Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 12 - Evidence for May 11, 2005
OTTAWA, Wednesday, May 11, 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 4:05 p.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the chair.
[English]
The Chairman: We have a quorum, so we will start the meeting..
[Translation]
We have a panel today with members of the Barreau du Québec, Ms. Lucie Joncas, ad hoc member, Criminal Law Committee, and Ms. Nicole Dufour, Secretary of the Criminal Law Committee.
[English]
From the Ministry of the Attorney General of Ontario, we also have Mr. Curt Flanagan, who is a Crown Attorney for Leeds-Grenville and Co-Chair of the Advisory Committee on Mental Health.
Welcome to you all.
[Translation]
Welcome, and I believe you have presentations to make and then senators will ask questions.
Ms. Nicole Dufour, Research and Legislation Services, Secretary of the Criminal Law Committee, Barreau du Québec: The Barreau du Québec would like to thank you for your invitation to appear before your committee. The President of the Bar, Mr. Denis Mondor, is unable to be here today because of a previous commitment. With me is Ms. Lucie Joncas, who will be commenting on Bill C-10 on behalf of the Barreau du Québec.
Before turning the floor over to her, I am going to read a few short biographical notes about Ms. Joncas. In addition to a law degree, she has a master's in health law from the Université de Sherbrooke. Her thesis was on mental disorders. She has been practicing criminal law for 12 years and teaches criminal representation at the École du Barreau du Québec. Her interest in mental health issues has led to her involvement in national and international conferences. She took part in the work of the committee of the Barreau du Québec that studied Bill C-10 and she was also with me when we appeared before the House of Commons Standing Committee on Justice.
Ms. Lucie Joncas, ad hoc member, Criminal Law Committee, Barreau du Québec: Madam Chair, first of all, I would like to mention that the Barreau du Québec is in favour of the implementation of almost all of the amendments to the Criminal Code in Bill C-10.
The Barreau is pleased to note that the capping provisions are to be repealed given that the potential effects of those provisions would run counter to the goals set out in section 672.54. I would like to remind you that the objectives of part XX.I of the Criminal Code have to do with both protecting the public and respecting the rights of the mentally-disordered person, including the right to the least onerous and least restrictive disposition, as was clearly defined in the recent decisions of the Supreme Court this year in Pinet v. St. Thomas and Penetanguishene v. Ontario.
On the other hand, the Barreau would like to share some concerns with you about maintaining that balance between the public interest and the rights of the mentally disordered.
Since we appeared before the Standing Committee on Justice on November 29, 2004, new amendments have been made to the bill. Among them, there is a broadening of the definition of assessments of unfitness, responsibility and new assessments under 672.121.
From now on, not only a medical practitioner but also any other person designated as being qualified by the provincial attorneys general will be able to conduct an assessment.
However, the minimum criteria for qualification are not set out in the bill. Furthermore, in the legislative summary revised on February 25, 2005, the only ground given to justify such a reversal has to do with the shortage of psychiatrists. But section 31 of the Medical Act states that diagnosing any deficiency in the health of human beings is an activity reserved to the practice of medicine.
When it comes to being unfit or not criminally responsible, sections 2 and 16 of the Criminal Code refer to the term "mental disorder", which is defined in the Code as a disease of the mind. Among those liable to be designated by attorneys general to conduct assessments, the legislative summary refers to psychologists, although diagnosing and treating mental pathologies is part of the practice of medicine. Psychology has more to do with relational and functional disorders.
But some of the most frequently identified pathologies in the context of the Criminal Code require a diagnosis. For example, think of schizophrenia, self-induced or involuntary intoxication, organic or cerebro-organic conditions, toxic psychosis, delirium or even head injuries.
In addition, treatment under section 672.58 in order to make the accused fit can only be prescribed by a member of the College of Physicians. It is important to remember that the provisions of Bill C-10 deal with particularly vulnerable individuals. In our view, it is desirable to limit the number of interventions for assessment or treatment of these individuals. Contact with a larger number of people could have a destabilizing effect on this clientele.
On another point, the Barreau's concerns about the fitness of the accused at sentencing, though not among the amendments made to Bill C-10, were met with some interest by the minister. We take note of the fact that a review of this issue is on the minister's agenda, and we would take this opportunity to mention that the Barreau du Québec would be interested in participating in that review.
Last, we note that the both linguistic and legal arguments about the use of the expression "suspension d'instance" for "stay of proceedings" in sections 672.1 and 672.851 were rejected. We believe that the expression "arrêt des procédures" properly translates the legal decision expressed by the expression "stay of proceedings". We would add that the "suspension" used in the terminology in Demers refers to a stay of proceedings, not a suspension of proceedings. Suspension does not entail a final stay.
We would therefore suggest that this issue be re-examined. This would be a good opportunity to standardize the terminology of the Criminal Code by using the French expression "arrêt des procédures" to translate the expression "stay of proceedings".
Thank you in advance for your attention to the concerns of the Barreau; I am ready to answer your questions.
[English]
Mr. Curt Flanagan, Crown Attorney, Leeds-Grenville, and Co-Chair, Advisory Committee on Mental Health, Ministry of the Attorney General of Ontario: At the onset, I should indicate to you a little bit of my experience. I am a Crown attorney in the Judicial District of Leeds and Grenville. That, for all intents and purposes, is Brockville, and we do have a psychiatric facility in Brockville. I also have a lot of experience in relation to appearing at review board hearings. Since I was appointed in 1993, I have appeared on a regular and continuing basis at such hearings. I am also a co-director of the education program for Crown attorneys across the province in relation to review board practice, so I am here to speak to you as an experienced party at review board hearings.
I should say also that Crown counsel support the proposed amendments with respect to the legislation. We see the participation of victims as being very important with respect to this process. I note, for example, that the legislation addresses proper notification to victims, that if they wish to make a victim impact statement at a review board hearing, they have the opportunity to do so. That is welcomed. They are members of the public. I have talked to many victims and sometimes you hear a victim say, "I did not know anything about the procedure. I did not know what happened after the section 16 finding, the NCR, and what happens in relation to review boards." This is a welcomed amendment to the Criminal Code.
That leads me to victim impact statements. We see victim impact statements as relevant and cogent information and/or evidence before the review board. I would like to put it into context. The review board is an inquisitorial body as indicated by the present Chief Justice in the Winko decision. There is no presumption of dangerousness. The review board on NCR accused persons must decide what the least onerous disposition is, and as of recently, as mentioned by my friend to my right, the Pinet and Tulikorpi decision, also conditions that disposition. At the end of the day, the review board, which consists of five members including a community member, a legal member and medical members, must decide what the appropriate disposition is for an accused, and it must be the least onerous.
