Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 11 - Evidence for May 4, 2005
OTTAWA, Wednesday, May 4, 2005
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:20 p.m. to study Bill C-10, An Act to amend the Criminal Code (Mental Disorder) and to make consequential amendments to other acts.
Senator Lise Bacon (Chairman) in the Chair.
[Translation]
The Chairman: We resume study of Bill C-10, An Act to amend the Criminal Code (Mental Disorder) and to make consequential amendments to other acts.
[English]
Today, we have as witnesses Mr. Tony Cannavino, President, and Mr. David Griffin, Executive Officer, from the Canadian Professional Police Association. Also, we have Mr. Bernd Walter, Chair of Review Boards Canada.
Mr. Tony Cannavino, President, Canadian Professional Police Association: Thank you and good afternoon. With me today is David Griffin, our Executive Director.
[Translation]
The Canadian Professional Police Association (CPPA) welcomes the opportunity to present our submissions to the Senate Standing Committee on Legal and Constitutional Affairs with respect to your review of Bill C-10, An Act to amend the Criminal Code of Canada (Mental Disorder).
The CPPA is the national voice for 54,000 police personnel across Canada. Through our 225 affiliates, membership includes police personnel serving in police services from Canada's smallest towns and villages as well as those working in our largest municipal and provincial police services, the RCMP Members Associations, and First Nations police officers.
The CPPA was created in 2003, with the merger of the Canadian Police Association and National Association of Professional Police. The CPA had taken a special interest in the mental disorder issue, as Intervenors in the case of R. v. Lepage, which was decided together by the Supreme Court of Canada with the cases of Winko, Orlowski and Besse. This judgment of the Supreme Court of Canada upheld the current provisions of Part XX.I of the Criminal Code of Canada, dismissing arguments that these provisions infringed upon individual rights to liberty, security of the person and equality as guaranteed by sections 7 and 15 of the Canadian Charter of Rights and Freedoms.
The CPPA appeared before the House of Commons Standing Committee on Justice and Human Rights in 2002, during their review of the Mental Disorder provisions, and we were pleased to see that many of the recommendations we made at that time have been incorporated in Bill C-10. The CPPA made submissions to the House of Commons Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness concerning Bill C-10 in December 2004.
We welcome the amendments to the bill which were proposed unanimously by the Committee and accepted by the House of Commons. In particular, we support the changes which will:
allow assessments by persons other than medical practitioners, if they are designated by an Attorney General as qualified to conduct an assessment of the mental condition of the accused (e.g., psychologists in addition to psychiatrists);
give victims, on their request, notice of hearings and notice of provisions applicable to them (e.g., those on victim impact statements and publication bans);
notify victims of their entitlement to file a victim impact statement if an assessment report suggests a change in the accused's mental condition that might warrant a discharge;
permit a court to grant a stay of proceedings in the case of a permanently unfit accused only where the accused is not likely to ever become fit and only on the basis of clear information; and
clarify the options open to police when they arrest an accused for contravention of a disposition or an assessment order.
[English]
We are pleased that Bill C-10 repeals the non-proclaimed provisions dealing with capping, dangerous mentally disordered accused and hospital orders. We have consistently argued that these provisions should not be proclaimed into force and should be repealed.
Successive ministers of justice have exercised appropriate judgment and prudence by not moving forward with these provisions.
The Supreme Court of Canada has rejected arguments that the existing provisions of the Criminal Code infringe upon Charter rights without the capping provisions. We have included a reference from this case in our written submissions for your information. This provides important guidance to the committee, as the original capping and dangerous mentally disordered accused provisions were introduced as a legislative package to address Charter concerns when the preceding law was struck down.
We have consistently argued that there is no bona fide reason for the capping provisions to be proclaimed and that to do so would pose tremendous public safety consequences.
As this committee has heard, capping was not proclaimed at the time the legislation was enacted in order to permit provinces to make necessary amendments to their mental health legislation. It has since been determined that provincial mental health legislation does not provide adequate scope and is not designed to protect the public in the same manner as the regime in the Criminal Code. The intended seamless blending of federal and provincial mental health legislation has not occurred and will not occur, nor is it required.
The Supreme Court has described the Criminal Code regime as one that treats the offender with dignity and the maximum liberty compatible with the goals of public protection and fairness to the accused. The law does not infringe upon fundamental rights and freedoms. It preserves them. An offender found to be NCR who is determined to be a significant threat to the safety of the public is removed from the penal stream and subject only to those restriction required to protect society and allow the accused to seek treatment.
This determination is to be considered at least annually. If the court or review board later determines the NCR accused is no longer a significant threat to the safety of the public, it must order the accused's discharge.
We therefore submit that the capping provisions provide no bona fide constructive enhancement to this process, pose serious public safety concerns and should be repealed.
As professionals engaged at the front end of the justice system, police officers are acutely aware of the frustrations that can be felt by victims of crime when such complex legal systems are applied. While our laws have become increasingly responsive to the needs and legitimate role of victims in our justice system, this is not universal. We have argued that victims should be afforded information about the progress of the accused's case and an opportunity to provide a victim's impact statement at any time that release is being considered. As victims often have family or other close relationships with the accused, there need to be assurances that victims can and will be heard by the court or review board.
We are pleased that the amendments contained in Bill C-10 afford victims the right to prepare a statement and present it at the hearing, and provides measures for notification of the victim. We also support the provisions that address the need to protect certain witnesses and victims from being identified.
