Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 4, Evidence - March 5, 2014
OTTAWA, Wednesday, March 5, 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 4:17 p.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good day. 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.
We're continuing 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 high-risk designation for some of those found not criminally responsible for violent crimes. It also enhances the involvement of victims in the regime. This is our second meeting on the legislation.
To begin our deliberations, I would like to introduce, from the Canadian Bar Association, Ian Carter, a member of the executive, Criminal Justice Section; and Gaylene Schellenberg, a lawyer with the Canadian Bar Association. From the Criminal Lawyers' Association, we have Anita Szigeti, Chair, Mental Disorder Port-folio and Toronto Area Director. Ms. Szigeti, the floor is yours.
Anita Szigeti, Chair, Mental Disorder Port-folio and Toronto Area Director, Criminal Lawyers' Association: Thank you. It's an honour and privilege to appear today on behalf of the Criminal Lawyers' Association.
To tell you more about them, as I think you know, the Criminal Lawyers' Association is the voice of the criminal defence bar largely in Ontario, but we have members across the country. We have a special interest in mental disorder.
To let you know more about me, I am a mental disorder law specialist. I have represented more than 6,000 individuals with serious mental disorder in criminal and civil proceedings, so I have pretty much seen it all.
In my few minutes, I will have three things to tell you, the first being what we think the bill should be called. If we were to be honest about it, we would suggest that it be called the "holding the not criminally responsible responsible." The thrust of the legislation is to hold individuals responsible for their actions, albeit that the rule of law for many hundreds of years has recognized that we don't do that when individuals are not responsible.
Second, I would like to tell you why the amendments in the bill are unconstitutional. Third, I'll tell you why these amendments would make our streets less safe.
As a lawyer dealing with constitutional issues in mental disorder in criminal law, there are amendments that we do some hand-wringing about, wondering whether or not they would survive Charter scrutiny. In this case, I don't have that kind of doubt. It's my respectful opinion that this bill, these amendments, would not survive a Charter challenge. I say that for this reason: Anything in the mental disorder provisions of the existing Criminal Code that makes it survive Charter challenges to date is being taken out by this bill. So back in 1991, Swain and the Supreme Court told us that we cannot lock these people away and throw away the key any longer. This bill would let people languish without review for up to three years.
Second, the liberty interest of the accused at every step of the game previously had to be considered, with the least onerous, least restrictive disposition to be made, and that's being taken out of the bill, this time replaced with what is necessary and appropriate, a standard the Supreme Court of Canada has already struck down.
Third, our streets will be less safe because we as criminal defence lawyers will be advising our clients not to advance a not-criminally-responsible defence if it means indefinite detention without review and with very few, if any, privileges. For that reason, individuals will end up imprisoned without treatment, without access to services and without rehabilitation. When they come back out, they will pose as great a danger, if not a greater danger, than when they went in. We want folks choosing a NCR defence, and this bill militates against that. Those are my remarks.
The Chair: Thank you very much.
Ms. Schellenberg, please proceed.
Gaylene Schellenberg, Lawyer, Canadian Bar Association: I'm Gaylene Schellenberg, a lawyer with the Legislation and Law Reform Directorate at the Canadian Bar Association. Thank you for the invitation to present the CBA's views on Bill C-14 today.
The CBA is a national association of over 37,500 lawyers, notaries, law students and academics. An important aspect of the CBA's mandate is to seek improvements in the law and the administration of justice. It's from that perspective that we appear before you today.
With me is Ian Carter, an executive member of the CBA's National Criminal Justice Section. The section represents a balance of Crown and defence lawyers from every part of Canada, and Mr. Carter is a defence lawyer from here in Ottawa.
I will turn it over to him to address the substance of our submission and to answer your questions.
