accused. Bill C-14 proposes to replace those terms with a clearer phrase: "necessary and appropriate in the circumstances."
This proposed wording is consistent with how this requirement was described in the 1999 Supreme Court of Canada decision Winko v. British Columbia (Forensic Psychiatric Institute), such that "the NCR accused's liberty will be trammeled no more than is necessary to protect the public safety." This amendment is not intended to eliminate the requirement that a disposition be the "least onerous and least restrictive," but rather to make the concept easier to understand. I would note that in many instances public confidence and public understanding are critical considerations.
The third and final change to the disposition-making provision is the proposal to codify the meaning of the phrase "significant threat to the safety of the public." As I mentioned previously, the review board must make an absolute discharge — meaning a release without conditions — if an individual no longer poses a "significant threat to the safety of the public." Bill C-14 proposes to codify that phrase in a manner wholly consistent with the Supreme Court of Canada's interpretation of that same phrase in Winko. In that case, the court indicated that a "significant threat" means a risk of serious physical or psychological harm to members of the public, resulting from conduct that is criminal in nature but not necessarily violent.
Again, the federal government heard from provincial and territorial attorneys general that there has been an inconsistent application of this test across jurisdictions.
I believe that codification of this principle is certainly a valuable amendment to clarify that the accused cannot be released if there is positive evidence that they do pose a risk, even if the nature of that risk may not be violent.
In addition to these important codifications, Mr. Chair and senators, the other amendments to the decision-making provision in Bill C-14 propose to create a new high-risk NCR accused designation. This designation is intended to apply to only the most dangerous of accused and would effectively result in a disposition requiring detention of the accused in a hospital until that finding is revoked by a court.
I would like to take a few minutes to describe the process, the legal test to be applied and the consequences of a high-risk NCR designation.
The application for the proposed high-risk NCR accused finding would be made by a prosecutor at any time before an absolute discharge is ordered. In other words, as long as the accused is still under the jurisdiction of the review board, a prosecutor could make an application.
A prosecutor could only make this application if the original offence was a serious personal injury offence that resulted in a verdict of NCR and that the accused was 18 years or more at the time of the commission of the offence.
After hearing evidence, a court could make a high-risk NCR accused finding in one of two circumstances. First, the first circumstance is if the court is satisfied that there is a substantial likelihood that the accused would use violence that could endanger the life or safety of the public. The standard of "substantial likelihood" in the high-risk designation process is higher than "significant threat" — so we are raising the threshold — which is the test in the disposition-making provision. This distinction serves to differentiate the two processes and ensure that the high-risk NCR accused designation applies only to the most dangerous of individuals.
We looked, Mr. Chair, as you would expect, at the sections within the Criminal Code that deal with designated high risk offenders in the traditional sense.
The second circumstance in which a high-risk finding may be made 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 harm to another person. There has been some commentary around the term "brutal nature" in this provision and some have suggested that without definition the term may be too vague. However, I would point out that the term "brutal nature" has been judicially interpreted in Canadian criminal law, and I reference the case of R. v. Langevin, a 1984 decision found at 11 C.C.C. It is an Ontario Court of Appeal decision. In that context they examined the dangerous offender provisions, which I just referenced, and I am satisfied that the courts will be able to give meaningful and effective interpretation and apply it in the context of NCR.
Moving on, if the court makes the high-risk accused finding, a disposition requiring detention of the accused in a hospital must be made and no escorted absences would be permitted except for medical reasons or any purpose that is necessary to the accused's treatment.
One final consequence of the high-risk NCR accused finding relates to the period of time between review hearings. Currently the review boards review cases on an annual basis, and although this may be extended currently up to two years, Bill C-14 proposes that for high-risk NCR accused persons the review board could, in certain circumstances, extend the period of review for up to three years.
I want to be clear that a high-risk NCR designation is not permanent. The designation can be revoked once the elevated risk level has been mitigated. This would happen through a two-step process. First, the review board, after holding a review hearing, would have to be satisfied that there is no longer a substantial risk or likelihood that the high-risk accused offender would commit violence that could be seen as to endanger the life or safety of another person. If the review board is so satisfied, it will refer the case to the superior court of criminal jurisdiction for a hearing. This is a new or additional process that would require another hearing before the court of original jurisdiction. The court would then also hold a hearing to determine whether there is no longer a substantial likelihood of violence, and if so the court would revoke the finding.
I want to be very clear that the legislation does not impose a burden on the accused in this process. The court would have to be satisfied, based on all the evidence presented by all the parties, that there is no longer a substantial likelihood of violence that would endanger the public, and the nature of the hearing would be more akin to inquisitorial review board hearings as opposed to the traditional adversarial process.
Bill C-14 is designed to improve the involvement and inclusion of victims in the mental disorder regime and ensure that their safety is taken into consideration.
Bill C-14 provides that, upon request, the victim is to be notified if the accused is released absolutely or conditionally and, as amended by the Standing Committee on Justice and Human Rights, the accused's intended place of residence shall also be given to the victim upon request.
The goal of this amendment is clear. It is to avoid situations — which we have heard of and which are documented — where a victim is surprised by an unexpected encounter with an accused who has been released into the community. It's fair to say, honourable senators, that we can imagine the horror that a victim would feel and the emotional trauma and re-victimization of unknowingly encountering somebody in a local community hall, a grocery store, a place of gathering, knowing that that individual has perpetrated violence on the person or on the person's family members. This is something that we need to remedy and it is something that this amendment seeks to alleviate.
Bill C-14 also proposes that the court or review board must specifically consider the safety interests of the victim during the decision-making process and to impose a non-communication or non-attendance condition in order to ensure their safety.
Before I close, I wish to briefly speak about the consultations that took place. The issue of protecting the public from high-risk individuals found NCR has been a regular topic of discussion at meetings of the federal/provincial/territorial ministers of justice and public safety and officials. All those levels of government have been in regular contact and discussed these issues now for some time. We have met regularly, as you would expect, with victims, who have expressed concerns about the lack of notification in the current system, which I just alluded to.
Finally, since taking over this portfolio, my office has arranged for me personally to meet with members of the Schizophrenia Society of Canada and other mental health advocates in preparation for this bill, this legislation. We have held a number of round tables in several communities and have heard from various stakeholders and participants in our justice system. I must say that this piece of legislation is very well received while fully understanding the serious nature and far-reaching implications.
I know that you will be hearing from a number of witnesses. I want to emphasize that nothing in this bill would impact the mentally disordered accused’s access to health treatment. This is very much in keeping with the current provisions that provide for treatment in a certified forensic unit. The bill proposes a reasonable and balanced response to legitimate concerns that have been expressed by the public and stakeholders about public safety.
I thank you in advance for your work on this bill. I look forward to your questions, Mr. Chair.
The Chair: Thank you very much, minister. We will begin the questions with the Senator Baker, Deputy Chair of the Committee.
Senator Baker: I would like to welcome the minister to the committee. As he noted, questions will be raised by some of the witnesses we will be hearing from regarding the constitutionality of provisions of this bill. Regarding the first question I want to ask the minister, I do so knowing that many years ago he was a litigator and Crown prosecutor who dealt with the Charter on many reported occasions.
I noted in a little research before I came here that in a case before the Supreme Court of Canada some 20 years ago, the respondent was represented by Peter G. MacKay and Kenneth W.F. Fiske. The case of R. v. Fitt involved a Charter argument. I must admit that the Supreme Court of Canada ruled with the minister's argument on the Charter issues. It was an appeal from the Nova Scotia Court of Appeal. The minister is very familiar with Charter issues and the litigation of such issues. On my question, I quote the Canadian Bar Association:
. . . subsection 672.64(1)(b) is likely unconstitutional as it violates s. 7 of the Charter . . . .
I ask the minister whether in his opinion, with all his experience as both a litigator and otherwise, he believes that each clause of this bill is Charter compliant.
Mr. MacKay: Thank you very much, senator, for the question. Your research is impressive and impeccable. I have had a long-standing interest in this particular area of the law. As you referenced, I have been involved in cases in the past that involve not criminally responsible accused.
To answer your question directly, I do believe that this legislation is Charter compliant. As with all legislation at the Department of Justice, there is a rigorous examination of all sections to see that, in fact, they do comply in the judgment of the department through our litigation team. Our assembled individuals here I think will agree.
Of course, an assessment is always made as to the Charter risk at the end of the day. No one can say with certainty what every judge in the country would interpret; and certainly not every judge would interpret in the same way the cases before them.
Having said that, we have taken, I believe, considerable time and effort and consultation. I say with the greatest respect to the assessment that you presented here from the bar association that I respectfully disagree.
Everything we do has, as the backdrop, this ever-important process of balancing the protection of the public versus the rights of the accused, the individual, and Charter compliance. I believe that, on balance, we will meet that test, and we will defend this legislation, if necessary, in the courts. We present it, fully acknowledging that there are sections that create new and, some would say, onerous obligations. I say for emphasis that we do so with the greatest intent to protect the public.
I implore senators to keep in mind that we are talking about a very, very small number of individuals' cases where these sections would apply in terms of this high-risk designation that has been created. We are talking about less than a percentage of a percentage point.
Senator Baker: Yes.
Minister, you also referenced the section that the Canadian Bar Association says is vague and overly broad. You referenced a decision of the Ontario Court of Appeal in Langevin in 1984 as being the court that had adjudicated this very question; and there's no doubt about that. It was an adjudication concerning the use of the words "brutal nature" — I believe it's in section 753 of the Criminal Code as it relates to the dangerous offender provisions. I will read the section of the Criminal Code that uses the words "brutal nature." Section 753.(1)(a) states:
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or
Now, the words that we're dealing with in this bill are not exactly the same. The bill states:
. . . constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.
Your point is that this has already been litigated and several cases in the past 10 years have referenced the case you referenced as being good law; but you believe that the use of that term by the Court of Appeal and adjudicated frequently after that would apply to the wording in this bill. You think it would stand on the basis that it has been adjudicated previously and found to be sound constitutionally.
Mr. MacKay: I do, Senator Baker. I do so having read a number of recent cases and having looked back retrospectively at that definition.
A case in point would certainly resonate here and will get referenced often in your deliberations and future discussions around this bill: the brutal murder of Tim McLean by Vincent Li and the not criminally responsible finding in that instance. For further point of reference, this occurred on a Greyhound bus and was highly publicized. That is certainly well within the description of a brutal occurrence that epitomizes the type of offence that we're capturing here — so outrageous and so shocking of our sensibilities that this type of descriptive language envisioned in that 1984 case would apply.
Clearly, there will be a scale, if you will, when one gets into the finer nuances and examination of facts in every case. But that fairly recent example fits that description, in my estimation.
I have confidence in our judiciary and I have confidence in the Crown and the defence when these facts are presented, not to mention the forensic evidence that would be presented along with the psychological assessments that would be done by the necessary forensic officials, that we can make those determinations. I think that the evidentiary burden that is shared by all individuals in this process could very easily make out what is clearly and what the public would clearly deem as "brutal."
Senator McIntyre: Thank you, minister, for being here with us today. As you rightly pointed out, Bill C-14 contains three elements: having public safety as a paramount consideration, creating a high-risk designation and enhancing victims' rights.
Over the years, both Parliament and the Supreme Court of Canada have dealt with public safety and victims' rights, Parliament with the passage of Bills C-30 and C-10 and the Supreme Court of Canada with leading decisions such as Winko, Pinet, Conway, and the list goes on. To some extent, it appears to me that public safety and victims' rights are nothing new.
What is really new is the high-risk designation that would only affect the high-risk offenders found not criminally responsible. My question is: Would the new high-risk designation apply retroactively?
Mr. MacKay: That’s a very good question, senator. The retroactivity aspects of this legislation could apply to those who are currently in the system. There has yet to really be a determination as to how far back this could go. I say that in the practical sense that we have cases that are currently working their way through the system. One that comes to mind immediately is the case of Turcotte. I'm choosing my words very carefully here, given that there are considerations before the courts right now that this legislation could impact, but there are components, if you will, of this legislation that could impact persons who are currently in the system; that is to say, the determinations of this high-risk designation could attach to some of those who are currently in the system. The number is very small, as I said. We're talking about a very limited number of cases in which this designation would attach.
Senator McIntyre: Thank you, minister.
Bill C-14 is the old Bill C-54, which died on the Order Paper. Bill C-54 was debated in the House of Commons. It was then exhaustively studied by the Standing Committee on Justice and Human Rights. My understanding is that the committee heard from more than 30 witnesses from a wide range of backgrounds and professional experience. All of these witnesses presented valuable viewpoints on what is now Bill C-14.
I note that there were two amendments made by the standing committee. The first amendment was in relation to victims' rights. The second amendment provides for a parliamentary review of the mental disorder provisions five years following Royal Assent. Obviously, the bill focuses on public safety and enhancing victims' rights.
Do you see the need for further amendments to this bill?
Mr. MacKay: That is within your wisdom and your purview. I think every minister would try to have you believe that the bill is in its perfect form when it is tabled in either house, but I am not a minister who, having practised law, having seen the living tree up close, views legislation as ever beyond any constructive criticism. Take that as a very open signal that upon your deliberations and upon hearing from witnesses, many of whom have great expertise in this field, we are open to amendments. The sober second thought that occurs here is very important to this process. This is the very essence, I would suggest, of good legislation.
The Senate, I know, will examine this very rigorously. You, sir, are one of the foremost experts in the country on this particular area. I look forward to and am very open to any proposed amendments that come forward in this process.
Senator McIntyre: Thank you, minister.
Senator Joyal: Welcome, Mr. Minister. The sections of the bill that propose or have the effect of excluding somebody from their community of origin are very serious ones, in my opinion. There have been decisions of the Supreme Court in relation to the capacity of a community to exclude or exile someone. We can understand that there might be trauma on the victim's side to see again a person who has committed a crime of a serious nature. They would, of course, be troubled by the presence of somebody. Nevertheless, the Charter provisions are quite clear, and the courts have already established the parameters for the law to be respected in relation to that.
How are you satisfied that those provisions of the bill could stand the test of the criteria that the Supreme Court has already established in relation to that issue?
