Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 10 - Evidence for April 21, 2005
OTTAWA, Thursday, April 21, 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 Pierrette Ringuette (Acting Chairman) in the Chair.
[English]
The Acting Chairman: This morning we are continuing our study of Bill C-10, to amend the Criminal Code and to make consequential amendments to other acts. We are most fortunate to have distinguished witnesses today. From the Canadian Academy of Psychiatry and the Law we have Dr. John Bradford, President. From the Canadian Psychiatric Association we have Dr. Blake Woodside, Chairman of the Board. We also have, from the Canadian Psychological Association, Dr. Nussbaum, Chair and Dr. Cohen, Associate Executive Director.
Welcome to the committee. We look forward to your presentations.
Dr. John Bradford, President, Canadian Academy of Psychiatry and the Law: Good morning. The Canadian Academy of Psychiatry and the Law is one of three academies that are part of the organization of the Canadian Psychiatric Association.
I would first congratulate the Government of Canada for the work it has done. From our point of view, it is work well done. I am a little biased because I was on the mental disorders project in 1986 that started the mental disorders review of the Criminal Code which produced changes in 1992-93.
We have no major reservations about this legislation.
The brief you have is from the Canadian Academy of Psychiatry and the Law and it refers to different issues. Some are definitional issues and some are review board issues. They are not very complicated, but I would be happy to answer any questions you have.
The Acting Chairman: We have not received a brief.
Dr. Blake Woodside, Chairman of the Board, Canadian Psychiatric Association: Madam Chairman, the brief referred to was submitted about two years ago in relation to the bill. We have a copy that we can provide to the clerk, if that will be useful.
Senator Andreychuk: Was it submitted to the House of Commons committee?
Dr. Bradford: I believe that it originally went to the Commons committee that reviewed it. I assumed it had been forwarded to you but, if not, I have a copy of it.
The Acting Chairman: Thank you. We will make copies for the members of the committee.
Dr. Bradford: The paper is generally positive. There are some definitional issues, but nothing more significant than that.
I would say, though, that there is a general concern about mentally disordered offenders who get caught up under the Criminal Code, and the criminalization of them. Although this bill deals with people who have breached the law and usually, although not always, have committed criminal acts that are fairly significant to public safety, it is important to note that there is, unfortunately, a relationship between mental disorder and violence. We do a lot to keep people away from the criminal justice system and to get them into the system of review boards where findings of not criminally responsible or unfit to stand trial can be made.
One of the broad issues is the diversion of those persons away from the criminal justice system into the mental health system, which then provides them with the appropriate treatments. I think this bill addresses that fairly well. I would caution, however, that it is dependent on the system working well. It is dependent on review boards functioning well. It is dependent on provincial governments supporting those review boards and providing the resources they need so that they can do assessments, if required, which is part of what is proposed. I think that is positive.
It also requires, under proper circumstances, persons who are able to testify before those boards who may be independent of those boards or the hospitals supporting the patient. That depends on resources in any given province. If those resources are not available, the system might not work as well as it should.
Therefore, there are some resource issues in the background, so the provinces will probably be requesting money. We are all concerned that the mentally ill are not stigmatized and criminalized.
In 1939, a man named Penrose completed a study that showed clearly that, if the mental health system is functioning in a certain way and, for argument's sake, not as efficiently as it should, the mentally ill shift to the criminal justice system where, as we clearly know, the resources to treat them and evaluate them from a multidisciplinary perspective are lacking.
It is important to be aware that this does not operate on its own. It is affected by resources and the administration of the province. If the provinces do not put resources into ensuring that this moves forward, one of the dangers is criminalization of the mentally ill, which is something we try to avoid. History shows that that has happened in the past.
The second issue is stigma. Although persons dealt with in the system have committed a criminal offence, they have been found not criminally responsible on the basis of mental disorder and they do not have a criminal record. That, I think, should be the end of it.
If you divert them completely into the system, then the system must be allowed to develop so that it can help and rehabilitate these people. Certainly in Ontario and in most provinces, that system works well. The process of rehabilitation has been a success and the risks to the public have been minor as they relate to re-offending. It works well as compared to, say, either the federal and provincial correctional systems.
There is a misunderstanding that these persons who are at higher risk may need more control than what will be provided by the passage of this bill. I would suggest that that is not necessary. They should not be stigmatized or criminalized. In fact, they should be dealt with in a fair and even way as mentally ill persons who, unfortunately, have run into contact with the law and been through a court of competent jurisdiction that decided that they are not criminally responsible.
That completes my remarks. You have a copy of the brief. I will be happy to answer any questions at a later stage, should you have any.
Dr. Woodside: Madam Chairman, I am here today to speak on behalf of Canada's 4,000 psychiatrists. It is a pleasure to have the opportunity to address this committee.
[Translation]
Dr. Bradford is our technical expert on legal matters relating to forensic psychiatry, so I have little to add to his comments. The broader issues that this bill speaks to are the criminalization of those with mental illness and the appalling lack of treatment resources that incarcerated individuals have access to in Canada.
If you had to pick the three groups most poorly served in our society in terms of mental health, the first would be children, the second would be our Aboriginal population and the third would be our population of those in prisons. As an association, we are aware that dedicating adequate resources to treat the population in prisons would be an extremely daunting task, but it is the least we can do for such unfortunate individuals.
I am here primarily in a supporting role to Dr. Bradford. At this point, I would be pleased to turn the floor over to the other witnesses.
Dr. David Nussbaum, Chair, Section on Psychopharmacology, Canadian Psychological Association: Honourable senators, please accept our thanks for inviting us to present to you today on Bill C-10. We want to acknowledge the contributions made to this presentation by the section on criminal justice systems of the Canadian Psychological Association, and the criminal justice representative to the board of directors of the Ontario Psychological Association.