Ian M. Carter, Member of the Executive, Criminal Justice Section, Canadian Bar Association: Thank you for the opportunity to speak today. I had a chance to review the comments of the speakers in the last session here, as well as speakers before the house, to see what ground was covered. I didn't want to spend my time today repeating many of the arguments that have already been made, so I thought what I would do is focus on one particular issue because it struck me that this issue has not received a lot of attention and debate at this point, and it's the subject of the most recent letter we sent after our original submissions. That issue is the issue of notification.
The bill in its original form proposed that victims who requested so be given notice of an NCR accused's absolute or conditional discharge. That would be in addition to notification of review hearings, which they already receive. The bill would also require the court or review board to consider whether it is desirable for a no-contact-in-an-area restriction condition to be imposed on an NCR accused if discharged into the community.
Both of those changes the CBA supports. Victim notification and for them to have an understanding of the process we believe are important and critical. But as you'll see from our latest submission, the difficulty is that — and this can often be the case — when a change is made to an original bill at the last minute, as was done here, a bill that at least with that portion was positive, it can turn into a negative. An amendment with respect to the notification provisions was made in the house, and it's not minor; it's significant.
Under the new proposed amendment, a victim would now have the right to be notified of the NCR accused's intended place of residence on discharge. This, of course, opens up a much larger debate concerning privacy and safety that's playing out in other areas of the law as well.
We sent a follow-up letter on February 26 where five points are raised about this, and I want to flush them out a bit here.
Our first point is this: The best way to address concerns a victim may have about encountering an NCR accused — and they are valid concerns — is through no-contact orders. That is part of what the original bill had proposed and we support. That's a good solution because it deals with the problem directly. It takes it head-on by prohibiting any contact, which is the real concern in these cases. Those kinds of orders are commonly used in criminal law, whether it's part of bail conditions or a probation order. That's the first issue.
The second point — and we've raised this — is that this provision has the potential to hurt one of the principal goals of the NCR regime, the accused's treatment and reintegration into the community. Keep in mind, the NCR accused has not been found guilty of any crime.
How does the provision potentially set back treatment and reintegration? As the CBA Criminal Section is made up of equal parts Crown and defence, I thought it would be valuable to speak with a Crown involved in this area, and as I have reviewed the speakers, no Crown counsel have been heard with respect to this issue yet.
So I spoke with a member of the CBA, Lyle Hillaby, a Crown who has been doing review board work in B.C. for 23 years. He and I had an extensive conversation, and he raised these issues with me: From his perspective, reintegration into the community is critical because these people will not be housed forever. They need to be brought back into the community. In order to do that effectively, they need somewhere to live. He informs me that in the vast majority of cases, the individual when released is going to be renting. They are not property owners, and part of the process that they're involved in is finding places for them to stay. He informs me that they have a huge problem in finding landlords who are willing to take on people who have been released. His fear is that if there is a notification provision and the intended place of residence is released and made public, landlords are far less likely to want to house individuals coming out of the system because they don't want to be associated with any of the problems that might ensue.
Third, the language of the provision itself is vague. There is no definition of "place of residence," no indication as to whether this is an ongoing obligation that the NCR accused has to meet every time he or she moves, or when the provision ends.
Fourth, there are significant privacy concerns about releasing the private information of a citizen who has not been convicted of a crime. This hastily tacked-on provision to an otherwise laudable amendment has now opened up the legislation to constitutional challenge.
Finally, we've raised the potential for vigilante justice. At this stage, I want to point out that this is not a fanciful concern but is based in evidence. I would first point out that as of right now, there is no notification aspect to sex offender registration, both federally and here in Ontario. In other words, for convicted sex offenders, their intended place of residence is currently not released to the public or to victims. You're adding this punitive type of provision onto someone who hasn't even been convicted of a crime, when other individuals — convicted sex offenders — are not even subject to that onerous restriction.
