Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 9 - Evidence for April 14, 2005
OTTAWA, Thursday, April 14, 2005
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-10, to amend the Criminal Code (mental disorder) and to make consequential amendments to other acts, met this day at 10:55 a.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the chair.
[English]
The Chairman: Honourable senators, we have before us Mr. Malcolm Jeffcock from the Nova Scotia Legal Aid Commission.
Mr. Malcolm Jeffcock, Lawyer, Nova Scotia Legal Aid Commission: First, my gratitude to the committee for inviting me here today. I am pleased to be here.
I will make a few comments in relation to Bill C-10. When I appeared before the Standing Committee on Justice and Human Rights a couple of years ago in relation to the proposed amendments, I spoke on four topics. Today I will limit myself to two, with a few quick comments on a third at the end.
I would like to comment on the proposed amendments in relation to fitness. There is concern among the bar generally that I deal with about the bill not adopting that which was recommended by the standing committee with regard to including a test of a real and effective ability to communicate and provide reasonable instructions to counsel. That was abandoned by the government in Bill C-10. We see that as a true concern, because by continuing with the limited cognitive capacity test that has developed over time, certainly you will find situations where there are arguments under subsection 10(b) of the Charter that the person, although fit, has been deprived of their right to counsel because they do not have the capacity to make informed decisions and instruct counsel in any meaningful way, much the same as you find those arguments made in cases of persons who are impaired and facing charges but consulted a counsel while they were impaired.
That, of course, would potentially result in section 7 arguments being made that the person has been deprived of their right to make full answer in defence and eventual stays of proceedings.
The other concern of members of the bar is that having such a low test continues to present a situation that could result in people being either wrongfully convicted of acts of which they were factually innocent because they were not able to effectively communicate with counsel and provide instructions, or alternatively, in convictions of persons who should have actually been found not criminally responsible.
The interesting fact is that most people who are unfit as a result of illness would gradually become fit. It is not a situation where the resultant delay in adopting this new standard would be an extensive delay in the proceedings at all. The ultimate result would be justice.
There were some concerns with regard to the permanently unfit accused persons and the stay process, and I would express some concerns, in relation to section 672.851.
The first concern is that it seems to be discretionary as opposed to mandatory, that the court may, as opposed to shall, take certain actions.
The second concern is that it seems to be the most involved and complicated of the legal proceedings found in part XX.1 of the code, and it of course relates to an individual who has no appreciation for the process. It seems to compound the difficulty. A far more streamlined and effective process would be simply to allow the board to grant the absolute discharge if the person is permanently unfit and not a significant threat.
Again, when we are talking about people who are unfit, particularly those who are likely never to become fit, we are talking about a very small number of people in Canada. We are not talking about a common event.
The third aspect of the fitness issue in Bill C-10 that I would like to comment on is in relation to being unfit to be sentenced. I would urge the committee to address that. Surely the principles that we have adopted in Canada over the years that preclude the trial of an individual who is unfit through illness or some permanent condition to participate in such a trial should result in the courts not proceeding to sentence a person who is now unfit.
There seemed to be something of a conundrum when the person who is unable to recognize the role of a judge would be standing before that judge to be sentenced. Those are the only comments I would have in relation to fitness.
In relation to the general powers of the board, there were recommendations that the board have the power to delay review board hearings from one to two years if the index offence was a personal injury offence. While I appreciate that that may be a recognition of the harm that may have been caused by the index offence, it seems to lack a recognition of what the Supreme Court of Canada commented on in Winko, about how the mental condition of an accused person being reviewed may bear little resemblance to that of the person who committed the offence. Indeed, the court commented that the nature of the index offence committed by a person who is ill should have limited impact on the disposition made by the board at the time of the disposition hearing.
It would seem that by simply linking the delay to the nature of the index offence, you are not recognizing the fact that the person committed that offence while ill. Certainly the nature of the index offence is not necessarily linked to the degree of illness that the person suffers. Sometimes, very ill people who may not be in a position to recover might commit trivial offences, and people who have an illness that can be treated and might respond quickly and effectively to a course of treatment may have committed the most serious of personal injury offences.
It was not touched on in great detail in the bill. It was commented on in the materials I was provided through this committee. The idea of the board not being able to bind third parties, as they are characterized by the standing committee, is something with which I would take issue. We have had a number of decisions in the last few years touching on the review board's ability to bind a party other than the accused person, and the courts have concluded that, by the current wording of section 672, the only party, if you will, that is bound by the disposition is in fact the accused person. It seems that when we have a situation where multiple parties are appearing before a tribunal, to the best of my knowledge, this is the only legal proceeding in Canada where only one party can be bound by the disposition. That is a bit unsettling, particularly when you have a situation where a party can make an application, be granted standing and have input into the disposition of a review board, but cannot be compelled to give effect to that disposition or be held responsible for implementing it. That is of concern.
The final comments I would like to make relate to the content of Bill C-10 as it relates to the proposed offence and arrest process, the proposed offence of failing to comply with a disposition. I would respectfully submit that this does nothing but continue, now on a national basis, to perpetuate the criminalization of the mentally ill. You may well have individuals who have as a term of a conditional discharge that they maintain their good mental health and, through no action of their own, just the course of their illness, become ill. Technically, that would result in a person being charged simply because they could become ill. It is not something they have done and it is not that they have decided they will do something or have chosen a course of action that has resulted in someone believing they have violated a disposition. It is simply the course of their illness. Sometimes, the illnesses that result in people being found not criminally responsible are ones that respond well to medication, but on occasion, the medication has to be tweaked because of recurrence of the illness. To have that constitute an offence seems a bit barbaric, in my view.
The proposed course of action, that a person whom a police officer has reasonable grounds to believe has breached the disposition shall be arrested and taken before a justice, again seems to create a situation where you are criminalizing a mental illness and the resultant conduct. The course already set out in the code in relation to the return to the hospital seems a more reasonable and therapeutic approach to dealing with circumstances of illness as opposed to new offences. I appreciate that if a person is, while on discharge or subject to a disposition of any type, alleged to have committed a new offence, then that certainly kicks in the other provisions of the Criminal Code in relation to release, et cetera, but because of the new offence, not the violation of the disposition.
I would certainly express negative comments in relation to the proposed new offence and arrest processes.
I have pretty well burned up my time, Madam Chair, and I will be happy to answer questions now.
The Chairman: You suggest that a review board should be able to grant a stay of proceedings to a permanently unfit accused. However, as that amounts essentially to a final disposition, should it not be ordered by a court?
Mr. Jeffcock: I did not refer to a stay; I referred to an absolute discharge. I do not believe that the review board would have the power to grant a stay in any event. I would suggest that it might well be more appropriate for the board simply to have the power to grant an absolutely discharge, in the same manner as they do with a person who is not criminally responsible. Many, if not all, the people who are unfit would, if they became fit, be found to be not criminally responsible. We can accept that. If they are so ill that they are not capable of standing trial, chances are their illness impacted on them to the extent that they would not be capable of being found criminally responsible for their actions. There would not be a significant difference in the result in the long run. The only difference would be that there is no factual finding by a court that the person committed the underlying offence. I would suggest that there is no policy reason for the board not to have the ability to grant the absolute discharge.
Senator Milne: On that same point, it is my understanding that you cannot grant an absolute discharge to someone who is not fit to be tried. In other words, an absolute discharge comes after guilt has been established, and that has to be before a court. Only a court, as I understand it, can grant an absolute discharge.
Mr. Jeffcock: Perhaps there is a bit of confusion. Once people have been found not criminally responsible and their dispositions are reviewed annually by a review board, the board can grant an absolute discharge. In relation to the unfit accused, the board has no power, nor does the court have any power at the moment, to grant an absolute discharge.
Senator Milne: We were told by both the minister yesterday and his legal beagle that a judicial stay of proceedings is similar in terms of consequences to an absolute discharge.
Mr. Jeffcock: That is his opinion, but a legal stay as proposed in Bill C-10 is discretionary, and that is a concern. The wording is that the court “may.” Throughout, the word is “may,” not “shall.” When one looks at the current wording in relation to dispositions under section 672.54, the board or court considering the person shall grant an absolute discharge if that person is not a significant threat. That is in relation to people who are found not criminally responsible.
My comment is that for an individual who is unfit, you are simply compounding the legal hoops through which that person who has no understanding of the process to begin with must jump. That is why they are unfit. People who are unfit and will not become fit, which is what we are dealing with, permanently unfit, had they been fit, would have been found not criminally responsible in all likelihood, so why is it a policy issue as to whether or not the board grants an absolute discharge to this Ms. Smith who has been found not criminally responsible or unfit? I do not see why it would be a policy concern. The only difference or distinction between unfit and NCR is that the NCR person has been established beyond a reasonable doubt to have not committed the index offence. That has not been established yet with the person who is unfit, so why there would be a policy against it is of concern.
The Chairman: You also suggest that reviews boards should be able to bind third parties.
Mr. Jeffcock: Very much so.