Mr. MacKay: It comes back to, I believe, in part, Senator Baker's question and comment with regard to the necessity to protect the public. The very essence of the bill is the recognition that high risk not criminally responsible accused are in a category above and beyond the traditional definition, the traditional finding, wherein the exhibited behaviour of violence towards the public, towards specific individuals, in the case of Tim McLean, necessitates this higher threshold that allows the system and society at large to put greater restraint and, in fact, to bring about this exclusion, this removal from society, this exclusion from community. That is fundamentally necessary to protect individuals from that behaviour for which an individual has demonstrated capacity.
Yes, it is a very serious decision, and that is why I believe the parameters, the safeguards and the process implicit in this bill not only meet constitutional requirements and scrutiny but also strike that balance. They put in place a further level of protection that, by the way, empowers judges further in this instance. It requires now not only the review board in its wisdom and its examination of circumstance but also puts in a further step where the individual is now to go back before the court and have the review board's decision examined further. Crown and defence counsel, on behalf of the accused, have a further opportunity to present their evidence as well.
Senator Joyal: How far can you exclude somebody from a community? For somebody from a small community, in a remote area, how far away would you exclude that person to meet your threshold of public safety protection?
Mr. MacKay: This is a very big country; but, I would suggest to the nearest and safest secure forensic unit. In the context of this bill, that's what we're talking about. I think it's important that the public understand that individuals who are deemed by the court of competent jurisdiction to be not criminally responsible or not fit are not going to jail. They're going to a secure medical facility for the purposes of treatment.
How they respond to treatment and when they are deemed ready and appropriate to return to their community, to society at large, is very much the purview, the responsibility, of medical experts, forensics, psychiatrists, as well as the legal system working in tandem.
Senator Joyal: The Supreme Court in its previous decision, as you well stated in your opening remarks, has established quite clearly the principles that have to be balanced. The bill proposes to give to one of those elements a higher threshold.
Is this decision or proposal based on the review of a certain number of cases whereby you came to the conclusion that the courts have erred in their appreciation of the balancing of those principles?
Mr. MacKay: That's a very astute observation. I would put it this way: Where courts previously have considered all of these factors together, I would describe that the overwhelming necessity and responsibility to protect the public is the ring fence around these other considerations. They have to occur in unison, but the protection of the public element that is at the core of this legislation I believe is emphasized with good reason, is given greater prominence and, therefore, yes, greater weight in those deliberations, that the protection of the public has to be the paramount consideration. I personally, fundamentally believe that.
Senator Plett: Thank you, minister. First, let me say how happy I am about the fact that you believe Vince Li would fall into this category. My first question is based around that.
Justice Schneider in an article that he wrote says that Vince Li would not fall into this category. I'm not going to ask you to get into Justice Schneider's mind here and say why he believes that, but what can you tell me to assure me or this committee that what you are saying in fact is correct? I'm certainly going to ask Justice Schneider about that when he appears before this committee I think later today. If you could elaborate a little bit on that, I'd appreciate it.
Mr. MacKay: Thank you very much, Senator Plett. I would answer your question this way: I believe that previous behaviour is one of, if not perhaps the most prevalent, indicator of future behaviour. I think that there are always exceptions to that. When it comes to extreme violence, as was the situation in the Vincent Li case, I think there's an obligation on all of us, weighing a lot of factors, to examine very closely the circumstances in which we can, to the greatest extent possible, avoid a recurrence of that type of violence.
I'm really trying to avoid being drawn into a discussion too specific of the details because there are still deliberations going on there. But to talk more in the abstract, when you have cases where there is random violence, for example, violence that appeared to be so out of the ordinary, so brutal — to return to the conversation and exchange with Senator Baker — so random, directed towards an innocent individual who happened to be in the wrong place at the wrong time, that is when I believe in this calibration that we are trying to make to bring about a greater degree of both protecting the public but putting in place gateposts, if you will, or gates that a person must pass through before they can return to their community, before they can, in the view of experts, safely reintegrate into society with the greater assurance that violence won't be perpetrated, that further offences will not be committed. I believe it's incumbent certainly on all of us, and the justice system in particular, to try to make those changes to improve that standard and, again, with the very real obligation to protect the public.
Senator Plett: I appreciate that answer. I think many of us have been visited in the last few days by different organizations in regard to some amendments. I was as well. The group has proposed three amendments, but I want to focus on one that they are suggesting. It deals with the reverse onus.
I know that this bill was in a different form a while ago, Bill C-54. I wasn't on this committee and I don't think you were Minister of Justice at that time, but they told me yesterday that in fact the Justice Department had argued that the reverse onus was a very important thing. Now we're being told that there isn't reverse onus. I'm not saying that I have any issue with reverse onus and I think there should be some. Nevertheless, is there a reverse onus in this bill? What is the responsibility of the person who is found not criminally responsible?
Mr. MacKay: That's a very good technical question. Unlike the initial hearing to determine whether the NCR accused does in fact meet that categorization of high risk, the revocation hearing in order to have that designation removed, this is initiated by the recommendation from the review board itself. As such, the provision does not assign the burden on any particular party.
When you talk about a reverse onus, I would phrase it this way: the onus, the burden, is shared by all the parties. The process is very much, as I described, inquisitorial. It's meant to delve into the circumstances of the individual, of the case, of the treatment, to make a determination so the court can be satisfied, based on everything that's presented to them at that hearing, that the substantial likelihood the accused would use violence again, endanger life, commit another offence, that the substantial likelihood test has been met — that they wouldn't, or that they would. You don't enter into that process with a bias or a burden. You enter into it with the hope that both sides will present evidence for or to the contrary to allow the court to make a determination.
Senator Frum: The committee has received a letter from the Canadian Bar Association expressing its non-support for the amendment of section 7 that would give the victim on request the NCR accused's intended place of residence on discharge. Among their reasons of opposition includes their view that this would violate the accused's constitutional right to privacy and also that it represents vigilante justice. Could you comment on that?
Mr. MacKay: Sure. It's a question that I was asked in the context of another bill that we have just introduced to Parliament involving sexual predators, vis-à-vis children. Public disclosure that provides the public and provides officials, police, with information on the whereabouts of accused even after release does, in the mind of some, create this possibility of vigilantism, of a risk to the offender. That is something that does have to be considered.
But I answer your question this way: I come down on the side of protecting individuals, particularly those who are vulnerable. I come down on the side of the obligation that our justice system, those tasked with protecting the public, has a very high degree of responsibility. This is not to expose offenders to further risk of public backlash, vigilantism, call it what you will. This is simply making a choice that the higher standard here has to be in favour of the innocent, law-abiding public.
In the case of child victims of sexual assault, I can tell you, as a new father, that there is nothing about which I think we have a moral obligation of any higher order than to protect children.
You are all very well versed in the choices that have to be made. The system of justice is depicted as a balance. The balance causes us to weigh these considerations very carefully. I come down on the side of protecting children and, in this case, protecting the public from an individual who, albeit of diminished capacity, has a proven record of a propensity to violence. I think the public has a right to know if that individual is in their neighbourhood or if that individual is in their community. Then, armed with that information, they can make better decisions as to how to protect themselves and how to avail themselves of certain protections and preparations.
Senator Rivest: I have two concerns. I listened to Senator Plett’s comments and your response about reverse onus. Is this provision really a key component of the bill? It seems to override normal practices somewhat, and this is a question of mental health. I do not want to blow this out of proportion, but I feel that the process is a cause for concern.
My second point has to do with Senator McIntyre’s comments about the retroactivity of the bill. In your response, you mentioned the high-profile case of Dr. Turcotte, which is again before the courts. However, if I read the bill correctly, the retroactivity of the bill would apply to anyone currently being rehabilitated or who is in the process of receiving care. There are no guidelines.
Did you consult people who are familiar with mental health issues to determine what effect this could have on those with mental illness who are well on their way to recovery? This provision makes them vulnerable to recognition and they may relapse. There is no guarantee that they will not be considered high-risk under this retroactivity. Did you consider that aspect of your proposal?
Mr. MacKay: That is a good point. To begin, I believe that this bill focuses on people in unique circumstances.
What we're talking about here are individuals who, because of very serious issues of mental health, of capacity and of appreciation of not only the law but also of social norms and values is diminished because —
Senator Rivest: A right is a right, whatever the number.
Mr. MacKay: Absolutely, but at the same time, a person's ability to appreciate their own behaviour is the very reason.
That is the very reason the bill exists, and the same can be said of the law that is now part of the Criminal Code.
In answer to your first question, I would say that, yes, I think that because of the evolution of our system, certain nuances that exist within the existing Criminal Code sections, an examination of recent cases and feedback that we have received from the public, stakeholders, participants and victims, we believe that these changes are necessary and do create a new threshold, a higher standard, if you will, and mechanisms that are attached to it to protect the public and insert further scrutiny by the courts in this instance.
To come to your question about retroactivity and its application should this bill come to pass, it's important to know that the system is continuing. Anytime you're changing criminal law, there is no ability to hit pause and to put those cases on hold until we pass the law. We cannot freeze a moment in time and say, "We're going to stop all criminal activity." If only we could.
For individuals who are currently in the system, unless they've been absolutely discharged — and that is the notable exception — these sections could attach. They could very much affect the future decision by a Crown prosecutor to make application that the high-risk designation, if we're looking at that particular part of the bill, be sought. Then the process would begin and would have to be followed, whatever the final iteration of this bill.
I would say, again, that these are exceptional circumstances where there is a retroactive element to this bill. Again, I underscore what we're trying to accomplish here, which is to protect the public from individuals who have past proven behaviour that is of a high-risk, brutal nature that justifies putting this protective scheme, if you will, in place that has a high degree of scrutiny, of judicial intervention, if necessary, and of involvement of officials who are tasked specifically, as was Senator McIntyre in a previous career, to look at all of the circumstances and make good decisions for the individual and for the public.
The Chair: We have three senators with questions and limited time. I'd ask senators to try to tighten up their questions so that we can accomplish that with the time left for the minister.
Mr. MacKay: I will take your admonition as well, Mr. Chair; shorter answers.
Senator Dagenais: Thank you for being with us, Mr. Minister. It is always interesting to have you appear before committee.
To start, you mentioned the Turcotte case in Quebec. I think the cruelty of that crime shocked the entire nation. That said, I would like to revisit the high-risk designation. We know that it will affect a small number of people. The Crown would have to apply for this designation, and the onus is on the Crown to prove that the individual is part of that high-risk category. Can you tell us more about the designation of high-risk individuals?
Mr. MacKay: You raise a very good point. The Crown must demonstrate to the courts that the high-risk designation is justified. There are a number of aspects involved in that. First of all, the offence has to have been a serious personal injury offence. I believe that it is a very reasonable proposal, one that strikes a balance between public safety and the importance of high-risk individuals receiving the help they need. The objective is always to achieve that balance. We want to protect the public and victims.
At the same time, we are trying to prevent high-risk offenders from committing another crime.
It is impossible to track and predict human behaviour 100 per cent of the time in all cases. However, when criminal infractions occur, especially violent criminal acts, that is when our system is designed and designated to step in. These are very specific circumstances when a person's mental health is brought into play. Therefore, a very specific forensic, scientific response is part of the equation, but it still has to operate in a way that separates the individual from the possibility of future harm.
Senator Batters: Thank you very much for being her, minister.
Spurred on by tragic events in my personal life, over the last five years I have worked very hard to destigmatize mental illness in Canada, and I support this bill. In my view, it does not stigmatize mental illness. Five million Canadians suffer with mental illness over the course of their lifetime.
To your officials, I'm curious to know how many offenders of all kinds we have in Canada. I'm trying to demonstrate that so many people suffer with mental illness, but a very small percentage of those people would be subject to anything remotely like this type of legislation.
Critics of not criminally responsible legislation argue that this bill might stigmatize individuals with mental illness, so I'm wondering if you can address that criticism to the committee. Also, please address how this legislation might actually help protect the reputation of those suffering with mental illness.
Perhaps your officials could let me know how many offenders in general we have in Canada every year, and then I'm wondering about what percentage of offenders would be subject to this bill — so it would be the NCR people we would be dealing with under this bill. My impression is that it is a very small number compared to the massive number of people who unfortunately suffer with mental illness in Canada.
Mr. MacKay: Thank you, senator, for the question. Thank you as well for having become the leading voice that you are on issues with respect to mental health in Canada. We admire you very much for that.
I don't have the large overall figures that you are seeking, but I will undertake to get them to this committee. Some of those figures would have to come from the Department of Public Safety and from our penal institutions, but we will try to get those exact figures.
But I can tell you that in terms of the number of individuals affected by this legislation, I'm told that less than two in a thousand adult offenders who would come before the courts would avail themselves or be found not criminally responsible. So the numbers are in the fractions. Then, to take it further, to come back to this legislation and who would be designated a high-risk not criminally responsible offender, that would again be a fraction of that number.
Your point about stigmatization — much like Senator Frum's reference to vigilantism — is something that I have heard and certainly contemplated. I believe this bill actually does the opposite of creating or furthering stigmatization. I say that because by designating, within that category of not criminally responsible, individuals who are deemed to pose a higher risk of violence or of being capable of brutality, I believe that should actually cause the public to say, "Well, not everybody who is not criminally responsible is a risk or poses the potential for further violence or brutality."
I believe we have a very mature, informed public. These cases inevitably receive a tremendous amount of attention through the media and other forms of communication. When it is properly presented, when people are properly informed, when you examine the desire to protect the public and look at the very rigorous process that one goes through to arrive at that point of an NCR high-risk accused, it doesn't further stigmatization.
It is a category of offender who, for reasons of protection of the public and necessity — for them to get treatment. And let's not lose sight for a moment of the fact — and I said this earlier — that these are individuals who are going to forensic hospitals and to approved medical facilities where much of the treatment is brought about by prescription drug use.
Not to get off topic here, but this is one of the more troubling aspects within the mental health system that you are familiar with: An individual may be fine while on medication and while under supervision to take that medication. The difficulty often arises in the refusal to take the medication, for a variety of reasons; there are very often severe side effects that result.
