Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 5, Evidence - March 27, 2014
OTTAWA, Thursday, March 27, 2014
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-14, An Act to amend the Criminal Code and the National Defence Act (mental disorder), met this day at 10:34 a.m. to give clause-by-clause consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today we conclude our study on Bill C-14, An Act to amend the Criminal Code and the National Defence Act (mental disorder). This bill amends the mental disorder regime in the Criminal Code to specify that public safety is paramount in the decision-making process. The bill also creates a scheme for finding that some of those found not criminally responsible will be considered to be high-risk accused. It also enhances the involvement of victims in the regime.
This is our fifth and final meeting on Bill C-14. During the public hearings, the committee heard from the Minister of Justice and Attorney General of Canada, the Federal Ombudsman for Victims of Crime and the president of the Ontario Review Board and Review Boards of Canada. The committee also heard from family members of victims of crime, organizations representing the rights of persons suffering from mental illness and their families, forensic psychiatrists, organizations representing the rights of offenders, legal and law enforcement representatives.
In addition to the public hearings held in Ottawa, the committee visited the Brockville Mental Health Centre because it is a specialized mental health facility. It operates the only hybrid corrections and mental health centre in Canada and North America, I believe. Committee members toured the facility's Forensic Treatment Unit and its Secure Treatment Unit. The visit gave members the opportunity to observe and meet directly with the forensic psychiatry treatment professionals who work at this facility.
As a reminder to those watching, these committee hearings are open to the public and are also available via webcast on the sen.parl.gc.ca website. You can find more information on the schedule of witnesses on the website under "Senate Committees."
I should mention that we have representatives from Justice Canada with us today: Carole Morency, Director General and Senior General Counsel, and Julie Besner, Counsel, Criminal Law Policy Section; and two representatives from the Judge Advocate General, who are here if the committee wishes to address any issues or questions to them.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-14, An Act to amend the Criminal Code and the National Defence Act (mental disorder)?
Hon. Senators: Agreed.
The Chair: Agreed. Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 7 carry?
Senator Baker: Mr. Chairman, I'm not proposing an amendment to this clause but I want to simply put on the record that during our hearings on this bill, and specifically on the disposition orders and conditions placed on disposition orders by the review boards, I referenced at the last sitting that it was normal to see in a discharge a condition that the individual submit to samples of urine and breath and to take part in rehabilitation, and as well that the individual NCR released to the community would submit, on a random basis, two samples of his or her urine.
I just wanted to leave with the clerk why I made that statement. I've read, as I'm sure Senator McIntyre has issued, these conditions in disposition orders saying exactly that. I just wanted to reference just maybe a couple recently. For example, the Ontario Review Board, Burton, Re, 2011 CarswellOnt 4628, the disposition order says, briefly, "ORDERED that the accused be discharged subject to the following conditions. . . ." — this was a person who was declared NCR — "(d) submits samples of his urine and/or breath to the person in charge of the Ontario Shores Centre for Mental Health Sciences . . .;" and "(g) participate in a program of rehabilitation . . .;" and then further on in a second order, "require the accused to submit, on a random basis, samples of his urine . . ." for purposes of analysis. Finally, if the person is arrested pursuant to a certain section of the Criminal Code "for a breach of any terms of this disposition, or an anticipated breach," that he "be delivered to the Ontario Shores Centre for Mental Health Services."
Those examples go on. In 2011 CarswellOnt 11608, the same wording for a person declared NCR; in Dasilva, Re, 2011 CarswellOnt 6183. I'm going to leave these examples with the clerk and also observe that the same applies to conditions of release by the parole board. I'll leave some Courts of Appeal decisions on that — these originate around 2005 — as well as an example of the Ontario legislation, which, Mr. Chairman, you referenced at one point, regarding capacity and whether or not a person needs to consent to that examination or if in fact the law is that if the person is not able because they cannot rationalize the matter, then that becomes another matter for the court.