Of course, the consideration that you are all familiar with is the protection of society. The Crown counsel is party to the hearing, and we address that, obviously, to the fullest extent. At the same time, we need to balance the mental condition of the accused and the reintegration of the accused back into society, and also the other needs of the accused.
How are they significant? A victim impact statement is not an invitation to further punishment. As you may be aware, victim impact statements are also used in the court process. The victim impact statements are used for the psychological and the physical impact on the victim in relation to the particular crime. Even in court on sentencing, the victim is prohibited from putting in punishing, vengeful or such like phrases in relation to the sentencing procedure.
Because victim impact statements address the full extent of the impact on the victim, we view them as being very helpful to the board, keeping in mind that the board is inquisitorial. This is not an adversarial situation. The board wants the most significant, recent and relevant evidence so as to decide the ultimate issue. If the board does not find that the accused is a significant risk to the safety of the public, the board will discharge absolutely. That is the law. In order to make that determination, they use the information from the victim impact statement relating to the extent of the harm, the degree of harm and the type of harm. For example, there may be a difference between a simple assault and a stalking which goes on for periods of time, which, as you can appreciate, creates tremendous psychological harm for those who are affected. We see it as very relevant to the protection of public criteria as in section 672.54, but it is also relevant to other criteria.
The mental condition of the accused is another criteria. When a board is conducted, it is in a room with five board members, and then there is the accused. They will be represented, for the most part, by counsel. A representative from the Attorney General will be there, and the hospital representative will be there. The hospital will present the hospital report in relation to the accused. The board will want to know the insight of this particular person into their own mental illness, if they relax his or her conditions, and also into the gravity or the potential for future harm. How did it affect the victim? Therefore we see a victim impact statement also relevant on that ground.
Regarding the other two grounds, the reintegration of the accused into society and the other needs of the accused, I can say categorically that, fairly often, the victims in relation to these types of offences are family members. It is very informative, I would think, to a board member when a victim impact statement sheds light on which conditions should be addressed. For example, is it a pattern that has been on-going for years, as Madam Justice McLachlin said in Winko, or is it irrelevant? At the end of the day, we see the information to a board as very relevant. The board should not be shy to accept all relevant information in making its important decision.
In addition to that, however, I see in the legislation that there are limits to the use of that particular victim impact statement, and that is, if the board does not consider the victim impact statement relevant, or if it is not in the interests of the administration of justice to have the victim presented in the fashion that is described, they can so order. There are restrictions and limits if the board feels that it is irrelevant, and it may be that, on that particular case, it would not be irrelevant. I do not think you can pick and choose. That is a board decision. We see the amendments in relation to victim impact statements as a good thing. It makes the victims part of the process, and so they should be in that respect.
We also support the non-publication legislation. You will see in the non-publication clause, the clause addresses, first of all, victims and/or witnesses who are under 18 years of age with respect to, for the most part, sexual assault offences. Then the next section deals with child pornography. Then there is a catch-all section that deals again with on application of counsel — it is not a mandatory one but a discretionary one — where counsel or the accused can make an application with respect to publication. This is also an addition that I think protects the integrity of victims because on occasion, in disposition orders, the victim may or may not want their name appearing on a disposition order in relation to an accused person.
Information — the legislation also goes a long way towards providing the board with additional information, as I mentioned when I opened. The other vehicle used to do that is the assessment orders by the review board. That is, in my respectful view, a very good amendment. It allows the review board to get the most cogent and up-to-date information about an accused person.
It may be that the review board, in hearing what you are doing, it is not about an individual who is actually in the hospital. It may be that he or she has been living in the community, and the board needs some relevant and current information in order to decide whether they should be absolutely discharged.
Of course, the other legislation that has been amended that also helps in this situation is that there is legislation addressing what is to be sent to the board from the court, all the relevant information. Also, there is legislation that allows the board to adjourn for 30 days to receive relevant information. You can see that, in the past, there have been certain impediments on the board's power to do certain things. The legislation seems to increase the board's power to receive important information because it is an important decision that they have to make. Lest we forget, and perhaps I will end with this, in regard to victim impact statements, the situation will not be that in every case before a review board, there are victim impact statements filed; however, on those cases where such evidence will help the board make an informed decision, it is important that the legislation enhances that aspect.
[Translation]
The Chairman: My first question is for Ms. Joncas. It is legitimate to raise the question of variations in qualifications from province to province for the assessors of an accused's mental state. If those qualified to conduct an assessment are individually designated by the provinces and territories, should we be concerned about having different types of professionals with various training and qualifications? Depending on the region of the country, these people conduct assessments.
Ms. Joncas: That question refers to the principle of equality before and under the law and to the fact that all individuals charged under the Criminal Code should be treated the same way. However, if, for example, in British Columbia, it is psychologists, and in Quebec, it is psychiatrists or medical practitioners who do those assessments, people will not necessarily have access to the same treatment.
I mentioned the vulnerability of that part of the population that comes under the provisions of sections 672 and following. Access to adequate and equitable care is called for. Any medication that might be prescribed can only be prescribed by professionals who are members of the College of Physicians.
So that question is a concern of the Barreau for the entire country. Every individual must be treated equally before and under the law. In my opinion, the Criminal Code should set out certain minimum criteria for professionals to be designated.
The Chairman: We have observed that there are two schools of thought on the advisability of allowing, before the review board or court, the presentation of a victim impact statement. According to some, a review board hearing is not the appropriate place for the presentation of such statements. For others, such statements are quite relevant, because victims are entitled to be heard.
I would also like to hear your comments on victim impact statements.
Ms. Joncas: As my counterpart said, it is important to bear in mind that a review board's disposition is remedial in nature, not punitive. But the Barreau maintains that the victim may have relevant information to contribute. However, that information must be limited to the conditions and must never transform the nature of the hearing into a punitive process. We think that what the victim may have to contribute is of interest. Protecting the public is also part of the mission of the Barreau. So we are open to the presentation of these statements.