Having a mature, open discussion about this does a lot and goes a long way to reduce stigmatization. I honestly believe that the very specific definitions that attach throughout this bill and the way in which we have carefully chosen the language lessen stigmatization when it comes to mental health issues and to specific not criminally responsible findings.
The Chair: Senator Plett referenced the groups meeting with us. One of the issues that seems to be fairly common among those who have concerns about the legislation deals with clause 10. It defines some of the criteria a review board must consider for all those found NCR, not just the high-risk accused. I will quote from it. It says:
. . . a significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public — including any victim of or witness to the offence, or any person under the age of 18 years — resulting from conduct that is criminal in nature but not necessarily violent.
Could you explain how the review board would define a risk of "psychological harm"? It seems to be pretty subjective. Also, what kind of conduct would be required to meet that test?
The concern is that it would be used to keep patients in custody because some members of the public might fear them, whether or not they pose an actual threat, and there could be more streaming into the criminal system rather than through the NCR process.
Mr. MacKay: Yes, there is a very fine needle to thread. Much of the language inserted here — and I know, Senator Runciman, that you are very familiar with our criminal justice system — is drawn from the Winko case. It is a codification of much of the language and the considerable deliberation found in that particular Supreme Court case.
As to your point about how these sections would apply, as with all criminal legislation, it would require a high degree of discretion on the part of the police and Crown attorneys as to how to proceed. Finally, the safeguard would be these review boards and judicial oversight.
But we included the language of both physical and psychological harm because, again, in the context of the very bill, we have a heightened understanding of the psychological harm that also attaches when violence occurs. When violence occurs in the presence of many people, that can be just as harmful and debilitating, quite frankly, as a physical injury. That's the reason for the language, the origin being Winko and other cases where they have examined the far-reaching harm that can flow from acts of violence, regardless of who the perpetrator is. If the perpetrator does so because of mental capacity issues, then we're streaming into this process of NCR.
The Chair: Thank you, minister. We've exhausted the time. We appreciate your appearance here today with your officials. I'm sure we'll see you again in the near future.
Mr. MacKay: I hope to be back soon.
The Chair: Our next witness today, from the Ontario Review Board and Review Boards of Canada, is the Honourable Mr. Justice Richard D. Schneider, who is the chair. I had the honour of introducing Justice Schneider just a few years ago, back in 1993, when I chaired a committee in the Ontario legislature.
It is great to see you again and we're looking forward to your presentation, sir.
Hon. Mr. Justice Richard D. Schneider, Chair, Ontario Review Board and Review Boards of Canada: Mr. Chairman, it’s nice to see you as well. Thank you, as well, to honourable members of the committee for having me speak today.
Mr. Chairman, as the minister alluded to earlier, the committee is indeed fortunate to have in-house expertise in the form of Senator Paul McIntyre, who I have known for, I don't know, probably 20 years. I can assure you he is as versed in these matters as anyone.
I don't have any specific remarks prepared, but I do have comments that I would like to make. For the sake of continuity, perhaps it would be useful to follow the format set out by the previous speaker, the minister.
I agree with the minister that while there are bits and pieces off to the side, there are four main areas of interest with Bill C-14. The first has to do with the considerations at the outset of 672.54 underlining public safety as the paramount concern; second, the business of enhanced victim notice; third, the business of replacing, in section 672.54, "least onerous and least restrictive" with "necessary and appropriate"; and fourth and finally, the so-called HRA provisions.
Perhaps I should start with the easy one — public safety. As the minister indicated, there's no contest here. Prior to the courts weighing in on the matter, I can assure you that the review boards across Canada had always considered public safety to be the paramount concern. The courts of appeal and the Supreme Court of Canada have since made that the common law. What we're really talking about here is the codification of the common law, which tomorrow would change absolutely nothing.
The review boards take no position with respect to the enhanced victim notice provisions. Comments that have been made with respect to those enhanced notification provisions have been along the lines that they may be antithetical to the position you sometimes hear that the victims don't want to be drawn into this arena further, and that that process constitutes a form of re-victimization, yet the enhanced victim notice provisions, some would argue, draw them deeper into the pool. Nevertheless, the review boards take no position with respect to those parts of the bill.
With regard to the business of replacing the "least onerous and least restrictive" test in section 672.54 with "necessary and appropriate," it is, frankly, an odd change. No one that I'm aware of has been able to offer an opinion as to what kind of change this is designed to signal. Is it a qualitative change or — raising or lowering of the bar — quantitative change? Senators, you will notice that it is a conjunctive test. When would a disposition be necessary but not appropriate or appropriate but not necessary?
I have to say I was somewhat confused about the minister weighing in on this provision in that he said this was somehow in line with Winko, but the courts and/or review boards would nevertheless be imposing the "least onerous and least restrictive" disposition.
I think I'm with the group that would say, "We're not too sure exactly what this means." The biggest concern — I think it's common ground — has to do with the business of the high-risk offender provisions. It has been said — I guess I've been among those who have said it — that Bill C-14, or erstwhile Bill C-54, is odd in the sense that often we seek to amend legislation because of perceived deficiencies. We want to plug a hole because there was a hole in the legislation that allowed some bad event or set of circumstances to arise.
Implicitly, I think it's fair to say that the impetus for Bill C-14 has been, at least in the media, a handful of outlier cases that really in no way represent the bulk of close to 5,000 accused in Canada who are subject to the jurisdiction of provincial and territorial review boards.
Coming back to my point on HRA, we must remind ourselves that these individuals — Vincent Li, Guy Turcotte, Allan Schoenborn — were not subject to the jurisdiction of this legislation at the time of the commission of these heinous acts. Those provisions kicked in upon the verdict of NCR. These were provisions that applied to them after the commission of the act. Therefore any correction or adjustment to Bill C-30 or Part XX.1 of the Criminal Code is not one that would have reduced the probability of these horrible events having occurred. Sometimes that point, while a bit of a nuance, is missed.
On the other hand, I would submit that all of the data available, indeed data financed or supported by the federal government, suggests that the present review board scheme under Part XX.1is perhaps a notable exception, one that's been working extremely well. The recidivism rates for individuals who come out of the review board system are exceptionally low — lower than for offenders coming out of any other portal, whether parole, probation or placed onto the streets on judicial interim release orders, things of that sort.
Others have said, and I think I may have been one of them, "if it ain't broke, don't fix it." There is the argument that nothing needs to be done.
There's also the argument that Bill C-14 might actually make things worse. The impetus clearly is one driven by a concern for public safety. As I have said before, there is no debate between those who are concerned for public safety and those who are concerned for the rights of accused. That is a false debate. Everyone involved in the business is concerned for public safety. Everyone in the business recognizes that public safety is a paramount concern.
The proper debate is: How do we best achieve public safety? I would say to you that Bill C-14 proposes a set of changes that has the potential to make things less safe rather than more safe. Here is why, and Mr. Chairman please flag me if I'm going over — I was told I had five minutes and I am confident I am over that.
With provisions like the HRA in Part XX.1 of the Criminal Code, I, as a lawyer going back a few careers consulting with my mentally disordered client and considering tactically which way to respond to these allegations, would have to discuss with my client the potential that an HRA designation may be made against him or her. As the minister indicated, that would potentially cause my client to be locked in a secure psychiatric facility with no privileges for up to three years with no review, whether or not hospitalization was indicated. That might cause my client to instruct me to avoid Part XX.1 of the Criminal Code. My instructions might be, "Counsel, I think I'll take my lumps in the regular prosecutorial stream."
You have an individual who under the current scheme might have availed himself of the provisions of Part XX.1, avoiding those. NCR is a defence, one that the accused can elect to avail himself or herself of. To the extent that individuals could decide as a result of these provisions to skirt Part XX.1, they will come, as you know, senators, to warrant expiry. I'm from Toronto, and they have the potential of being dropped on Yonge Street, wearing an orange suit and having received no treatment, with their prognosis worse as a result of being a mentally disordered person and kept in a jail — and we know from the Ashley Smith inquiry that that is counter-therapeutic — with no supports, no treatment, probably no assistance and nowhere to go — a very dangerous situation that escalates the probability of recidivism.
Committee members, while I agree with the minister that perhaps the HRA provisions may pertain only to a small number of those in the review board system, I think the numbers to look at are those who, as a result of these provisions, might avoid Part XX.1.
I might also comment parenthetically that the infrequency of the application of a settlement of provisions in no way validates those provisions. If they're bad, they're bad, whether they're used frequently or infrequently.
My great concern is that while I applaud the government for the direction they want to take in improving public safety, all of the data is saying turn left, and the bill proposes that we turn right.
I've gone well over my time limit and would be pleased to answer any questions.
The Chair: We will begin with the Deputy Chair of the Committee, Senator Baker.
Senator Baker: I would like to thank the witness for his presentation. I feel like not asking any questions because I found his presentation to be fascinating and very informative and go to other members of the committee, who might perhaps disagree with what the witness has said. I can't find anything that I disagree with, which is very unusual.
Mr. Schneider: I'm a judge, sir; no one can disagree.
Senator Baker: You are before a committee; this is a judicial proceeding under 118 of the Criminal Code.
What I find most interesting about your presentation is that you said this could lead to an increase in the number of persons who have mental problems in our jails.
Mr. Schneider: That is an inevitable outcome because for every one of my clients who instructs me, as a lawyer, to avoid Part XX.1 and proceed down the regular prosecutorial road and in the event that they are convicted, that same mentally disordered individual ends up in one of our correctional facilities.
Senator Baker: When the charge is laid by the police, the person charged has the right to instruct counsel and so you have your meeting with your client. You go over the consequences and explain the options and what happens if you go one route and what happens if you go the other route. You are saying that the person might choose the route of going through normal court proceedings and not getting into the matter of not criminally responsible.
Mr. Schneider: That's right. My responsibility as counsel is to advise my client to all liabilities that he's exposed to going down, whichever channel he might choose, and the relative probabilities.
I can tell you, sir, that I go back a long way, prior to the proclamation of Bill C-30, where we are dealing with the lieutenant-governor's board of review. Bill C-30 injected into the system a breath of fresh air, a very dramatic change in the legislation. Prior to that, as defence counsel, it would be seen by my defence colleagues as tantamount to negligence to raise deliberately either the issue of unfit to stand trial or not criminally responsible on account of mental disorder — not guilty by reason of insanity in those days — in anything but a homicide, attempted homicide or something of that ilk because the consequences of raising the verdict could be so grossly disproportionate to the gravamen of the offence that the accused was facing. When you put provisions like this back into Part XX.1, the risk arises that the same kind of tactic will emerge within the defence bar.
Senator Baker: You are suggesting that the reasons for introducing the legislation are perhaps based upon some high-profile cases.
Mr. Schneider: I can't know the mind of the government. I am a regular consumer of the media and I think it's implicit that a number of dramatic cases have been headlined, and following that there are proposed changes to Part XX.1. The dots we are asked to connect, I suppose, are that if we change the legislation, perhaps the public will be safer and implicitly things like this won't happen.
As I was saying at the outset, those customers who have committed these awful outlier offences were not subject to this legislation at the time of the commission of those acts anyway. Changing our legislation will in no way reduce the probability of a future Vince Li coming along or a Mr. Turcotte. They are disconnected.
Senator Baker: In your opinion, this is a substantial change in the law.
Mr. Schneider: And underline "substantial."
The Chair: I will ask a quick supplementary. If you don't use the NCR defence, which is what you are referencing, is there not some type of professional obligation in such cases? Would it not perhaps be interpreted as professional misconduct if a lawyer willingly and knowingly didn't raise this defence for someone who is clearly not criminally responsible? Is that not a concern here?
Mr. Schneider: I don't think so, sir. The reason is that if you go back to Swain you will see observations like that made by Justice Lamer. With the proclamation of Bill C-30, which came subsequent to Swain — in fact Swain was what sent everything back to Parliament, as you know — we still use this term "defence," but really the NCR verdict is a separate and distinct verdict. It's not an acquittal, it's not a conviction and it's not something in between. It's a discrete entity unto its own.
As a defence lawyer, there are many things that may or may not work, but for the mentally disordered accused, his or her objectives are no different than any other accused. Their key objective is "fastest path to liberty," I can tell you that. As long as my client is not instructing me to do something that is illegal or in some way misleads the court, whether he or she elects to avail themselves of a defence is entirely within their prerogative. I think it would be, on the contrary, irresponsible to force a path or legal response upon an accused that was inconsistent with where they wanted to go.
Senator McIntyre: Thank you, Mr. Justice Schneider for appearing here today and for your presentation. It appears to me that you have concerns regarding the high-risk designation by the courts.
Mr. Schneider: Yes.
Senator McIntyre: I would like to go over with you —
Mr. Schneider: Well, not just the fact that it's by the courts, but in general.
Senator McIntyre: In general, yes. I would like to cover that angle with you and, more particularly, as it relates to the high-risk designation.
Under the current law, the court finds an accused person fit to stand trial. Under the current law, the court finds an accused person not criminally responsible by reason of mental disorder. Under the current law, the court also finds a mentally disordered offender unfit to stand trial.
The court also confirms the finding of fitness to stand trial after the review board has found the mentally disordered unfit to stand trial, as you know, and it orders that the matter be sent to court to render a verdict. The court also grants a stay of proceedings in the case of a mentally disordered offender following a recommendation by the review board, as long as the accused is permanently unfit to stand trial and does not represent a significant threat to the safety of the public.
The court also has the first choice in rendering a disposition, not the review board. I know that the courts have the first choice, but they don't always render a disposition. Very often they simply refer the matter to the review board to render a disposition after they have found the accused not criminally responsible on account of mental disorder, and the list goes on.
Now with Bill C-14, as in the case of NCRs, fitness to stand trial and stay of proceedings, the court would designate a mentally disordered offender as a high-risk offender.
My question is: In what way is Bill C-14 lessening the power of the review board by passing it to the court? After all, it is the court that hears the facts of the case after an offender has committed a very serious criminal offence and appears in court for the first time.