We're going to leave that with the clerk just so it's very clear that these dispositions orders we're dealing with in this particular section you've called can vary considerably and can include that the person released to the community must subject themselves to urine analysis from time to time. That's all I wanted to say about that.
Senator McIntyre: Review boards do place that in their conditions, you're correct.
Senator Baker: That's from the dean of review boards, chair of review boards, who has been a chairman for 25 years in a province. The leading expert in the country agrees with that I just said. Thank you very much.
The Chair: Thank you for that, Senator Baker.
I'll go back to the original question.
Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 9 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 12 carry?
Some Hon. Senators: On division.
Some Hon. Senators: Agreed.
The Chair: Carried, on division.
Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 14 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 15 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 16 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 17 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 18 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 19 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 20 carry?
Senator Baker: Mr. Chair, I would alert committee members to the fact that there may be amendments introduced to this legislation by Senator Jaffer or someone on behalf of Senator Jaffer when this matter returns to the Senate after it is referred. She has some serious concerns about this legislation.
This particular section 20 was amended by the House of Commons committee. What they neglected to do, Mr. Chairman, is reference the fact that half of this bill deals with the National Defence Act. As it now stands, the review will only be made of the provisions in the Criminal Code and not as they stand under the National Defence Act. I'm just serving notice that we may introduce an amendment in the Senate to effect that change. I think it was overlooked when the matter was amended in the Commons.
Senator McIntyre: Senator Baker, you're referring to the five-year parliamentary review following Royal Assent?
Senator Baker: Yes.
Senator Joyal: I think it is important to mention it because representatives from the Department of National Defence are in the room this morning. It might be important that they be aware that, at third reading, we might want to consider amendments in relation to that specific department.
The Chair: Thank you for that information.
Again, shall clause 20 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 21 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 22 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 23 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 24 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 25 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 26 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 27 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 28 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 29 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 30 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 31 carry?
Senator Baker: Perhaps, Mr. Chairman, I'm wrong, but I wonder if one of the research staff could tell me whether or not I was incorrect in my statement that the National Defence Act is not included in the five-year review. Does 31.1 on page 21 cover the five-year review?
Robin MacKay, Analyst, Library of Parliament: The problem, though, is I don't believe you had called section 20.1. I believe we skipped from clause 20 to clause 21. I believe you just need to vote on clause 20.1. We did?
Shaila Anwar, Clerk of the Committee: It's all part of clause 20.
Senator Baker: You see, I thought the same thing, chair, because it was often distinguished by itself, 31.1 after 31. So I misspoke; is that correct?
Mr. MacKay: Yes, I believe it's covered.
Senator Baker: It is covered, so we won't need to amend the bill in the Senate in relation to that section.
The Chair: Shall clause 31 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 32 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 33 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
Senator Joyal: On division.
The Chair: Carried, on division.
Does the committee wish to discuss appending observations to the report?
Senator Baker: Yes.
The Chair: There were observations, but the final versions weren't circulated. Is there a desire to go in camera to discuss this or do it in open committee? Personally, I don't see any problem with open committee.
Senator Joyal: Normally the practice would be to do it in camera.
The Chair: If it's the committee's wish, Senator Joyal.
Senator Joyal: Yes, I would prefer to do it as usual, in camera.
The Chair: Senator Joyal is moving that we go in camera for a discussion of the observations. Is it agreed?
Is there a motion to allow staff to remain?
Senator Joyal: I so move.
The Chair: Are we in agreement with that? Justice and JAG staff can remain; they can be included in that as well. Is it agreed?
Hon. Senators: Agreed.
The Chair: Carried.
(The committee continued in camera.)
——————
(The committee resumed in public.)
The Chair: The clerk raised the issue that Senator Baker raised earlier with respect to confusion surrounding different clauses. For the sake of clarity, we should perhaps have a motion that our understanding is that the committee agrees that clause 20.1 carried and 31.1 carried. Is that our understanding?
Hon. Senators: Agreed.
The Chair: Is it agreed this bill be reported with observations to the Senate?
Hon. Senators: Agreed.
(The committee adjourned.)