The Chairman: What type of obligations would you suggest should be imposed and what consequences could there be to not abiding by the board's order?
Mr. Jeffcock: What consequences would flow to the third party? Would it be an offence not to comply? Is that what you mean?
The Chairman: Yes.
Mr. Jeffcock: If a third party is bound by the disposition and chooses not to follow it, at least they can be brought back to court, and mandamus could be used to compel the party to comply with the disposition, whereas at present, there is nothing that can be done. Obviously the act could be changed to make it an offence, but that would seem inappropriate. When you have a legal obligation, particularly as a government agency, to conduct yourself in a certain manner and you do not, the person who is aggrieved can go back to court and pursue mandamus to force compliance.
Senator Andreychuk: Why would you want it specifically in there when we are probably talking about government agencies?
Mr. Jeffcock: Because at the moment it is not, and over the last couple of years the courts have been asked to consider the issue and have concluded definitely that the wording of section 672.54 is, at present, binding only on the accused person. Although I cannot speak to the experience of other provinces, in Nova Scotia, sometimes government agencies responsible for providing financial or housing assistance to people who suffer from mental illness seek standing as a party before the board to make representations and put forth propositions about the capacity of the person to live in the community. Their opinions may differ significantly from those who treat the accused person, but if the board were to decide that the accused person should be granted a conditional discharge, there is no capacity to require that government agency to provide housing or funding to the person, even though they may qualify.
Senator Andreychuk: That has been one of the difficulties in the sphere of criminal law. Youth justice is riddled with preventive services that are supposed to be provided, but in practice there are very few of those services available because we run out of them quickly. There shall be assessments, but there is only one person who does them, so you have to wait 40 days for an assessment. There is an array of possible opportunities for the rehabilitation of a young person, but, of course, they are not there. That has been the conundrum of enforcement for governments in both mental health and criminal justice. Why would you particularly want to have that legal liability in this case?
Mr. Jeffcock: I do not know that it is the legal liability, but if it is included in the code and the court recognizes that a party can be compelled, you have the ability to go to court to seek mandamus.
You mentioned the Youth Criminal Justice Act. When the Young Offenders Act came into force, it took litigation to get a youth facility built in Nova Scotia. The initial response there was to house young offenders in a separate block in provincial jails. That was not in the spirit of the act and litigation by one of my colleagues resulted in the government building a youth facility.
In Nova Scotia, primarily due to financial restrictions, there has often been a stretching of resources to try to fit the wording of the legislation, if not the spirit. Our current problem is that the Department of Community Services, which runs a program called Community Supports for Adults, has to be dragged into any sort of cooperation with people from the forensic system.
As I am sure you will hear from other witnesses, there is a great deal of stigma attached to anyone who suffers from a mental illness. The irony is that people who deal with persons with mental illness attach the same stigma to anyone labelled as a “forensic patient.” That compounds the difficulties. There is an active attempt not to provide services to forensic patients.
Senator Andreychuk: I know what you are getting at, and it is the same problem I faced in the youth justice system, or criminal law per se. The dilemma is that the ability to compel is in terms of one person, not the institution. Those whom I did compel were generally the people in charge of the file, when the real problem was the lack of resources and political will at a higher level.
Mr. Jeffcock: I will not argue with that. As much as criminal offenders as a group do not have a great deal of political clout, the mentally ill also do not have a great deal of political clout, and forensic clients have even less, because within the mental health programs of each province they face the stigma attached to that.
Senator Andreychuk: You said we are talking about a small number of people.
Mr. Jeffcock: In relation to “unfits.”
Senator Andreychuk: This is one attempt to bring in a better process than we have previously had. Would you agree with that?
The problems we are trying to address through this proposed legislation are really a small part of a larger problem of lack of real and adequate services for people with mental disabilities.
Mr. Jeffcock: In the United States since the 1960s, and in Canada since the 1990s, as there was a move toward community-based mental health programming as opposed to providing services through hospitals, there has been an increase in the number of people found to be not criminally responsible, or its predecessor, found to be insane.
In Nova Scotia the numbers are staggering. It is not because there has been some kind of epidemic in Nova Scotia that has caused more and more people to suffer severe illness; it is that more and more people are not able to adequately access proper treatment and, as a result, find themselves without appropriate housing and/or appropriate health care and their illnesses are exacerbated. Their conduct, which previously might have been referred back to their attending psychiatrist, brings them to the attention of the police.
In 1992-93 we had 37 people in Nova Scotia who were found not criminally responsible. In March 2003 we had 100. There has not been a parallel increase in mental illness in the province of Nova Scotia over that time, but more and more people who were previously in hospitals have been trying unsuccessfully to obtain services in the community.
With regard to the nature of offences that people have committed, 10 or 12 years ago the vast majority of people who were not criminally responsible were charged with serious offences. Now they are charged with things like mischief, uttering threats and resisting arrest. The most outstanding case that I can recall is that of a person who was charged with damaging trees in the city of Halifax. He was pulling leaves off a tree and a policeman arrested him for that. He was found not criminally responsible. That is the criminalization of the mentally ill.
Yes, I believe that it comes about as a result of lack of access to services.
You asked about an attempt to improve the law. That was obviously the goal. There would be no point in trying to make a law worse than it was.
With respect to streamlining, when I said we do not have a large number, I was talking about permanently unfit persons in Canada.
The amendments in relation to either granting a judicial stay or some other mechanism to get them out of the system was an attempt to improve the current system, under which a person stays for ever under the jurisdiction of the review board, despite the fact that he or she might not present a significant public threat.
My comments indicated that, simply, I do not think it was the most efficient improvement that could have been utilized. I suggest it would have been better to allow the review board, when considering the person's case on an annual basis, to grant an absolute discharge if they believed that the person, although still unfit, was not a significant threat to the safety of the public. That would be more streamlined and effective.
You have to consider that the makeup of the review board is different from that of a court, which has a presiding judge with, typically, no psychiatric training. That is why you often see courts refer the accused to the board for disposition, because they wish to allow the board, which has the special expertise, the opportunity to make that disposition. Referring it back to a court for a judicial stay would seem to create a withdrawal from the expertise of the review board. The situation would not be such that the review board would make a recommendation to the court that the person should be discharged absolutely or that a stay should be entered. It simply goes back to the court and the court may hold a hearing and grant a stay. It would not be based on the mental health condition or the risk posed, but rather it would be a legal assessment only, as opposed to a legal assessment in combination with the recommendations of the review board.
Senator Andreychuk: Do you know of any cases where a person committed a crime, was adjudged unfit to stand trial by the time they reached court, was committed to stand trial and convicted of the offence?
Mr. Jeffcock: I am not aware of any situation where a person who was unfit to stand trial then became fit and was convicted, as opposed to be being found not criminally responsible.
Senator Andreychuk: Do you know of cases where they were acquitted? In other words, the person may have been sane and totally fit at the time of committing the offence, then become unfit later, were treated and had to stand trial for the offence.
Mr. Jeffcock: I am aware of cases where people have been charged with offences, have appeared in court, were referred for an assessment and then found to be unfit. They recovered their fitness, were referred back to court and subsequently found not criminally responsible. It was established that they committed the offence but were mentally ill and did not appreciate the nature or quality of their act. I am aware of people who have gone to trial and been acquitted, but I am not aware of people who have gone back to court for trial and been found guilty.
In the material provided, I did note the comments on the increase in the number of people who utilize the defence of being not criminally responsible. In many cases it may be a misnomer, because it is often not raised by the accused person. People may not want to have a finding of not criminally responsible, because otherwise they may be getting a year's probation and living in the community and they are gone. If they are found not criminally responsible, far more onerous dispositions and results are incurred, such as hospitalization, et cetera.
Quite often, the Crown raises that issue after it has established that the person has committed the act.
Senator Mercer: As a fellow Nova Scotian I am always pleased to see people from my home province appear before the committee. It would seem from your comments that you were not quite sure why you were invited to appear. The quality of the debate we are having should give you the answer — the high regard in which the Nova Scotia Legal Aid Commission is held by the Senate.
You may have partially answered my question. I am confused as to whether this proposed legislation is truly needed at this time. In your opinion, if it is not needed, why is that? What will happen to the people at whom this is aimed? What will happen to those in Nova Scotia? You mentioned that the number of cases has increased significantly in recent years, not in terms of major cases but in what might be called “lesser offence” cases.