Obviously after the HRA status, the court remands the accused to a hospital facility, will not grant a conditional or absolute discharge, and the matter is then turned over to the review board. The review board holds a first hearing, which needs the consent of the accused and the Attorney General, and the board will keep holding hearings until, as in the case of NCRs, fitness to stand trial and stay of proceedings, make a recommendation to the court that the high-risk designation be revoked. I would like you to enlighten me a little further on the role of the review board as opposed to the role of the courts.
Mr. Schneider: You've set out the provisions perfectly. That's exactly the way things work. Whether or not it's the court managing the HRA or the review board, I can comment on that. As you know, courts are generally not in the business of making dispositions upon a verdict of NCR or unfit, and that's for a complexity of reasons. Typically the courts, at that first instance, don't have what he we call sufficient disposition information and could not move ahead in in any event.
The courts — and I know, senator, you understand the scheme — don't have the first decision as to whether or not to make a disposition at first instance. It would only be upon one of the party’s applications to the court to hold a hearing, to make an initial disposition.
There are some exceptions, like the mental health court in downtown Toronto, but courts are generally — "timid" would be the wrong word — unfamiliar with these sorts of matters, sometimes uncomfortable. When a court is uncomfortable or perhaps not as familiar as they might be, their decisions tend to be quite conservative. For that reason, counsel are, at first instance upon a verdict of unfit or NCR, very unlikely to ask the court to make that initial disposition.
With the HRA provisions, as you know and pointed out, there is no disposition to be made. Upon the HRA designation, the review board's hands are tied. There is nothing that can be done. That accused is locked up in a maximum security hospital with no privileges, whether or not hospitalization is indicated or might even be contraindicated. As you members all know, forensic psychiatric beds are very rare and expensive commodities in Canada. We cannot be squandering those on individuals who don't need them, where it is clinically contraindicated, where there are lineups out the door with individuals who genuinely do need those hospital beds.
Senator McIntyre: After the high-risk designation has been made by the court, you're absolutely correct, the accused person is sent to the hospital facility. But he can leave the hospital facility for two reasons: medical reasons or further medical treatment. There has to be a structured plan in place.
Mr. Schneider: Senator, as you know, those provisions have always been in place for individuals even held at maximum security psychiatric hospitals. The way those are generally interpreted is those exceptions are for necessary medical and dental emergencies. They are not designed to nor do they anticipate rehabilitation in a broader context, as you might include terms in a regular disposition under section 672.54. I am anticipating that Parliament's being consistent here. Those exceptions in 672.64 are to deal with medical or dental emergencies.
Senator McIntyre: Perhaps another final question, if I may.
The Chair: No, I'm sorry. We've chewed up about eight or 10 minutes on this.
Senator Joyal: Welcome, Mr. Justice Schneider. I would like to come back to one of the elements of your presentation, the one at the bottom of page 1, when you say that Bill C-14 creates a scheme where mentally ill individuals obtaining verdicts of NCR are incarcerated in a hospital bed for up to three years without review. In your opinion, why did the bill choose a period of three years and not two years? On what facts, in your opinion, is the three-year period based?
Mr. Schneider: I don't know. I don't think that's ever been addressed in anything I've read. It could have been three, four, five. What's the magic in three, is your question? I don't know.
Senator Joyal: I was trying to rationalize in my mind the three years. I said maybe, on medical grounds, it's based on a clinical conclusion that you need that span of time to see the evolution of mental disease to a point whereby on a three-year basis you can come closer to a real conclusion than just in a year. That's why I was trying to understand the scientific basis for three years instead of two or four.
Mr. Schneider: You can have the benefit of hearing from my colleague Dr. Simpson, who is a medical expert, but to the best of my knowledge, three years does not correlate with any medical benchmark along the rehabilitative trajectory. If there is some magic to it, it's a magic that I'm not aware of.
Senator Joyal: In your opinion, if there were a possibility of review based on criteria during the three-year period, would it, in your opinion, improve the bill to a point where it would be more acceptable?
Mr. Schneider: Sure, obviously, but I would really want to underline again that I don't think that the HRA provisions are going to take us down the road we want to be travelling, in any event. Obviously, if that's the way it's going to be, more reviews are better than less reviews.
I put it this way once: If you have a pot in the kitchen that you think is about to boil over, do you want to check on it every ten minutes or every two minutes? Obviously, if you think you have a dangerous situation, the more frequent reviews, the better.
Senator Joyal: Which improvement in your opinion would the bill need most to make it less damaging to the conclusion that you have outlined?
Mr. Schneider: As indicated at the outset, sir, and I'm only speaking wearing the hat of a review board chair, the public safety paramountcy, fine; the enhanced victim notification, fine; the "necessary and appropriate," confusing — we're not too sure what it means. To my mind, the real danger in the bill is contained within the HRA provisions.
Senator Joyal: You don't see any way for us to —
Mr. Schneider: Salvage it?
Senator Joyal: — to alleviate that kind of concern?
Mr. Schneider: Not from my perspective, sir.
Senator Plett: Thank you, Justice Schneider, for your comments. I want to continue along regarding what Senator Joyal already asked.
The way I understand the bill, and correct me if I am wrong, but I'm reading Library of Parliament notes: "Furthermore, the review board may decide to extend the review period for up to three years . . . ." I don't take that as that they can't do it every year if they so choose, and it is indeed the review board, not the courts, that decide if they want to continue with a review every year.
Senator Baker: That's right.
Senator Plett: So what's the danger in just saying they may decide to extend it? If the review board wants to do this every year, they can continue to do so.
Mr. Schneider: It wouldn't be the review board wanting to do anything on its own motion. It would be upon an application by one of the parties that the review period is extended for up to three years. You're quite right; it's exactly the way it reads.
The HRA designation doesn't contain with it an automatic three-year incarceration in a hospital without review. What it does speak to is the level of privileges and access to the community that the accused has, which are none.
Yes, you're quite right, sir: The business of three years is an application that would have to be made by the Crown attorney. The review board would have to consider the evidence and submissions and, on the basis of that, go along with it or not.
Senator Plett: And it likely would do so only in the most serious of cases?
Mr. Schneider: One would hope; or, conversely, they might think the more serious case requires more frequent review, as your colleague alluded to.
Senator Plett: You mentioned earlier that I had put you on notice for my next question.
Mr. Schneider: You did, sir.
Senator Plett: I will ask that question. I want to read a little bit of a quotation out of an article in The Globe and Mail, which uses something similar to your pot boiling. One psychiatrist who used to work in Ontario’s system for those not criminally responsible said, in an interview with The Globe and Mail:
"Psychoses in an individual tend to follow a pattern. If you get paranoid when you’re psychotic once, you’re going to get paranoid in a similar way another time. If you get paranoid enough to kill once, you get paranoid enough to kill another time." . . . This psychiatrist compared community supervision of people like Mr. Li to allowing babies to sit by a pool, subject to checks every five minutes. Drownings would occur.
If somebody doesn't take his or her medication and we aren't checking up to see if they take their medication, do you not agree that that is very dangerous and drownings would occur? Could you comment both on that and why you believe Mr. Li would not fall into this NCR category?
Mr. Schneider: I know the quotation you're referring to, and I, just to sum it up, don't agree with it.
Let me speak to the question you put to the minister regarding the fact that I think I had said that Vincent Li may not qualify for an HRA designation. Implicit in the HRA provisions is an assumption that the gravamen of the index offence is in some way correlated with the danger that the accused poses. If you read the provision, and this would be the hook presumably that Mr. Li, if any, would be caught upon, that he might have committed an offence — and I'm paraphrasing — of such a brutal nature as to indicate a risk of grave physical or psychological harm.
The connector there is "brutal nature as to indicate a risk." The problem, the misunderstanding in the legislation, is that brutality is in some way prognostic; that if you commit a brutal offence, that means you are in the future going to be more dangerous. There is not a correlation between the nature of the index offence and one's subsequent dangerousness.
Let me put it to you another way. You will often have an individual come through the review board system with a verdict of NCR all in respect of a relatively pedestrian matter that wasn't particularly serious. Nevertheless, the verdict was obtained and the review board reviews him. The psychiatric reports coming in indicate that this fellow is very dangerous, very unstable, resistive to treatment, responding to command hallucinations, and is very dangerous.
Conversely, you can have an individual obtaining a verdict of NCR who has committed an atrocious offence, but they were unstable at the time, sometimes through no fault of their own, sometimes through manipulation of medications while under a doctor's care. Sometimes those individuals are hospitalized, put back on the rails very quickly, in remission in a matter of months, and compliant with treatment. Notwithstanding the brutal nature of the index offence, they can get to that magical point in Part XX.1 where nobody can demonstrate that they constitute a significant threat to the safety of the public.
Senator, all I was saying with that comment, which I don't have in front of me but you correctly attribute to me, and again this was based on the early information we had about Mr. Li as doing particularly well along the rehabilitative trajectory, is that the brutal nature of his index offence may not or, at least on what we've heard in the press, does not indicate a risk of grave physical or psychological harm.
The point I wanted to make is this disconnect between seriousness of offending and the risk that the accused currently presents, and that you have to take a robust and fulsome look at the accused when assessing dangerousness. To make that assessment simply on the basis of an historical event is, clinically, not the way to be going.
The Chair: I understand it is a difficult issue to be brief on, but I would encourage that. I know we want all senators to have an opportunity, so if we can tighten the questions and responses, I think we can accomplish that.
Senator Batters: Thank you very much for coming today, Mr. Justice Schneider. Prior to the honour of being able to sit in the Senate, I was the justice minister's chief of staff for five years in Saskatchewan. During that time, we always viewed the review board in Saskatchewan as one of the most important boards that we had under the purview of the provincial justice minister, so I thank you for your service to Ontario.
In a recent answer here, you indicated that, in your view, enhanced victim notification was fine, so you may well agree with what I'm proposing here.
This bill amends the Criminal Code to enhance the safety of victims and provide them with opportunities for greater involvement in the hearing process, providing that the victims be notified when an accused is discharged if they request the information, and it allows for non-communication orders between an NCR accused and a victim. It also requires the courts and review boards to give specific consideration to the safety of the victim in determining whether or not an accused poses a significant threat to the safety of the public.
I am just wondering whether you would agree, then, that these particular demands that our government has certainly heard from victims would be fair and legitimate.
Mr. Schneider: Yes. I can't get briefer than that.
I would assure you, senator, that again, as with the public safety being paramount, review boards routinely put non-communication clauses in their dispositions. Dispositions are the orders that we issue that dictate how the accused is to be contained in the community.
So, yes, that's perfectly reasonable.
Senator Batters: Great.
Now, I do take a little bit of issue with something that you said a while ago. You were talking about — and I no doubt agree — these beds being very valuable, but you said that we cannot be squandering these beds. With respect, Mr. Justice Schneider, I disagree that keeping an obvious high-risk offender, someone like Vincent Li, in this type of facility to protect the public would be squandering a bed.
Mr. Schneider: Again, you have to assess this on a case-by-case basis. The point I wanted to make was that what we have to do is mitigate the risk an accused poses to an assumable level in some kind of an environment where after an assessment it is determined that an accused does not require a hospital bed, does not require hospitalization, and furthermore if they do require a hospital bed or hospitalization, they don't require it in a maximum secure facility — and it isn't appropriate that they have no privileges. My point was that that isn't what we should be doing with that individual. Hospitalization and use of hospital resources should be a clinical determination, not one that's automatic by virtue of a piece of legislation.
Senator Batters: Yes. Thank you very much, sir.
Senator Dagenais: Apparently, only a small number of not criminally responsible individuals will receive the high-risk designation. You heard the Minister of Justice speak earlier.
The Crown will have to make an application to obtain the high-risk designation, and it will be up to the Crown to prove that the individual falls into the high-risk category.
Do you believe that this constitutes a fair balance between public safety and the human rights of an individual who has committed a serious offence?
Mr. Schneider: Well, senator, I'm not too sure how to respond. The process is much like any other. When the Crown thinks that it is in the public interest to have a particular designation apply to an individual, they have to make an application, play by the rules and adduce evidence in accordance with convention. I think that's a process we all would accept as one that is in balance.
My concern isn't so much with the process — in other words, how the Crown would apply to obtain the designation — but rather with the wisdom in seeking these designations.
I'm having the feeling I may not have answered your question, sir. If I didn't, please —
Senator Dagenais: The bill maintains a certain balance. The Crown will have the onus of asking for the NCR designation. The bill upholds human rights. You seem to be saying that this is already happening and that this bill will not improve the process.
Mr. Schneider: Again, I think that, yes, the process is one that is balanced, and one could trust that the courts are ensuring that everybody's interests are protected during the hearing of the matter.
I apologize, sir. I still don't think I'm nailing your question exactly, but I think that's maybe the best I can do with it at the moment.
Senator Boisvenu: Thank you, Justice Schneider, for being with us here today. I have done a lot of work with families who have had a loved one murdered. I created the Murdered or Missing Persons’ Families’ Association in Quebec. This issue affects about 600 families. Nearly 20 per cent of the association’s members have a family member or loved one that was killed by a family member.
We know that the deinstitutionalization of psychiatric patients — which began in the 1970s and ended in the 1990s — resulted in a nearly 50 per cent decrease in psychiatric beds, for reasons I will not get into today. In 1995, there were approximately 60 cases of very serious crimes in Canada: homicide, attempted murder and so on. In the year 2000, there were 500 cases.
Previous legislation stipulated that the commission’s decisions be the least onerous and least restrictive on freedom as possible since psychiatry was not one of the "poor cousins" of the health care system, we released individuals whether they had committed a crime or not and there were effective front-line services. This concept was applied in the 1980s, when there were effective front-line psychiatric services.
In Montreal in 2012, two out of every three nighttime calls that police responded to involved individuals with mental health issues. Front-line psychiatric services are practically non-existent.
Does it not make sense to review the basic criteria when releasing individuals who have committed a crime as serious as killing their own children? Does it not make sense to review the basic criteria so that public safety is the paramount concern and the patient’s release is secondary and so that the decision is based on the idea of keeping danger to a minimum?