If you do not mind, I would like to come back to the authorization of other health professionals to conduct assessments, because this issue is of particular concern to us. With respect to assessing fitness or unfitness to stand trial and responsibility, it seems to us that this decision is for medical practitioners, because a diagnosis must be made. At another stage, the Barreau is open to the assessment of the dangerousness of an individual being done by someone else. At that point, other professionals could be qualified to provide informed insight into that. However, specific training must be provided — referring to psychologists in particular. Some are qualified to use tools to assess or more or less predict dangerousness.
So when it comes to a disposition under section 672.54, once the individual has been found unfit and not responsible, the Barreau is somewhat open to that, but only at that stage.
[English]
The Chairman: The bill allows the transfer to another place in Canada of a mentally disordered accused who is detained in a hospital. Can you tell this committee about any concerns regarding interjurisdictional transfer of a mentally disordered accused that are pergaos not addressed by Bill C-10, but should be?
Mr. Flanagan: For the most part, the concerns are addressed by Bill C-10 in relation to interprovincial jurisdiction.
Senator Baker: It is a pleasure to have both primary witnesses here today, one a very well known and competent Crown attorney who is known in the province as being somebody who is a Minister of Justice in his own right. By reading some of the judgments in which he has taken part, I must commend him for the quality of his representation for the Crown.
We also have a defence attorney who is very well known, although I am surprised that it has only been for 13 years. You have made quite a name for yourself with some very high profile cases recently.
I would like to ask you if you have heard the term "forensic psychiatrist."
Ms. Joncas: Yes, of course.
Senator Baker: Tell us about that. Why would you suggest that you should have a forensic psychiatrist make the assessment?
Ms. Joncas: The bar's position is that it is a medical act. It is a reserved act. The Criminal Code, as of now, provides for the fact that a doctor can make that assessment, not necessarily a psychiatrist. I do not know if I made myself clear. We are not saying that only a psychiatrist should be allowed to make those assessments but we are preoccupied with access to care and getting the proper medication prescribed as necessary. We believe that if other intervenors are making the assessments, then we need to have our clients or the accused in contact with many other people, which stabilizers them further.
Senator Baker: Yes, that is true. The board is composed of a chair, who is a retired judge, or another who is qualified to act as a retired judge, although I do not know what those qualifications might be.
Ms. Joncas: It requires ten years in practice.
Senator Baker: You have 13 years. The board must have a psychiatrist present and a person who practices medicine. Am I correct, Mr. Flanagan?
Mr. Flanagan: The person could be a psychologist.
Ms. Joncas: — or a social worker.
Senator Baker: What is the precise term used in the legislation? It says, "...a person who practices medicine..."
Ms. Joncas: I beg to disagree.
Senator Baker: We will say that the person should be a psychologist. On the board there is the chair who is learned in the law, a psychiatrist who is learned in psychiatry, and someone who is of a practical nature. That would be a quorum. There are five people on the board.
Ms. Joncas: In hearings in Quebec, we have only three people at one time.
Senator Baker: The law says five people, does it not, Mr. Flanagan?
Mr. Flanagan: You can have fewer than five. In Ontario, we routinely have five persons.
Senator Baker: I apologize for being so specific. In each province, it is not the same. A Crown attorney does not advise the board on the nuances of the law in all provinces when you have those hearings. You mentioned the terms "significant risk," and "least onerous disposition." These are highly defined pieces of law interpreted by the Supreme Court of Canada in various judgments.
You have the board being advised by a Crown Attorney. I imagine that Ms. Joncas would be concerned that perhaps the accused does not have a lawyer representing him or that there is no requirement for that. As I recall, when you appeared before the commons committee once years ago, you claimed that only 25 per cent of those who appeared before a review tribunal were represented by counsel. Am I correct?
Ms. Joncas: Yes. Fortunately, following those representations, the government initiated a pilot project, which we think should be permanent, whereby six defence attorneys were named at the legal aid offices who alone could represent people before the review boards in that type of situation.
Senator Baker: Where is that?
Ms. Joncas: In Quebec.
Senator Baker: Is that only in Quebec?
Ms. Joncas: I have no idea about the other provinces.
Mr. Flanagan: In Ontario, this is the typical situation. You go into the hearing where five persons sit on the board. There is a community or layperson, a judge or chairperson to sit as chair of the board; a legal member of the board, who gives legal advice and interprets the legalities of any arguments for the board, and medical personnel, one of whom at least must be a psychiatrist. Often, there are either two psychiatrists or one psychiatrist and one psychologist. That is the norm in Ontario.
As for your comments on the accused being represented, I would say in the overwhelming number of cases, the accused persons are represented at board hearings, particularly with respect to annual hearings. In relation to initial fitness, as a result of a decision of unfitness by the court, counsel can be appointed. The legislation, which is another welcomed addition, allows counsel to be assigned ahead of the board hearing. You can appreciate some of the impracticality of going to the board hearing where the board has yet to assign counsel. It is nice that they can be assigned prior to the hearing. When you are dealing with a person who is unfit for a hearing, it is always in the interests of the administration of justice to have proper counsel for them.
Senator Baker: I have one more question for this round. We appreciate your comments regarding the proposed legislation. There seems to be a general acceptance that it should be passed.
I am a bit surprised that there seems to be unanimity amongst the witnesses. As Ms. Joncas mentioned a moment ago, the bar on maximum was removed. I presume that is the capping you were referring to, was it?
Ms. Joncas: Yes.
Senator Baker: We went through that procedure some time ago.
I would like your comments on a concern that some people have. When a person is charged and appears before a judge for various summary conviction offences, not indictable offences, the judge says that he cannot pass judgment on two of these offences, and so the person ends up with a psychiatric examination that identifies a specific illness. The person is then assigned to an institution that is not only a psychiatric hospital but also, as I understand it, an institution where criminals might be awaiting sentencing. Such a place is not a nice environment.
For a summary conviction offence, that person could be there for two years. Between the jigs and the reels of going before your review board, perhaps the person will refuse medication. There have been some such cases recently of people refusing medication. However, the cap said that after two years, someone charged with a summary conviction offence shall be released. That cap was put in to ensure that someone would not be left in an institution with no way out.
What is your defence to that? I am surprised that you are opposed to having that kind of cap. Why would you not suggest that an acquittal be entered rather than a stay of proceedings? A stay of proceedings can be reinstituted at any time in the future, whereas an acquittal could not be reinitiated. Why would you not recommend "acquittal" for the proposed legislation rather than the phrase, which is so complicated between French and English, "stay of proceedings"?
Ms. Joncas: I think the Supreme Court is recommending that it be a stay of proceedings.