Mr. Jeffcock: The proposed legislation touches on many different areas of the issue. Clearly it is required now as a result of the Supreme Court of Canada decision in Demers in respect of an unfit accused person. I would think something will happen in June of this year, one way or the other. The bill has not passed yet. In Nova Scotia I have a few clients who are unfit. One case before the Crown in the Annapolis Valley will be back before the court on May 4, when the charge will be withdrawn, even though the prima facie case is still there. It is likely that the person will never regain fitness and will not be a significant threat to the community. He remains in the East Coast Forensic Hospital because there is no suitable housing available, although he is on a wait list. As I said to Senator Andreychuk, Community Supports for Adults in Nova Scotia will not consider people released from the forensic hospital because they have a place to live and so do not need any help. That is their attitude. That particular person's case has been referred to Adult Protection. It has been made known that the charge will be withdrawn on May 4, which means that from the perspective of the East Coast Forensic Hospital, he will no longer be under the jurisdiction of the review board and so he will walk out the door. It seems that he will not fall through the cracks in the system because they will find him a placement. It is ironic that he has had a conditional discharge for three to four years. The legal tribunal that has adjudged his risk deems him not to be a risk but it cannot give an absolute discharge. He should be living in the community, but because of the attitude within the administration of a provincial program he remains with severe restrictions on his liberty that should not be in place. Adult Protection has been able to access a placement for him outside the forensic system.
In response to your question about what will happen, I can tell you about that fellow, but I cannot tell you what will happen to others. Across Canada, the Demers decision will become significant in other cases from June forward. Some people will hope to find placements, while others who are no longer properly held will likely walk out the front door.
Senator Callbeck: I would like to have your comments on the victim impact statement in light of the changes that are proposed in Bill C-10. As you know, the review board would have more powers. For example, they would have to advise the victims of their ability to file a statement. The court and the review board would have the discretion to adjourn the hearing while that statement is prepared. In other words, they could make the decision on whether the case would be adjourned and could allow the victim impact statement to be read. Many changes are proposed and I would like your comments.
Mr. Jeffcock: The proposed legislation is certainly filled with changes in that regard, but from a practical viewpoint, to a practitioner, I do not think it will make a great deal of difference. Speaking personally, obviously when the person is before the court at the original hearing, the victim impact statements can be filed. Often, the materials from the Crown go to the review board, and that includes the victim impact statement.
The only significant change that I see occurring is in relation to the possibility of adjournments to allow the filing of the victim impact statement. Again, while that is a practical consideration from a realistic perspective, in Nova Scotia, I do not see that occurring often because we have a very good victim services program that is run through the Department of Justice.
I would be very surprised if we had a situation where, for instance, I was appearing with you as my client on April 14 for your disposition hearing, and the victim impact statement was not available, resulting in the need for an adjournment. I would be surprised to see that happen in my province.
I do not know that the biggest change would frequently occur. About the only thing that was in the amendments that I think would be utilized more is the notification to the victim of a hearing where the accused person might receive a discharge. I know that is something that the victims' support group often seeks to have.
Senator Callbeck: What about the fact that it allows the review board to decide whether the victim impact statement will be read rather than filed?
Mr. Jeffcock: Again, while it may not be set out in the legislation, our board has never prevented victims from reading their victim impact statement. I had a hearing quite recently, quite a high-profile one, involving a case where the accused had caused the death of another person 10 or 12 years ago. The family was there for this hearing and read again a victim impact statement into the record about the impact that my client's actions had had, not only, obviously, on their brother but on the family. It has not something I have ever seen the board reject, even though it was not expressed in the legislation.
I do not see much of a practical change, certainly. It is comforting, I am sure, to victims and to victims' rights groups to see it in the proposed legislation; but in our province, from a practical sense it will not make a dramatic change.
Senator Milne: I am coming back to the question that Senator Bacon asked you, and that I followed through on. When I look at the bill, you are correct that a review board can give an absolute discharge. That is right, but it is always after a trial.
Mr. Jeffcock: Yes, to an NCR.
Senator Milne: An unfit person never gets to trial.
Mr. Jeffcock: That is right.
Senator Milne: A stay is how you put a stop to a proceeding before trial. This is the way you do it legally. You do it with a stay. Am I correct? You are the lawyer.
Mr. Jeffcock: It is one way that a proceeding can be stopped. Another way is the Crown can withdraw the charges.
Senator Milne: In that case, this person would never end up at any kind of a supervised facility.
Mr. Jeffcock: That is not true if a person is unfit and under the jurisdiction of the review board, and the disposition is made when that finding is made. The person comes to the court and the court says “You are unfit”; then they refer you to the review board, which again has to determine the issue of fitness; and if unfit, then the board has to make a disposition. At present, the disposition can either be a detention order in a hospital or a conditional discharge in the community, discharge upon conditions; it does not currently include an absolute discharge.
Senator Milne: You are right when you speak of proposed section 672.851. A stay there is discretionary. It says the review board “may.” It would be certainly within the discretion of this committee to make an amendment that would allow a review board to automatically grant a stay if a person is permanently unfit. We would have to amend the bill. Historically, I believe a stay has only been ordered if it is in the interests of justice and it is a discretion remedy only after trial.
Mr. Jeffcock: Just a couple of points.
Senator Milne: I am sorry, before trial with the stay.
Mr. Jeffcock: First, madam senator, when you look at section 672.851, proposed subsection (1), I do not want to cloud the issue, but it says, of its own motion, a review board may recommend that the court having jurisdiction over the accused hold an inquiry. What I was commenting on about discretion is that as you go through the rest of the proposed section, the court may order a stay, but it does not have to. We are talking about a two-step process in here.
I have never suggested that the review board have the power to grant a stay because as a creature of statute, I do not believe they have the legal power to do so. Only a court can grant a stay.
When we look at the present wording, we have a situation where the board may hold a hearing. Say it is the annual disposition of the person and they conclude that the accused will never be fit and is not a significant threat to the community. Having made that determination, the most they can do at present is grant a conditional discharge, which they often do, so the person lives in the community on conditions.
With this proposed section as presently drafted, they may or may not make a recommendation to the court to review the situation, and the court may or may not hold a hearing. It does not say what criteria the court shall apply in determining whether or not to review the case.
When we talk about “the nature of the offence,” is it to be a hearing in court, where there will be legal argument by Crown and defence as to whether or not there should be a hearing held? It does not say that in the proposed section. There is nothing about leave to the court.
Then when the court makes its determination as to whether or not to grant a stay, there are again no criteria set forth in this. We have the following factors: nature and seriousness of the alleged offence; the salutary and deleterious effects of the stay of proceedings, such as the effect on public confidence in the administration —
Senator Milne: What are you reading from?
Mr. Jeffcock: It is proposed section 672.851, subsection (8). That tells you what the court will assess in determining whether or not the stay is in the interests of the proper administration of justice. However, it does not tell you anywhere in that clause what the criteria are in determining whether or not to hold the hearing.
As I said to Senator Andreychuk a few moments ago, it seems ironic that throughout part XX.1 of the Criminal Code, a great deal of weight is given to the fact that the tribunal, the review board, is made up not only of a chairperson who is qualified to be a Supreme Court justice, not only psychiatrists, but also, potentially, psychologists or other medical practitioners or lay people, but you always have an element on the board with knowledge of and insight into psychiatric matters. Courts of appeal, when reviewing appeals of dispositions, often say that the board should be deferred to because of their expertise in both the legal and psychiatric fields.
You have everything pointing to a specialized board that has more than one person on it with special training, all of whom combine to make a disposition. Then you have this clause, which says let's forget about everything we have done in the rest of the Criminal Code section dealing with mental disorder. Why have a board? Why not just have one person? Why not have the court review people annually? The answer is it is not the appropriate way to deal with people who have mental illness. You have to have expertise in determining those issues.
Having recognized that, why send it back to a judge who has no expertise?
Senator Milne: Then, sir, if you will allow me a word or two, what would you suggest as a specific amendment?
Mr. Jeffcock: I would simply say that the sections of the Criminal Code that currently govern the powers of disposition available to the review board in dealing with an unfit person require a simple amendment.
Therefore, it reads the same as section 672.54, which is that you can either grant an absolute discharge if the person is not a significant threat to society or, failing that, either a conditional discharge or a hospital detention order.
Senator Milne: Where do I find section 672.54?
Mr. Jeffcock: That is the general powers of the board on dispositions dealing with NCR accused.
Senator Milne: I have sections 672.5, 516 and 501.
Mr. Jeffcock: I did not bring a Criminal Code with me.
Senator Milne: Are you not talking about a clause of this bill?
Mr. Jeffcock: No, the Criminal Code.
Senator Milne: Well, we cannot amend the Criminal Code, but we can amend this bill. This is what I am asking you, is how we can amend this bill.
Mr. Jeffcock: I would suggest then that 672.851 should simply be amended to provide that the board may make a disposition including an absolute discharge in relation to unfit accused persons.
I would have thought that it would be much simpler to make a small amendment to the Criminal Code than to establish an entire process that I would respectfully submit is somewhat cumbersome, with two stages to deal with a person who is most unsuited to address complicated legal matters.
Senator Milne: Are you still saying “may?”
Mr. Jeffcock: No, I am saying “shall.”
Senator Milne: This is what I want on the record: You actually did say “may,” but you mean the board “shall?”
Mr. Jeffcock: I would suggest that the board be given the power to grant absolute discharges to persons who are unfit and who do not present a significant threat to the safety of the public. I would further suggest that the wording be similar to that that is applicable to their power of making a disposition for persons who are not criminally responsible, which is the board “shall” grant an absolute discharge.