Mr. Schneider: I would agree that public safety is the paramount concern, and the accused's reintegration into society can only proceed to the extent that it is consistent with maintaining public safety.
The length of the leash, if you will, extended by the hospital administrator, dictated by the review board, is directly a product of the risk that the accused poses. Presently, if the accused is in the early days and poses a grave risk, they may find themselves hospitalized with very few privileges. As their condition improves, and as the risk can be mitigated with less and less invasive procedure or containment, they can be granted liberties again — but, as you underline, keeping public safety as the paramount guiding light. So I think that I'm agreeing with you.
As to the numbers, I think you referred to 1975.
Senator Boisvenu: 1995.
Mr. Schneider: 1995.
Senator Boisvenu: Sixty cases across Canada of very dangerous, ill people; in 2012, 500.
Mr. Schneider: I don't have those numbers. All I can tell you is that as the civil mental health systems across Canada become weaker, we can expect more of this business in the criminal justice system.
The Chair: I'm going to have to jump in here, Justice Schneider. We are running overtime. Obviously, we could have continued the dialogue for some time, but we thank you very much for your contribution to the committee's deliberations.
Mr. Schneider: Thank you very much, sir.
The Chair: Our next panel of witnesses, from the Schizophrenia Society of Canada, Mr. Chris Summerville, Chief Executive Officer; and from the Centre for Addiction and Mental Health, Dr. Alexander Simpson, Chief of Forensic Psychiatry.
Welcome, gentlemen. We appreciate your taking the time to be with us today. I believe Dr. Simpson will lead off.
Dr. Alexander Simpson, Chief of Forensic Psychiatry, Centre for Addiction and Mental Health: Thank you to the committee for having us. It is an honour to be here this afternoon and to be able to present to you on this important piece of legislation.
Perhaps I will do things from a slightly different perspective. Put simply, what is this "not criminally responsible" regime about? It is a moral judgment that we have made down through the ages that there are some people who we should not hold responsible for their actions and that legitimizes, from a moral and ethical basis, our right as a society to punish everybody else and hold them accountable for their action. It is not an acquittal, as we have heard already; rather, it is saying, "We cannot punish you for what you did because it was the illness that gave rise to that. But what we can do is hold you to account for the meticulous mental health well-being going forward that we now require you to maintain."
It is in most parts of the world — and in general terms in Canada, from that which we know — a successful regime in that it dramatically reduces our rates of recidivism over that which you could expect if you did not have this regime available to you. I come as someone who has practised in this area and in a number of jurisdictions over a number of years, and I try to see: Is this legislation helpful in terms of enhancing that process of holding people to account, of giving them the capacity and the opportunity to successfully but, most importantly, safely rehabilitate? Does it assist or impair that process of safe recovery?
I'm afraid, frankly, it impairs that process. In what way?
First, by limiting or potentially limiting the access for a subgroup of people to regular procedural review of their case, particularly of the people who are at highest risk and are liable to need the most finely tuned and thoughtful review, to make those reviews less regular is counterintuitive.
Second, it makes aspects of the person's progress proportionate to the severity of what they did, not to their accountability, insight and risk they pose going forward. That is a disconnect which is difficult to make sense of with people in recovery, in a rehabilitative sense.
Thirdly, we currently have a regime which does balance the paramount need for public safety with the risk and recovery needs that the person poses, as Justice Schneider has already described. By changing the wording around that, it unsettles a currently settled regime, and we don't know quite which way that will go.
What is the origin of this legislation, as best we can see it? It is clearly out of empathy and compassion for families who have suffered grievous loss because of actions by people with a serious mental illness, and a sense that we have to do what we can to assist them, to provide some relief from the processes of the review that occurs. It is very hard for victims who have suffered to the magnitude that they have that this person is not being punished and cannot be punished, and the system of accountability for them is harder to make sense of.
The improved victim notification and involvement goes some way to addressing that, and those are amendments that I and the psychiatric community in general support. It is not enough for victims in terms of recovery and healing that must occur, but it is a helpful process along that direction.
What would I recommend or ask that you do with this legislation?
First, I would want to be clear that this amendment will not improve public safety. I'm sorry to put it quite as boldly as that, but that is the case. None of these amendments will address issues that have currently been identified where the forensic system is failing; there is no evidence put before us that is the case.
There is evidence and experience of grievous trauma that families have suffered, but that is not the same as the risk that people are opposing and that the forensic system is releasing people on a regular basis who are then going on to commit acts of similar grievousness that went before.
Second, we would support the improved notification system to victims; we wish these cases to go through. But we would also wish a wider public policy discussion around what we should do for victims of NCR accused.
Third, I don't support the high-risk category, and nor do my colleagues within the forensic mental health world, but we do recognize that the government is very keen that those provisions pass, so I recognize that they may well still go through.
I would specifically ask that you not enact clause 9 and the parts of clause 10 that change section 672.54. Those changes are not necessary for the creation of the high-risk category, but they extend a much more restrictive sense across the entire review board regime in the absence of evidence that the entire review board regime is failing.
To emphasize the point that Justice Schneider made about, therefore, people not coming down the NCR regime, is there any evidence that is the case here? The evidence is convincing. When Bill C-30 was passed, the number of people being subject to NCR orders in Ontario rose within 18 months from about 40 a year to over to 200 a year.
Did people with serious mental illness suddenly become five times more dangerous? No, they didn't. What happened was, as Justice Schneider has described, this became a regime where people could see people could get treatment and recover and enhance public safety. We do not want to see an undoing of that by a tightening of the whole NCR regime.
Therefore, clause 9 and clause 10 amendments that would apply to everybody under the NCR regime would not, in my view, be a good public policy initiative. Keep the victim piece and the high-risk piece if you must, but please do not change the rest of the regime. Also, could we please not do things that will drive people away from this regime and into the penal system where they will emerge at a higher risk of recidivism?
I will restrict my comments to that, but I am happy to take questions.
Chris Summerville, Chief Executive Officer, Schizophrenia Society of Canada: Mr. Chair, honourable members, I would like to thank you for providing me the opportunity to testify on Bill C-14. I am here not only on behalf of the Schizophrenia Society of Canada and all of its provincial counterparts, but also on behalf of 11 national mental health organizations that see the necessity of working together to minimize the negative impact of Bill C-14.
Let me say that all of those national mental health organizations agree with Dr. Simpson and Justice Schneider's presentations.
I sit before you today asking you to please take the politics out of the issue. The politics has perpetuated fear when it comes to people living with a mental illness and has allowed it to trump evidence. As professionals and lawmakers in Canada, we have a responsibility to ensure Canada's laws effectively look after their welfare and well-being. Therefore, again, I would humbly ask you to study and debate the issue on the evidence and facts and not the politics.
The mental health community, senators, has been told that Bill C-14 will not negatively impact people with a mental illness. If this were true we would not be here today. This bill will negatively impact people living with a mental illness, even if they have never come in contact with the law. I think of Canadians out there who start to realize that something is not right with their mind, perhaps even hearing voices, and not wanting to seek help, knowing what society and their government may think and do to them. It is frightening and saddening.
We would like to emphasize, as we have done since the introduction of the bill, that we wholeheartedly support changes that create greater involvement for victims in the process. Why? Because it's heartbreaking to see the issue turned to one of "us against them."
When debating this issue and the bill, many often discuss striking a balance between the needs and rights of both victims of crime and those found not criminally responsible on account of a mental disorder. These discussions are often misguided, we believe. The solution is not about giving up certain rights and needs of people with a mental illness in order to provide greater ones to the victims. It is about understanding mental illness and providing the tools and resources to ensure the crime is never committed in the first place or will never occur again. This is not an issue of give-or-take but rather one of working together.
The mental health community does not support the creation of a high-risk accused category based on the brutality of the crime. This is simply not evidence-based, and there is no correlation between high risk and the nature of the crime. It is stigmatizing and will not protect Canadians or help victims in any shape or form. And you know that the legal community in Canada also concurs.
While the mental health community does not support a high-risk accused category, we recognize how misguided fear has made it a politically attractive option. So if the Senate and government choose to move forward with Bill C-14, the following three changes are required to minimize the harm it will cause.
First, undo the reverse onus set upon the new high-risk accused, requiring the review board or court to be "satisfied that there is not a substantial likelihood that the accused will use violence that could endanger the life or safety of another person." Canada's legal system usually places the onus on the Crown to prove why individuals should be detained when a crime is committed. An accused who has a mental illness should not face a greater burden than that faced by criminals who are fully aware of the crime they committed. Maintaining the high-risk label should be the responsibility of the Crown. Giving courts greater responsibilities within Bill C-14 has been welcomed and/or encouraged by victims' groups.
Second, remove restrictions that will limit access to treatment. Without argument, victims who wish to have no interaction with the individuals found not criminally responsible should be provided with safeguards to ensure no such interactions occur. We support the changes in the bill that better inform victims. But the purpose of treating people found NCR is to help them recover and lead healthy living, including being reintegrated into society. This requires many forms of treatment. Therefore, we seek that the bill allow for NCR accused to be absent from the hospital for reasons related to his or her treatment, if the accused is escorted by a person who is authorized by the hospital and a structured plan has been prepared to address any risks related to the accused's absence. This amendment adds significant safeguards for the public and the victims without limiting the patient's access to community-based treatment resources.
Finally, senators, eliminate the retroactivity of the bill for patients who have already been granted a conditional discharge. Eliminating the retroactivity will not affect any of the high-profile cases that have been associated with this bill. What the proposed legislation has done is cause uncertainty and anxiety to stable individuals who have been granted conditional discharge, with some of these individuals fearing that certain characteristics of their offence or their history will result in the granting of the high-risk designation and an automatic return to custody. Making the bill retroactive for those well on their way to successful community reintegration will not enhance public safety or victims' rights but only reverse progress made by these individuals.
Senators, I cannot emphasize enough that these three recommendations will not decrease public safety or minimize victims' rights in any way. In fact, they contribute to the success of both. If there is no intention for Bill C-14 to negatively impact people living with a mental illness, then all three amendments will be put forward by this committee.
I would like to conclude by thanking the committee again and asking them to stand up for people living with mental illness in Canada. These are our mothers, fathers, brothers, sisters, children and grandchildren. It is possible to stand by them as you stand with the victims. The mental health community is already doing so.
Senator Baker: These two presentations were excellent. I thank both witnesses and support their comments.
I have no further questions, Mr. Chair.
Senator McIntyre: Under the current law, that is section 672 of the Criminal Code, the court or review board can render one of the following dispositions: detention in a hospital facility, an absolute discharge, a discharge subject to conditions, or an absolute discharge.
The difference between detention and a conditional discharge or a discharge subject to conditions as opposed to an absolute discharge revolves around the issue of dangerousness. The board in rendering a disposition deals with minor or more serious matters. Minor matters could be stealing a purse or a chocolate bar at the local grocery store. More serious offences would involve murder, attempted murder, arson, criminal harassment, sexual assault and so on.
I should add that three quarters of the patients who appear before the board suffer from paranoid schizophrenia, and I'm sure as psychiatrists you are well aware of that very serious mental illness, or they suffer from affective disorder such as bipolar disorder, schizoaffective disorder or major depression.
I understand, Dr. Simpson, that you are inviting this committee to eliminate clauses 9 and 10. I'm quite aware of those clauses. Clause 9 reformulates section 672.54 of the code. At the moment, this is the key section in the Criminal Code. This is the section where the board has to decide on the issue of dangerousness.
However, by reformulating section 672.54 and replacing it, if I'm not mistaken, with section 672.64, it puts public safety as the paramount consideration. As for clause 10, it redefines the wording of "significant threat to the safety of the public." I understand, Dr. Summerville, that you are also concerned about the high-risk designation.
One of the problems we’ve been facing and that the Justice Committee in the House of Commons has been facing is that various witnesses who appeared in front of them were wondering if public safety was truly the paramount consideration or simply one of the four factors listed to be taken into consideration. For example, the Canadian Bar Association was of the view that public safety was only one of the four factors to be considered, the other factors being the reintegration of the accused into society, the mental state of the accused and his other needs. As a committee, we have to be concerned about the definition of "significant threat to the safety of the public." In your view, you don't see any need to change that definition.
Dr. Simpson: That's correct. As Justice Schneider has already said, the primacy of public safety is the first consideration. You cannot recover and continue to pose a threat and continue to offend against others.
Senator McIntyre: The problem we're running into is that across Canada there has been an inconsistency as far as public safety is concerned. Some provinces, some review boards have been putting public safety as the frontrunner, while others have been using other factors, such as the reintegration of the accused into society, his mental state and his other needs, putting public safety last.
Dr. Simpson: There is huge variety across the country as to how this regime is used. For instance, Quebec has 1,200 new NCR and unfit cases per year going under the review board. In Ontario we have about 300. There's a huge simple numeric difference there. In the rest of the country, it's much lower than that. B.C. had rising rates. They have now been falling for the last decade. That's at a rate of about a third of that which is in Ontario, and most of the other provinces are lower still.
How the review boards make decisions, therefore, is often determined by the sorts of people who are coming under it and the number of cases they have. Of course, each provincial review board is relatively autonomous. The problem of consistency, of how this jurisdiction is run, relates to local courts, local Crown, as well as the review boards. The requirements from Winko are very clear. They are consistent across the country. That is the law now. If that is being inconsistently applied across the country, I'm not sure if it is a lack of understanding of what the law is or through other factors that feed into that.
Senator McIntyre: As far as I'm concerned, this legislation has nothing to do with low-risk offenders; it has to do with high-risk offenders. This is why the government is bringing in the high-risk designation.
Senator Joyal: Dr. Simpson, you might have heard Justice Schneider when he commented on the relationship between the crime committed and the danger of recidivism. In other words, he didn't make the equation "the more horrible the crime, the greater the chance that the same person will repeat the crime." Is this something that you also concur in in terms of medical science, that it is not the factor that should be determinative of a final decision on the level of threat of somebody?