We have previously argued that courts and review boards should, as a matter of practice, contact victims during the review process to ensure they are aware of the progress of the case. The victims may also possess information that is relevant to the review and should be afforded an opportunity to be heard in the review process. It is important for offenders to hear from the victims about the impact of their actions. We submit that this is consistent with contemporary legislation.
Thank you for the opportunity to present our views on this important proposed legislation. We would welcome your questions.
Mr. Bernd Walter, Chair, British Columbia Review Board, on behalf of Review Boards Canada: On behalf of the provincial and territorial review boards established under the mental disorder provisions of the Criminal Code, I would like to thank the honourable chair and the members of the Standing Senate Committee on Legal and Constitutional Affairs for the invitation to speak once again to this important initiative. The review boards are Parliament's chosen vehicle for achieving the twin goals of public safety and fair treatment of mentally disordered offenders.
Recognizing this role, courts routinely defer to the legal as well as the forensic or psychiatric expertise of our tribunals in the assessment, handling and reintegration of mentally disordered accused persons. In that vein, Bill C-10 is an important addition to the scheme contained in Part XX.1 of the code, which has been in effect now since 1992. The review boards look forward to their role in implementing the directions of Bill C-10.
The comments and recommendations that follow, and there are only about five of them, are offered in the spirit of applying our extensive, daily, front-line experience in conducting hearings and making orders under this part of the code. Our aim is to improve Bill C-10 and hopefully render it more effective in achieving its objectives.
My first issue deals with the power to order assessments. Bill C-10 provides to the review board the important power to order the assessment of an accused person under its jurisdiction. This ability is key in terms of our mandate to conduct an inquiry and to determine whether an accused poses a significant threat to public safety.
However, as it is currently drafted, the new proposed section 672.121 — by the way there is a typo in my remarks there. It reads 677.121. It should be 672.121 — is drafted in a very narrow way. It may only be used in four enumerated situations. As well, the focus of the assessment that may be ordered by the review board is itself very restricted.
The courts routinely require and order assessments to help them determine whether an accused should be found unfit to stand trial or given a verdict of not criminally responsible on account of mental disorder.
The review board then assumes ongoing, sometimes lifelong jurisdiction over such an accused. Its inquiry process is focused on threat or risk assessment. In other words, we are looking into the future. We are also focused on the reintegration of the accused into society. That focus is articulated, as it has been for some time, in section 672.54 of the code.
Therefore, the review boards strongly recommend that the new power in proposed section 672.121, which gives a review board the power to order assessments, be simplified. It would be much more useful to simply allow the board to order an assessment when that task is necessary to carry out its responsibilities under 672.54 of the code — that is, when, as the Supreme Court has said, it must tailor its order to meet the specific circumstances of the accused.
In my remarks I have given a recommended wording. The current proposed section is quite long. We simply recommend that it be shortened to allow the board to order an assessment if it has reasonable grounds to believe that such evidence is necessary to make its disposition under section 672.54. That would cover any and all circumstances. In my view, respectfully, our recommendation is consistent with the Demers decision of the Supreme Court of Canada. I recommend to senators paragraphs 49 and 52 of that decision, where the court talks about the importance of the assessment authority to review boards.
I must tell you that based on my experience, and I do myself between 150 to 200 hearings a year, I cannot foresee ever using this important new power as it is currently drafted.
In case there is any caution here, there is simply no basis for legislators to be concerned that our recommendation would result in the more frequent or irresponsible use of this power, which I expect will actually be used quite infrequently. To so limit what could be an important tool in the review board's inquiries simply defies logic, in our view.
Continuing further on the issue of assessments, proposed subsection 1(2) of Bill C-10 extends the types of professionals who may be eligible to provide assessments beyond just medical practitioners or psychiatrists. My friend has already spoken to this issue. That requires the designation of such other professionals, for example, psychologists, by the Attorney General of the province. However, as it is currently drafted, it appears to require the designation of specific qualified individuals as opposed to a particular professional grouping. It would be much more useful and more administratively convenient if it permitted the designation of a group or class of professionals rather than an individual practitioner.
My second issue deals with the permanently unfit-to-stand-trial accused, which my friend has also alluded to. The Supreme Court of Canada's decision in R v. Demers was given in June of 2004. That decision has given rise to some of Bill C-10's provisions regarding the long-term unfit-to-stand-trial person.
In that case, the Supreme Court agreed that to keep a person who is likely to remain permanently unfit to stand trial and is no longer a significant threat to public safety under the criminal justice system forever infringes section 7 of the Charter of Rights. The court then gave Parliament 12 months to amend the legislation. To respond to this issue, Bill C- 10 proposed a new but somewhat complex process contained in proposed section 672.851.
I emphasize that the review boards have both the legal and forensic psychiatric expertise to deal with accused persons who are found unfit to stand trial. Statistically, the courts overwhelmingly refer these matters to our tribunals. We therefore recommend that in those few but growing number of cases where expert evidence suggests that fitness to stand trial will never be achieved and the accused no longer poses a significant threat to public safety, the review board ought to be given the statutory authority to either absolutely discharge the accused or to stay the proceedings.
We believe that this approach would be less complex, more timely and far more humane than a process that subjects such an individual, who may be suffering from an Alzheimer's type of dementia, to yet another assessment and yet another court proceeding. There is no question in our minds that Parliament has the constitutional authority to grant this power, and we remind the committee that such an order could, in any event, be the subject of an appeal.
I would like to address next the participation and role of victims in review board hearings. The victim provisions in Bill C-10 have been the subject of much discussion and debate. No one takes issue with the appropriate inclusion and participation of victims in review board hearings. However, as they are currently drafted, the victim provisions are confusing and, in my view, potentially inconsistent. I offer the example of proposed 672.5(13.2). That is open to an interpretation that its requirement to notify victims only applies when the board has actually ordered an assessment under the provisions I mentioned previously.