We commend this standing committee on many of the amendments to the bill. In the case of persons found unfit to stand trial, it will create efficiencies to enable provincial review boards to recommend a court inquiry, or to allow a court to hold an inquiry of its own motion. Further system efficiencies will be afforded by permitting a court to grant a stay of proceedings in the case of a permanently unfit accused and by clarifying that files and transcripts may be transmitted from courts to review boards.
With regard to the transmittal of files, however, attention must be paid to health privacy guidelines in each jurisdiction. With provisions to facilitate transfers from one jurisdiction to another, accused individuals will have more access to family members, which in turn will impact positively on treatment adherence and efficacy.
Several of the recommendations about the rights and roles of victims, such as providing them notice of hearings and of their entitlement to file a victim impact statement, will most certainly help victims to view the system as less adversarial and less onerous. However, we do have some concerns about the use of victim impact statements in the disposition of a mentally disordered accused.
In sentencing hearings for responsible criminals, victim impact statements may be entirely appropriate because punishment should in some way reflect the harm done to the victim. With mentally disordered accused individuals, the only two legally mandated considerations are to ensure the safety of the public and to rehabilitate the accused individual so that he or she can be reintegrated into society. Nowhere in the Criminal Code is there a call for the punishment of the not criminally responsible accused. Victim impact statements speak to the effects of a prior act. The magnitude of impact on the victim or the victim's family tells us nothing about an accused's current level of risk or need for treatment. Such statements are consequently prejudicial, have no probative value, will detract from the assessment of current risk and, in our view, should not be admissible at review board hearings.
We would also like to make a few remarks in response to the commentary detailed in the bill. The commentary notes theover-representation of mentally disordered persons convicted of an offence in the prison system and the need for more funding and services in mental health in general. Mental disorders are prevalent in inmate populations. It is not reasonable to expect that all persons charged and convicted of an offence will be free of mental health problems, nor is it accurate to maintain that the health system is the only venue in which mental health problems can be assessed and treated. In fact, the mental health problems and conditions of Canadians are addressed across sectors and include the offices of health professionals, clinics, hospitals, schools, as well as correctional facilities.
Media reports of inmates detained in correctional facilitiespre-sentencing and post-sentencing are ignorant of the fact that Canadian correctional systems do employ psychologists who successfully assess and treat inmates for mental health problems and disorders, resulting in improved mental health, decreased recidivism and enhanced institutional security. In addition, correctional facilities have consulting psychiatrists who provide diagnostic and psychiatric treatments.
Ms. Karen R. Cohen, Associate Executive Director, Canadian Psychological Association: We would conclude by providing some feedback on the standing Senate committee's recommendation that the Attorney General be permitted to designate those health practitioners in addition to psychiatrists who can assess the mental condition of accused persons. This recommendation is an important one because it can improve access to specialized assessment and intervention for accused persons with mental disorders.
The CPA is concerned, however, about the government's reticence to specifically designate psychologists as qualified assessors in this section of the code. Health professionals in Canada are licensed provincially and territorially, not federally. The licence acts permitted by the provincial legislation that regulates psychologists, include the diagnosis of mental disorders. Accordingly, the argument that a psychologist cannot assess mental disorders because a psychologist cannot recognize medical disorders, defies provincial legislation.
As we pointed out in our 2002 report on this topic, which is also in your folders, psychologists are specifically designated as qualified assessors of mental functioning in other sections of the code, for example, those sections dealing with young offenders and with determinations about dangerous offenders. Further, psychologists have been deemed qualified to assess mental disorders by other federal and provincial programs, such as determining a person's eligibility for disability credits and supports.
What are being designated via Bill C-10 are the qualifications of a practitioner to assess mental functioning, not necessarily to provide specific treatments. Accordingly, the fact that psychologists cannot provide evidence related to medical treatment of mental disorders is irrelevant. It is important to point out that, just as there are treatments for mental disorders, such as prescribing medications that a psychologist cannot perform, there are assessments of mental disorders that only psychologists are trained to perform. Mood, cognition, personality, dangerousness and malingering are more validly and reliably assessed using psychological tests than by clinical interviews. Psychologist assessments of fitness to stand trial, criminal responsibility and future dangerousness are based upon these tests and measurements of mental functioning, tests that have been designed, administered and interpreted by psychologists.
Furthermore, it is these psychological findings that are often integral to the assessment reports authored and submitted to the courts by psychiatrists. We point out as well that malingering is in fact a much more prevalent issue in fitness or criminal responsibility assessments than is an undiagnosed and relevant medical condition.
We suggest that, if the government maintains that psychologists' lack of medical training compromises their ability to assess mental functioning, it also consider whether other health professionals lack of psychological training compromises their ability to assess mental functioning and subsequent psycho-legal issues.
Finally, we take issue with the statement that forensic psychologists are in short supply. Correctional Services Canada is the single largest employer of psychologists in the country. Canadian psychologists have national and international reputations in the area of forensic and correctional psychology. Tests and measurements of mental functioning and psycho-legal status used with offenders throughout the world have been developed by research psychologists, many of them employed by Canada's national and provincial, correctional and forensic institutions. There are doctoral programs in forensic psychology in many of Canada's leading universities and, finally, there are almost four times as many psychologists as psychiatrists in Canada.
The recommendation to designate other qualified practitioners as assessors in this section of the code was made so that the pool of practitioners qualified to undertake this function would be increased. Even if there were few psychologists skilled in the area of forensic and correctional assessment — and that is not the case — these few would still increase the pool of qualified assessors.
CPA is advocating for the designation of psychologists as qualified assessors of mental functioning of the accused because we are qualified to do so, as recognized in provincial legislation and regulation. In other countries, such as the U.S. and Australia, legislation permits psychologists to assess fitness to stand trial and criminal responsibility.
We are also advocating for inclusion as assessors because so doing improves quality and access to needed services by the courts and by accused persons with mental disorders.
We thank you, senators, commend you on your work, and welcome your questions and further discussion.