Senator Milne: That is the word I want. Thank you.
Senator Cools: How does a board grant discharges? I would assume that the board recommends to the Governor in Council. These tribunals recommend.
The Chairman: We have people to work with us too.
Senator Cools: He is a lawyer and he is the witness here. He can tell us what he means.
Mr. Jeffcock: Well, the board does have the power to grant the dispositions. They make dispositions, they do not make recommendations.
Senator Ringuette: I truly appreciate your comments and the great deal of experience that you have in dealing with such cases. Yesterday a question arose about the level of expertise to make assessments and the fact that the proposed legislation provides for the provincial Attorneys-General to list persons with expertise to make assessments. How do you feel about that situation?
Mr. Jeffcock: Do you mean the assessments on fitness?
Senator Ringuette: Yes.
Mr. Jeffcock: I do not have a problem at all with persons other than psychiatrists being able to make that determination, particularly where there are usually only a limited number of forensic psychiatrists available. It seems to unnecessarily delay the assessment process, and in many areas results in people being held in jails to get to the hospital; that is certainly a terrible thing.
If you are not sure an individual is even fit to stand trial, I would suggest it is just a terrible thing that that person may end up in a jail, waiting to be assessed. Now, you may say the person might not be unfit, but even if it is 1 in 25 people, that has to be a terrifying experience to someone who has no appreciation of what is going on.
I know, and I mentioned it when I testified before the other committee, that in Nova Scotia there was some thought given to having initial screenings, if you will, done by forensic coordinators. Those are the people who follow persons who have been discharged into the community. Just to add to their responsibilities so they could go by the court perhaps, talk to the person, and if they think there is no way that the person is unfit they could contact the doctor quickly and, shall we say, rubber stamp that. However, if they have a concern, then steps will be taken to ensure that an expedient assessment is made, rather than have the person held in an unsuitable environment.
Senator Ringuette: I wish to thank you again for your comments, and we can see the wealth of your experience.
Mr. Jeffcock: Thank you.
The Chairman: Mr. Jeffcock, we are very pleased to have had you here with us, and feel free to send us any other information that you think we may need.
Next we will hear from the Schizophrenia Society of Canada, from Dr. Gray and Ms. Deighton.
Dr. John Gray, President, Schizophrenia Society of Canada: The mission of the Schizophrenia Society of Canada is to alleviate the suffering caused by schizophrenia. Most of our members are family members of those with schizophrenia or consumers, and many of them have, in effect, been in contact with the criminal justice system and involved with the particular issues that you are talking about today.
In fact, the majority of the people who are in the forensic system in this country, and most countries, suffer from schizophrenia. It is the most common diagnosis, and the reason is it is a brain illness that often robs people of their ability to seek treatment. It is often a psychotic disorder, so they do not understand what they are doing in the particular criminal situation.
It is important to point out that one of the reasons that the number of people in the forensic system is increasing is failures in the civil system. These are failures to provide early detection and treatment or a comprehensive system of services aimed at recovery. I might also add that the mental health acts of a number of provinces actually militate against good treatment and force people into the forensic system.
For example, we heard this morning about a person presumably in a psychotic state damaging a tree. In that particular province, Nova Scotia, in Ontario and some other provinces, where the criterion is that the person must be dangerous to other people or themselves, that person could not be involuntarily treated.
In other provinces, such as Saskatchewan, Manitoba, British Columbia, where they have broader harm criteria, they could be treated, so they would go to the hospital and not have to go to either the prison or into the forensic system. It is an important issue. I know it is not your particular concern.
The Schizophrenia Society of Canada is happy with most of the proposed amendments to Bill C-10, which, of course, include permanently unfit accused, removing of capping, new review board powers, transfers and police amendments.
We want to caution, though, about the victim impact statement amendment. We also have major concerns that the bill does not authorize treatment for people who are found not criminally responsible on account of mental disorder.
Dealing firstly with victim impact statements, while we appreciate that a victim has the same feelings irrespective of who the perpetrator of the crime was, whether the person was responsible or not, the Criminal Code makes a major distinction between the two. We are concerned that introducing criminal-type impact statements may blur this distinction. This could lead to a trend in not recognizing the other important distinctions between people with criminal responsibility and people whose actions were caused by a brain illness such as schizophrenia.
Victim impact statements for those found guilty and responsible for their crimes are to help the judge consider the severity of the punishment. Persons are given a fixed-length sentence but may emerge as dangerous as the day they were convicted.
In contrast, when a person is found not criminally responsible on account of mental disorder, the disposition is indeterminate. Unlike the criminal, NCRMD persons can only be released if they do not pose a risk to the safety of the public. Thus the victim impact statements, we submit, should be of less import when it comes to review board determinations.
On the other hand, the majority of victims of people who have been found not criminally responsible on account of mental disorder are family members, and I have one sitting with me here today, Sheila Deighton.
It is important that, as much as possible, the family be involved in decisions that affect the relative, and especially if the person is likely to become involved with a family on conditional release or absolute discharge.
Therefore, we have a middle-of-the-road recommendation when it comes to victim impact statements; that is, we suggest that the Department of Justice be requested to monitor the effect of victim impact statements.
The second major issue has to do with psychiatric treatment. Psychiatric treatment is essential for restoring liberty, alleviating suffering and restoring functioning of persons found not criminally responsible on account of mental disorder. Review boards might be able to authorize this treatment where it cannot be authorized in some provinces.
Our major concern is not addressed by these particular amendments, but it should be, because it affects the liberty and health of these people in some provinces. Whereas the court can order psychiatric treatment under the Criminal Code to restore a person to fitness to stand trial, there is no similar authority to order treatment for a person found NCRMD. Some provinces' mental health acts allow involuntary patients to refuse the treatment necessary for them to be released. If they are not treated, they will not be released, and some provinces in this country allow that. Most countries, obviously, do not. It does not make sense to them.
We strongly recommend an amendment to the Criminal Code that would allow the review board to order treatment where the treatment necessary for the person's release is refused.
I would like now to turn to Ms. Deighton to bring you a family perspective on the effects of untreated, serious mental illness and the effectiveness and importance of appropriate psychiatric treatment.
Ms. Sheila Deighton, Executive Director, Ottawa Branch, Schizophrenia Society of Canada: Good morning, members of the committee. I would like to take this opportunity to thank you for having me here today to speak to you, and I am truly honoured to be here. I would like to share our family's journey and our experience of living with mental illness.
Alistair, my husband of 33 years, has a long family history of serious mental illness and had been under the care of a psychiatrist for many years, and he did that willingly. This was something that he recognized, that he needed the support. In 1995, on the morning of January 30, Alistair visited his psychiatrist. At that time, my husband was working in sales, which is a very stressful, competitive field, and he had developed paranoid delusions. For example, he feared for his personal safety. He believed his employer was connected to the Mafia, that he was being followed and that fellow employees were conspiring against him.
He would come home from work and share some of those thoughts with me, but not all of them. A lot of them he kept to himself because he feared for our family's safety as well. However, Alistair's psychiatrist was not treating him with medication. He was using talk therapy.
On the morning of January 30, 1995, my husband had had a session with his psychiatrist and was displaying some symptoms of depression and paranoia; in fact, he had actually taken two weeks off work.
He came downstairs that night and shot and killed our 18-year-old son in our home because our son had become part of his paranoia, his belief that there was a conspiracy against our family.
Our son, I might add, was also displaying symptoms of mental illness, but under the Ontario Mental Health Act, even following a serious suicide attempt, we had been unable to get him admitted to hospital. He jumped 30 feet at the age of 16, almost died and was discharged six days later because he was not homicidal or suicidal at that point.
We were a family that had been living in a state of crisis and with basically untreated mental illness for a number of years. That is what untreated schizophrenia did to my son, my husband, to me and our other two children, who were younger, 13 and 15 at the time, and to our society.
Alistair was so mentally ill that he was found unfit for trial. I also want to add at this point that, upon his arrest, he spent two and a half months in jail in Cornwall waiting for a bed for a forensic assessment. The gentleman ahead of us talked about how unbelievable it is to have someone with a severe mental illness in jail, but it is happening every day in our country.
Two and a half months later, when he was finally admitted to the forensic unit at the Royal Ottawa Hospital, he did agree to take anti-psychotic medication and, within two months, was found fit for trial. When he was transferred to the hospital, he was so ill that he was unfit. With treatment, he became fit, although he was not completely well.
His fitness was extremely brittle. He was a very fragile individual. If he had refused treatment, under the Criminal Code the court could have ordered him to take it in hopes that he would become fit for trial.
Alistair was then found not guilty on account of a mental disorder of the murder of our son and was hospitalized. He was returned to the Royal Ottawa. Unlike many people with these illnesses, he took his medication voluntarily. He made good progress, and eventually, the Ontario Review Board granted him a conditional discharge, which allowed him to live in the community.