The drafting may unintentionally narrow Parliament's goals respecting victims' rights. In our analysis, the victim provisions could benefit from some reorganization and redrafting to clarify their intent, including clarification of whether they are indeed intended to apply retrospectively.
Furthermore, in light of some of the difficult implementation issues that these provisions will raise for the review boards, such as identifying and locating historic victims of crimes that may have been committed 10, 15, 20 or 30 years ago, we would recommend that the provisions not be proclaimed in force for a further three- to six-month period to allow for a planned and orderly transition process.
It may seem like a small issue, but the matter of court exhibits troubles us. Bill C-10 requires that all court exhibits filed at a trial or a court-martial be transferred to a review board when an accused is found unfit to stand trial or not criminally responsible. This is simply unworkable and dangerous. A review board has no capacity to become the secure repository for weapons, dangerous substances or tissue or fluid samples, nor do we need such evidence for our future- oriented risk assessment task. A list of court exhibits and the ability to obtain photocopies thereof would adequately meet the board's needs. I ask the senators to please give serious reconsideration to this issue.
Finally, with respect to lesser procedural matters, Bill C-10 contains a number of welcome procedural as well as substantive innovations. Honourable senators should bear in mind that, due to relatively low caseloads in some areas, review boards in most, but not all, jurisdictions are composed of part-time members and even chairpersons.
In some provinces, the chairperson's role is assigned to a sitting judge. Members of the board may reside in any part of a particular province. To schedule and convene actual hearings for simply procedural matters by panels of three, or, as is done in some provinces, panels of five persons or members, is costly and logistically challenging.
Therefore, we strongly recommend that review board chairpersons, who must be qualified to be judges in any event under the Criminal Code, be given the authority to determine and rule on some of the new and existing interlocutory or procedural matters, including the ordering of assessments, the granting of adjournments, adding parties to review board proceedings, assigning counsel for an accused, initiating new hearings and providing notification to victims of their rights.
Such matters are well within the capacities of review board chairs and could be handled far more expeditiously by the chair sitting as a judge alone in chambers. The code already provides for some actions to be taken by the chair alone, such as the exercise of Inquiries Act powers, ordering an unfit accused back to court, allowing an accused to be absent during a hearing and issuing a subpoena.
In closing, honourable senators may be aware that the review boards have previously offered some of these observations and recommendations. With respect, as those judges and adjudicators who are, in the words of the honourable chief justice, charged with that most difficult task of predicting future human behaviour, we are puzzled that our recommendations, which are based on our daily experience and are honestly intended to further this bill's objectives, appear to have had far less influence than those of other stakeholders, including prosecutors and interest groups.
I am happy to answer any questions.
The Chairman: Thank you, Mr. Walter.
[Translation]
The Chairman: We have heard from witnesses who have assured us they had serious reservations about the presentation of victim impact statements at a review board hearing. According to those individuals, that is not the appropriate place to proceed with a victim impact statement. They have contended that hearings cannot help victims in any therapeutic way, that the accused has not yet been convicted, and that the boards must examine the present risk, not past conduct. Could we have your comments on the appropriateness of the system proposed by this bill as regards victim impact statements?
[English]
Mr. David Griffin, Executive Officer, Canadian Professional Police Association: Generally speaking, we believe that the provisions under this particular section of the Criminal Code should reflect what is occurring in the other criminal processes, such as parole hearings, trials, sentencing hearings, et cetera, where we involve the victims in the process to ensure that, first, the tribunal that is making a decision has afforded the victims an opportunity to put their views on the record and have those views considered. It is also important that that part of the process then allow the victim to understand what is taking place.
We are not suggesting that a tribunal or, in this case, a review board should be bound by the views of a victim. We are dealing here with a very sophisticated process. It is an interesting balance between medicine and law in terms of determining the status of the accused.
The victim may often be a family member who has some knowledge of what is going on in this person's life, even since the time that the original incident occurred. It is also important for the victim to understand the process and to understand why the accused may be released back into the community, or why the tribunal or, in this case, the review board is making the decision that it is.
We support the inclusion and recognition of victims in this proposed legislation. We recognize it will put some onus on the review boards to ensure that victims are notified and contacted. However, it also puts some onus on the victims to provide information on where they can be notified or to express an interest in receiving that notification. Ultimately, we think it strengthens the system on behalf of the accused, but also in the interests of making the right decisions and ensuring that victims are looked after.
[Translation]
Mr. Cannavino: As my colleague said, the information the victim will be able to give is left to the board's assessment. It may be relevant and it may enable both the victim and the accused to understand the nature of the action and its effects on the victim, and, in a number of cases, it helps both the victim and the accused to realize the scope of actions taken. Once again, it is not compelling for the board and it is up to the committee to assess the elements that are added by that statement.
[English]
Mr. Walter: I think that I would be authorized to say on behalf of the review boards that we have somewhat reluctantly made our peace with these provisions. We were not always in favour.
The committee should know that the tabling of victim impact statements has been in the code since about 1997. As currently drafted, the provisions require that we consider a victim impact statement at the first hearing in every case for the purposes of our risk assessment. We think that is quite appropriate. We would continue to support all of the provisions that are here now in terms of giving notice, making sure people have a right to actually come and read those statements.