Senator Baker: That has never stopped you in the past.
Ms. Joncas: Second, in respect of the capping, it is important that we do not create a false sense of security such that people would rely on the fact that, in two years, the person will be discharged and, therefore, they do not have to address the issues. The way in which it has been interpreted by the Supreme Court is that it is always the least onerous and least restrictive of the measures taken for that person.
We believe that the way in which section 672.54 is interpreted by the Supreme Court and by the review boards is sufficient to protect the rights of the accused. We would be afraid of people relying on the capping and not addressing the issues at the same level. That is how it was brought forward in the first place. In 2002, I was here to represent the bar, but that was also the position of the Defence Attorneys Association.
The interpretation of the dispositions provides for the proper safeguards for the individual. We have to remember that the Crown attorney, in a summary conviction case, cannot raise the issue of responsibility unless the accused brings his mental illness into the picture.
Senator Baker: The judge puts the person in the institution in the first place after a psychiatric examination. Say the diagnosis is schizophrenia, for example. The board is not perfect. That is why we have courts of appeal. We have all these recent decisions mentioned by the Crown attorney a moment ago, and so everything is perfect and now we do not need it. That is why we have courts of appeal. That is why you appeal these matters to the Court of Appeal. If what you are saying is correct, the board is perfect because of these recent decisions, and we do not need an appeal to the Court of Appeal anymore.
Ms. Joncas: No. I am saying that the appeals are directly to the Court of Appeal regarding any of these matters in an urgent way. It is a priority hearing. We have just had two recent Court of Appeal decisions on conditionally discharging individuals who had been kept in by the board under conditions. I believe that the appeal mechanism is very important.
I am saying that the way in which section 672.54 is being interpreted by the courts is sufficient to protect the individuals. We would be afraid that leaving the capping on would give us a false sense of security.
Mr. Flanagan: It is important to draw the distinction between the two processes. I hesitate to raise Winko again. It is not a punishment process. With respect to capping, I share my friend's position with respect to that. We are supportive of it being appealed. Does that mean that you potentially risk public safety because there is a cap on an individual, no matter what the offense is? I do not think so.
It may be true that they are in a system, but it is a system that they will benefit from. Let us be honest: They are in a hospital; they are receiving treatment so that they can reintegrate into society. To allow them to walk out the door because of an artificial barrier on a capping where they could remain a significant threat to the safety of the public —
Senator Baker: A summary conviction offense, for example, such as common assault.
Mr. Flanagan: But it is not punishment. I do not have the statistics in front of me as to how long they stay in the review board system, but you may have a person who commits a level one assault that could pose a significant threat to members of the public. You cannot draw the line and say, "This person has been in the system long enough. It is time to release the person, notwithstanding the significant threat." It cuts across the whole purpose of the review board process, in my respectful view.
[Translation]
Senator Joyal: Welcome, Ms. Dufour and Ms. Joncas. I do not know whether you will be as successful as your predecessor from the Barreau, Mr. Brousseau, who attended previous committee meetings on behalf of the Barreau. He was appointed to the family court bench, and we have unfortunately lost the benefit of his advice.
I wish you no ill, but I hope we will have the pleasure of seeing you for a long time before your career experiences any other developments.
I would like to come back to the first point of your presentation about section 2 of the bill and the definition of assessment. You are suggesting that the power given to the Attorney General to designate people without specifying which ones may in practice conflict with the fact that making a diagnosis is an activity for which medical practitioners are exclusively responsible.
Did I understand your presentation correctly when you made that point?
Ms. Joncas: Absolutely, that is the position of the Barreau. We hope that the situation will remain as it stands under the Criminal Code, in terms of fitness and responsibility assessments. But the Barreau is somewhat open to a post-diagnosis assessment of the dangerousness of an individual with a view to disposition options.
Unfortunately, we understand that given certain limitations on access to care, following deinstitutionalization, some people wind up in a system with problems accessing care, and further limiting that access with Criminal Code restrictions would be a mistake. As a matter of fact, section 672.58 provides that this is the only time at which an individual can be treated against his or her will in order to be made fit, and naturally only a medical practitioner is in a position to inform the court whether the prescribed medication will indeed make the individual fit. If we do not reach that conclusion, we cannot order treatment. The assessment under section 672.58 can only be done by a medical practitioner.
The Barreau is concerned that there are no criteria governing the qualifications and consultation process for provincial attorneys general to follow when designating persons qualified to conduct assessments.
In my comments, I mentioned a number of organically-based pathologies that are not necessarily detectable. We understand that at the time of the fitness assessment, and it is often separate, responsibility is assessed. But at the time of the fitness test, certain pathologies may go undetected, mental illness being what it is, fluctuating from time to time depending on whether medication is being taken or not, and ad hoc assessment is very important. We would worry that some not criminally responsible cases would fall through the cracks because the assessor was not qualified to detect these organic problems.
Senator Joyal: I have two questions about your answer. When we heard from Mr. Burn Walter, President of Review Boards Canada, he suggested to us in the last paragraph of his brief, on the same point you just mentioned:
It would be more useful and administratively convenient if the section permitted the designation of a group or class of professionals rather than individuals.
He seemed to be confirming, based on his experience, that as section 2 is currently drafted, there is the problem you raised, i.e., that we do not know who will ultimately be designated.
There are two parts to the assessment of an individual. There is the mental state or condition of the individual, i.e., whether the person is fit to stand trial, and then there is the question of whether the individual was held criminally responsible. How should the individual be treated? So there is an initial diagnosis, of the mental condition, and at that point we should ask who is in the best position to determine that mental condition or state. And then there is another examination to be done, the assessment of the dangerousness of the individual. In other words, what risk is society taking in releasing the individual, in reintegrating the individual and ensuring that if the individual needs to take medication, there is someone seeing to it that the medication is taken?
To say that the individual is not too dangerous as long as he or she takes his or her medication regularly is not all there is to it; who is going to make sure that when the individual is being deinstitutionalized and not monitored constantly, we can ensure that the individual is monitored constantly. Who is going to ensure that in practice, the individual continues with treatment so as not to become a risk again?
This whole part of the assessment of social or family risk, depending on the circumstances, requires another type of professional in order to clearly identify the social element that the mentally disordered person represents.
How do you see section 2, with these two aspects of responsibility and the assessment to be made of the individual's state?
Ms. Joncas: In terms of the assessment of both fitness and responsibility, under section 672.11, it is clear that both aspects must be assessed by a health professional.