I would note that concerns about vigilante justice and harassment of individuals have been raised. Most recently, a case went before the Supreme Court of Canada in December, and this is a case where media brought an application to have the first three letters and digits of a postal code released for a sex offender, under the provincial registry in Ontario. The Ontario Attorney General resisted that, and the case eventually worked its way up to the Supreme Court of Canada. As part of that application, the Attorney General of Ontario filed an affidavit from a superintendent from the OPP, who was a specialist in the area and who raised very real concerns about the public release of information with respect to an offender's whereabouts and the problems that it can have, including issues of citizen vigilantism and harassment of offenders and their families. That's evidence from a police officer.
While there are a number of difficulties with the proposed legislation, as outlined by Ms. Szigeti and others, this recent amendment is particularly troublesome, and we would ask you to consider removing it. Thank you.
Senator Baker: Of course, we thank the Canadian Bar Association for their well thought out submission again. I would like, Mr. Chair, to pay particular attention to the witness Anita Szigeti, who has an outstanding record in case law. She reported over 500 cases if one consults with Quicklaw or Westlaw Carswell. We have great admiration for her. I imagine she has been practising law from about 1999. I don't know about prior to that, but that was her first reported case that I could see. Over 500 cases.
Ms. Szigeti, you say this bill is not Charter-compliant. If I put myself in your position, you would, if this bill and the various provisions that would affect your client pass, bring forward your Charter challenge at the board level because we know that the board is now a court of competent jurisdiction to hear Charter arguments. We have a chair of a board on this committee. For 25 years, he served as chair of the board in New Brunswick, and he knows the subject inside and out.
My one question to you is this, and I would like you to think about the answer to it. You put forward your Charter argument. From what I can tell from your argument here before us, it would either be a violation of fundamental justice, section 7, the three years arbitrary detention. You would probably bring in a section 12 argument.
Ms. Szigeti: For good measure.
Senator Baker: Yes, and then you would seek a remedy because it's one thing to put forward the Charter argument, but you must seek a remedy. The remedy you would seek would be under section 24(1) of the Charter, which allows the adjudicator to give a decision that justice warrants in the circumstances.
In a recent decision of the Supreme Court of Canada, a decision in R v. Conway, if my memory serves correctly, the Supreme Court said that yes, the board is a court of competent jurisdiction for you to bring forward the Charter argument. The Charter violations took place, but the remedy could not be granted because of the circumstances of the person you represented. I believe you presented to the Supreme Court of Canada as an intervenor on that particular case.
Ms. Szigeti: We were there.
Senator Baker: When you look for a remedy in presenting your Charter argument if this passes, what will you be seeking, and how will you attack it so that you will get a remedy for your client?
Ms. Szigeti: Thank you so much for that very thoughtful question and those incredibly kind comments. You've made me quite a bit younger than I actually am. I have actually practiced for 23 years, since 1992, but, from now on, I will go with your 1999. It suits me much better.
Part of the difficulty is that, in Conway, the Supreme Court of Canada did tell us that the review boards are able to consider Charter-based requests and provide some Charter relief. It's not entirely clear, as far as I'm concerned, whether we're able to test the constitutionality of the legislative provision in the language of the law itself before the board or whether we're restricted to section 24(1) in terms of state actors. It's clear that if there is hospital conduct, for example, seclusion that's not warranted, we can file for Charter remedies before the board about that. Can we start at the board in terms of constitutionality of the legislative provision? I'm not sure. We would certainly try. I would argue section 7. I would argue section 9 and certainly section 12, and the remedy we would seek would depend on which aspect of this bill is infringing upon the client that I represent before the board.
The high-risk accused designation is something I think I'll have to take up with the court because, as you know, only the court can make that particular designation.