Senator Andreychuk: I will take up the last point first.
I am aware that there are more psychologists than psychiatrists. You say they are in research, they are in federal government, et cetera. Is the pool wider and better in the areas where we need them most, that is, in our northern communities, in our rural communities, or is it the same as it used to be when I was doing this kind of work where, if we needed a psychiatric assessment or a psychological assessment, we had to transport the service provider or transport the patient to a major centre? In the rural communities we were always without all of these resources. Has that changed?
Ms. Cohen: That issue was raised in the 2002 report. The saturation of psychologists in rural areas is better than that of psychiatrists. The point made in the report was that there were local psychologists but because we were not designated, someone would be brought in.
That picture may have changed and I will let our colleagues in psychiatry speak to that, but I think the penetration even in rural areas is better.
Dr. Woodside: From the point of view of the Canadian Psychiatric Association, it would be presumptuous for us as psychiatrists to comment on the qualifications of psychologists. We are not psychologists. We are not trained as psychologists, and we are not in a position to comment on the training.
We would support all qualified personnel being involved in assessment and treatment of those with mental illnesses. We have advocated for many years that we should work as collaborative groups of mental professionals to try to provide these services. As an association, we do not have any particular problem with psychologists being involved in this process, or any other professional body that can demonstrate that it is adequately qualified to do the work.
The bottom line is that there is more work than an enormous army of psychologists and psychiatrists could ever get through. We are not in a circumstance where we have to protect our turf because there is so much work that we cannot do it right now. We are often partnered with our psychological colleagues. That is part of the way we practice. Just so the committee is clear, there is no agenda on the part of the Canadian Psychiatric Association to shut out psychologists. We value the work of psychologists, we value their training, and we value our collaborative relationships with them.
Senator Andreychuk: From the comments Dr. Cohen made, understand your limit is that you can do an assessment and diagnose a disorder or disability, but you cannot go to the next step and prescribe clinical treatment or the drugs. Please correct me if I am wrong.
A judge and a review board, and I take those to be the same, are asked to decide if a person is unfit to stand trial, or is not capable of being in the community because of violent activity. The review board and judges need to know how to assess that person as a whole. They must determine the problem and how they can allow him to stay in the community but, at the same time, keep the community safe. They need your assessment, and you need the capability to implement a treatment that would allow him to remain in the community with no risk to the community.
Is there a point where you have to stop? Can you prescribe all of the treatment that would allow a person to be released safely into a community? I am not referring to a person who has been treated and is well but, rather, one who would be safe in the community.
Ms. Cohen: We cannot prescribe medications, but those are not the sum total of the range of interventions for people with mental health problems. There are any number of other kinds of psychotherapies, cognitive behavioural therapies and relapse prevention programs that are for and available to people with mental health problems. In fact, often some combination of those therapies works better than medication. There are a range of options. It would not be accurate to say we could not provide treatment. There are obviously some medical treatments that we cannot prescribe and there are some conditions for which medical treatments are unequivocally necessary, and every psychologist would recognize that.
Perhaps Mr. Nussbaum can speak to the question before review boards.
Mr. Nussbaum: You are certainly correct in that there is a point at which we would refer an individual to a psychiatrist, and I would mirror Dr. Woodside's comments that we have very good collegial relationships with psychiatrists. I have been working in psychiatric institutions for the last 18 years, and I recognize that there are conditions for which medications are absolutely necessary and psychotherapy cannot begin to work until a person is stabilized.
However, the issue that we raised in our brief has to do with the assessment. I think that all clinical psychologists recognize which individuals require medication. They may even have an idea of the type of medication, but it is at that point that we would refer the individual to a treating psychiatrist. In terms of the assessment, that is not an issue. Frequently, the assessor is not the person who decides on the treatment. The person may be referred by the assessing psychiatrist to someone who treats in a hospital setting. In that sense I do not think it is a barrier to our working collaboratively with our psychiatric colleagues who would provide the treatment.
Senator Andreychuk: The 1939 study referred to is one with which I am familiar. Since 1939, have we moved further towards understanding the overlap between mental disabilities and illnesses and criminal behaviour; and when does this behaviour turn into violence?
From my limited reading and understanding and the cases that I have handled, I recognize that predicting violence is difficult. When someone who may have demonstrated minor aggressive behaviour on a number of occasions, such as spitting at someone or being verbally abusive, turns into a violent person offender, then we can study whether that escalation in behaviour was because he was not treated properly.
In trying to determine that, I came to the conclusion that the earliest possible intervention in the case of a young person is useful in both correcting the mental health problem and the criminal behaviour, but after that point it is quite a guessing game. Am I right?
Dr. Bradford: You have covered a lot of ground.
With regard to your question on the Penrose study, today, in the Metro West Detention Centre in Ontario, of those people being held awaiting trial, more than 20 per cent have a serious mental illness, and the facility to provide treatment is not good. The percentage of people with serious mental illness in corrections in Ontario has increased.
About 10 years ago I was part of a study that was done. You have me a little on the spot, so I have to think about it. A snapshot survey was done on a given day. From memory, between 100 and 150 people were certifiably mentally ill on that given day, and about another 300 were seriously mentally ill. In technical terms, that meant, within the Province of Ontario, that you needed 450 psychiatric beds, which were not available. Moving that forward in time by six, seven or eight years, that number would double so that there would be 300 who were certifiably mentally ill, which, by definition would require removal and admission to a hospital for serious mental illness such as schizophrenia; and about 700 who were seriously mentally ill. During that time frame, if anything, the number of psychiatric beds had decreased rather than increased. That is the Penrose phenomenon all over again.
The solution, from my point of view, has been to lobby the Government of Ontario to deal with this problem. We have been fortunate. About a year or so ago, a secure treatment unit was established at Brockville, Ontario, which provides the same standard of health care as would the Royal Ottawa Health Care Group in Ottawa. It provides the same standard of health care that you would receive if you attended a psychiatric facility. We have been able to provide that in a 100-bed unit for people with a serious mental illness who are serving a provincial sentence. That is part of the solution, but it is not the whole solution.