He did have some relapses because of the stress associated with the changes. I have to speak of how fragile these individuals are, and this is where the community supports and resources are very important, not only to him but also to us as a family.
After a few hospitalizations, he was able to move into his own apartment and then eventually move home.
Wanting to ensure the safety of our family and the people in our community, it was a very careful transition from hospital to home.
Within eight months he returned to live at home with our family, where he currently resides. That was in 1997. In 2003, Alistair received an absolute discharge from the Ontario Review Board. He appeared as an individual who now was responding well to treatment. He had insight. He was working with a psychiatrist. He played a major role in his care. For the first time in his life, with treatment, he was actually well. We later discovered he had been quite ill for about 20 years.
Since then, he has continued to take his medication and have regular appointments with his psychiatrist, which he is not obliged to do. He sees his psychiatrist as he needs. He is very susceptible to stress. In periods of high stress, he does see her more often. He is now a wonderful husband and father.
Our treatment success story contrasts with many I hear from families where a brain illness has precluded the person from recognizing that he or she is ill and in need of psychiatric treatment. They therefore refuse treatment.
I was at a forensic conference in the fall. Dr. John Bradford, head of forensic psychiatry at the Royal Ottawa Hospital, said that in 80 per cent of the cases, it is the family members who are the victims of the violence. It is not the general public. To see someone who is so ill and refusing treatment is a cause of tremendous suffering for family members. Without treatment, not only do their symptoms not go away, but tragedies could result such as the one we went through. It places the person suffering at increased risk for suicide and criminalization. It creates great disruption in their lives and in the lives of their families, who suffer further loss as they are forced to watch the suffering of their loved one, helpless to do anything.
During the 18 months Alistair was hospitalized at the Royal Ottawa Hospital, I had many visits with him on the floor. I had an opportunity to experience what most members of the public do not. I saw people come into the forensic unit who have been charged, sometimes with minor offences, sometimes with very serious offences; people who come in in a state of unfitness who are refusing treatment, who were at one time very functional people and who are now are huddled in corners, are suicidal and are not bathing or grooming themselves.
While I was there I saw that these people had lost themselves, lost their freedom, their liberties and their right to be well through the Criminal Code and the provincial legislation, because treatment is not required in Ontario. If an individual is deemed to still be capable, even though quite ill, he or she can refuse treatment even when found not criminally responsible. Most of these individuals reached the point where they were deemed not capable and were then treated.
I saw them, within two months, three months, start to come back and be a person again. I had an opportunity to see firsthand how effective treatment can be.
At this point, I will turn the floor back to Dr. Gray to illustrate what happens because the Criminal Code does not authorize treatment.
Mr. Gray: The point I was making before was that under provincial legislation, people who are not criminally responsible on account of mental disorder can be treated in British Columbia, Saskatchewan and Manitoba, but they cannot in provinces such as Nova Scotia and Ontario. We have a patchwork. If you happen to be in one province, you get treated; in another you do not, even though you are under the same Criminal Code.
The effects of the Criminal Code's failure to authorize compulsory treatment — as is done in most other civilized countries — are illustrated in many cases. I will reference two of them. This book I wrote entitled Canadian Mental Health Law and Policy provides case examples of a number of situations where treatment was refused and bad things happened.
Senator Cools: Could you give me the name of the book again?
Dr. Gray: It is called Canadian Mental Health Law and Policy.
Senator Cools: Is it still in print?
Dr. Gray: Yes.
Senator Cools: By whom was it published?
Dr. Gray: It is published by Butterworths, 2000, by Gray, Shone and Little.
I might add that it contains many quotes from the Senate report of Senator Kirby and his committee.
Senator Cools: I take it that you appeared before that committee as well.
Dr. Gray: Yes, I did, although I did not discuss this issue at all.
Let me give you several illustrations, one of which you probably know of already. One is the case of Mr. Sevels, who was in Penetanguishene and who had previously expressed a wish not to be treated. He became very psychotic and difficult to manage. He had schizophrenia. When people are in that situation and are a risk to other people, what choice of treatment do the staff members have? They could not medicate him, as the law would not allow it, so they had to put him in seclusion. This case was appealed to the courts. By the time the court came to hear it, this man had been in seclusion for 404 days. You know what seclusion is. He was a mentally ill man. If that had happened in British Columbia, the people who did it would have been up on charges, I am sure. In a modern psychiatric system, to treat someone with seclusion for 404 days is not good. It certainly happened before we had medications. That is what people did.
It was interesting that the judge, when he reviewed the case, could not do anything about it. He was bound by Ontario law. However, he said:
I express the view that it surely cannot be the intended result of the application of the Charter of Rights and Freedoms that persons who are entrapped in the cage of their mental illness...be for prolonged periods caged and warehoused in mental health facilities where the key to their necessary seclusion is available with relatively little likelihood of substantial risk.
In other words, treatment was available. This man had actually been treated successfully before.
I will use one other case to illustrate the point. This case went to the Supreme Court of Canada nearly two years ago. It is called Starson v. Swayze. It was a case about which the Schizophrenia Society of Canada felt so strongly that we took an intervener role. When you do that, it costs money; we had to raise money to do it, but we felt strongly about it. Mr. Starson is a brilliant man with at least 17 involuntary psychiatric admissions for serious mental illness. He believes the Pope is working for him. He has many delusions. He was found not fit to stand trial on charges of uttering death threats. He was ordered by the court to take psychiatric treatment and became well enough to be tried. In the trial, as was pointed out before, he was found not criminally responsible on account of mental disorder. He refused treatment and that was appealed to the Ontario Consent and Capacity Board and then to the first level of court in Ontario; then to the Ontario Court of Appeal, which rejected the capacity board's finding and said that he was capable. It then went to the Supreme Court of Canada.
To cut a long story short, this case was appealed all the way to the Supreme Court of Canada where, in a split decision, it was found that under Ontario legislation the Consent and Capacity Board had erred and that Mr. Starson was capable of consenting to treatment.
The Supreme Court did not rule on the constitutionality of the legislation, only that it had been incorrectly applied. I might add that the Chief Justice wrote, to my mind, a very eloquent dissention. Three judges dissented and said that what was done was correct and the man was incapable.
By refusing treatment, Mr. Starson had already spent five years in hospital. Since his pyrrhic victory in the Supreme Court, he continues to refuse treatment that is required for him to be released. He will not be released until he is well enough, and if he does not take treatment, he will never get well enough. Since the Supreme Court finding, he has spent another nearly two years in custody and he may spend many more. He is potentially a huge cost to the taxpayer; he is a potential continued danger to staff and other patients. He is a man with a brilliant mind. He cannot exercise that mind. He was doing scientific work in physics. He has lost nearly seven years of his life because of a rule that says you cannot treat him. This is completely unacceptable to his mother. It is unacceptable to the Schizophrenia Society of Canada and we believe it should be unacceptable in any humane society in which modern psychiatric treatments are available. Our recommendation is that the review board may authorize treatment, in essence, where the provincial authority does not allow that.
The proposal states that the review board may authorize psychiatric treatment where the person is not being treated under provincial mental health legislation, provided, first, that the treatment plan is based on discussions with the person, physicians and others, as appropriate, and considers the previously expressed capable and incapable wishes of the person. Second, the treatment plan is in the person's best interests. That is a standard statement, but the Ontario Health Care Consent Act has a good definition. Third, without treatment, the person would continue to be detained with no reasonable prospect for release. That is taken out of the New Brunswick Mental Health Act. Fourth, two physicians, one of whom is a psychiatrist, independently examine the person. This is not just the whim of one, it would be two. Fifth, the treatment shall be formally reviewed by a psychiatrist at least every six months and as part of any review board hearing. These recommendations are also in the model mental health act that the Schizophrenia Society of Canada has developed.
Without these amendments, provincial inequality will continue in Canada. Under the Criminal Code, a person with an advance directive not to be treated will nevertheless be treated under the Mental Health Act in British Columbia and released after a relatively short time, on the assumption that the medication works, and it usually does. However, the same person under the same Criminal Code, cannot be treated under the Health Care Consent Act of Ontario. The person will probably stay suffering and detained for years, and possibly a lifetime.
Just as the Criminal Code does not rely on provincial mental health acts to order treatment for a person to be made fit — although in B.C. and some other provinces that is used exclusively — the Criminal Code should not rely exclusively on provincial legislation to authorize treatment for these persons since, in some provinces, it is not doing the job of helping the person get well enough to be released.
We appreciate the opportunity to provide this evidence to the committee.
Ms. Penelope Marrett, Chief Executive Officer, Canadian Mental Health Association: Honourable senators, this is an important matter. The Canadian Mental Health Association is grateful for this opportunity to address you.
[Translation]
The Canadian Mental Health Association was founded in 1918. It is the only volunteer charitable organization in Canada dedicated to both mental health and mental illness. Its vision of “mentally healthy people in a healthy society” provides a framework for all our activities. Our mission is to promote the mental health of all and support the resilience and recovery of people experiencing mental illness.