The reviews are, to some extent, within the control of the board. One of the kinds of relief that we could seek is that we want more frequent reviews. We want regular and frequent reviews, particularly for those designated high-risk accused, because, if they get better with treatment, then they should be reviewed more frequently. Really, the most offensive provision, if I can say that with great respect, is this business about no escorted passes off of a ward, except for compassionate purposes. We really are talking about locking people into the back wards and throwing away the key for significant periods of time. The remedy we would seek in those cases would be access to the community, in an escorted fashion, if it's appropriate clinically. Really, we would simply try to bring everything back to where it is now because we know that we have Charter-compliant legislation now. The Supreme Court of Canada has reviewed this legislation — more often than almost anything else, really — carefully, and we have Charter-compliant legislation right now that works well. So the remedy we would seek before the board, the Superior Court, the Court of Appeal and, no doubt, the Supreme Court of Canada, would be to put back the legislation the way it stands now because it is absolutely Charter-compliant, works well and hasn't put anybody at risk.
The Supreme Court said in Conway that we can't seek an absolute discharge of an individual if the person continues to pose a significant risk to public safety. I would not expect that to change. That's the cornerstone of the legislation. It always has been, which is why it's very difficult to comprehend why we need amendments to suggest that public safety is paramount when it's already written into the existing legislation and the jurisprudence.
We'd certainly try. We would certainly succeed. Whether at the board, Superior Court, Court of Appeal or in the Supreme Court of Canada, at the end of day, we will succeed. So the question is not when but for long we will subject anyone to the seriously prejudicial effect of these amendments.
Senator McIntyre: Thank you to both associations for your presentation.
In rendering reasons for disposition, a court or a tribunal takes into consideration the exhibits on file, the oral testimony of witnesses, victim impact statements, arguments by counsel, those factors set out under section 672.54 of the code, including the requirement that any disposition be the least onerous and least restrictive to the accused, bearing in mind the need to protect the public from dangerous persons, the reintegration of the accused into society, the mental state of the accused and his other needs.
As we know, Bill C-14 proposes to amend the term "least onerous and least restrictive" to be replaced with the term "necessary and appropriate in the circumstances." I note your argument that section 672.54 should not be amended to remove the term "least onerous and least restrictive requirement." I suggest to you the wording is consistent with Winko. In other words, the NCR accused's liberty will not be trammelled any more than is necessary to protect the public safety.
I think we have to look at the intent of the legislation. The amendment is not intended to eliminate the term "least onerous and least restrictive." The intent of the amendment is to make the concept easier for the public to understand.
My question is this: Isn't this amendment Charter-compliant?
Ms. Szigeti: Are you asking me?
Senator McIntyre: Yes.
Ms. Szigeti: Well, I suppose if the very first thing that happens with it is all of the provincial and territorial review boards immediately interpret "necessary and appropriate" as "least onerous and least restrictive," sure, and then I guess that begs the question, what is the point of the amendment? The only way it will become Charter-compliant is if the interpretation of the amending wording becomes the existing wording. If that's the suggestion, sure, the existing legislation is Charter-compliant.
The word "appropriate" has been reviewed by the Supreme Court of Canada in sister cases called Tulikorpi and Pinet and has been found not to be appropriate, other than being defined by the least onerous, least restrictive measure.
If it's going to be suggested that "necessary" is what qualifies "appropriate" in a sense, wonderful, we will have no trouble. The difficulty is that that interpretation would have to be uniform among all of the provincial and territorial review boards and not modified on appeal by the Crown or by a hospital, who, as you know well, are parties.
There is a way to interpret the amendments in a Charter-compliant fashion, and it may be that that is how everyone will interpret them but, from my association's perspective, we would rather not take the chance and simply leave the operative section, 672.54, as is because we know it to be Charter-compliant and because it hasn't caused any trouble.
Mr. Carter: When the constitutional argument is made in court, the first thing the court does is interpret the provision, because if there's a way to interpret the provision that makes it Charter-compliant, they will do that before striking down the legislation.
The point that Ms. Szigeti made is, why go through all this? If the interpretation that's required to save it is the interpretation that exists now, why change it, go through all of the time and expense and resources to have this litigated, with potentially inconsistent decisions across the country and the decision eventually having to be made by the higher court? Why spend the time and resources on that issue when you know what the end result is potentially going to be? If it needs to be Charter-compliant that way, again, why change it?