In addition, with the new assessment under section 672.851, it is very confusing when you go from section 672.1 to 672.62, and the Barreau would suggest that the rather creative numbering of these sections could stand to be revised. These are both important to the Barreau.
You did a very good job of summarizing my thinking and our position on unfitness and responsibility. A diagnosis is required; under the code, it is a mental disorder. However, once the person is found unfit or not responsible, when it comes to the assessment and who might guide either the court or the review board on how to treat the individual, the Barreau is open to having certain professionals specifically trained to do that, and I am referring to psychologists, in particular. Among other things, when there has been no assessment in a year, the board now has the power to order a new assessment, the diagnosis already having been made.
Section 672.851 is somewhat open to it being another designated professional, but the code should provide criteria at this stage to guide provincial attorneys general in making that designation.
[English]
Senator Joyal: Would you like to add something, Mr. Flanagan?
Mr. Flanagan: I share your opinion by way of the comments you are making in relation to the qualifications to the extent that the assessment covers both section 16 and also a fitness assessment. The test for fitness is not a very high threshold, from the cases: It is to understand the consequences of the nature of the proceeding and to communicate with counsel. In that regard, it may be that persons other than a medical practitioner can perform that — for example, a psychologist.
The difficulty you have mentioned, and that my friend to my right is concerned with, is that when you get into section 16 assessments, which at times are with respect to murder charges, it is a very important assessment. You want to make sure that the person is duly qualified under very strict parameters and qualifications to be able to give that assessment the thorough job it needs, and also so that it can be used in the most productive way.
I see that the amendment has added this other category. I am with you in relation to the aspect that it has to be someone very qualified, because we are dealing at times, with all due respect, with dangerous persons, and it is very important that a proper assessment be conducted.
Ms. Joncas: If I may add, this relates to Senator Baker's previous comments. I understand the importance when it is relating to a murder charge, but what are the consequences for somebody who is accused of a theft by summary offence? The consequences are quite important since that can provide for detention for quite a lengthy period of time.
I know from reading some of the presentations made to you by the Minister, Mr. Cotler, that they were considering the possibility of nurses making those assessments. When we are referring to the possibility of somebody losing their liberty and being treated against their will, we must be extremely careful how we envisage that.
[Translation]
Senator Joyal: My other question has to do with other testimony we heard last week about the review process and the potential impact on the Canadian Charter of Rights and Freedoms. One of the witnesses we heard pointed out that the way the process is set out in the legislation, there is almost a perception that the review board would reach a conclusion on the state of the file before even hearing from the various parties, such as the professionals, or the people responsible for custody, and that this could violate sections of the Charter, specifically section 7 of the Charter. One of the witnesses had doubts about whether the provisions were Charter-proof. When you studied Bill C-10, did you get the same impression?
Ms. Joncas: No, I did not get that impression, and at any rate there is an appeal process if you have the impression that you did not get a proper hearing. But there is a problem with disclosure of documents to the defence before the hearing. Unfortunately, we often get the psychiatric reports the morning of the hearing, and that is unacceptable.
No, I do not get the feeling, and I have appeared a number of times before the Tribunal administratif du Québec, which has jurisdiction over review boards, that any party may be heard. I do not feel, even with these amendments, that the situation could be prejudged.
In addition, there is an important point that I would like to emphasize, and that is the new powers of the board to order an assessment. How will that process occur? In the absence of an assessment, will the accused be able to get an assessment by the professional of his or her choice? How will notice be given? That is not spelled out in the bill. How will it be determined who the professional will be, the medical practitioner or psychiatrist? Who will do the assessment?
I think that the provisions are unclear about that and could stand to be clarified. There is apparently no provision for the audi alteram partem process. That is something that needs to be raised. The individual who is to undergo an assessment should be able to have the assessment done by the professional of his or her own choosing. The individual should at least be able to be represented and heard and should be able to propose alternatives to whatever requirement the review board might impose.
Senator Joyal: You are saying that the freedom of the individual to put forward the best case for his or her own rights and freedoms — as you say, it is ultimately the individual's freedom — is not clear enough in the bill to guarantee the best result in terms of what the individual might expect from the court?
Ms. Dufour: That is not quite it. The Barreau has questions about that possibility. We are talking about a board conducting a hearing on the nature of an individual. We are not sure that the provisions, as they are currently drafted, make provision for, as for any hearing, the individuals involved to be there. We understand that there is a place for the victim and that a new assessment can be ordered, but how is that new assessment to be ordered? Is it based on a paper review of the file? Is it based on a reading of the victim impact statement? Or is it at the hearing, when it is discovered either that the file is incomplete or that the existing reports are out of date and the information needs to be updated?
The goal is to ensure, not the best defence, but that the board has the most current information possible to assist it in making its decision in the best interests of the public and the individual before it.
Ms. Joncas: It is more about the choice and the process. The choice of professional. How is the board going to reach a decision on assessment and who will ultimately be the assessor? An individual who is not criminally responsible or is unfit should play a role in the decision to order an assessment.
[English]
Mr. Flanagan: Very briefly, I think they do. Leaving aside the assessment and who conducts it, under the new legislation there can be an application on behalf of the accused person for an assessment. Let us keep in mind that the board is inquisitorial. The board is to receive the information. You can also call witnesses, so there can be an application by the accused for an assessment because the assessment in the hospital file is out of date and is not reflective of a person's mental condition. As long as a proper person is assessing it, the board will receive it. We should not be afraid of receiving all relevant information. We are all on the same page, so to speak. We want to re-integrate the person back into society and, at the same time, protect society, and in doing that we need the most relevant information.
Senator Joyal: On the other hand, there is no doubt, as Ms. Joncas mentioned, that we are dealing with the freedom of a person, and especially if we are to compel the person to be submitted to an examination, which is one of the very few cases in the code whereby someone cannot refuse a treatment, which is quite rare, as you know in our common law in Canada. In that very specific instance, I have the impression that the person should be afforded the best way to present his or her case in the context of decisions that have a direct impact on his privacy and on his or her freedom. I understand that the board is not there to punish and to try to intervene in the judicial process, per se. We are more in a medical process and a sociological process, in my opinion. According to the definition of principles that the Supreme Court stated in Demers and Winko, in fact, those are the principles that frame the system. That person is a person who needs assistance, and the person cannot be totally dependent upon decisions taken by others in his own defence. That is where there is a nuance.