Another part of the solution also depends on social supportive housing. For example, we have been proud to deinstitutionalize people from psychiatric facilities. Some people say that this is a major public health success in North America. The downside of that, however, is that a number of people were decanted into the streets, but there was a lack of social housing. Aspects of their personal stability failed and they then started to become ill, they abused drugs, and the cycle started where they would become criminalized. Deinstitutionalization is one aspect; social supportive housing is another; and general availability of treatment facilities is yet another.
Another issue with regards to violence and mental disorder is that, for many years, psychiatrists and psychologists were saying — mainly out of the concern that we not stigmatize the mentally ill — that there was little or no evidence of increased risk of violence if a person suffered from a mental illness. In fact, that is not accurate. Generally, even minor mental illnesses carry with them an increased risk of physical violence. When you deal with mental illness such as schizophrenia, the risk is significantly higher. If you add substance abuse to that, the risk is enhanced. Unfortunately, that is the case.
The positive side is that all of that can be treated appropriately and patients can be rehabilitated where the risk of recidivism, in other words, the risk of another violent re-offence, is much lower. If you look at that compared to, say, persons in the correctional facilities who do not have a serious mental illness but may be dealing with substance abuse, overall, the risk is less with this group and they are more responsive to treatment. The other groups are more difficult to treat.
It is a good news, bad news argument. Generally, if we do not accept that there is an increased risk, then we cannot take an approach and offer programs to deal with the risk. It is the same argument. If you smoke, the chances of getting cancer are significant. If you are mentally ill and abuse alcohol and substances, the risk is of violence is enhanced. That is the reality. It is a public health issue and a public education issue, but it has a solution which relies on the mental health system and treatment by professionals.
Senator Callbeck: Dr. Nussbaum, my question relates to victim impact statements. In your presentation, you told us that they should not form part of review board hearings.
Mr. Nussbaum: Yes.
Senator Callbeck: Many victim advocacy groups have told us that they want more involvement of the victims in review board hearings. We have heard both sides of this argument. Obviously, you do not think those should form part of the hearings.
Dr. Bradford, you told us that you have no major reservations about this proposed legislation. Your brief was just passed around, so I have not had time to read it. Would you comment on whether you want victim impact statements to be excluded from review board hearings?
Dr. Bradford: Dr. Nussbaum and I both sit on the Ontario Review Board. I have been a member for over 20 years. Victim impact statements have been part of review board hearings in Ontario for some time. They are public hearings, so that family members of victims can attend. They are notified of the hearings. They could be accepted as a party to the hearing. If they had concerns, for example, if the accused before the hearing was to be given freedom to visit the community where they live, they could, through the Crown attorney at the hearing, raise objections, which objections the board would take seriously.
An issue Dr. Nussbaum raised had to do with the fact that these are people who have been found not criminally responsible. They have a major mental illness. That illness can be fragile, and victim impact statements can lead to deterioration, fragility, and other conditions. The role of the board is not to mete out punishment; its role is to protect the public, and it does that by imposing conditions and restrictions. However, the board is also compelled to consider the mental condition and other needs of the accused and to set up a treatment and rehabilitation program. It is a little more complicated than a criminal hearing where victim impact statements are usually considered with regards to sentencing and are part of the decision-making process in sentencing.
I said that I do not have reservations because my experience has been, at least in Ontario, that the chairmen of review boards have been sensitive to all the issues I have just mentioned. There is a balance, and the chairs and boards, generally, are well informed. They include lawyers, psychologists, psychiatrists and other health professionals. It is handled fairly reasonably, so therefore I do not object. If it became routine, I would have more concerns. If it were a threat to the stability of the person before the board, then it may actually conflict with the issue of rehabilitation, and that is what the board is all about. The bill will enforce a right that already exists and does occur on occasions.
Mr. Nussbaum: Sitting on review boards, I have seen groups of victims and families of victims appearing at hearings for mentally disordered accused. While it is true that the chair of the board and the legal members are sensitive to this issue, a subtle influence is created that, as human beings, is difficult to disregard. There is almost a sense of political correctness, because the family and other associates of the victim are present, that we have to look at the other issues, when the code itself specifies which issues the board is supposed to consider.
Although I am aware of the Winko decision and the regulations, as a board member, it is difficult to simply disregard that when those people are sitting there. That is the basis of my concerns.
Senator Callbeck: Who can do assessments? This bill will expand that definition. Dr. Cohen, you spoke to this. I would like to know exactly what you want in this proposed legislation to do.
Ms. Cohen: As I understand it, initially there was some consideration of specifically designating psychologists in the act. Concerns were raised about that later, so it was changed and left to the determination of the Attorneys General. That had to do with the concerns about how many psychologists there are and the fact that psychologists cannot give medical evidence. Our point is that we are qualified to diagnose and assess mental disorders, so we took issue with the rationalization that was used to specifically not designate psychologists. Expanding the legislation to allow the Attorneys General to designate assessors is a good step forward. We took issue with the fact that, specifically, we were not designated.
Senator Callbeck: You would like to have included psychiatrists, psychologists and anyone else that the Attorney General deems appropriate?
Ms. Cohen: Absolutely.
Senator Callbeck: I was interested in your answer about the supply of psychologists. I thought that they were in short supply, especially in rural areas.
Ms. Cohen: There is no equivocation that there are more psychologists than psychiatrists. Psychiatrists are in short supply in mental health across the board. However, access is also an issue for psychology in different ways, not simply because of the numbers, but because some psychological services are provided outside of the publicly funded system. Psychologists in private practice are fee-for-service that is not covered by provincial health care plans.
From the brief that we submitted to the committee in 2002, my understanding is that the penetration of psychologists in rural and northern areas is greater than that of psychiatrists, which would be expected, given that we have almost four times the number.