Senator McIntyre: I think the reason for amending the legislation is that most provinces and territories were concerned that public safety was not the paramount consideration as opposed to other factors that courts and review boards take into consideration, such as the reintegration of the accused into society, the mental state of the accused and his other needs. In my view, this is the reason for bringing in this legislation.
Senator Jaffer: I have two questions. Please keep it tight so I don't get cut off.
I'm interested in what you said, Mr. Carter, about no contact. I hadn't thought about that before. For me, notification is passive. No contact is an onus on the person who has been accused to make sure he's not in any area where the victim's family is, so this is, in fact, more safety for the person. Can you expand on why you are saying no contact?
Mr. Carter: We support that, and I say this practising in the criminal law field, because it is an effective way to deal directly with the problem. The problem is the victim doesn't want any contact with this NCR accused, which is completely understandable. That's something we want to support. The way to do it is to put the onus on the NCR accused person to not do that, with the threat of sanctions: If you do it, you are going to end up charged again or back in the system. There's an enforcement mechanism. Doing it the other way, by simply giving out addresses, is a more passive way to deal with it, and it has potentially bigger ramifications for privacy and for other unintended consequences that I raised earlier.
Senator Jaffer: I have great difficulty with the high-risk designation, and my biggest difficulty with that is the three years. I have asked several times what happens if the person gets better? I have been told that every year there's a review, but then where does the three years apply? Since you are so familiar with this, can you tell us exactly? For me, if the person gets better, why they are they still sitting there?
Ms. Szigeti: That is an excellent question. In fairness to the amendments in the bill, the two issues have been conflated in the media and some of the discourse about this. The high-risk accused designation is one thing that the court may make on application by the Crown at the outset. The three-year reviews are a separate thing, in a sense. The three-year reviews ultimately would remain in the discretion of the board in the same way that we now have up to 24 months in the discretion of the board, subject to submissions from folks. It may be that no one will go three years without a review at all. It could be that. Right now, other than for that exemption, there's an annual review.
The difficulty with the high-risk accused designation isn't necessarily that they will not be reviewed for three years, although that could happen. You could get a combination of a high-risk accused designation and three years without a review, which would mean three years on a locked unit essentially without off-ward privileges. That would be a clear disaster for anyone.
The high-risk accused designation is problematic because of the fettering of the discretion at the hands of the experts of the tribunal. By simply making the designation, you take away the ability of the expert review board to grant the possibility of any privilege off-ward, escorted, even, into the community. That is what makes it so fundamentally unconstitutional and unlawful and punitive.
Senator Plett: Thank you, witnesses. In the house committee, the CBA said:
. . . the proposed high risk regime suggests that just because the NCR accused has committed one serious offence, they will do so again. Existing evidence suggests the exact opposite.
Paul Burstein, from the CLA, used a report also at the house committee. The report is titled Description and processing of individuals found Not Criminally Responsible on Account of Mental Disorder accused of "serious violent offences." Now, I'm not sure whether he read the statistics the same way as I did or whether I am misinterpreting them, but I would like to read these statistics if I could, chair. Of the total serious violent offences sampled, 38.8 per cent had been previously convicted or found NCRMD. More specifically, 35.8 per cent of the SVO, serious violent offences, sample had at least one past conviction; 6.1 per cent had a past finding of NCRMD; 50 per cent of NCRMD accused of a sex offence had a previous conviction or NCRMD finding; 47.6 per cent had at least one past conviction; and 9.5 per cent had a prior NCRMD finding. Finally, among NCRMD individuals accused of murder or homicide, 27.6 per cent had a criminal history finding, 25.9 per cent had at least one conviction, and 5.2 per cent had at least one previous finding of NCRMD.