The CMHA speaks for a group in society whose participation in public policy development is, in short, very new. We strongly support an increased role in public policy development for all stakeholders in the areas of mental health and illness, particularly those using the services.
[English]
The impact of September 11, 2001, on individuals in Canadian society as a whole is still being measured. Individuals have become far more careful and scrutinize others in a way we have not experienced in the past. Governments have increasingly added additional security measures in an untold number of ways in an effort to prevent such a tragedy from happening again.
Based on the draft presently being reviewed, the Canadian Mental Health Association hopes this committee will ensure this proposed legislation will provide for appropriate safeguards to ensure the balance between public interest and individual rights.
There are so many mentally disordered persons in Canadian prisons today that those prisons have become, for the most part, the nation's largest psychiatric institutions. Community treatment and services are stretched beyond capacity throughout the nation. The Canadian Mental Health Association is concerned that the number of prisoners affected by mental illness will continue to increase if the lack of treatment and services in the community is not addressed.
[Translation]
Legislation, no matter how good, will never succeed on its own in eliminating or even mitigating the unique difficulties faced by NCR accused and individuals with mental illness who are in trouble with the law. If these difficulties are not resolved, the systematic problems with mental health benefits programs will ultimately prevent any and all hope of improving benefits for delinquents suffering from mental illness. What is cruelly lacking, and which has never existed anywhere as far as we can tell, is the provision of adequate benefits for those in need.
The Canadian Mental Health Association supports Bill C-10 in general, but we have included a few specific recommendations in our brief.
[English]
The Canadian Mental Health Association believes that for the proposed legislation to be successfully implemented the federal government must make a long-term financial commitment to ensure adequate and appropriate treatment and services are available in a timely manner to NCR accused, as well as those convicted, and make a commitment with other levels of government to ensure that NCR accused in the provincial-territorial justice system also have adequate treatment and services available in a timely manner. What is not happening, and as far as we are aware has never happened, is the delivery of adequate treatment and services to the individuals involved.
[Translation]
The Canadian health care system does not treat mental illness in the same way as other illnesses. The primary health care system is usually the first point of contact for individuals with mental health issues or a serious mental illness. Up to one-third of all individuals who present at a primary health care facility have psychological problems. To date, many family doctors do not have adequate knowledge, skills or interest in dealing with patients suffering from a mental illness, precisely controlling their mental health problems, or exploring appropriate referral options to specialized services.
The mental health care system comprises a wide range of complex services available through the federal, provincial and municipal governments, and non-profit and profitable service providers. At best, this system can be described as a mix of intensive, short-term care in hospitals, specialized services for specific disorders or clientele, community clinics providing outpatient care, community-based services, psychological support — housing, employment, education and crisis intervention — and private counseling services, all of varying degrees of quality and effectiveness, and generally segregated from broader-based medical services.
The result is a system that does not meet the needs of individuals suffering from mental illness and or with a serious mental illness, and in which diagnostic errors and delays in obtaining adequate treatment and support is the norm. Finding appropriate support and treatment requires a greater understanding of the system, as well as the patience to explore a system that is challenging. This cannot be done in short order, and too many people have fallen through the cracks along the way, ending up in prison or on the streets.
[English]
The Canadian Mental Health Association also recommends the committee support the development and implementation of a pan-Canadian strategy on mental illness and mental health that would include the necessary treatments and services for NCR accused and those convicted; and that the variety of treatments and services, including health care, needed by those living with mental illness and other serious mental health problems be fully integrated.
To summarize, the Canadian Mental Health Association has two general recommendations. First, we recommend that this committee support the development and implementation of a pan-Canadian strategy on mental illness and mental health, one that would include the necessary treatments and services for NCR accused and those convicted.
Second, we recommend that the variety of treatments and services needed by those living with mental illness and other serious mental health problems, including those living under mental health care, is fully integrated. This will ensure that disorders of the mind are treated the same as disorders of the rest of the body, and at the same time that other services that are non-medical in nature are integrated and available.
We also believe that for this proposed legislation to be successfully implemented, the federal government must make a long-term financial commitment to ensure adequate and appropriate treatment and services are available in a timely manner to NCR accused; and make a commitment with other levels of government to ensure that NCR accused in the provincial and territorial justice systems also have adequate treatment and services available in a timely manner.
Dr. Padraig L. Darby, Deputy Clinical Director, Law and Mental Health Program, Centre for Addiction and Mental Health: Honourable senators, I am a psychiatrist and have sat as a member of the Ontario Review Board for the last 12 years, but I am here this morning as Deputy Clinical Director of the Law and Mental Health Program at the Centre for Addiction and Mental Health in Toronto.
The Centre for Addiction and Mental Health, CAMH, was created in 1998 through the merger of the Addiction Research Foundation, the Clarke Institute of Psychiatry, the Donwood Institute and the Queen Street Mental Health Centre. The centre is a teaching hospital fully affiliated with the University of Toronto and is the largest mental health and addiction facility in the country.
The Centre for Addiction and Mental Health is one of the nine hospitals in the Province of Ontario designated by the Minister of Health for the custody, treatment or assessment of mentally disordered accused persons. CAMH is the largest of these and is situated in the most densely populated and most diverse racial, linguistic and ethnic area of the province.
CAMH made a number of submissions to the Standing Committee on Justice and Human Rights in 2002. A number of these submissions have been addressed comprehensively by the proposed legislation and CAMH is supportive of many of these recommended changes.
In particular, we are in agreement with the proposed changes granting review boards power to order bans on publication. We are supportive of clause 14, which allows for the timely transmission of records to review boards, and the centre is in agreement with the proposed repeal of the non-proclaimed provisions relating to the capping of dispositions.
I would like to make some more detailed comments on the impact of recent court decisions on the ability of hospitals to appropriately direct finite resources to those most in need and then to comment briefly on three other aspects of the proposed legislation.
In 2000 CAMH made a number of detailed suggestions concerning assessment orders. We suggested that sections 672.11 and 672.13 should be amended to require the consent of the person in charge of the hospital where the accused is to be assessed before the order can lawfully be made by a court. The brief pointed out that CAMH has a duty to accept all such lawful orders, but that the competing realities include the duty to maintain a safe environment for all clients and for staff, and the inherent problem of constantly being ordered to take more individuals than can be appropriately or safely accommodated.
The recent ruling here in Ottawa of His Honour Justice Desmarais in Regina vs. Hussein found that the practice of jailing accused persons without assessment while awaiting in-custody forensic assessments is contrary to the relevant provisions of the Criminal Code and offends sections 7 and 9 of the Canadian Charter of Rights and Freedoms.
Recently, the ruling of Justice Glass in Orru v. Penetanguishene Mental Health Centre held that a delay of no more than 15 days should elapse between the issuing of an order of the review board and the admission of that NCR accused to the designated hospital and appropriate level of security.
The Centre for Addition and Mental Health fully supports the rights of accused persons with mental illnesses and is in complete agreement that detaining such persons in a purely correctional environment is not appropriate.
However, given a finite number of beds, it is all but impossible to ensure that one is always immediately available. To illustrate the difficulty that we face, as of yesterday the Centre for Addiction and Mental Health was at 106 per cent of the capacity for its forensic beds, even allowing for the admission of five patients to overflow beds last week. We had five review board patients in non-forensic beds within the hospital. Currently, there are seven review board patients in other provincial hospitals ordered to our hospital, and clearly we are in contravention of the 15-day standard.
Over the last five years, 25 per cent of all Ontario Review Board patients have been referred to the Centre for Addiction and Mental Health, although we manage 17 per cent of the provincial resources; and then finally, in the last two weeks, the centre has received six forthwith assessment orders, which we have had to take immediately.
Therefore, given a finite number of assessment beds and that hospitals must of necessity triage according to need, CAMH submits that section 672.11 be amended to require the consent of the person in charge of the hospital where the accused is to be assessed before the order can be lawfully made.
I would like to comment briefly on three further areas. First, the power of the review board to make assessment orders: Our hospital is supportive of the wording of the proposed legislation allowing review boards to order assessments in particular circumstances. However, should a new section 672.121 be created, we recommend, again because of the need to triage resources according to the urgency of need, that it be amended to require the consent of the person in charge before the order can be made by a review board.
Second, on the power of the review board to extend the time for a review hearing and hold a review of its own motion: The Centre for Addiction and Mental Health does not support the proposed subsections (1.1) and (1.2) of 672.81(2), which allowed the review board to grant an extension for up to 24 months. Such an extension seems at odds with the rulings of the Supreme Court in Winko, Tulikorpi and Pinet, which argue strongly that there should be no presumption of dangerousness for an NCR accused and for the least onerous and least restrictive disposition.
Then finally, on the issue of mandatory review in custody cases, under the current paragraph 672.81(2)(a), the review board must hold a hearing if the person in charge of the accused's detention has increased significantly the restrictions on the liberty of the accused for a period exceeding seven days.
The Centre for Addiction and Mental Health suggests that this be amended to include a provision to allow that on the consent of all of the parties, such hearings could be adjourned to the next scheduled annual hearing.