Mr. Flanagan: The Supreme Court of Canada has also said, in addition to the focus on the person, there is a focus on society. I see every protection. I do not think it is a section 7 issue in relation thereto. An assessment is done. The board is just asking for the most relevant assessment. In fact, the accused can directly apply for the assessment. If the accused disagrees with the assessment, or there is other evidence to call, that is all put to the board. The object of the exercise — and perhaps it is not proper to phrase it like that — is to make the least onerous, least restrictive disposition for this accused.
Is it wise for the board, which has not had an assessment in years, to do so without any information? Some of these accused persons are living in the community and doing excellently — doing quite well, but the board needs up-to-date information and the protection is there for the accused. They can call witnesses, they can get their own assessment and they can disagree with thatassessment. Also, that is not the only document before the board. The assessment is only one part of it.
Ms. Joncas: If I may add one thing: We are in agreement with the fact that, yes, the defendant can obtain his own assessment. All we are saying is that we do not understand how, by way of the process under section 672.121, when the board "of its own motion" orders an assessment. We just want to make sure that when the board of its own motion requests an assessment, there can be room for debate as to who should be doing that assessment. That is all we are saying. We are not in disagreement with the review board's power to make such an order. We just need that to be done in due process.
Senator Joyal: That is very well understood.
Senator Milne: This follows from the same point. Just on the same section, if I may, Senator Ringuette, 672.1(1), clause 3, the gentleman who was here last week from the review board representing their point of view suggested that under (b), there, that that section should end after the first line. In other words, (b) should read:
(b) Make a disposition under section 672.54.
— period, and would remove the "following circumstances," so that the review board should be able to make a recommendation to the court under subsection 672.851(1), or make a disposition under section 672.54, period.
I would just like your viewpoint on that suggestion.
Mr. Flanagan: If I am reading you and the legislation right in relation to it, the purpose to allow the assessment to be ordered for the disposition is because there is no current information. You can see that the clauses address no assessment at all. They address the assessment as more than a year, et cetera, so that is the intent. To drop that and just say make a disposition under section 672.54, the answer is yes, the board will still deem that we need an assessment, perhaps on their own motion. Then you might get into more of what we were talking about before. What will happen on every board is will you get an assessment after an assessment after an assessment? I think it is restrictive in the fashion that it is worded because all we are looking for is within the last year, keeping in mind these annual hearings.
Senator Milne: They were concerned about putting some of these people through multiple assessments.
Senator Joyal: And victim after victim after victim, on the other side.
Ms. Joncas: I agree with my friend: I think the reasons that these conditions are there is to restrict the board's possibility of making multiple orders. An order a year, when there is not a hearing every year, I think, is necessary, but maybe not every three to six months. If the board wants more information, then there should be a debate on the necessity for it, and I think these conditions are necessary to put some safeguards on these issues.
[Translation]
Senator Ringuette: We are glad to have you here today. I would like to broach two topics with you. The first has to do with the designation of people or groups of professionals by provincial governments, which may vary depending on the phase and particular situation. A psychiatric assessment of an individual may initially be requested, and down the road, when that individual returns to the community, a social worker who deals with the individual on an on-going basis may be requested to do an assessment.
My question is based on that premise and actual experience specifically in this field with these people and the whole review board process. Have you ever seen someone designated by a provincial government to conduct an assessment who did not meet the necessary professional criteria?
[English]
Senator Milne: Anything you say is privileged.
Ms. Joncas: Yes, but it is on the web?
Senator Ringuette: Do not name any person. I just want to know, in the practical background that you have in dealing with those situations, if you have encountered any situation where the province had designated a person or a professional to make an assessment at a certain phase of the offender's process that you found did not meet what you, as a practitioner, deemed were the requirements for either a judge or a review board?
Mr. Flanagan: I think I understand what you are getting at. It is not a situation where the province designates a particular individual for an assessment. For example, if you are on a criminal matter and there is an issue of a potential mental illness that may lead to an NCR finding, you will often have a forensic psychiatrist, and certainly a psychiatrist, testify to the court. That could be a psychiatrist called by the Crown; and, of course, there are psychiatrists in our province that we are aware of who go to court on a routine basis. However, that is not to say that you must use that particular person. The accused themselves may retain a psychiatrist and present a report to the court.
It is a difficult question to answer because they are not appointed by the board and the previous legislation allowed only a medical practitioner. Am I happy at all times with respect to the assessment? No; but that is up to me as Crown counsel, and I can test that assessment in court and at the review board hearing. If further evidence is required where another assessment must be done, so be it. One is obtained.
I do not want to skirt your question, but it is not a situation where the province designates, necessarily. I think the intent, frankly — and I am sorry if this is not correct, but I would think that one of the intents, in relation to the section, was because of fitness. There are some jurisdictions — and I can think of perhaps some in northern parts of provinces — where you cannot always get a medical practitioner to perform a fitness assessment.
Senator Ringuette: That goes back to your colleague's point that the offender should be entitled to the same level of professional assessment across the country, since we are dealing with this national legislation.
Mr. Flanagan: I agree.
Senator Ringuette: If I am reading it correctly, you feel that, as written, the legislation provides enough flexibility for the practitioner to make the necessary assessment?
Mr. Flanagan: If you are asking me do I feel more confident with a medical practitioner performing the assessment, or a medical practitioner and other persons performing it, I feel more confident with a medical practitioner doing it. Provided that, if it is to be expanded — and I can understand the rationale — in areas where you cannot always get a medical practitioner, and the accused may languish in the court system because of it, and you expand that category, then there must be strict qualifications that are uniform across the country so that we do not apply a different set of rules for justice for someone in Saskatchewan or Nova Scotia or Quebec.
[Translation]
Ms. Joncas: These problems exist with the application of what is called the Mental Health Act in English Canada, and in French, is called la Loi sur la protection des personnes dont l'état mental présente un danger pour elles-mêmes ou pour autrui. Some provincial legislation allows for exceptions in remote areas, but that is not provided for in the Criminal Code. I am sure that in provincial legislation, there are some exceptions for remote areas or regions, but there is still the concern about equal treatment before and under the law.
In my experience before review boards, I have put people on the stand who were not medical practitioners or psychiatrists, but who had knowledge of the individual's treatment. So we are not saying that we want to ban the front-line experience and knowledge that extraordinary people may provide as information to both the court and the review board. The problem is with the making of a diagnosis and medical supervision.
[English]
Senator Ringuette: My other question on a completely different issue would be more in tune with your role, Mr. Flanagan.