Dr. Simpson: I agree with Justice Schneider's comments. Severity is not correlated with frequency. There are different phenomena. You may have one-time offenders who commit a single, very heinous action but whose risk of recidivism is low. You may get other people who are relatively treatment-resistant and have ongoing persistent frequent offending. So what somebody's risk status is is put together as a synthesis of issues of severity, of frequency, of imminence of how it emerges. The brutality of what one does or what one has done as one's index offence is not well correlated with the risk one poses going forward.
That said, if you have committed a very brutal action when you have been unwell, the standard of wellness that you have to achieve is very high as we work rehabilitatively with someone. They may not present huge and immediate risk, but we will certainly take great care to ensure that people have integrated the insight and the self-responsibility that they need before they can begin to make those slow and progressive moves from high security to lower security and to the early phases of community reintegration.
Mr. Summerville: In fact, the Mental Health Commission of Canada submitted to the Department of Justice, through Dr. Anne Crocker of McGill University, this very information, that there is no correlation between brutality and recidivism rates, and that recidivism rates are about 7.5 per cent for people released from forensic units as opposed to recidivism rates being 45 per cent for people released from the federal correctional system.
Public safety should be paramount, and where Mr. Vince Li is living, the CEO has gone on record saying that public safety is paramount. Also, the recovery process of the individual should be paramount and his or her being able to successfully reintegrate into society. People with even the most severe schizophrenia can and do recover; not all, but they can in light of modern science.
I believe in restorative justice, rehabilitation, recovery and, in fact, redemption. I would plead with you to keep in mind that even though a person may at one time be high risk, with modern science we know that people can recover, live beyond the limitations of their illness, manage their illness like any chronic illness, and live successfully in the community. That's what the schizophrenia societies all across Canada do every day in working with thousands of people with schizophrenia and psychosis.
The Chair: You would agree that mistakes have been made, and I cite R. v. Jones and the Ontario Court of Appeal — I don't know if you're familiar with that situation. It was in my community, where he was given an absolute discharge, which was appealed by the Crown; but by that time that determination was reached, he had already murdered an elderly woman in the community. Past behaviour is never an indicator of future behaviour. You can’t say that as a blanket statement because there are situations that do occur.
Dr. Simpson: Absolutely.
Senator Boisvenu: As I said earlier to Justice Schneider, I work primarily with families who have had a loved one murdered. I created an association to help them. In Quebec, since the year 2000, more than 200 fathers and mothers, brothers and sisters have been murdered by someone close to them.
Mr. Summerville, your opinion strikes me as odd. You are saying that if this bill is adopted, these people will not seek out help, or are at risk of not asking for help. How do you explain the fact that right now the vast majority of those 200 families who have been affected by crime in Quebec did not ask for help?
How can you say that if the bill is adopted, people will not seek out help? The people who are committing serious crimes are often individuals who do not take their medication, have addiction issues and do not seek help. Could you please explain your logic?
Mr. Summerville: I'm sorry; I have a little hearing problem in my right ear.
Senator Boisvenu: Since 2000 in Quebec, about 200 families have had a relative murdered by a son or by a father who has a serious mental illness. You affirmed in your testimony that if we adopt the bill, there is a chance that people will not get some help if they are sick. In almost all of those 200 cases since 2000 in Quebec, those boys, and it is mainly boys, never asked for help. If we adopt that bill, people will not get help. They don't want help because they have a problem or they don't take their medicine. I just want to understand your point of view on that.
Mr. Summerville: If I understand your question, sir, my answer is that the number one reason people do not seek help for their mental health problems and illness is the social prejudice or stigma. The way the bill was introduced and has been debated, there have not been the appropriate disclaimers that 97 per cent of people with mental illnesses do not come in conflict with the law, that the number of cases of people to be deemed NCR are less than 1 per cent, and nothing was said about the recidivism rates being low. The way the bill has been couched, sir —
Senator Boisvenu: We had 60 cases in 1995 and 500 serious cases in 2012. Do you not think that the increase creates a negative point of view to these people?
Mr. Summerville: I'm going to defer to my colleague.
Dr. Simpson: We've published studies of the rates of homicide by people with mental illness post-deinstitutionalization in New Zealand, and have reviewed the literature on that question internationally. There isn't anywhere in the world that I know of where the process of deinstitutionalization has increased public risk from people with mental illness. We do see a lot more disruptive behaviour by people with serious mental illness on the streets, however. There is very limited evidence from Canada — we don't have evidence one way or the other — to know the size of the problem you're concerned about.
In general, that has not been the case. It is so that the highest risk periods though for you behaving violently or for you committing a serious act of violence against a family member, such as you describe, is in the period before people get treatment or where they have made approaches for treatment and have been turned away. The early access of good, effective treatment is the most crucial thing that we could be doing to drive down the need for this sort of legislation and to address the sort of problems you have described.
The sector more widely is saying: What can we do to reduce that resistance of people to engage in treatment to help them get on it early and stay on it effectively? Stigma is of considerable concern as one of the barriers that stops people getting into care. If we want to prevent serious offending by people with mental illness, that's where we need to put our focus.
Senator Dagenais: I would like to thank our two witnesses. To begin, I should tell you that I was a police officer. I am neither a social worker nor a doctor. In the past, I have had to arrest this type of individual, which put me into contact with victims or victims’ families.
I can tell you that no matter what effort is made, you can see the fear in the eyes of the victims’ family when an accused is released. They are worried that the accused will reoffend. In a high-profile case in Quebec — I am sure you have heard of it —, the person was found not criminally responsible and was released. Neighbours called the police because the individual was seen at the corner store and everyone was afraid of him. In addition, the individual had medical knowledge and so on. I have often noticed that these people are very manipulative and refuse treatment. This individual was admitted to Pinel and, during his institutionalization, he was willing to play by the rule so that he could leave the psychiatric institution.
Will it take another murder for us to do something? I do not think this is being politicized; I think we need to be considering the victims.
I believe in rehabilitation, but when I see the victims, when I see the fear in their eyes, I feel that something must be done.
Dr. Simpson: I respect your wisdom and your sensitivity to victims on that, sir. One of the immense difficulties is the disconnect between the care and treatment that the accused person receives and the help and support and understanding that many victims receive. I speak as somebody whose professional life is around treating people with psychosis and violence and helping them to recover successfully. Often the violence is within the family, so if we want to work on community integration, we have to help the families heal as best they can from that. We're not good at it and we've underemphasized it. The victim's fear, of course, is that their sense is frozen in time with the horror of what occurred, and they haven't had a context in which to make sense as to how much they need to continue to be fearful going forward.
On Monday night, the NCR documentary is being shown here in Ottawa. That is actually a lovely example of restorative justice via documentary, where the victim and perpetrator restitution that John Kastner achieves in the documentary is extremely moving. It strikes me as ironic that the forensic mental health service didn't enable the victim/perpetrator restitution to occur within that. It took a documentary filmmaker to make that happen. We don't serve and integrate the trauma of victims well enough into our thinking. We need to do that therapeutically, but I'm not sure we need to that by increasing punishment on the accused. I hear you in terms of the issue, but I have concerns about the mechanisms we use to address those issues.
Senator Batters: Thank you very much for being here today and thank you for the work you do with so many people suffering mental illness. The issue is near and dear to my heart. I'm not sure if you were here earlier when Minister MacKay appeared, but he and I discussed this very point.
Mr. Summerville, I have to disagree strongly with the assertion in your opening statement that this bill will negatively impact people living with a mental illness, even if they never come into contact with the law. I have personally worked hard over the last five years to destigmatize mental illness, and my mission has been to get out the message to Canadians suffering with mental illness, a very simple message: You are not alone; there is help; please reach out.
In my view, this bill does not stigmatize mental illness. Were you saying that 97 per cent of people suffering with mental illness never come into contact with the law? I think that is an excellent percentage to get out there. That's the sort of thing Minister MacKay and I were discussing today. I would not support this bill if I believed that it did stigmatize mental illness. I wanted to get that on the record.
Mr. Summerville, with respect to your comment that you wanted us to remove restrictions that would limit access to treatment, I would like you to expand on what types of treatment you are talking about. It's my understanding that you're not talking about medical treatment but things like day trips out into the community to go the grocery store or things like that. Is that the sort of treatment you're speaking a about here?
Mr. Summerville: Part of the therapeutic process is, obviously, allowing the person more freedom and also to access community supports and services. So, for example, attending a schizophrenia society self-help group or accessing psychological supports that may be found in the community as opposed to in the forensic unit. There were questions around the interpretation as to whether the escort would be limited to primarily specifically medical non-mental illness issues.
Senator Batters: Non-mental illness issues, though, things like reintegrating, as you call it, into the community, like going to a grocery store? Is it that sort of thing?
Mr. Summerville: That's obviously part of the reintegration process, to see how well the person does. But there would be times when we feel that the person would need to have access and be exposed to community mental health community supports and services that exist out in the community.
Senator Frum: As a layperson, I imagine a connection in my mind between the brutality of a crime and the likelihood to reoffend, and you have obviously been very clear on your opinions and your statistics on that.
I think also in many laypeople's minds there is a connection between the fact that what might prevent someone from being a high-risk accused or not is their willingness to stay on a medication regime. Again, for the general public, there would be a perception that you are more of a high-risk offender, or you have that potential if what separates you from committing a violent crime is medication or not. From the public's point of view, an individual’s willingness to adhere to a regime or not creates the risk, and that is partly what this bill is designed to do. The designation is based on a judgment that's made about an individual's ability to adhere to a regime of medication. Is that right?
Mr. Summerville: Certainly, we espouse and advocate very strongly that there be those appropriate community supports and services that help a person with managing such a chronic illness, let's say, schizophrenia. Part of that is helping people to stay on their medication, dealing with side effects, as well as learning their signs and symptoms of potential deterioration so that they then can contact family or friends or their doctor.
Dr. Simpson: The hard thing to get our heads around is the brutality of the offence not predicting risk of reoccurrence. Of course, brutality of offence measures magnitude of the harm done. Part of forensic rehabilitation has to be addressing the magnitude of the harm done, which is why, even though somebody's illness may be treatment-responsive and they may be agreeable to be on medication rapidly, they are not straight back in the community if they have committed a grievous act, because the magnitude of the harm done takes a long time to integrate, to make sense of and to deal with, and that we go very slowly with.
From the point of view of victims and of wider society, of course, normally the gravity of what you do is correlated with the length of sentence you serve, and that doesn't quite join together under this regime because of the illness factor within that. But we would destroy the moral and ethical position of this regime by making it directly proportionate, yet it has to in some way be respectful of those two sides. In that regard it's not a simple issue of saying, "Well, you committed a dreadful act because you were ill. You're back on treatment; you're treatment responsive; you're no longer unwell, so you should leave hospital straight away." It doesn't work that way, because the magnitude of the damage you did has to be slowly integrated and made sense of.
Senator Frum: If you're dependent on medication to make you a non-high-risk offender or repeat offender, that is a high-risk situation.
Mr. Summerville: The Li case has come up several times. As of you probably know, I visit Mr. Li periodically, four or five times a year. He has a conscience today; he's not the same man as six years ago. He knows it was wrong. He never wants that to happen again. So severe is the shame that he has that some have postulated he might even "suicide" in the future, not being able to live with what he did. He knows about schizophrenia and illness management today. He never wants that to occur again. He has no reason not to take his medication. I have worked with him privately, the therapeutic team at the Selkirk Mental Health Centre, so that is the reason why his current doctor, Dr. Kremer, says his chances of recidivism are less than 1 per cent. I know the public wants zero per cent.
Let me say that any time I do a media interview or come before the committee, I'll always ask myself this question: What if it was my daughter on that bus? I also have to say if it was my son who had committed that atrocity, I would want justice for both.
Senator Plett: Thank you, gentlemen. Mr. Summerville, you're a fellow Manitoban, welcome.
I was bothered, sir, by one of the comments you made in your opening comments when you suggested that those of us who were supporting this legislation might be doing this because it's politically attractive. I support this legislation not because it's politically attractive but because, first and foremost, I am concerned about public safety. This is what I believe is the right way to go for public safety.
You have visited Mr. Li; I obviously have not. I have not visited Timothy McLean's family, either. But I'm from Winnipeg and I know that Winnipeggers and Manitobans are concerned about Vincent Li walking the streets of Winnipeg unsupervised. I think most of us would be okay if he was under supervision. You say he has no reason not to take his medicine, and he may not have any reason not to take his medication, but two, three, four, ten years down the road, he may think he's over his situation and be without his medicine. If we have a situation where someone could repeat if they are not on medication, as Senator Frum has rightfully said, that person is a high-risk offender.
NCR aside, whether we have NCR or not, should the rights of violent criminals take precedence over the rights of victims? Notwithstanding NCR, regardless of whether it's there or not, should the victims' rights not supersede those of the criminals?
Mr. Summerville: As a Canadian, I think both rights are of equal value.
Senator Plett: I disagree, respectfully.
Dr. Simpson: If you have been wronged by somebody, then we collectively invest in the justice system to address that wrong. We don't judge people individually. The courts do that and impose the punishment, which Parliament has said is appropriate for that action.
The perpetrator must take responsibility for that and for the punishment, and serve whatever punishment is given out. Victims have ongoing rights of notification and involvement if they wish that.
What we know works —
The Chair: Can I ask you to be concise, please.
Dr. Simpson: What we know works best for victims in terms of their recovery and for reducing risk of reoffending is restorative justice processing. We know that for violent offending generally and youth offending particularly, but also for adults. It is not simply a battle of rights, but somehow an integration and resolution we should be seeking.
The Chair: Dr. Simpson recommended the NCR documentary and I would recommend that as well, but also the Fifth Estate documentary on Jeffrey Arenburg, the individual who murdered Brian Smith right in this city, who is now living in Nova Scotia and openly off of his medication in a town that is running scared with that individual. He even threatened the interviewer on the television program, so there are always two sides to many of these issues.
Now, we have two senators who have asked to have a second opportunity and I would ask them to be very brief and the responses likewise.
