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REPORT OF THE COMMITTEE THURSDAY, May 12, 2005

The Standing Senate Committee on Legal and Constitutional Affairs

has the honour to present its

NINTH REPORT


Your Committee, to which was referred Bill C-10, An Act to amend the Criminal Code (mental disorder) and to make consequential amendments to other Acts, has, in obedience to the Order of Reference of Tuesday, February 22, 2005, examined the said Bill and now reports the same without amendment but with observations, which are appended to this report.

Respectfully submitted,

LISE BACON
Chair


OBSERVATIONS

to the Ninth Report of the Standing Senate Committee on Legal and Constitutional Affairs 

Bill C-10 amends the process governing mentally disordered accused persons set out in Part XX.1 of the Criminal Code.  During its consideration of the bill, your Committee heard from 15 witness groups.  Testimony was received from mental health organizations, advocates for the mentally disordered, psychiatrists, psychologists, lawyers (including for the accused and for the Crown), police, review board members, and a centre for victims. 

Witnesses were supportive of the way that Bill C-10 allows Review Boards to order psychological assessments, adjourn hearings to obtain necessary information, and order publication bans to protect victims or witnesses.  They were also generally in favour of the way that Bill C-10 expands the options open to a peace officer who arrests an accused suspected of contravening a disposition or assessment order, streamlines provisions for the transfer of an accused to another province or territory, and repeals unproclaimed provisions of the Criminal Code, such as those governing the maximum period of detention of a mentally disordered accused.  However, concerns were noted in other areas. 

Some took issue with the presentation of a victim impact statement at a court or Review Board hearing, explaining that it is not the appropriate forum, and may not be constitutional, because a person found not criminally responsible on account of mental disorder has not been found guilty of any offence.  Other witnesses valued this opportunity for victims to participate in the process and added that a victim impact statement may assist in assessing current risk.  As your Committee understands that a victim impact statement will be considered only to the extent that it is relevant, and that the court or Review Board may deny a request to present one at the hearing if it would interfere with the proper administration of justice, your Committee is satisfied with this aspect of Bill C-10. 

With respect to assessments of the mental condition of an accused by persons other than medical practitioners, some witnesses recommended that additional professionals, such as psychologists, be designated as a group, rather than individually.  Other witnesses had concerns about the qualifications of persons who are not medical practitioners, particularly for assessments of fitness to stand trial and criminal responsibility, or when the accused requires medical treatment.  Given arguments for both expanding and limiting the ability of other persons to conduct assessments, and the fact that designations will depend on the jurisdiction, your Committee suggests that the federal government closely monitor the number and type of professionals being designated in each province and territory. 

Your Committee likewise considers that other new provisions introduced into the regime of the Criminal Code governing mentally disordered accused should be monitored.  For example, although witnesses were generally in favour of the possibility of a stay of proceedings in the case of a mentally disordered accused who is unlikely to ever become fit to stand trial and poses no significant risk to the safety of the public, some suggested that the procedure is too complex.  Other groups expressed concerns about the extension of the time for the next review hearing from 12 to 24 months in certain circumstances, particularly in the case of a serious personal injury offence.  Your Committee also wonders whether administrative protocols should be put in place for the transfer of physical evidence from courts to Review Boards.  These and perhaps other procedural aspects of Bill C-10 should be reviewed on a periodic basis so that they may be modified or improved if necessary.  Your committee has sought a written commitment from the Minister to that effect. 

Overall, however, your Committee believes that Bill C-10 is a significant improvement to Part XX.1 of the Criminal Code and reports it without amendment.  Taking into account the differing opinions from witnesses on certain aspects of the bill, your Committee considers that it strikes an appropriate balance between the interest of public safety and the rights and interests of the mentally disordered accused.


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