If I could gauge the mood of my colleagues, in fairness, we would prefer that it be confined to the first hearing as opposed to year after year. At some point, we do question the relevance of the same kind of statement of harm to a future-oriented risk assessment. However, as I say, subject to the drafting, we have made our peace with these provisions.
For example, when it comes to drafting, I do have some difficulty with the proposed section that says the review board shall inquire of the prosecutor whether the victim of the offence has been advised of the opportunity to prepare a statement. I am just not sure what such an inquiry serves. If I phone up the prosecutor and say ``We will have a hearing for Mr. Smith next week, have you advised the victim of the opportunity,'' and the prosecutor says yes or no, there is no outcome. There is no consequence to that; it is simply an inquiry. I am not sure what to do with it at a case- management operational level.
Similarly, in the proposed section that I read to you on receiving an assessment report, an assessment report is a defined term. An assessment report only applies when it has actually been ordered by the review board. If, as I have said, that power will be used very infrequently, then that would limit the times when the victim must actually be given notice, which I think narrows the intent somewhat.
It seems to me that Parliament intended that victims always be given the opportunity to receive notice of these hearings, at least in the first instance, to come forward and provide a statement. The entire proposed section, as it is drafted, imports a degree of prejudgment from outside of the hearing process, which I think flies in the face of the Charter and of Winko.
I have done a lot of work analyzing it. I have sent it out to all of my colleagues across the country, and we are actively working to implement these provisions in the spirit in which I hope they are intended.
[Translation]
The Chairman: Bill C-10 provides for certain police options when arresting an accused, and if the peace officer has grounds to believe it is in the public interest, he may refuse to release that accused. In your view, does Bill C-10 give law enforcement agencies enough flexibility to take into custody an accused who is suffering from a mental disorder and who is suspected of having violated an order for assessment?
Mr. Cannavino: From the comments we have received, we think the bill meets those needs and provides that flexibility. As I said in my remarks, the amendments that have been made since our presentation confirm our association's position on Bill C-10.
[English]
Senator Callbeck: Thank you for coming. I have a question on the power to order assessments. You mentioned that the bill is very narrow and lists only four situations where that can be done. Can you give examples of situations where you think an order for assessment might be necessary that would not be covered in those four?
Mr. Walter: Currently, the provisions contemplate ordering an assessment when a person is permanently unfit and will be sent back to the court for an inquiry to stay; when a new transferee comes from another province where no assessment is available or has not been done in the last 12 months. I can think of using a psychologist to conduct a personality assessment to determine a personality disorder that is not strictly a psychiatric condition; IQ tests to determine whether the person is suffering from a cognitive disorder or impairment that renders that person difficult to manage in the community; fetal alcohol syndrome and effect assessments, which are very relevant in some provinces. My colleague in the Yukon tells me practically every person on their caseload suffers from fetal alcohol effect.
The way it is currently framed appears to imply that we are only conducting psychiatric assessments. For example, simply ordering up a risk assessment that may or may not be a part of the so-called mental condition, as it is currently framed, of the accused is central to our mandate. It is the prediction of risk. There are times when the reports we get from psychiatrists are simply inadequate in that respect.
The provisions are a little narrow, as they seem to be confined to those three or four specific instances. In most instances, I must commend the forensic psychiatric system, at least in our province. We always have reports prepared for the review board ready for distribution in advance of the hearing so all parties have a chance to cross-examine the maker. We rarely have a difficulty with this issue. Where it is necessary and critical to our risk assessment function, we should have a power to order it.
Senator Milne: Mr. Walter, you raised a red flag on page 10 of your presentation where you spoke about the transfer of court exhibits. On page 5, lines 29 and 30 in the bill, where this transfer is mentioned, it is, ``and all exhibits filed with it, to the Review Board that has jurisdiction...''
I find your arguments here, that you do not have the capacity to store and retain items properly, compelling. My question involves the police as well. Presently, these exhibits are stored, I assume, by the police forces and courts that have the jurisdiction. Do courts have the ability to store these properly, including body tissue samples?
Mr. Griffin: Yes.
Senator Milne: Why do they expect a review board will have the same capacity? This is a pretty expensive procedure we are talking about.
Mr. Walter: It is not only expensive, senator, but it strains our resources. The courts have secure lockups, clerks and courthouses in every section of the province. I have one office floor for the case management of the entire province. We just do not have this particular capacity.
Senator Milne: Madam Chairman, this is a serious matter. We must look into it, get some answers and make some recommendations about that. This is a matter of the correct storage of materials that may be absolutely necessary in the future.
Mr. Cannavino: It is more than the space. It is the security of those exhibits.
Senator Milne: Precisely. If they are sitting unguarded in an unlocked space with nobody watching them, who might gain access to them and tamper with them?
Senator Andreychuk: I want to pick up on the exhibits, Mr. Walter. Which exhibits do you use? Do you ever use the physical exhibits, or are you talking of assessments and documents of that variety?
Mr. Walter: That is an excellent place to start. You are absolutely right. What the review board needs is the psychiatric evidence that is filed with the court, the police reports and the reports to Crown counsel outlining the investigation. For example, we have in our possession a book on Satanism that a particular accused was carrying around or living by. We need the transcript of the court hearing where the accused is actually given the verdict of unfit to stand trial or not criminally responsible.
Beyond that, we simply do not need physical exhibits because the act has been proven. The crime has been committed, and now we are taking jurisdiction in order to look into the future and determine whether the accused remains a threat and how he or she can be managed safely, first in hospital and then eventually back in the community.