I thank you for the opportunity to speak to you this morning and would welcome your questions.
The Chairman: The issue of treatment of mentally disordered accused persons, and particularly compulsory treatment, is likely beyond the scope of Bill C-10. The bill deals more with matters of procedure and further treatment is more a matter of provincial jurisdiction under mental health legislation.
I thought I would mention that before we ask any questions, but we do appreciate what you have given us in your presentations this morning.
Ms. Deighton, you were able to give a unique perspective to this committee in that you are able to speak in your capacity, I would say, as a victim, and as a mother of a victim; and on the other hand you were able to speak in some ways on behalf also of the accused, your husband. Do you feel that Bill C-10 strikes the right balance between victim rights and the rights of the accused?
Ms. Deighton: Under the current legislation, and as we heard the presenter before us this morning say, victims have always had the opportunity to speak at an Ontario Review Board hearing, which I did.
I have a different insight from someone who is a stranger to the accused, and so my perspective is different. I would worry about a victim who does not understand the nature of mental illness, cannot separate blame from illness, still sees the accused as violent or a danger and cannot comprehend the effectiveness of treatment. I worry about the impact that would have on the accused at the hearing.
While my husband was in hospital and I stayed very involved with the forensic program, I realized a lot of guilt is felt by the accused person. I worry about the mental health of the individual who has been accused and the effect of the impact statement. Could that jeopardize his wellness?
The Chairman: Ms. Marrett, in regards to the two-year review in the case of a serious personal injury offence, you indicate that the possibility of a discretionary review does not alleviate your concerns. Do the possibility of an appeal of the initial decision to have the next review in two years and the possibility that the hospital can initiate a mandatory review — that is section 672.812 — alleviate some of your concerns?
Ms. Marrett: The Supreme Court said that a review should take place within the 12-month period, and our organization believes that it should. Extending that would create undue stress on the individual concerned.
When we look at the issue of balancing public safety and individual rights, we would want to see it kept within that 12-month period.
The Chairman: Instead of two years.
Ms. Marrett: Instead of the two years, yes.
The Chairman: Dr. Darby, you have concerns about delays in assessments being carried out. Do you think the amendment by the Justice Committee to allow people other than psychiatrists to conduct assessments will improve the timeliness? As a psychiatrist yourself, do you have any general concerns about allowing other persons to conduct assessments?
Dr. Darby: As a psychiatrist, I do not. Certainly in the United States, many fitness assessments are carried out by forensic psychologists.
It is very much dependent on the environment in which one finds oneself. Mr. Jeffcock talked about that being a limitation in Nova Scotia. In Toronto we are fortunate that we have some economies of scale and one of our forensic psychiatrists attends each day in the mental disorder court in Toronto.
The vast majority of our fitness assessments are actually done right in court. They can usually be done very quickly, so we do not admit people for fitness assessments. It is very dependent on the local environment, but as a principle, many fitness assessments could be done by psychologists as well as psychiatrists.
The one complication that arises is that if there is a declaration of unfit and there is the need for a treatment order, you will require a psychiatrist to give the medical evidence to justify the treatment order.
Senator Bryden: It is very difficult to regulate some areas of our lives and our citizens' lives, but it comes with the territory of being a federal state. In certain provinces, schizophrenia can be treated and in some instances, people can be required to take their drugs. In other provinces that is not available. It happens to be within the provincial jurisdiction to determine whether or not to do that.
The jurisdiction that the federal government has in relation to much of this comes only under the auspices of the Criminal Code. In relation to crime and punishment, the Criminal Code can trump the exclusive jurisdiction of the provinces. It is not just for health care. It is also for education and any number of things.
In our system, the way that usually has to be treated is by negotiation and cooperation to try to, if possible, establish some sort of national standard.
For example, that is why we have the Canada Health Act and its five provisions. The federal government has no right to impose that, but they have an agreement with the provinces and so have been able to do it. The difficulty is trying to balance the rights of the people who live in the province to choose a government that they want to provide the citizenship rights and responsibilities as against the right of the federal government to ensure peace, order and good government nationally and under the Criminal Code.
This has been additionally complicated by the existence of the Charter of Rights and Freedoms, to a greater extent than ever before. Canada is not as much of a parliamentary democracy as it once was. It is a constitutional democracy. More and more individual citizens are applying to the courts to determine whether they have rights that should be enforced under the various sections of the Charter of Rights and Freedoms.
For example, there is an application to require a province to provide a comparable level of education for autistic children as is provided for everybody else. The court said no, it would not do that because the court does not have a taxing power. This is the reason they gave.
When you make an order for a situation like autism, somebody has to pay for it. If the court were to order a dramatic intervention into, let us say, the Province of Ontario's school system to impose an additional responsibility that would involve a huge amount of money, that government would be put in a very difficult situation.
I do not know what the answer to this is, but I believe, Dr. Gray, that you indicated in your example a very capable person who refused to take his medication and therefore did not live the life that he could have had. There is a basic question there of human rights.
It was not long ago in this country that you had to get a court order, if you could, to give children a transfusion to save their life. I believe that if adults say “No, I will not take a blood transfusion,” you cannot force them to, even if it will save their life.
The federal government can only use the Criminal Code to go so far in trying to do good things for society before there is a huge outcry. What is attempted, I think, in Bill C-10 is to go as far as is reasonably possible within the limits of what would normally be criminal matters and stay within the exclusive jurisdiction of the Government of Canada, and avoid interfering with other areas of the management of the lives of our citizens.
Do you think that the balance that is struck in here has the effect of improving the lives of those people who are charged with criminal offences? We cannot handle the ones that are not charged. Anyone?
Mr. Gray: As a general comment, I would say yes. I think that Canada's mental disorder legislation is basically good. The Swain decision, the whole development from there, has been very helpful. I was involved in the days of Orders-in-Council when I ran a hospital in Saskatchewan. From what I have heard about these particular amendments, yes, they will be helpful. I noticed in Ms. Marrett's written comments that there was a particular clause that she felt would be useful. I think some of those could be looked at; but generally I think it is helpful.
What I was talking about is that the federal government, through the Criminal Code, has authorized treatment for people who are unfit to stand trial. Psychiatric treatment is generally a provincial responsibility. However, in this case it is not. It is a federal responsibility; that is, it is mandated by the Criminal Code. My argument is that because a person who is NCRMD is still under the Criminal Code, that same logic should apply there. We are agreed that the provinces are providing services, just as they provide services for jail terms of less than two years, even though it is under the Criminal Code? In the mental health analogy, they would still provide the services, but where people are being discriminated against because they are not getting the treatment that they could in another province under the same federal Criminal Code, the review board should have the authority to grant that.
It will not cost —
Senator Bryden: To grant bail?
Mr. Gray: No, to grant the authority to treat the person. At the moment, when a person is found unfit to stand trial, the physician makes a recommendation to the court to authorize treatment to have this person made fit, right? That happens. In British Columbia, it does not happen that way. We actually do it under the Mental Health Act; the court does not do it but has that authority. We do not use the court authority, but we could if we wanted to.
All I am arguing is that for people who are not criminally responsible on account of mental disorder, that authorization of the treatment, which now happens in some provinces but not in others, should be granted by the review board as part of the Criminal Code, which would not be usurping the province's authority.
Senator Bryden: May I just relate that to what Dr. Darby was saying? Given the right of the review board to make those orders, they end up in Dr. Darby's hospital, and it is full.
Mr. Gray: With respect, these are people who are already in hospital, Penetanguishene. These people are not criminally responsible on account of mental disorder. They are in hospital, like Mr. Starson that I talked about. He has been there for five years, actually in Ottawa, but he cannot be treated. He may be there for another 10 years. If he could be treated, he would be out.
That is what I am arguing. He is already in the criminal justice system. True, he is in a hospital, but he is there under the Criminal Code.
Dr. Darby: In terms of your question about the balance, I certainly agree with Dr. Gray. I think Canadian legislation does strike a very good balance; and certainly, sitting on a review board, I think it is not always easy to draw the balance between public safety and the rehabilitation of the accused. However, I think overall, the balance is a good one.
I am certainly not speaking on behalf of CAMH when I say this, but, with respect to Dr. Gray's position, as a psychiatrist and as an individual, I do not think I would be in favour of giving the review boards the power to order treatment. First of all, I am not sure that we should be treating these people differently from all other psychiatric patients. I think the fitness assessment is something of an anomaly.
However, many times, the review board actually has a lot of indirect power of persuasion, because the NCR accused will frequently recognize that in fact, taking medication may well be a significant part of enabling them to become less dangerous and progress in the system.
For many patients within the review board system who are seriously ill, there is provincial legislation around whether people are capable of making their own decisions. Treatment may often be authorized by a substitute decision maker. The case of Starson that Dr. Gray mentions is certainly a very dramatic one, but I do not think that I would take that as sufficient cause, even if it were possible, given federal-provincial jurisdictional issues, to say the review board should be ordering treatment.