The Acting Chairman: Dr. Woodside, do you have a comment?
Dr. Woodside: The Canadian Psychiatric Association would support any qualified person being involved in these activities because there are such shortages everywhere, and that would apply to psychologists, psychiatrists or qualified family doctors. The last thing we want to do is deny people service for no particular reason. The key is that the person must be qualified to perform the particular activity. Many psychiatrists would not view themselves as qualified to do these assessments because they lack the training. I am sure the same would be true of many family doctors and psychologists. If the person has the training and experience to do the assessment, then there is no particular reason why he or she should not do it.
Senator Joyal: I would come back to the fundamental intent of the bill. Most of the provisions of the bill deal with persons who are not mentally fit to stand trial. If they cannot stand trial, then they are presumed innocent, under the provisions of the Criminal Code. Anyone charged with a criminal offence is presumed innocent until a court proves otherwise on the basis of the evidence presented.
Mr. Nussbaum, you said that the victim impact statement might reflect some form of punishment or be linked to a form of punishment. I am concerned by that aspect of the legal reality that we are dealing with in this bill. When a person who is mentally unfit to stand trial is brought before a review board, that person still has the presumption of innocence. To bring the victim before the board at the same time as the mentally ill person is to have present someone whose involvement in the crime is real. That is well stated. However, the mentally ill person who also stands there has not been found guilty. If that person were deemed fit to stand trial, the court might find that person not guilty. Thus, the relationship between that person and the victim would no longer exist. Any element in the system that deems the mentally ill not to be covered by the presumption of innocence is, in fact, an infringement on the rights of that person under the Criminal Code.
I went through all the clauses and proposed sections of the bill. It is a complex bill, and I applied all my voracity in reading it. It is difficult to clearly understand the concepts enshrined in those proposed sections unless you have the evidence of witnesses who are the practitioners who work with these individuals on a daily basis
Mr. Nussbaum, from your experience as a member of a review board, do you believe that this bill contains elements that could be construed by the mentally ill as a form of punishment to be borne while still protected by the presumption of innocence?
Mr. Nussbaum: That is an excellent question. I will reread what I said. Nowhere in the Criminal Code is there a call for the punishment of the not criminally responsible accused person.
Review boards deal with two kinds of accused, or patients, if you will. One involves those who are referred for fitness to stand trial, who have been found typically unfit for a long time.
Senator Joyal: That is in section 672.11 of the Criminal Code.
Mr. Nussbaum: As a practitioner, I marvel how lawyers can rhyme off these subsections and sections. As a simple clinician, I could never manage that.
My comments were specific to the person found not criminally responsible. I cannot recall ever seeing victims or significant others of victims at hearings for people who were found unfit. The presumption of innocence relates to those found unfit.
I am not a lawyer, but my recollection is that there was an amendment following the Swain decision. It may be a subtle matter but, prior to Swain, this group of people were found ``not guilty by reason of insanity,'' whereas now the term ``not criminally responsible on account of mental disorder'' implies that there was a guilty act. The commission of the act in the NCRs is not the question. In terms of the act at least, there is no guilty mind, but there was a guilty act. In a sense, the presumption of innocence of the act is not there with the NCR accused. With that latter group, you find victims and their families appearing at hearings, not with the fitness cases.
Senator Joyal: I have here 672.1(1) of the Criminal Code, because it is the first section referred to in clause 2 of the bill under the definition of assessments, which states:
``assessment'' means an assessment by a medical practitioner or any other person who has been designated by the Attorney General as being qualified to conduct an assessment of the mental condition of the accused under an assessment order made under section 672.11...
Section 672.11 of the code states:
A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine
(a) whether the accused is unfit to stand trial;
(b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of section 16(1);
(c) whether the balance of the mind of the accused was disturbed at the time of the commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly- born child;
(d) the appropriate disposition to be made, where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial has been rendered in respect of the accused; or
(e) whether an order should be made under subsection 747.1(1) to detain the accused in the treatment facility, where the accused has been convicted of the offence.
In other words, there are two tiers of criteria to be applied when the person comes before a review board. When the person is first before a review board, as much as possible, that should be in the context of a medical and psychological evaluation. It could be limited to that, and the person should benefit from all the protection of the presumption of innocence.
Mr. Nussbaum: I agree. The comment I was making was specific to those who are before a review board, having been found not criminally responsible. Certainly, with fitness, your point is very well taken, being that they have not been found guilty. They have not even been to trial. It would be perhaps making an assumption to have victim impact statements, because it has not been determined that the individual actually committed the act.
Senator Joyal: Exactly.
The second tier is where the accused has been convicted of the offence. A person could be convicted of the commission of an act with no mens rea. The Crown does not have to prove that the person had a mens rea, only that the person wanted to do harm. In some instances, the mens rea component is not included in the offence. When mens rea must be present for an offence to have been committed, a mentally ill person cannot be found guilty under the Criminal Code, because such a person does not have the capacity to form the mens rea, that is, to form an ill intent. Am I right?
We have two different categories of offences. If a person has been found guilty of an offence by the mere commission of an act with no ill intent, to me, when the person goes in front of a review board, the idea of the person being able to sustain the punishment or a form of punishment is not at all the same kind of meaning as in the context that mens rea is needed and the person cannot, in fact, form a mens rea. Am I overstating the situation, or am I reading the situation correctly?
Mr. Nussbaum: Let me put a different spin on it, which I think reflects your point. The goal of what the review board is to assess the risk that the individual presents to the community in his or her present state. The board wants to manage that risk in a way that is least onerous and restrictive, and that is to facilitate the rehabilitation and eventual reintegration of the individual into society, if that is possible.
The information presented by victims or their families does not speak to the present risk, nor does it speak to managing risk.It may refer to the state that the person was in when thecrime was committed. Sometimes people have been in the system for 25, 28 or 30 years. They may not be the same person today as they were then.