Your question is absolutely to the point. We simply have no use for this material, and should we ever want to see it, I can certainly approach the clerk of the court. I have in my possession forensic photographs that would keep me up nights if I were to look at them every year before a hearing. There is simply no purpose, after a certain period of time, to us having those. Some would argue we did not even need them for the first hearing.
Senator Andreychuk: Can this not be handled by way of protocol? In other words, we do not really know what a review board needs. You have given me one example. A book is a physical exhibit and you had some interest in it. Can this not be handled by a protocol that you are entitled to see all exhibits, but you could signal which ones you want by ticking off a list? The rest would be retained in the court. Therefore, theoretically, you are entitled to them all, but practically, you would not be housing all the exhibits. Is that not the way to go about it?
Mr. Walter: Exactly, senator, and that is the practice now.
Senator Andreychuk: I do not see how the bill would change that. Would you not just have to reinstate the protocols?
Mr. Walter: The way the proposed section your colleague referred to is worded now, it says the court shall send without delay — and this would be an important message to remind courts that they have to get this material to us — the transcript of the proceedings, any other documents related to the proceedings and all exhibits filed. It is no longer a question of discretion. It is now mandatory that the court send all exhibits to the review board.
Senator Andreychuk: I am still saying that you could come to an understanding as to how both the courts and the review boards will interpret that proposed section, and that would be that the courts will be ready, willing and able to send you the material, but they do not necessarily have to physically transport it to you unless you signal that.
Mr. Walter: I hope the court would be open to that. When I see the word ``shall'' in a legislative provision, I feel that puts an onerous mandate on the courts and may lead them to believe there is no discretion here.
Senator Andreychuk: Just out of curiosity, when do you destroy records?
Mr. Walter: We never destroy records, senator. When an accused is deceased or gains an absolute discharge from our jurisdiction, the tape recordings of the hearings, the transcripts and all of the evidence files that have been gathered over time are, after about a year, put off-site into secure storage. They are held as any other government documents would be, for perhaps 100 years.
Therefore, they are always retrievable. I have lots of researchers for DOJ pulling out files from the early 1990s for research purposes. However, we send them off-site after a time once our jurisdiction has ceased.
Senator Andreychuk: We have heard other witnesses say that victims have no role to play because the accused person found to be not criminally responsible is really not a convicted person; there is no victim in the criminal law sense.
You have made the case that the victims have a role to play. They may know the accused. They may have an ongoing relationship because they are a family member.
Do you think that you have enough authority to restrict the use of victim statements if they could be detrimental to the person suffering from the mental disability? We were told that the victim statements could be contrary to recovery or ongoing treatment.
Have you had hearings where that has been the case, or do you find the victim involvement helpful?
Mr. Walter: Not that many victims want to come forward. As it is currently phrased, and it has been in the code since 1997, once we hear from victims or receive a victim impact statement, we are to consider it to the extent the statement is relevant to the criteria set out in 672.54. That is the risk assessment section. That is the core of the criteria we are to consider, so that section will remain. It is just that it now has to be done at every hearing. We do not have a problem with that.
I have not had an experience where receiving and sharing a victim impact statement has been destabilizing to an accused. I have seen altercations outside of the hearing room that were not terribly pleasant. I think those are unusual and should not be generalized from.
The way it is framed, that we receive victim impact statements and we consider them, is quite appropriate. There are also some caveats in the drafting — we should allow the victim to read the statement unless it is contrary to the proper administration of justice. Those words give a degree of discretion to the review board to call a halt if things are going off the rails.
Senator Joyal: Welcome. My first question is for Mr. Walter. When you made your presentation you referred to an aspect of the process that, and I quote you, ``might fly in the face of the Charter.'' I do not recall when you used that. Perhaps it was in dealing with victim statements.
Mr. Walter: Yes, victim statements, 672.5(13.2).
Senator Joyal: Yes. Could you expand on your views of the conflict with the Charter?
Mr. Walter: It reads:
On receiving an assessment report, the court or Review Board shall determine whether, since the last time the disposition in respect of the accused was made or reviewed there has been any change in the mental condition of the accused that may provide grounds for discharge of the accused under 672.54(a) or (b) and, if there has been such a change, the court or Review Board shall notify every victim of the offence that they are entitled to file a statement in accordance with subsection (14).
It seems to me the wording of this proposed section implies that when we get evidence in preparation for an annual hearing, I am supposed to review it before the hearing. I do prepare for the hearing, do not get me wrong, but I am supposed to review it and make some determination about whether it could have a different outcome. That seems to be the central task of a hearing and should not be done in advance. That is where I am afraid that a pre-consideration or a prejudgment is called for almost. Winko says we must examine every outcome in every decision and every hearing. Even if an accused does not ask for an absolute discharge, it must be considered by a review board at every hearing as the least restrictive and least onerous disposition.
This implies a prejudgment outside of the context of the actual hearing, which concerns me in terms of the Charter. That was the issue I was trying to identify.
Senator Joyal: To make it clear in our minds, it is the way it is spelled out in the proposed section that implies that you have to decide before the hearing what your decision will be.
Mr. Walter: Precisely.
Senator Joyal: It is a serious point in terms of the process that is put in place to maintain the capacity to pronounce on the rights of a person.
Mr. Walter: Perhaps the objective could be met if the proposed section said victims will be given notice of every hearing. It would be simpler. I am not advocating one or the other.
This potentially narrows it so that we only give the notice when we order the assessment, because ``assessment report'' is a term of art.
As I defined earlier in relation to another section, it is something that the review board ordered. To me it is confusing, and I have been doing this every day of my life for 10 years. I want the law to be clear for everybody.