How do you rationalize these statistics? These are statistics that Paul Burstein used before the House of Commons, and you are saying there isn't evidence. The report is quite to the contrary. I would like to hear from both of you on that, please. I think both your organizations were involved in the house hearings.
Mr. Carter: I don't have the statistics in front of me. All I can say is that in preparing the submission, we reviewed the materials, and a determination was made that based on a review of the materials, the evidence didn't support that there was an overwhelming concern with respect to that.
With respect to the last portion that you read, about homicides, as I understood the statistic read — and I was trying to make a note of it, and you can correct me if I'm wrong — the higher percentage figure with respect to whether they committed a prior violent criminal act is with respect to whether they have been convicted in the criminal justice system before, not whether they have been through the mental health system. Right?
And so what can happen — and Ms. Szigeti can speak more to this, because she's had numerous clients — is that individuals can be involved in the criminal justice system before they're diagnosed and properly treated. Issues cannot be detected; for instance, mental illness may not come until a later stage, and they can already have been through the criminal justice system and not have had the benefit of receiving treatment. Convictions can be essentially wrapped up that way before they go through the system.
I think that's the point.
Ms. Szigeti: I'm happy to stand with Paul Burstein on anything he has told you or will ever tell you; I'm with him.
I will make the same observation Mr. Carter makes about the statistics in the way you have read them out. The numbers that are very small — the ones that are 4, 5 or 6 per cent in all of the statistics that you have read to us — are the percentages of those who end up standing accused of a serious violent criminal offence like an attempted homicide or homicide who had previously had an NCR finding. That is the smallest percentage there.
The statistics we cite in the paper — and we made a submission to the house as well — support this. The important statistic is that fewer than 10 per cent — closer to 7 per cent — of those who are graduates of our current review board system go on to reoffend; whereas, if these folks choose not to pursue a section 16 or NCR defence and they end up in criminal justice going through the prison system, the recidivism there is much higher. That's what you are seeing here: people accused of a violent criminal offence who ultimately end up NCR who previously had been convicted and had gone through prisons based on a conviction.
Most of my clients had a homicide, attempted homicide or other very serious violent index offence as their index offences. They have no family left, because they have killed mother, father and sibling. Some of these individuals are the best responders to treatment in a psychiatric facility setting. Within weeks of being put on the appropriate medication regimen, they are remorseful, they are stable, they never reoffend, they graduate through the system, and they ultimately have supports and have been fully reintegrated and rehabilitated.
You want people in the system, but you want them working toward the cascade of lessening restrictions as they get better. It is an assessment and treatment model that does work.
So I'm not troubled by the statistics that you put to me, because what I take from them is what I'm hopeful Paul Burstein put to the House of Commons — namely, that the graduates of the NCR system are the least likely to reoffend.
Senator Plett: I would like to make this comment: 50 per cent of NCRMD accused of sex offences had a previous conviction of NCRMD finding. That's not a low percentage, and even if it is 7 or 10 per cent, that would not be a great consolation for Tim McLean had Vince Li been in that 7 or 10 per cent.
Senator Joyal: Thank you for your reflections on the substance of the bill. I would like to come back to clause 9 of the bill. It amends section 672.54, which is essentially a restatement of the three criteria that the Supreme Court has established. But giving precedence to the safety of the public has been the proposed bill's "paramount consideration."
Is it your opinion, on the basis of the decision of the Supreme Court, that it could be tested in court? In other words, that changing the balance on which the court has based its conclusion — the fact that we are elevating one of the criteria over and above the two other ones — would be contrary to the decision of the Supreme Court?
Ms. Szigeti: Do you mind if I just jump in quickly?
I understand the misconception that the four factors to be considered were equally weighted, because they appear at first blush, just on the wording of section 672.54, as if they are equally weighted. The four are protecting folks from dangerous persons, the mental state of the accused, the other needs of the accused, and the need to reintegrate the accused into the community.