An issue was flagged to this committee last week regarding the evidence that is being transferred from the court system to the review board system. The current proposal in the legislation says that it "shall" be transferred. It was indicated to us that this would incur a lot of costs for review boards. It would also require them to have warehousing space and security for that evidence. I would like to have your input into this particular issue.
Mr. Flanagan: I will address that in two ways. We instruct Crown counsel who appear before review board hearings that it is imperative that all relevant information, — and that is both aggravating, that affects public interest, but it is also mitigating, in the best interest of the accused person — be put on the record in court, and a transcript ordered. That is very important because that is the first document, if you like, or introduction of the accused person to the review board. In that regard, transcripts or psychiatric reports are often filed, or a psychologist's report, perhaps, and even a victim impact statement, and I do not think they would necessitate the cost factor that you are indicating. I can tell you that the practice in Ontario now is to send those materials. We have strict guidelines on what we send to the review board. I note that the legislation, as a kicker, if you like, at the end, says "if the transcript, documents, information or exhibits are in its possession."
One of the impracticalities would be if you are dealing with a criminal charge and you have physical exhibits. That is an impracticality. That can be addressed with respect to a photograph of the particular exhibit. The storage of a physical exhibit, I am very mindful of your concern, may pose a problem but I think you can get around it by introducing a photograph of the knife, for example, in relation to the offence committed.
Senator Milne: They were talking about tissue as well. It says, "all exhibits filed," so some can be material that can, if it is not properly stored, deteriorate; it will rot.
Mr. Flanagan: It can be onerous, depending on the extent of the exhibits before the court. There is a concern in relation to that.
Senator Callbeck: Thank you for appearing today with your experience and expertise.
I had some specific questions on review boards, but that has been covered, so let me ask you a general question. It is important that in this legislation we have adequate safeguards to ensure public safety and, at the same time, to guarantee the rights of the mentally disordered accused. In your view, does this legislation, Bill C-10, give us that balance? Does it represent the proper balance?
Mr. Flanagan: Yes, absolutely. The amendments really jump out at you insofar as getting relevant information to the boards, and that is a good thing both in the best interests of the accused and in the public concern. Yes, there is a balancing. The Supreme Court of Canada has said it on occasion, and it happens daily at review board hearings. There are review board hearings going on in my jurisdiction this week. The legislation clearly allows for that balance. It is a balancing. At times, it can be tough balancing, but that is why you sit on the review board. That is your duty, to get the best evidence. The short answer to your question is yes, I think it properly addresses the problem.
Ms. Joncas: I agree with my friend. It is not necessarily the ideal situation but, right now, a certain balance is struck and we are heading in the right direction. It is certainly much more advanced and in favour of human rights than it was prior to the Swain decision.
[Translation]
Senator Rivest: The federal government has jurisdiction over criminal law, but the administration of justice comes under provincial jurisdiction. With our well-placed concern about equal treatment of all accused, and we could also say about the rights of victims which have featured prominently here, how far does the jurisdiction of the federal government go in terms of imposing consistency of treatment in the administration of justice on the provincial governments? For example, when it comes to choosing the number of people appointed to these boards or their qualifications or the role that victims should play in the status determination, the determination of the mental problems of the accused, where exactly should the line be drawn?
Ms. Joncas: I think that the Criminal Code determines quite specifically who the members of the appropriate administrative tribunal in Quebec, what the qualifications and what quorum are to be. There are significant criteria in place that must be met, precisely so that administrative tribunals applying the provisions of the Criminal Code meet a federal standard. I think that on this level, we do achieve a certain consistency, but when it comes time to allow other individuals designated by the provinces to conduct an assessment, there lies a bit of a trap.
In terms of access to health care services, which is a provincial jurisdiction, there are clauses in provincial legislation that interact very differently with the Criminal Code depending on the province. I think that eventually that is a question that may have to be raised here again, that is, how provincial laws interact with respect to the treatment of individuals who are a danger to themselves or to others.
I undertook a comparative study of the different laws and their interaction and there may be issues relating to treatment differences in the provinces that will require further discussion.
Senator Rivest: With respect to the Charter?
Ms. Joncas: Yes.
[English]
Senator Baker: When I look at the major changes in the legislation as you outlined them, it indicates that the review board has a duty not only to search out and consider evidence favouring restricting NCR accused but also to search out and consider evidence favouring his or her absolute discharge or release, subject to the minimal necessary restraints. They can cause records and witnesses to be subpoenaed, including experts to study the case and provide the information that they require. It goes on and on. That is from Winko, from 1999. If you look at Owen and Pinet, you come up with the rest of what is in this legislation, basically.
Would you not say, Mr. Crown Prosecutor, that what you had enunciated before about how relatively efficient the process is with these new amendments, what you are talking about is something that should happen today, and these changes are already incorporated in decisions of the Supreme Court of Canada, basically.
Mr. Flanagan: I am saying that there are a number of changes, particularly when addressing the permanently unfit, for example, that is out of the Demers situation, and there are a number of legislative changes that address concerns by the Supreme Court of Canada. Again, it is not to say that the system was not working before, but this legislation fine tunes, if you like, and improves on the delivery of the service in relation to it.
Senator Baker: I am saying that you can pick out parts of Winko and Owen and Pinet and you can see them in this new legislation. The board already had the responsibility. If that accused wished to have an assessment done, the board could do it. The reverse onus should not have been there if, indeed, it was there.
Mr. Flanagan: The assessment power for the review board is new. That is a new legislative amendment.
Senator Baker: What do you mean by that?
Mr. Flanagan: Allowing the review board to order an assessment.
Senator Baker: Let me read it again. Winko says that they can cause records and witnesses to be subpoenaed, including experts, to study the case and provide the information that they require, meaning the accused.
Mr. Flanagan: I understand the point. Let me explain this. When you do a review board hearing, the answer to your comments are, yes, on occasion psychiatrists will come, in addition to the hospital psychiatrist who is the treating psychiatrist for the accused. It may be that the accused gets a sexual assessment, for example. Perhaps he has a particular mental disorder, a sexual disorder. You can either file that report or call that psychiatrist.
On occasion, yes, the board can subpoena and have witnesses testify before them. The answer to your question is, yes, that could have occurred before. As I understand it, the difficulty that the board was having was that they wanted the ability to go out and order assessments, the legislative ability to do that. That is what this legislation stamps.