Senator Joyal: It is an issue of a different nature, but is it on the same ground of clarity that you raised proposed subsection 1(2) of the bill that reads an ``assessment'' means an assessment by a medical practitioner or any other person that has been designate by the Attorney General as being qualified to conduct an assessment?
You propose in your first point, in the middle of page 6, that there is confusion there because when it says, ``any other person designated by the Attorney General,'' a person is an individual. It is not a class of professional, like psychologist or any other professional able to evaluate the psychological and mental condition of a person.
If you say ``a person designated by the Attorney General,'' it is really Ms. or Mr. X.
Mr. Walter: Dr. X. That is how I read it. I may be reading it too narrowly. I may be raising fears that will not come to fruition, but this is the time to raise them.
I saw myself perhaps having to collect names of every graduating class of psychologists in British Columbia every year and submit them to the Attorney General. I thought designating a class, just as it says ``a medical practitioner,'' would be much more straightforward.
Senator Joyal: It will be administratively clearer and more efficient.
The other element you raised that is of concern to me is at the bottom of page 7. You requested that the review board be given the statutory authority to either absolutely discharge the accused or stay the proceedings. You believe that such an approach would be less complex, more timely, and far more humane than a process that subjects such an individual to another assessment and yet another court proceeding. In other words, you are telling us that before a person who is the subject of this bill can be totally discharged, there will have to be a court decision.
Mr. Walter: Senator, I may not have spoken clearly. These comments are related just to this one phenomenon that we are seeing in all the review boards, that is, a person who has been found unfit to stand trial — these people are half of our mandate — and who, perhaps by reason of age or some other cognitive, progressive, declining, dementia disease will never, with psychiatric or psychological treatment, be restored to fitness.
Senator Milne: Or FAS.
Mr. Walter: Yes. We have some such people. I think that the drafters and policy-makers very appropriately took into account that those people should not be subjected year after year to this ongoing process, especially where there is also evidence that they are no longer a threat to the safety of the public. That is the second important consideration.
These new, more humane provisions provide that where the review board forms that opinion, we can refer the matter back to the court to conduct an inquiry to then perhaps stay the proceedings against that individual. We are saying, why take that extra step? If the expert evidence before the board, which courts routinely accept, is that the accused will never regain fitness to stand trial and is not a threat to the public, why not let the review board either discharge him or stay the proceedings? That is the kind of scheme the Demers decision, which gave Parliament twelve months to fix that wrinkle, was talking about.
Senator Joyal: I am trying to understand if, conceptually, there is a reason you cannot make the decision and it has to be the court.
Mr. Walter: There may be some solid arguments about that. I suspect the argument might be that it is a judicial level of decision to stay the proceedings. I do not feel that strongly about it. I just felt it was more humane. There is no question that Parliament has the constitutional authority to give that power to the review board, if it saw fit to do so.
Senator Joyal: In order to come to a shared conclusion with you, can you tell me what a court does, having never been witness to such a procedure, when you report to the court that the proceedings should be stayed?
Mr. Walter: We have never done this up to now. Under the new scheme, the court would undertake an inquiry and order yet another assessment done by a professional to see whether the court would agree with the opinion and perspectives of the review board. It is repeating the process. For a number of other reasons, including that it is not contrary to public policy, does not bring the administration of justice into disrepute and other important notions like that, then the court can, in its wisdom, grant a stay, or not. It can say, ``No, we do not want to. This is a very important crime, and we choose not to exercise that discretion. We will send the person back to the review board again,'' where he will then remain on this permanent rota of unfit.
Senator Joyal: Therefore, you can review a case for 10 years, finally come to a conclusion that a person is unfit to stand trial, but you cannot discharge that person totally and finally.
Mr. Walter: Correct.
Senator Joyal: You would have to go back to the court, and then the court could order an assessment by someone with medical expertise, hear the victim and anyone else, the police forces or whoever they wish to hear, and then adjudicate on the basis of your report that the proceedings should be stayed.
Mr. Walter: Yes.
Senator Joyal: It will again ``judicialize'' the procedure.
Mr. Walter: Yes.
Senator Joyal: You think it is in the interest of justice to do that.
Mr. Walter: We think it could be more humane to bring an end to it once and for all at our proceeding.
Senator Joyal: Were there any cases in the past where your recommendations were set aside by the court?
Mr. Walter: We do not have that experience now. We do not recommend unfits go back to court. There is no process for bringing an unfit back to court.
I have from time to time, in cases like we are talking about, written a letter to the Crown saying, ``It does not look to me like this gentleman will ever become fit and he is in a tertiary care facility, where he will not have access to victims; perhaps the Crown should consider asking for a stay in this matter.'' From time to time, they have done so; other times, not.
This is a new procedure, and we have no experience with it.
Senator Joyal: You have made a comment in the conclusion to your presentation that is pretty clear. You say you are making these recommendations based on your daily experience and that your comments are honestly intended to improve the process and further the bill's objectives. You say you appear to have had far less influence than other stakeholders, including prosecutors and other interest groups.
What kind of relationship did you develop with the Department of Justice in the drafting of this bill?
Mr. Walter: If I have been intemperate, I apologize. The dialogue is certainly always open, and there has been ongoing dialogue. What you are hearing there is perhaps a feeling that we were not as heard as we might have been on some of the debate, but it was not meant to be an overt criticism. Senator Pearson remembers me when I was a child advocate in Alberta, and I perhaps sometimes speak a little more bluntly than I should.
Senator Joyal: I am not requesting an apology, Mr. Walter. That is not my style.