Let me give you a historical perspective. When the Criminal Code was amended in 1992, people with severe personality disorders no longer came under the ambit of the NCR defence. In Ontario, prior to 1992, some people with severe antisocial personality disorders or psychopaths were actually diagnosed with other conditions. Dr. Bradford is intimately familiar with this; he has been on the board for a considerable period of time. Those people have conditions that may never change, or at least nobody has found ways of changing them.
The people who are coming into the system today aredifferent from the population prior to 1992. For example, prior to 1992, the percentage of people charged with murder or manslaughter was 79 per cent. Since then, the percentage has been about 20 per cent. That is a direct effect of the amended legislation because now summary offences are included under the NCR provisions.
From a lawyer's perspective, in the old days, being that an accused could be held indefinitely at the pleasure of the Lieutenant Governor, a criminal lawyer would not be wise to have a mentally ill client who maybe was charged with shoplifting or some other minor offence plead NCR, because that accused might be in the system indefinitely. It would be better to plead guilty, take your 30 days or six months or whatever, and be released.
Today, especially with the Winko decision, many people plead NCR, and then they undergo a risk assessment. If they are found to be low risk, they are released quickly.
Today we have a different set of people entering the system. Needs have changed. We do not see the hard core personality disorders as such. If the system is working efficiently, they should not be entering the system at all, but going into the correctional system. We see more of the mentally ill who do need treatment, and effective psychiatric treatment is available to them.
Getting back to the issue, given this reality, victim impact statements are prejudicial because they speak to an act that may have been horrific but was likely committed when the individual was in a psychotic state. That is the basis of an NCR defence. If the person is treated and has insight and stays on medications, there is a good prognosis. Recalling what the person did two, five or twelve years ago does not inform the board relative to its focus, but it may have a prejudicial impact. Despite the fact that the code may specify that we are to disregard it, we are all still human beings, and we hear what the victims and their families say. It is difficult to put that out of your mind.
There is also a sense that you do not want to disappoint or upset the victim or the victim's family. Can we grant an absolute discharge to somebody who may have killed one or two children in a horrific way and who, today, does not pose a risk or a very small risk? That was what was behind my concerns.
Dr. Bradford: To focus specifically on the issue, section 672.5 of the Criminal Code outlines the procedures of the review board, and under subsection (14), victim impact statements were allowed at the hearings. There was a broad allowance. As I read the amendments, under the proposed subsection (15.1) the victim will be permitted to read a statement prepared and filed in accordance with subsection (14) or to present the statement in any other manner that the court or review board considers appropriate, unless the court or review board is of the opinion that the reading or presentation of the statement would interfere with the proper administration of justice.
If you have a person before the board who is unfit to stand trial, a victim impact statement would be inappropriate. As you appropriately point out, the person has not been found guilty of an offence because the not criminally responsible trial was bifurcated. The first part of the trial deals with whether the person is found guilty or not guilty. The second issue is to determine what the person's state of mind was at the time of the commission of the offence. This provides a safeguard that was not present originally.
As it reads now, a victim impact statement could go in at any time. Here, the reference to the administration of justice — and I am not a lawyer — addresses the concerns you have raised.
The code allows, in respect of a person who is found unfit to stand trial, and where there is no hope of the person recovering or ever becoming fit, every two years the Crown attorney to put forward a prima facie case respecting whether the person should continue to be held. That effectively prevented the person's rehabilitation. This bill will allow that rehabilitation to occur. It removes the necessity to put forward a prima facie case every two years. Of course whether the person is guilty or innocent has not been decided. It will allow the person to undergo a process of rehabilitation if he or she is deemed to be permanently unfit.
I still think the concern is that, even in the case of persons who are found not criminally responsible and who are fragile, for example suffering from a schizophrenic illness or bipolar illness, a victim statement may affect their stability at the hearing. There is discretion in this bill to take that into account. I think it deals with it. However, Dr. Nussbaum is right is saying that it can be a concern.
Senator Joyal: Let us put ourselves in the shoes of the victim. A victim wants justice. That is normal. We expect justice from the system. However, there has been no trial and the person suspected of the crime has not been found guilty. The victim has received no benefit from the justice system and there has been no retribution for the damage the victim has incurred. As a member of a review board, you have before you the victim who is expecting justice, as it is his or her right, according to the rule of law in Canada. You also have in front of you a mentally ill person, and you have to assess the risk that person presents to society. Psychologically, are you not tempted to be harsh on the mentally ill person, even though the person has never been found guilty? You want to do justice to the two persons in front of you, and you have to decide. I ask the question because you are a psychologist, and I think this type of question would appeal to a psychologist.
Mr. Nussbaum: I am flattered. As a psychologist, I will reiterate a point that I made before. We are human beings, and the funny thing about us is that we have brains that do not work the way we imagine brains should work because our brains have different networks that process different types of information simultaneously. We get a picture that is conscious, that is whole, but that is not how the brain is processing the information. It is actually processing things in different streams. Consciousness somehow, and this is still a mystery, puts it all together. This is true in perception. It is also true in emotion.
That is why, when we look back, we have no idea why we made a certain decision because it makes no sense. When we imagine a decision we will make, we sometimes do not follow that decision through.
I do have a concern about people being present, even if they do not say anything. This happened about a month ago at Penetang when I was on the board and Dr. Bradford testified. About 17 or 18 victims and their families were there. In that particular case we were dealing with somebody who had a personality disorder and was diagnosed as a sexual sadist. The board had a lot of concerns and would have done the same thing had the families been there or not. A few years down the road it is possible that this person will be a reduced risk, but the board will always, out of the corner of its eye, see the victims and their family members and it will play on their minds.
Many senators here may have practiced law or been in the legal system in some way. If the judge tells a jury to disregard a witness's previous statement, cognitively they will adhere to the judge's dictum, but it is difficult, at an emotional level, to disregard something, and many of our decisions are made at the emotional level.