Senator McIntyre: Well, very briefly, gentlemen, I have before me Bill C-14, and I'm looking at proposed subsection 672.64(2). It states that the court, in deciding whether to find the accused as high-risk accused, must take into consideration various factors. The factors are all listed:
(a) the nature and circumstances of the offence;
(b) any pattern of repetitive behaviour of which the offence forms a part;
We are talking murder, attempted murder or sexual assault.
(c) the accused’s current mental condition;
That is if he suffers from paranoid schizophrenia, for example.
(d) the past and expected course of the accused’s treatment, including the accused’s willingness to follow treatment;
Let's say in the past he refused to attend at the community mental health centre when he was on a conditional discharge or a discharge subject to conditions.
(e) the opinions of experts who have examined the accused.
I'm putting you on the stand here, but assuming you are one of those experts having to prepare an opinion in the form of a psychiatric evaluation, and assuming the accused does not meet some or any of the criteria set under that section, how would you frame your diagnosis?
I know you don't have an accused in front of you, but would your diagnosis be such that he simply represents a significant threat to the safety of the public or both a significant threat to the safety of the public and a high-risk offender?
Dr. Simpson: There would be two ways in which one could approach that. Clearly every time we write a report for a review board we have to address the Winko standard as to whether the person represents a significant threat, otherwise they don't continue under the board. We're always doing that.
The type of opinion here is not dissimilar to that for the dangerous offender legislation, so psychiatrists can address those things.
Senator McIntyre: That relates to high-risk offender.
Dr. Simpson: Quite. There's an analogy, psychiatrists are already assisting courts in that area. I understand it is a practice that could come about to address these. The major problem is 1(b), the court is of the opinion that the acts that constitute the offence were of such a brutal nature — and this is the problem — as to indicate a risk of grave physical or psychological harm to another person.
That's where you are arguing purely on the basis of the events from the past into the future. That's an unscientific test. Clearly professional standards can be developed to address the questions under (2).
Senator Joyal: I asked that question to Mr. Justice Schneider in relation to NCR and the period of three years to be kept under custody. Is it your opinion that the three-year period is based on scientific or medical observation? Is it the span of time needed to do the observation to better evaluate his or her condition and level of risk that the person might present to a society, or is it your opinion that the three-year period is a figure and it could have been two years or four years?
Dr. Simpson: If somebody is of high risk, you would want higher levels of judicial oversight, or review oversight of them. So it doesn't make sense that they're of the highest risk category but they get seen less by the review board. It doesn't correlate with any clinical process. Let's be clear. What it correlates with is giving the victims a sense of relief that they don't need to go back to the board every year. The ones who feel they must attend the review board hearings would be given some period of relief where they thought they didn't have to go back to the board on an annual basis.
I think that's the genesis of this recommendation. It doesn't fit in terms of the risk category. It doesn't fit in relation to any clinical process other than giving the victim some sense of relief that they don't need to be back before the board every year.
The Chair: Thank you, gentlemen, for your testimony today. Much appreciated.
Our next witness is a respected Canadian who has appeared before the committee before. From Royal Ottawa Health Care Group, we have with us Dr. John Bradford, Forensic Program and Professor of Psychiatry at the University of Ottawa.
Welcome, Dr. Bradford. I understand you have some opening comments. The floor is yours.
Dr. John Bradford, Forensic Program and Professor of Psychiatry, University of Ottawa, Royal Ottawa Health Care Group: Thank you very much. To give you some background, I have been a member of the Ontario Review Board since 1980, and I continue to be a member of that.
I have testified in well over a hundred dangerous offender hearings under the Criminal Code of Canada. Currently I work in the rehabilitation of high-risk NCR patients, and I do that by choice. Within the last month, for example, I put a person, who had been in hospital for 37 years, out into a supervised community setting and somebody who had been in hospital for 23 years.
I also had the opportunity of evaluating people like Jeffrey Arenburg, Willie Pickton, Russell Williams, Kachkar more recently in Toronto, Paul Bernardo and others.
I was also part of the mental disorders project, which was a project in 1988 which was chaired by Gilbert Sharpe and Ed Tollefson of the Department of Justice. That project actually became the background to the current mental disorder section of the Criminal Code.
Within that we had a recommendation for dangerous mentally disordered accused. The high-risk accused in the present legislation is very similar, with some changes. So that's some of the background that I think is important.
I think Dr. Simpson had mentioned a documentary known as NCR, which was made at Brockville where I work. There's a new one coming out which will be at Hot Docs in Toronto, and that's Out of Mind, Out of Sight, which also offers a lot of insight into the forensic system.
I've given you a set of PowerPoint slides, which I'm not going to talk about other than to make some points that you can follow in the slides later on when you have an opportunity to read them.
The first point I want to make is that the World Health Organization, in 2002, did a lot of studies around the world on violence and health. When you look at those studies, you realize that mental disorder and violence is a very small part of overall violence in our society. Although the World Health Organization looked for other countries and other societies to pick up on studies from that, very few people took them on.
If you look at some of the statistics, about 520,000 people die each year as a result of interpersonal violence: about 1,400 a day or three large planes crashing a day. The number of people involved with violence and mental disorders are a very small fraction of that.
The other point that I want to make — and I think you've probably heard about it but I'll say it anyway — there's a consistent relationship between mental disorder and violence. To deny that would be denying a truth.
I've given you, in the set of slides, some of the associations between mental disorder and violence, be it from people released from psychiatric facilities, violence within psychiatric facilities, and I'll call it the 20-to-40 per cent rule. Roughly 20 to 40 per cent of people are violent before they are admitted to psychiatric facilities, 20 to 40 per cent are violent within psychiatric facilities, and about 20 to 40 per cent are violent when they're released.
If you look at the large epidemiological surveys that have been done, and there have been a number of them, I pointed you towards one, which is the largest one done in the United States, known as the Epidemiological Catchment Area Survey. What you will see is that any mental disorder has an increased risk of violence over the general population without mental disorder.
I would also point out, just out of interest, that when you look at cannabis dependence and abuse, the rate of violence is increased about nine times that the general population. If, before this house, at some other time, there is something about legitimizing cannabis, we need to think about its role in violence.
The other point I want to make is that if you look at the models of predicting violence and mental disorder, it's a multivariate, multidimensional model. It's psychosis, which is critical, and usually combined with substance abuse.
The important issues, generally speaking the violence that's perpetrated by people with a major mental illness is mostly against family members, not against the general public, although attacks on strangers is typical of what can occur out of a psychotic condition.
I also included some investigative journalism, and the reason I included it — you probably get sick and tired of us throwing out statistics and talking about it — is because this was done in 2002. It was done in the New York Times, and it was a study of rampage murders in the United States. This would have been the Staten Island murder, for example, the incident on the train coming in from Connecticut. The important point about it, and I'll just read the lead from it, is that the New York Times, in 2000, studied 100 rampage murders and found that:
. . . most of the killers spiraled down a long slow slide, mentally and emotionally. Most of them left a road map of red flags . . . plotting their attacks and accumulating weapons, talking openly of their plans for bloodshed. Many showed signs of serious mental health problems.
Then there's a lot of statistics about how 60 per cent or higher tried to get help and didn't get it.
If I'm going to summarize it, there's no question there's an association between violence and mental disorder. I guess that's the bad news. I guess the good news is if you treat it, the risk is substantially reduced. That is when you compare it, for example, with people coming out of correctional facilities without a mental disorder, that is a big difference. It's much harder to control the risk of that violence than it is with mental disorder.
Having said that, and I think I've heard some of my colleagues talk about it so I'm not going to repeat it, I don't think that the criminal review board system in Canada is broken. I don't think it is at all. The recidivism rates are low. I've given you examples of people in my facility that have been in hospital for many years, and because of the need to protect the public and because they haven't recovered well enough to go into the community, they're only going into the community now, many years later, and with very strict supervision. I think the review board does a decent job to protect the public.
Having said that, and I've testified in many dangerous offender hearings, I think there is a small portion of people who have a serious mental disorder who, not so much because of the nature of the crime but because of a pattern of violence that precedes it, may fit into the category of being a high-risk accused or what we looked at in 1988, which was the dangerous mentally disordered accused.
I think that the public has a right to look at that, look at those individuals. As Dr. Simpson said, I don't think you can look at brutality on its own as a factor to take you into that area, but I think it's one of the things that could be considered.
So, for example, if you look at the literature on cannibalism, there's not a lot of literature, but people who cannibalize themselves or other people usually suffer from a severe mental disorder.
I would also warn you about the fact that a single case can influence the legislative system, and it has happened in other countries. It happened in Japan after an attack in a school where a number of people were killed. Certainly it happened in the U.K. with some high-profile cases. In most cases, there was a sense that there had to be legislative amendments, and I think that's what has happened here.
I would argue, though, that in Britain, for example, not only were there some changes in legislation, but they also set up the National Confidential Inquiry report, which now continues to look forward on all homicides by mentally disordered persons, and it's in the form of a commission. The idea behind that is to make sure that this type of problem won't occur again.
When you look at the problem with mental disorder and violence, in my opinion it has nothing or very little to do with the criminal review board system: It's what happens beforehand. Vincent Li was released from a hospital in Toronto; he wasn't treated, he was seriously mentally ill and we know what happened. The question really becomes issues such as the right to treatment and the concerns related to the general mental health system.
The only other thing I wanted to show is there are a couple of graphs that show where people who are being treated for schizophrenia, the percentage of them who discontinue their medication. In a study known as the CATIE Study, which is a very well-known study by the National Institute of Mental Health, 85 per cent of people discontinued their medication in 18 months; in the Caffey study, it was 75 per cent in 12 months.
So as far as I'm concerned, the legislation and high-risk accused, you can debate it, but I think it does have some merit to protect the public. I think you can debate some of the criteria.
I don't think the mental health system as it relates to Ontario or Quebec or any of the Criminal Code review boards is a problem. I think it is working quite well.
But I do think there are problems in the general mental health system.
My suggestion would be that one of the things you could consider is recommendations for a uniform mental health act, recommendations for legislation around right to treatment for people who have a mental illness, because I think that's a problem, and maybe even a commission such as they have in the U.K. with the Confidential Inquiry Commission to evaluate further mental disorder and violence when it does occur.
Senator Baker: Thank you for your very informative presentation, Dr. Bradford. I'm going to ask you your opinions on the three main elements of this legislation.
First of all, putting public safety first: Do you have any opinion on that provision?
Dr. Bradford: I don't have a problem with it. I think public safety has to be put first. I would say that currently, in my experience with the Ontario Review Board, it is put first. I would add that Ontario was the first province to add Crown attorneys into the review board system to make sure that the protection of the public was protected, and it has now been adopted across the country. In the beginning it was voluntary. I think it is a good thing and I think it is imperative that we have it.
Senator Baker: As an aside, reading the reported cases in this jurisdiction, I notice that most of the reported cases in which the person is seeking early release, or release, are turned down by the review board.
I don't suppose you look at the reported cases — you know all the cases whether they're reported or not — but that seems to be a general impression. It is not easy to obtain a release upon first application.
Dr. Bradford: No. But I would say that what happens in Ontario may be different to British Columbia, it may be different to Quebec. There's not uniformity; hence, my remark about a uniform mental health act and some uniformity across the system.
Yes, in Ontario, for example, a person will remain on a hospital detention order for a long time, even if they are in the community. And the rationale behind that is that the person — it is called a hybrid order. They actually live in the community while detained in hospital.
So tonight, if I get a call that there may be some concerns about a person living in the community, we can bring them back immediately. The police don't need any other extra documentation, or very little, and they bring the person back to hospital and we can manage the risk that way. I think that's very helpful. It doesn't happen in all jurisdictions, but principally in Ontario it does.
Senator Baker: It is not unusual, then, to have somebody restricted for a period of three years.
Dr. Bradford: Oh, not at all. I gave you examples of people who have been in hospital for 37 and 23 years. I have another person who has been in hospital 33 years and who at some point will be going into the community.
In the hospital setting that I work in, in which many of the people are treatment-resistant with a schizophrenic illness that have committed crimes of violence, the process of getting into the community, even on a detention order, is prolonged, I would say, three to five years. Even in the community, from there to conditional discharge is probably another two to three years, and then an absolute discharge would be some time after that. So the length of stay is quite significant.
The one person that I have talked about who is going after 23 years, he had, as his index offences, two counts of sexual assault which were relatively minor. Even though his index offence is minor, his passageway back, because his illness is so difficult to treat and hard to control, has delayed his process of getting back into the community.
Senator Baker: Do you have any opinion on the second element of this bill, which refers to enhancing victims' involvement and notifying them when the NCR accused is released, along with their intended place of residence?
Dr. Bradford: I think that the public need to be informed. The one thing I have noticed in occasional hearings where members of the public who are victims have joined a hearing — and don't forget that the accused is a person with a serious mental illness which you are trying to maintain their stability — I have seen hearings which have been highly emotional, both for the persons, the victims participating, and the person that I'm responsible for, the accused and his treatment. I didn't think that some of those hearings were helpful. I do think, however, there can be control in the discretion of the chair, and generally I don't have an opposition to it.
Senator Baker: The third and final element is a new category of accused. A new designation intended to protect the public against a high-risk NCR accused will be created; not able to contain a conditional or absolute discharge; therefore have to be detained in custody in a hospital; and extend the review period up to three years. Do you have any opinion on that?
Dr. Bradford: I don't have a problem with it if it's properly applied. I think my concern is that some of the definitions are fairly arbitrary. You have heard some of the concerns around brutality as an indicator of recidivism and risk.
I also worry about the fact that once you have a designation, I think that it technically would only apply to a small number of individuals. But once it is there, it may get overused, which has happened not to a large extent but to a small extent in the dangerous offender legislation under the Criminal Code.
Those are my reservations. Otherwise, I don't have a reservation.
Senator McIntyre: Dr. Bradford, I understand that you have been sitting on the Ontario Review Board for numerous years.
Dr. Bradford: Thirty years. Actually, it is 33 now.
Senator McIntyre: If there's a section in the Criminal Code that you understand, it is section 672.54, which deals with the issue of dangerousness.