I was seriously concerned. If I can be candid, you give me the impression of being very professional and reliable in the exercise of your responsibility. If somebody as trustworthy as you give the impression of being, and I do not doubt that you are, tells us in written form that they have made recommendations to honestly improve the operation of the goal that the government is seeking to achieve with this bill, I am concerned. We generally share those same concerns around this table. You say that the recommendations you made and that are spelled out in your brief seem to have been not considered. As Senator Milne said earlier on the court exhibits, it compels us to request the justice department to come back and tell us what they did with your recommendations. We cannot vote on proposed legislation unless we are satisfied that all the stakeholders have been heard and that those who have made serious points have received an answer. I am sure you are as concerned as we are to receive the answers that the justice department will bring forward on the points you have raised in your brief, which are very serious in my opinion.
Mr. Walter: I believe we are all engaged in a common enterprise here. I am not sure I can answer any more clearly.
Are you asking me a particular question?
Senator Joyal: I do not know if I have much time.
The Chairman: I have a supplementary to your question. Mr. Walter, since the court makes the final determination when the review board believes that a person has become fit to stand trial, is it not proper for the court to likewise make the final determination on the issue of permanent unfitness?
Mr. Walter: It may well be. This is something that my colleagues suggested I bring forward today. I do not have strong personal feelings about it. I think some of my colleagues do, some of the judges and some members of the defence bar. My sense was that it could be just as expeditiously handled without creating legal obstacles.
Senator Joyal: Mr. Cannavino, the association that you represent has been very outspoken about protecting the rights of victims. Do the victims of crimes committed by people who are mentally affected suffer more than the usual victims of crime, on the basis of your experience?
[Translation]
Mr. Cannavino: Having spoken with victims and their families on a number of occasions, I can tell you that these people experience enormous trauma. Thank you for that question because it enables me to refer back to a comment made by Senator Andreychuk, who said we were not dealing with a victim. Yes, we are dealing with a victim. We are also dealing with an alleged murderer, attacker or whatever. It has gotten to this point so we can determine whether or not he is able to stand trial. Imagine a victim who, in a normal legal proceeding, is experiencing enormous trauma and wants to attend the hearings. In that case, it is a hearing where the individual who allegedly committed the crime is not even standing trial. It is doubly frustrating for the person and his or her family. Being able to speak, to put certain points or facts before the board means trying to inform the committee members.
Why grant this right after one, two or three years? Because, with time, you forget the incident. If the victim or the victim's family is there, people handle the case very differently. The pain and consequences of the incident are more present. I understand that they have to determine whether the person can stand trial.
It must also be understood that these actions have destroyed human beings. That is why we have a crime victims' assistance centre. Victims tell us they have been cast aside. They say we are dealing with the alleged attacker or murderer, but they cannot even speak out. They do not even know the hearing date. I think it is important these people have the privilege of giving this information if they wish.
We have also noted that not everyone wishes to do so. Some people, after one, two or three years, want to move on because the pain was too intense, and they have decided to redirect their lives. For other people, this is necessary; it is part of a therapy. I received comments saying it is important never to be cast aside. You have to think that the accused or the alleged attacker has rights, but the victims and their families are cast aside.
After two or three years, you forget a lot about the importance of the attack — and you do not do that wilfully. These people can put us back in that atmosphere, in that sadness.
Senator Joyal: In some cases, that can cause trauma that has major psychological after-effects on the individual. If you are punched, you get a bruise, and it goes away in a few weeks, but the psychological after-effects on victims can take a longer time to disappear. What kind of assistance do you provide to victims so they can tolerate them during this recovery process?
Mr. Cannavino: There are various components. First, we recommend that the victims or the people involved consult. These people often turn inward. Instead of healing, they fall further into their pain and we unfortunately do not realize that we are losing these people. They have to see psychologists, psychiatrists, associations or other organizations.
We also try to create ties with the various Canadian associations. Quite recently, at our legislative assembly, we had the opportunity to meet Mr. Pierre-Hugues Boisvenu — you are no doubt aware of the case of poor Julie Boisvenu — who formed an association in Quebec. There are associations across Canada, but there are no links between them. We are trying to create a kind of network so that calls are directed to us and people get some form of support. The Canadian Professional Police Association tries to bring the associations together.
Most people do not understand how it works. In some cases, you can simply explain the act and why it works this way. We explain to them that it is entirely normal and that the procedure will go in such and such a way. We make requests so that victims are informed when there are hearings.
[English]
Mr. Walter: I will not comment on the substance of my friend's remarks. One thing to clarify is the victim provisions do not apply to cases of unfit to stand trial because the allegations are just that, allegations outstanding. They only apply once a person has been given the verdict of not criminally responsible and the facts have been proven. It may have been in the translation, but I did not want to leave that impression.
Senator Joyal: I have to confess my ignorance of the reality of the people you are dealing with, Mr. Walter and Mr. Cannavino, in reference to Bill C-10. What is the average profile of the person that your board deals with?
Mr. Walter: I mentioned earlier that I used to be a children's advocate. The dramatic thing, when I became an adjudicator of these issues, was I would look across the table at an accused person and say to myself, I bet that person has a child welfare history as well.
They came from a marginalized family where there were alcohol, mental health and substance abuse problems. There may have been physical or other types of abuse. The family itself was in great difficulty. The accused probably spent time in out-of-home care, foster care or institutional care as a youth, became criminalized as a young adult, and continued on that way of life.