Senator Baker: With the requirement that there must be a review in one year. Without that reassessment being done, the accused was not receiving a fair hearing.
Mr. Flanagan: No, I do not necessarily agree with that.
Senator Baker: Not necessarily agree, but you sort of agree?
Mr. Flanagan: No, I do not. The accused always receives a fair hearing. The power for the assessment allows more up-to-date and additional information legislatively to allow the review board to make an important decision. I do not agree that prior to these amendments the accused did not receive a fair hearing, not at all.
Senator Baker: The information was supposed to be current. The assessment they were supposed to be dealing with was supposed to be current anyway. My final question is: do you as a Crown attorney sometimes do what Ms. Joncas suggested and not give her that disclosure until the morning of the hearing?
Mr. Flanagan: I can only speak for the practice in Ontario. I hope my friends in Quebec as prosecutors are of the same ilk. In Ontario, we have specific timelines to present information to the review board. For example, I have an individual who is out in the community who is subject to a disposition order. He or she has not received an absolute discharge. It may be that there are incidents in the community that impact on significant risk. It may be that they assaulted someone, but that that did not necessarily culminate in a criminal charge. I might gather a police report or a criminal record or more information on an entry on the criminal record. For example, the criminal record may reflect mischief, but maybe the mischief is a person with a sexual disorder who is looking into the bedrooms of certain homes. You can see that it takes on a different significance.
I collect information as a prosecutor, and then I send it ahead to the board. I give my friend a copy of it at the same time. It may be that sometimes you get information at the last minute. I get it at the same time, and I share it with my friends. There is no difficulty in that. Everybody is working towards the same goal here. They want to reintegrate the accused and get the accused back into society and, at the same time, protect society.
I would like to come back to one thing because I want to make sure that the senators understand this, at least in Ontario. For example, persons accused of minor offences who have a particular mental illness or mental disorder, the vast majority do not see the review board. The reason for that is that as a Crown prosecutor, I will have a file, and it will sometimes be thrown out to you and to other committees that if a person steals a loaf of bread they might be tied up in the review board system for a long time. The person who steals the loaf of bread I divert from the criminal justice system. I will get information saying that this person should follow their counsellor, if they have one, or should receive this treatment. I take it right out of the criminal justice system so that it does not go to the review board. There is a large percentage of that.
Crown attorneys in Ontario — and I am sure it is no different across the country — are trained and instructed, particularly in the case of mentally disordered individuals, to look at the possibility of diversion, first and foremost keeping in mind the protection of society and other safeguards. I wanted you to understand that because on very minor offences there is not a lot to give to the review board.
Ms. Joncas: If I could come to my friend's defence, it is not the Crown attorney who is not giving us the medical expertise; it is the difficulty that we have with overworked doctors who make reports at the very last minute.
Crown attorneys in Quebec rarely attend the review board hearings. It is really not an adversarial procedure. We have made mention that sometimes it would be in the best interest of the therapeutic relationship if the Crown attorney was there so that the psychiatrist was not playing the role of the Crown attorney.
In Quebec, it is not a question of having difficulty, necessarily, with the relationship with the Crown. It is not a question of bad faith but of difficulty obtaining the proper medical information on the morning of the hearing. I just wanted to clarify that point.
Senator Joyal: I would like to commend the witnesses, Mr. Flanagan and Ms. Joncas.
[Translation]
Madam Chair, we heard Mr. Walter from British Columbia but we have not heard information on the other provinces. How do the systems work in the other provinces?
The Chairman: Perhaps we could put some of those questions to the Justice Department's officials tomorrow.
Senator Joyal: I would like to hear the same kind of information we have heard for British Columbia, Ontario and Quebec. We heard some very well informed witnesses from Ontario.
That would illustrate that when we are considering a bill, we are not just interested in the bigger provinces and assuming that in those provinces where there are fewer people everything is fine. That is my first concern.
My second concern relates to the legal aid services that you mentioned. As you know, for few years now around this table we have been concerned with the state of legal aid.
Do you think it would be appropriate that, within the context of the bill that you are suggesting we pass, we make recommendations for broader access to legal aid for those individuals who suffer from mental disorders and who are dealing with the legal system? Given that we are at the very end of our study of the bill, do you think there are any other recommendations that we should make that will help the bill achieve its goals? We must ensure not only that the bill is well crafted, but also that it will meet its goals on the ground, in those places where it will be applied.
Ms. Joncas: There was that legal aid pilot project in Quebec. I think that parliamentary initiative, that was taken following submissions made by Quebec, among others, in 2002, should be extended and should become a permanent project.
These people are at a loss within a system that they do not necessarily understand. Under the Code, any individual who is unfit, or whom the court believes to be unfit, must be represented by the court. In the case of individuals who are found not responsible, or in cases where the review board may be ordering an assessment, I think that it is in the interests of justice that these individuals be represented by counsel.
This is in fact one of the Barreau du Québec's main concerns.
[English]
Mr. Flanagan: I would add that in Ontario, my jurisdiction, there is no difficulty in getting counsel to represent the accused persons who are without counsel through the legal aid system. Generally, a certain group of counsel across the province do this regularly. The hospitals know who they are, and counsel is arranged.
Senator Joyal: I raised that point about the provinces.
[Translation]
The Chairman: We could discuss this tomorrow with the Department officials. I think they will be aware of what is happening in the various provinces.
Senator Joyal: I am saying this now because the Department officials are in the room and they can hear us. Tomorrow, they can bring us information of these issues.
[English]
Mr. Flanagan: If I may comment with respect to the non-publication of the information to identify the particular person, be mindful. If you look at the third subsection in front of you, the existing draft excludes adult witnesses on sexual offences by its wording. Perhaps this can be improved upon at another time. You will recall that the first section that is mandatory says "a witnesses who is under the age of eighteen years," under sexual offences; and the next one, under child pornography; and the third one, under other offences, which is global in application, says, "for those persons who are not referred to in the offences above," which means that, leaving aside victims, who are covered, witnesses on sexual assaults over the age of 18 are not covered with respect to publication. That might be addressed.
[Translation]
The Chairman: Thank you very much. It was truly a privilege to have you with us today and to share in your expertise and your knowledge on this issue.
Tomorrow morning we will be hearing officials from the Department of Justice. You will have the opportunity to ask them relevant questions on the bill. We will then move to clause-by-clause consideration of the bill and to any discussion that may be required following that clause-by-clause consideration.
The meeting is adjourned.