I also understand that you are a forensic psychiatrist, so therefore you perform forensic psychiatric evaluations. I also know for a fact that there's a difference between normal psychiatric evaluations and forensic psychiatric evaluations. If I'm not mistaken, forensic psychiatric evaluations are being conducted in situations where you have a high-risk offender. Could you elaborate a little further on what is involved as far as the psychiatric evaluations and high-risk offenders are concerned?
Dr. Bradford: Well, let me correct one thing. I think they're not always a high-risk offender. For example, I think that the use of NCR, which has escalated in Quebec and has increased in Ontario, has occurred in part because of persons being found not criminally responsible for less serious offences. Often those are resolved at a mental health court level.
When you go beyond that, certainly you get into cases, particularly of homicide and extreme violence of some sort or other, and, yes, those are often contested within the Criminal Code. I prefer to work under a court order to assist the person, whether they are NCR or not. If that's the case, it then goes back to the Crown and the defence, and it will go to the jury, ultimately; and I will testify, hopefully objectively, to give an opinion as to whether that person fits the criteria for NCR.
Senator McIntyre: That's the initial psychiatric evaluation?
Dr. Bradford: Yes.
Senator McIntyre: In other words, to determine if the person is exempt from criminal responsibility.
Dr. Bradford: Correct.
Senator McIntyre: Then the court uses it to find that person not criminally responsible on account of a mental disorder?
Dr. Bradford: Absolutely.
Senator Joyal: I will ask the doctor the same question I have asked to your predecessors, the experts we have heard today. Is that period of three years essential to measure the level of risk that an NCR might represent?
Dr. Bradford: I would say generally no, but in some circumstances, yes.
I'm going to use filicide as an example. People who often commit filicide, parents who kill their children, often suffer from a major mental illness known as a major depression with psychosis, and they have something called "altruistic delusions." In fact, that's a very treatable condition, and you can actually get them into recovery mode within a couple of months. In that particular case, if they have a history where they've never been violent before, you've actually got a low-risk situation, provided they remain on their medication and follow treatment and other things.
There are certainly people in my outpatient category that I've been following, one person from 1984 to currently, and recidivism is zero. But they remain on medication, and they're seen monthly, et cetera.
The answer to that is no, but I think there are some people for whom I think it is different. I'll use Jeffrey Arenburg because his name came up as an example. I was involved in Jeffrey Arenburg's fitness hearing and his NCR hearing. The one thing about him was that, although he suffered from a major mental illness, he was very clever at suppressing the symptoms, and that became obvious to me early on. He ended up going to Penetanguishene and was eventually released from Penetanguishene. I had been concerned all along about his ability to do that. I also didn't think he would ever be motivated to follow treatment if he got an absolute discharge.
In that particular case, he remained in Penetanguishene for quite a lengthy period of time, and I think they try to do a very good job of trying to deal with those factors. In the case of Jeffrey Arenburg, it may have been warranted that he be reviewed every three years and maybe in a different category. What happened was that, after a period of time, he was taking medication, appeared to be doing quite well and was released, and, as you know, in a short period of time, he was back in trouble.
With the benefit of hindsight, I think I was probably correct, and he might have been a case that might have benefited from being a high-risk accused.
Senator Joyal: In other words, there should be flexibility in the system to take care of the individuality of those cases.
Dr. Bradford: Right.
I think there are a small number of people for whom the category would fit. In 1988, I felt that. I still feel it today. I'm just worried about it being overused, but there is a category of individuals who fit that category. I think there is a need to protect the public by having them in that category, and I think it will do that if they're categorized that way.
Senator Dagenais: Thank you, Dr. Bradford. I know that your services have often been called upon and that you have testified as an expert witness during several trials, including the 2011 trial for Toronto police Sergeant Ryan Russell’s killer. As you know, there is no such thing as a perfect bill. The minister said so himself. Bills can be reworked, corrected and improved — I think that is how it should be. Do you agree that Bill C-14 is a step in the right direction? Will justice be better served?
Dr. Bradford: Thanks for the question. I'm not sure that it improves the system. I don't think the system is broken. So, no, I don't necessarily agree with that. The recidivism rate is low, and I think review boards do a good job generally. I've got to be very careful because I think it's inconsistent across the provinces. So, when I make that remark, I'm mostly talking about Ontario, but it's pretty consistent on the recidivism rates.
I think, for the very small number of individuals to whom it may apply, and where there have been incidents — Senator Runciman mentioned an incident and I'm aware of other ones — hopefully it would make a difference if it's applied appropriately. If that's the case, then yes, it works.
The Chair: Doctor, looking at some of the stats with respect to the number of NCR decisions per year by provincial review boards, I'm looking at Quebec and how there seems to be such a dramatic difference between Quebec and the rest of Canada. I'm curious if you have an opinion on why that's happening. I'll leave it up to you. Do you have an opinion on that?
Dr. Bradford: I do and I don't. I think it's under review and people are trying to understand it at the moment.
The one thing I will say, though, is that this is a change. It didn't always used to be that way. The other thing is that Quebec doesn't have a typical forensic system like you have in other provinces, so many of the persons found to be NCR end up in general psychiatric hospitals and are relatively low risk. I think that — and this is just my guess — in part it has a group of individuals who are probably resistant to treatment, caught up as NCR in the system and probably become easier to manage with the structure of that system. In other words, it's compensating for the deficiencies in the general mental health system. I think it's a bit more complicated than that, but I do think that's one factor.
The Chair: I have a question not directly related to the legislation, but hopefully you can give us your views. We've witnessed an inquest recently in Toronto, dealing with the deaths of three individuals who were suffering from mental illnesses but were in conflict with the Toronto police and lost their lives. I know there are situations that police confront on almost a daily basis in dealing with individuals like those three. We know the challenges with respect to individuals having the right to refuse treatment. Even though they've been in constant contact on a regular basis with police services and with the courts, they still have that right to recognize their own challenges and refuse treatment. As a result, we get into a very serious conflict, which can result in the death of the individual or others. Is there any way that that can be approached, either provincially or federally, that could address those challenges?
Dr. Bradford: I'm going to make a disclaimer, first of all, because I'm working with Justice Iacobucci on the review of the police shooting in Toronto, so anything I say is not related to that committee. I'm just speaking for myself.
I think there is a problem in the general mental health system and I think there's a problem in terms of the right to treatment. In your slides, you have the two studies that show that, by far, the large percentage of people, even when followed in studies like that, discontinue their medication. What that means is that they get sick again. They then start to live in low-income housing. They get into drugs and alcohol, and they start to get into trouble with the criminal justice system. That's happening all over the world. That's why we have the criminalization of the mentally ill.
I think you would hear most police forces say that they've become a mental health service, picking up people off the streets, having to take them to hospitals, spending many hours in emergency services. I think that's a big problem of what's going on with people who are mentally ill, who subsequently may become violent and become NCR.
You're right. Particularly in Ontario, what happened was that we split the capacity to consent to treatment and involuntary hospitalization into two factors. So what happens is that you get caught up in this conundrum. It happened, for example, in the Arenburg case. What happened in Arenburg's case was that he attacked the manager of a radio station in Ottawa, and he was then brought by the police to the emergency in Ottawa. He came into the Royal Ottawa, where I was working at the time, in the schizophrenia program. Not into forensic; he didn't have any crimes that he had committed. He was certified and held under the Mental Health Act and was also declared incapable to consent to treatment. He challenged both of those. That went to a review board. The review board upheld the certification, but they said he had the right to refuse treatment, which led to a difficult situation. Eventually, he was discharged, and the rest is history.
One of the problems is that the right to refuse treatment in our society, particularly in Ontario but also, I would argue, elsewhere, has become the predominant issue. People who have schizophrenia have a brain disorder. It responds pretty well to treatment, and part of the success of the forensic system is not that we have the right to force treatment but that we have a structure that allows them to follow treatment. That, in the general mental health system, is very difficult to implement.
Part of the hope was that community treatment orders would fill that gap, but certainly as they operate in Ontario, they really don't work very well. The person has to agree. If they don't agree, the thing falls apart and there are hours and hours of work to get to it.
That's a long answer to that question. Once before this Senate I talked about our need for a uniform mental health act. I still think we need it.
The Chair: A national act?
Dr. Bradford: Yes, a national, uniform mental health act. I think issues like the right to treatment could be part of that. This is something the Government of Canada could do, and I don't think it has to be punitive. It is something that could start to work well and do two things: reverse the criminalization and enhance the lives of people with major mental illness.
Senator Frum: You mentioned the Vincent Li case as well. You feel there was a right he was denied or declined a right to medicine in advance of committing the murder. Can you elaborate on what the failure was there?
Dr. Bradford: I don't want to go into the specifics of it, but I think that he was a patient in the general mental health system and for whatever reason he didn't receive the treatment in the general mental health system. His illness deteriorated, he ended up in a bus in Manitoba, and we know what happened.
If you look at the trajectory of people who come into the forensic system, most of them have been in the general mental health system for repeated admissions. The reports that I write on those with previous psychiatric histories before they've committed serious acts of violence is quite long, with admission after admission after admission. What we should be paying attention to is why we have these repeated treatment failures and then they become a forensic system client where they then do well. We have the proof, as you've heard many times. I think we could do a hell of a lot better in the general mental health system in the broad overview of the right to treatment in order to manage people.
Senator Boisvenu: I have been advocating on behalf of victims for more than a decade. I speak with many mothers in malls or when they are doing their grocery shopping. Mothers with a schizophrenic son tell me that they are afraid and believe he will kill them one day.
I have been following the issue of mental health in Quebec for 10 years. Do you know what percentage of families attend mental disorder review board hearings?
Dr. Bradford: I'm not sure of the percentage, but what I can tell you is that if you look broadly at the violence perpetrated by individuals with a major mental illness, a large percentage of it is against family members.
Senator Boisvenu: Only 4 per cent of families attend the hearings. Is it fair to say that mental disorder review board hearings in Canada are held behind closed doors?
Dr. Bradford: Technically, they're open to the public, but the public doesn't come.
Senator Boisvenu: Do you think it is unusual for the public to believe that the individuals released are high-risk offenders, given the lack of family and public presence? On the other hand, there is media coverage for "normal killers", in the newspapers and so on — the information is readily available.
Does it not make sense, then, that more people feel they are in danger?
Dr. Bradford: Yes, I can see how it happens, but, again, the hearings are open. You can't videotape them, you can't record, similar to a court, but anybody can attend. Today notice goes out for hearings, so people are made aware of it if they are victims and things like that.
On some of the more high-profile hearings, yes, the public attends and media is there. I have been involved in a number of those. You're right, though, that as a routine it's very infrequent for members of the public to be there.
Senator Joyal: In your experience on those committees in the past, does it lead you to believe that the protection of the public has never been given the consideration that it deserves and that in fact the way those committees have been operating up to now, on the basis of your experience, have always met that threshold as being one of the paramount elements to be served?
Dr. Bradford: Most of the hearings that go through are relatively routine. You would have the hospital psychiatrist testifying as to the mental status of the accused, their progress in treatment, and then you would have the Crown attorney reviewing the criminal record. They've looked at the hospital chart and their role is to bring out the factors necessary to protect the public. I think that works quite well in Ontario and the results in terms of recidivism show it; more importantly, even if it's different across the country, the results are pretty consistent.
I think we could do better across the country and maybe the percentages would come down even lower, because I think the percentage in Ontario is lower than some other provinces.
No, I do think it's dealt with quite adequately, and I do think it is a priority.
Senator Joyal: Who speaks on behalf of the public?
Dr. Bradford: The Crown attorney. In Ontario there are Crown attorneys across the province that specialize in mental disorder, so they become familiar with it. They attend all the hearings. They come ahead of time and review all the hospital charts. If I'm the attending physician they would meet with me and ask me questions. Generally they meet with me before a hearing and I talk to them very openly.
In the hearing, let's say the hospital is recommending an absolute discharge. If they agree with it, that's fine, but if they don't agree with it and they feel that the public is at risk, they will argue strongly against it. The board will take all of those arguments into account and decide on the outcome.
People in the forensic system stay there a long time. It's not an easy system to get out of in Ontario for sure. This is despite the definitions from the Supreme Court of Canada around "significant threat" and what it actually is and the clarification of an absolute discharge. Even with that, people remain in the system a long time.
Senator Joyal: Could you give us instances whereby the Crown attorney would have requested that the person be kept in custody for the sake of public interest and whereby their recommendation has been set aside by the board?
Dr. Bradford: There are so many of them that I can't think of them. I can tell you that just about every application for an absolute discharge that is made by our hospital, I would say a significant percentage of them, perhaps 30 per cent, would not be granted on the first instance. A lot of it would have to do with reservations around concerns to protect the public.
If I'm asked questions as the attending physician, the first thing I would say is that if this person receives an absolute discharge, there's no guarantee that they are going to continue their medication. There's no reason why they should. The structure is moved away; they become non-compliant. If they are non-compliant, they become psychotic. Psychosis and violence is where the risk factors are. That comes out routinely in hearings, and most of the Crown attorneys that I'm aware of are aware of that and they'll bring it out.
Where that may change is if the person's lived independently in the community for many years, or a number of years, and they've taken their medication, and there's been no problem, the absolute discharge would kick in. I have patients that I've been seeing now for 25 years. I saw a patient this week who had committed a double homicide 30 years ago. He's complied with his medication and he's had an absolute discharge for 15 years. It does work as well.
One of the things that I think needs to be looked at, and I think, again, is not consistent, in our system in Ottawa when somebody gets an absolute discharge they do not go back to general psychiatry; they remain with us as part of a continuity of care. I think that that helps. That's not consistent across the province or even across the country.
Senator Joyal: Would it be one of the recommendations that the royal commission you are recommending would have to consider?
Dr. Bradford: It would be very difficult to implement. I'd love it if you could. I think it would be a good idea. However, we can't even really get community treatment orders to work very well or capacity to consent to treatment. We need to look at a whole package of things that we can do to make things better.
The Chair: Thank you, doctor, for a very helpful contribution to our deliberations today. We very much appreciate it.
Members, next week we will continue our deliberations on this legislation. We'll have legal and law enforcement organizations appearing at that time.
(The committee adjourned.)