Ms. Marrett: I think we have several challenges here. One is, as we understand it, clause 39 would, in effect, repeal section 747 of the Criminal Code, which provides for the detention in a treatment facility, particularly when treatment is urgently required to prevent any further deterioration of the individual. If section 747 is repealed, then the court would have no alternative but to send an individual to a conventional jail, which we do not believe is the place for treatment.
You are right, in many ways the federal government does have a real challenge because health care is delivered at the provincial level. However, at the same time, mental health does not fall under the Canada Health Act. We have 11 provincial mental health laws in this country, which adds not only to the confusion of families and individuals who have to wade through that system, but also adds to the challenges to some of the principles of the Canada Health Act that should apply right across the board, right across this country — accessibility, portability, et cetera.
The federal government is the fifth largest payer for health services in this country. Therefore, it has a responsibility to try to find ways in which it can deliver the services, and that would include for people who are under the Criminal Code.
Our position here, as well as that of many others within the mental health stakeholder community, is that without some sort of national, pan-Canadian strategy for mental illness and mental health, none of these issues will be addressed. The funding issue will never be addressed because it is entirely up to provinces to decide what areas within mental health they will fund, whether it is community mental health or institutional, et cetera. Canada is the only G8 country that does not have a strategy. If we did, many of the issues that we are talking about today would be addressed from the treatment and services point of view for people under NCR.
Senator Rivest: The federal responsibility includes not only the Criminal Code. It can act with its spending power. We can include mental health problems at the top of the priority list when making deals with provinces and let them make their own decisions with the money in order to fulfill their responsibility. This is a very important power.
[Translation]
People suffering from mental illness who have been tried by the courts, even those who refuse treatment, are sent to prison. Who will take responsibility for ensuring that no one with an obvious mental illness remains in prison for weeks, months and years?
[English]
Dr. Darby: I think it is almost certain to be a combination of a huge number of people. Within Ontario recently there was an allotment of $27.5 million for community services to try to keep people who are in contact with the police out of the criminal justice system and in the community and within the health system.
I would agree completely with what both Dr. Gray and Ms. Marrett have said. The criminalization of the mentally ill has become a huge problem over the last number of years. Two colleagues of mine presented a paper at the Canadian Judicial Conference in Cambridge a few years ago, and the title was “The Criminal Code of Canada: The Mental Health Act of Last Resort.” There has to be a concerted effort, and it is very much at the early stages, whether you want to provide pre-charge diversion or court diversion or better support for those who are clearly mentally ill and in need of support and housing. If those pieces were in place, effectively, I think you could divert a huge number of people out of the criminal justice system so they did not end up having to be found NCR. We have referred to a few NCR cases that we had admitted to our hospital recently on the orders of judges who, I think from the best of intentions, are extending the criteria to find the person NCR because that is the most effective way of getting treatment. That is not the way we should have to go.
Senator Mercer: First of all, I would like to thank all of you for being here. In my time in the Senate, I have found that almost all of these hearings are an education for me, and I do appreciate that.
Your husband is in treatment, is responding to that and is living a relatively normal life now. He is not here today, but what would his view of these changes be, do you think?
Ms. Deighton: I think he would have some concern about the victim impact statement. That would be of concern to him in terms of once again, respecting the right of the victims to have input, but also the issue of whether they fully appreciate that what occurred maybe a year or two years ago happened when the person was ill. Many people do not really understand the concept that these illnesses are treatable and manageable and that, with that treatment and support, people can live safely.
In our situation, my husband had a home, a family and a job, but what he did not have was medication for a very serious medical illness. That was the one component that was missing. Add that component of treatment, and he still has a very serious illness because it is chronic. I think his concerns would be about the effect of the victim impact statement.
Senator Mercer: Dr. Darby, I had the occasion to live in Toronto between 1987 and 1995, when there were some huge changes politically in the delivery of health care. If I recall, 1001 Queen Street West would be the old Queen Street Hospital. I do remember when the Harris government was elected and then implemented quite a few changes and cuts in health care. At that time, they turned a lot of people who were in-house patients at the Queen Street Hospital out of the hospital and made them day patients or outpatients.
We have referred to your hospital as being full. Is it full today? Probably more important, are all the beds open? That is probably the more practical question.
Dr. Darby: Yes, all our beds are open. There certainly has been a reduction in beds, but I think the changes that we have talked about this morning in terms of the move to more care in the community have been going on for 20 to 30 years, as Dr. Gray mentioned. It is not something that has just happened in the last 10 to 15 years. Many people would say yes to the aim of keeping people in the community as much as possible. It is a very laudable aim, but I think the critical thing, as Ms. Marrett said, is that the services have to be there to support people and ensure that that can happen.
Senator Mercer: I think those of us who lived in Toronto, particularly in the years after those cuts, saw the results of cutting without providing services. We saw so many people with mental disease on the streets. In those days, they actually hung around the hospital because that was their support network. Have we improved? I know we are concentrating on Ontario here, but have we improved at all? Have we made any progress since the days when the Ontario government made cuts? Obviously, the federal government made cuts in the early 1990s as well. Have we made any improvements in our service delivery in support of people with mental illness?
Dr. Darby: Ms. Marrett and Dr. Gray are probably in a better position to address that broad issue of service delivery than I am.
Ms. Marrett: Before we talk about the Harris government, we have to remember that deinstitutionalization began in the 1960s and 1970s. Unfortunately, the money did not follow into the community. Therefore, there was never really the same amount of money to provide services and treatment to individuals in the community once deinstitutionalization began, and it could be argued that there was not enough funding when institutionalization was “the norm.”
Can we say that we have improved? I think that the availability of treatment and services has improved, but we always seem to be up against a number of challenges that would include treatment, the availability of treatment and where it is available, depending on the province you live in. Certainly, some treatments are more readily available if you have private payer insurance, but even then there are often limitations.
We must remember that we have been living with this for over 30 or 40 years. As an organization that provides a lot of direct service to individuals living with and experiencing mental illness and other serious mental health problems at the community level, through housing and employment programs, et cetera, we know there is not enough funding to assist individuals who really need the services and treatment. Those services and treatments are all individualized. Everyone is an individual, so to some extent we have improved, because research has enabled us to provide better services and treatment, but in many other ways, because the funding is not there, we have not improved.
Dr. Gray: Just so we do not feel too badly in Ontario, you would hear the same assessment in every province in which I have been. There is good news, there have been improvements in terms of much more family and consumer involvement in planning services and in the treatment plan itself, but the general level of resources is a major issue in all provinces.
Senator Mercer: I have been in the not-for-profit management and fundraising business for over 25 years and have worked for a number of organizations, none that you represent, but some similar. I am concerned about, and I am looking for you to confirm it, the continuing downloading of services that we once had in our system that is now being downloaded to the not-for-profit world, and you are expected, through various fundraising arms, to raise the money to provide the services that were being provided before. You probably see that in hospitals all the time, because whereas hospitals never raised money before, the most senior person now in the hospital besides the director of medicine is usually the vice-president of development. It is good for people in my profession, but is a sign of a problem in the industry. Do you see that every day from your side?
Ms. Deighton: I wanted to raise a point about services and an individual's willingness to accept those services. This is one of the biggest challenges that we deal with at the Schizophrenia Society, and that I face when I deal with family members. Often, this illness robs people of insight and the ability to recognize that they have an illness. They have services available to assist them in daily living. They do not want them, because they are not ill. What happens then is the burden of care falls back on the family members as they struggle within a system that respects their loved ones' right to be ill until they become incompetent or homicidal or suicidal. There is frustration and a sequence of events that a family goes through. Families know there are services, but they cannot do anything until people are willing to accept them. This is where treatment comes in. Treatment with medication and therapy does open the door just a little to help that person have some insight and, working with the team, access to those services that can provide them with independence. We are not talking about controlling someone's life, we are talking about giving them their life back, and that is one of the challenges.
Ms. Marrett: The Canadian Mental Health Association has 137 affiliates across the country, of which 125 are at the local level. Most of those provide direct service to individuals with serious and persistent mental illness and other serious mental health problems. There is no question that the downloading of services has increased. We have found, though, that in some provinces, and ironically Ontario is one of them, there has been a huge influx of funds in the last six months from the provincial government. Much of it is for community services for people who are mentally ill. The real challenge then is the capacity. If you have not built up your capacity, how do you provide all of those services in such a short space of time. The government wants to see success and is trying to respond to issues. In the end, do we not all want to live in our communities? Do we want to live in a hospital if we do not have to? We need to somehow ensure that the funding is there to provide those services and treatments, especially — listening to Ms. Deighton's personal story — to enable people to live as best they can and to contribute to society. Everyone wants to contribute to society. Every individual I have met with a mental illness talks about how they want to do something. They cannot if the treatment and services are not available.
The Chairman: Thank you very much. We are quite impressed with your presentations and do appreciate your presence here today. It will certainly help us work on Bill C-10.
The committee adjourned.