Our accused is mostly male, obviously, anywhere between 25 and 45, if you want an average profile. They suffer from an Axis-1 disorder, as the psychiatrists call it, a major mental disorder such as schizophrenia, schizo-affective disorder or bipolar disorder, sometimes complicated by a personality disorder, which is not so amenable to treatment. I would say in 85 per cent of the cases under our jurisdiction there is probably also a secondary substance abuse or alcohol disorder.
The crimes would range — at least, since Winko, they are more criminal in nature — from an assault to multiple murders. I have one individual on our caseload who committed six killings in 48 hours in 1974 while he was on a leave from another mental facility. That is obviously the extreme; in the main, they are not scary people, senator. They are very unfortunate people who are seriously afflicted.
Senator Pearson: Welcome to all three of you. I am interested, Mr. Walter, to see you in this job.
You were talking about the average as being between 25 and 45. I have asked this, and it is still not quite clear in my mind as to whether or not the review boards ever see anyone under the age of 18.
Mr. Walter: Yes, senator. The verdicts of unfit to stand trial and not criminally responsible are also available under the Youth Criminal Justice Act. I would say we currently have in B.C. between five and seven such young persons on our caseload. There is a specialized forensic unit, and both custodial inpatient and community-based supervision specifically for youth.
Senator Pearson: For some reason, it was not something we thought too much about when we were looking at the Youth Criminal Justice Act, although we appreciated the new sentencing to highly specialized psychiatric treatment.
You have five to seven under the age of 18; so I guess across the country, we are probably talking about 100 young people.
Mr. Walter: I would say fewer. That would be my guess, senator. There are specific provisions in the Youth Criminal Justice Act.
Senator Pearson: There might be a sense that perhaps some of these young people would have a better chance if you reviewed them a second or a third time and they are improving.
Mr. Walter: Sometimes, of course, they graduate into the adult system; once they turn 19, the youth system generally wants to transfer them to the adult system.
Senator Pearson: If they were then declared fit to stand trial, would they go into the adult system for a crime they committed when they were under the age of 18?
Mr. Walter: No; once they are charged under the youth act, they stay charged as a youth for all purposes. If they are found fit to stand trial, they of course go back to court. They may then come back to us as not criminally responsible because they may have been very disturbed at the time of committing the offence; but then they would come back to us to be held in the adult system.
I do not know how other provinces deal with it because the numbers are so low. However, I can tell you from our perspective, whenever we are at that juncture of a youth moving into the adult forensic system, we take it very seriously. We set up a hearing. I usually try to have the hearings correspond with that pivotal date so there is a clear understanding of and inquiry into what can be offered in the adult forensic system versus the youth system and balance the two. I have even held some youth back from the adult system, kept them in the youth system, because I thought they might be too vulnerable in the adult system.
Senator Pearson: I appreciate your presentation because it strikes me that, as people who have direct experience you have brought forward some pragmatic recommendations. I agree with Senator Milne on this question of you having to hold all the exhibits — we have to do something about that — but you are genuinely looking for greater efficiencies in the process, not at the expense of justice but in order to promote justice.
Senator Joyal: I have the last practical question. Does the bill have a financial impact on you and will you have enough resources to implement it? I told you it was practical.
Mr. Walter: I certainly think that some of the procedural issues, like having hearings where the issue of a ban on publication can be heard, might have some minor costs to them. I suspect that doctors or Crown attorneys might argue the assessment power may have some price tag to it. However, we do have in B.C. a specifically designated forensic system. They are the ones who already do these assessments for the court; they are the ones who appear at every review board hearing and already do assessments, whether they are ordered to or not, because the accused is in their care. I would think that the additional costs will be negligible.
We have such an efficient way of case managing these and scheduling our hearings that I have not been overly troubled by any resource implications of these new provisions.
Senator Joyal: Would that be the same in Ontario or in other provinces?
Mr. Walter: I cannot speak for the other provinces.
[Translation]
Senator Rivest: Of course, we are talking about mentally disturbed people who may or may not have to stand trial. Provision is made for a mechanism under which victims see professionals.
As a police officer, can you give us a brief and summary assessment of the conditional release system in Canada? Some people are locked, then released. They have been convicted.
In Quebec, we remember the case in the Sorel region, among others. Would the system proposed by Bill C-10 not be a model on which the conditional release system could draw or that it could apply? Perhaps they already have it in certain provinces for releasing criminals who have been incarcerated but who display symptoms of mental disorder or problems.
Mr. Cannavino: You raise a very sensitive point. We have made recommendations to the deputy prime minister, who is the minister for public security. That was one or our concerns: in the case of parole, the victim should be informed of the hearings. People did not know. It was the centre that tried to reach the families to inform them that there was a hearing concerning a particular individual or murder on a particular date. The centre informed them.
Among the many requests we made, we asked that the reform or review of the parole system, or of the system in place with its own culture, take all that into account. What we see in the document is consistent with this line of thinking, according to which families should be involved and informed. They should be given this opportunity to attend or to make a statement.
That is one of our concerns. Moreover, the bill that was reintroduced in the House, that is former Bill C-19, which is now Bill C-23, is similar with regard to the amendments. The amendments in question concern victims. That is the part that was added. We haven't stopped making demands because a committee is going to be established. Our intention is to reinforce this position and this assistance to the families of victims.
I would not want to insinuate that the review boards do not have this ability to decide for those who would not in any way be able to stand trial. For example, there is a point of no return for someone who has been diagnosed with Alzheimer's. It is the view of the Canadian Professional Police Association that the legal system should have the final say. The legal system should take the last look in order to close the case once and for all, without doubting the competence or ability of the members sitting on the review board.
[English]
The Chairman: Thank you very much, Mr. Cannavino.
The committee adjourned.