Dr. Bradford: Under section 672.541, the victim impact statement, there is mention of a verdict of not criminally responsible and that the victim impact statement should apply in that event. In other words, there is a finding a guilt but not criminally responsible on the basis of mental disorder.
Victims attend the hearings and whether or not they make a statement is taken care of. They have a right to attend the hearings. I support that absolutely. They have a right to voice concerns. If, for example, the person before the board is going to be released, the victim may want restrictions on travel so that the person must avoid the city or place where the victim lives. I have no difficulties with that. It is quite appropriate in many cases. Simply to be at the hearing is positive, generally speaking. It helps the tribunal if they do have an input. Of course, the Crown attorney, as a party to the hearing, clearly does have a responsibility to protect the public and, therefore, can represent victims' interests. Certainly in Ontario I believe they are well represented through that route.
Senator Joyal: I have a question about the resources available for the implementation of the objectives of the bill. Some years ago we had to deal with the establishment of a new system for youth criminal justice. The minister at that time made a public commitment that increased funding would be transferred to the provinces so that the objective of the bill could be achieved. Of course, everyone will say that the funding was inadequate, but at least the tabling of the bill was simultaneous with the announcement of additional funding.
In this instance, we are revamping the system to put more emphasis on the support of the mentally ill, and we do not have a simultaneous announcement of resources to help the provinces cope with that new responsibility.
Unfortunately, I was not here when the minister testified last Wednesday afternoon, although I did read the transcript of his statement. Are we not in fact paying lip service to the objective of the bill if we do not ensure that additional funding will be made available in the context of the chunk of the pie that the government could cut for that priority? As you said, mentally ill persons are one of the most needy groups of Canadians.
Dr. Bradford: That is my concern. In talking about criminalization of the mentally ill, I was saying that this is part of the system and, if this part does not work, then the fallback position will result in mentally ill people ending up in correctional facilities where the standards of care are much less. You are right in saying that any bill that brings about changes does carry with it some resource issues, and its success will depend on what resources are put behind it. A tribunal will function effectively if it has the resources to function. If a tribunal needs an evaluation and assessment — and that costs money — if they do not have the money they will not get the assessment. Then some of the positive aspects of the bill will fail. Unfortunately, money does come into it.
Dr. Woodside: My brother is a forensic psychiatrist who works with Dr. Nussbaum at the Centre for Addiction and Mental Health. I cannot quote the recent case law for you because I am not a lawyer or a forensic psychiatrist, but I gather there is increasing momentum in the judicial system to order treatment for individuals who are mentally ill and to make it mandatory. My brother has talked to me about the entire Centre for Addiction and Mental Health being overwhelmed by individuals who are diverted out of the legal system and into the mental health system where there is not the capacity to deal with them. This has been ignored for decades.
Dr. Bradford can talk about the law, but the resource implications are huge. It is a wonderful idea to mandate treatment for these people, but cost estimates to deal with this are upwards of $30 billion a year. It is not nickels and dimes, but a huge investment.
Mr. Nussbaum: I have been involved at the Centre for Addiction and Mental Health for 17 years. It was known as the Clark Institute before that. I would concur with Dr. Bradford and Dr. Woodside. Richard Schneider, who started out as a forensic psychologist but who is now a judge in Toronto, has written about the forensic system as the poor man's mental health system or the mental health system of last resort.
What we have seen, time and time again, not in all cases of course but in many cases, is that the problem started within the family. Research shows that the victims of schizophrenic violence tend to be family members, and especially mothers. They try to get mental health support and treatment for their family members and do not get it. There follows a relatively minor assault and, finally, not knowing what else to do, they call the police. The person is arrested. In that way, victims know they will be protected in the short run but, more importantly, they will get at least some help for the family member.
As to efficiencies, if you are to provide optimal or even reasonable care, the mental health costs will be the same. What you add is the police costs, the court costs and the review board cost. Even if you want to look at it from a dollars and cents perspective, it would be much better to treat people within the mental health system and avoid the police, court and review board costs because those costs are considerable.
Dr. Bradford: On the same theme, six months ago therewas a case decided by His Honour Justice Demarais here in the City of Ottawa where the persons who had been adjudicated and found in need of an assessment order on the basis that they were unfit and needed hospital admission to render them fit were being held in correctional facilities because no beds were available for them. I have been with the Royal Ottawa Health Care Group for 10 years. That problem is becoming worse year by year.
One of the solutions being put forward in order to meet the constitutional challenge — and it has been declared that this is unconstitutional and against the Charter — is that the treatment order of this bill or the existing Criminal Code provisions should be used more vigorously.
In the normal process, a person would go into hospital and have the ability to voluntarily consent to treatment. In Ontario, under the Health Care Consent Act, if the person were declared incapable, a public guardian or a relative could consent on the person's behalf, and that is where the matter would end.
Under the Criminal Code mental disorder section, if a person appears before the court and is found unfit, most commonly due to schizophrenia, and requires pharmacological treatment and hospital admission, regardless of whether the person or his or her family consents, the person can be ordered to have that treatment upon the presentation of medical evidence.
I have no problem with that in principle, but it bothers me that, if you try to cut out the first two steps because of a resource problem, you will be taking away rights that we all have with regard to medical treatment and going to an order directly from a judge where consent is not even considered. Resources come into it. If we do that because we do not have enough resources and people are backed up in jails, I am concerned that we will be infringing on the rights of the mentally disordered offender.
Senator Pearson: Dr. Nussbaum talked about the number of family members who are also victims. That interfaces with the issue of victims' statements and presence and how that works with related and non-related victims. There are often quite different situations. Could you comment on that? You told us that it is the families of individuals who are seriously mentally ill that usually become victims. We have heard evidence about misinterpretations of people's behaviour, such as urinating outside, as a result of which they are accused of exposing themselves sexually. In India, a whole continent of males would be accused of that.
The more serious issue is how we deal with the kinds of mental illnesses that will always exist throughout the world in very small numbers. My interest is in trying to deal with such problems early on, that is, trying to help families deal with certain behaviour in the extremely early stages. We prefer to use the mental health system at an earlier stage rather than incur additional expense later, as is true in the youth criminal justice and other systems.
Senator Kirby's committee, which is conducting a study on mental health, will be spending a whole day on children's mental health facilities. I would urge you to put on the record here your support for increased facilities for children's mental health.
Dr. Woodside: I had the pleasure of testifying before Senator Kirby's committee yesterday on behalf of the Canadian Psychiatric Association. I said there that if he needed a suggestion on where to start, it would be with children. The Canadian Psychiatric Association is on the record as supporting a major investment in children's mental health.
Madam Chairman, I regret that I misjudged the timing of this hearing. May I be excused so that I do not miss my plane?
The Acting Chairman: Absolutely. We thank you for your presence here today.
Mr. Nussbaum: I agree wholeheartedly with respect to changing the antisocial behaviour of children at a young age. A number of studies show — although probably studies were not necessary because it is intuitive — that the younger the age at which these antisocial behaviours manifest themselves, the greater the risk throughout adolescence and adulthood. There are effective treatments for the antisocial component. The most studied and most successful of these is called multisystemic therapy. It is quite involved. At the Hospital for Sick Children, a psychologist has piloted a number of research projects, some of which are taking place in Ottawa. At three sites in Ontario they are looking into this, and they are meeting with some success. It involves targeting not only the child but the child within the family system. The whole family starts changing how they communicate and they identify goals and procedures, et cetera. Empirically it has been found to be very successful.
It is not a treatment for psychotic illnesses, which is another piece of the overall puzzle. Children's services are vastly underfunded. I echo my colleague's comments. I cannot speak on behalf of CPA, although perhaps Dr. Cohen can, but from my perspective, that would be an excellent place to invest.
Dr. Bradford: A number of individuals who, unfortunately, are violent to family members, have major psychiatric illnesses such as schizophrenia, the treatment for which is pharmacological. One of the barriers has always been that the pharmacological treatments had significant side effects. More recent developments make that less of a problem. As a result of that, various early onset psychosis clinics have been established. We are getting better at picking up the forerunners of a full-blown schizophrenic illness at 16 or 17 years of age before there is afull-blown psychotic illness.
That becomes significant because the violence tends to occur later in the illness. It also tends to occur when illness has been treatment refractory. That is another issue, and other problems develop, as we talked about with substance abuse.
That is operating at the moment. One thing we do know about that particular illness is that, the longer it remains untreated, the greater the risk of cognitive impairment, and the ability to recover is impaired. That movement is going on as well, and it does affect adolescents, albeit perhaps not children. It is a positive development.
Senator Joyal: Most of you are from Ontario. Yesterday we also heard from witnesses from Ontario. I have the perception that the system in Ontario works.
Senator Pearson: It is underfunded, though.
Senator Joyal: It may be underfunded, but it seems to work. What about the other provinces? Ontario comprises one third of the population of Canada. We have not heard about the other two thirds of Canada.
Dr. Bradford: The Canadian Academy of Psychiatry and the Law, of which I am President, represents forensic psychiatry across the country. There are some areas of the country where it does not work as well as others. British Columbia, Alberta and Quebec have good systems. In other parts of the country where resources are a problem, mental health professionals are not as readily available.
There are differences, but some of that is related to mental health professionals simply not being available. If the critical mass is there, it can work reasonably well.
It is also a matter of federal and provincial cooperation. For example, in Saskatoon, the federal government and the University of Saskatoon in Saskatchewan have gotten together and, as a result of a partnership, have been able to put together a forensic psychiatric facility with both federal and provincial money that now functions better than some other facilities elsewhere. I would encourage that kind of cooperation. It is helpful. Perhaps it should occur in other parts of the country.
Senator Joyal: You did not comment on the Maritimes.
Dr. Bradford: There are forensic psychiatrists and psychologists in the Maritimes although they are few in number, generally speaking. For example, Dalhousie University, which has the main medical school in the Maritimes, does not have a division of forensic psychiatry like we do in Ottawa, Toronto and elsewhere. Hopefully that is in evolution.
I have not been to Newfoundland for some time, but I have certainly been involved in testifying there. Dr. Ladha and others are involved in forensic psychiatry and psychology and they are associated with Memorial University. Their problem is smaller than it is in Ontario and elsewhere.
The bill allows for this to occur. It allows for the humane treatment of people with serious mental illness who have committed offences. Resources are one issue, but at least this allows us — when the resources are available, and I think they are there at lower levels — to deal with people humanely and appropriately.
Ms. Cohen: From the perspective of our national professional association, and I am not a forensic psychologist, I would point out that Correctional Services Canada is the single largest employer of psychologists. When discussing service to Canadians, one of the ironies is that, in a sense, you will have better access to psychological services if you are within the criminal justice system than you will if you are not.
This is not to suggest that there are people in jails who should not be more appropriately treated in hospitals, but the point is that there is a considerable ironic resource issue.
Senator Joyal: In other words, there is a distinction if you are charged under a criminal offence as opposed to under a statutory provincial offence.
Ms. Cohen: The federal correctional system is the largest single employer, but the provincial systems also employ psychologists. There are access issues for psychological services in communities. In some jurisdictions, particularly in Ontario, we have seen that, as hospitals divest themselves of salaried staff, with psychology departments closing, the psychologists go out into the community, and if you are not a well-resourced Canadian with high income or good group health benefits, you will not have access to treatment, but if you are in the criminal system, you will.
The Acting Chairman: On behalf of my colleagues, thank you very much for your presentation and taking the time to come and provide us with your knowledge and expertise.
The committee adjourned.