But they have never been equally weighted. The fact of the matter is that public safety has always been paramount, and the Supreme Court of Canada in the Tulikorpi and Pinet cases, Justice Binnie, told us very clearly that the safety of the public is paramount. And every decision that the review board makes is subject to being commensurate with the public safety.
What you have here is a codification of the existing common law that the Supreme Court of Canada has already set out. To the extent that there are review boards in provinces or territories that were not recognizing that the Supreme Court of Canada has bound them to the paramountcy of public safety, that's something you fix by educating. I'm going next week to Nunavut to speak with the lawyers who practice in this area. You educate the review boards provincially and territorially to take heed of the Supreme Court of Canada's statutory interpretation for them.
So, no, it's not a problem to elevate public safety, because the whole of the regime has already made it paramount and the Supreme Court of Canada has said so — except in French, where it says "especially the reintegration of the accused into the community." So you might want to switch that. Other than that, we don't need any tinkering here.
Mr. Carter: I agree that the case law is abundantly clear on that. Ms. Szigeti has set it out. We don't see a real concern with that issue.
Senator Joyal: The other question I have is in relation to clause 12 of the bill. It adds proposed subsection 672.64(1) (b):
the court is of the opinion that the acts that constitute the offence were of such a brutal nature . . .
Is the concept of "brutality" something new that would have to be interpreted on a case-by-case basis? What are the parameters of "brutal"? Is it physical or psychological? In your opinion, how will you have to plead in relation to the "brutal nature" of an offence?
Mr. Carter: As we set out in our submission, the concern the CBA has is that the term itself is ambiguous and vague. We have set this out in our submission, and we raised at page 11 a number of questions: What does "brutal" mean? How do you measure it?
As with any provision, it would eventually have to be interpreted by the court, but it is not an easy term to define, particularly in this context. Because I don't have as much experience in this area as Ms. Szigeti does, I turn again to my conversation with Crown council in B.C. I discussed this with him, and in his experience — and I think it is similar to Ms. Szigeti's — in his 23 years of doing this, the link between the brutality of the offence and the chance that treatment will be successful is very tenuous. In fact, I think he backs up what Ms. Szigeti says, that sometimes in the most brutal cases, those offenders respond very promptly to the medication. So emphasizing something like brutality, which is vague in and of itself and really has no connection to the primary issue of concern here, which is treating these individuals to ensure the public is safe, is problematic.
Ms. Szigeti: I completely agree with those remarks. There are two problems. Brutality is not a concept known to psychiatry. I'm sure you've heard from the good doctors.
One notable thing about these amendments is that it makes for strange bedfellows, in a sense: the criminal defence bar, the forensic psychiatrists that we often argue with and certainly our review board, which are united in our opposition to these amendments. Sometimes you have to take note of that kind of support for each other's positions.
Psychiatry is not familiar with the concept of brutality in terms of being able to measure, so when you're asking a judge who is not the expert tribunal to determine the brutality of an offence for purposes of a high-risk accused designation, you will need to go to psychiatry to get that kind of feedback, and they don't have actuarial tools for that. So in a sense, we are looking at the dangerous mentally ill offender. Instead of dangerous offenders, we are asking questions along those lines, again inappropriate in the absence of responsibility.
Second, the actuarial risk assessment instruments, such as the Violence Risk Appraisal Guide and so on, demonstrate an inverse correlation between the brutality of an index offence and the risk that individual poses in terms of recidivism. It's counterintuitive, but that's the way it is.
So not only is there no positive correlation — the more brutal the index offence, the more likely that person is to reoffend — the opposite is the case. Evidence-based science would dictate that the brutality of the index offence should not enter into the equation of the risk assessment. If we were to do that, we would like to see the opposite; all my clients who have been under the review board's jurisdiction for a decade or longer for mischief or being unlawfully in a dwelling or some property-related offence, I would like to see them cycle through proportionally quickly because there is no violence involved with that index offence. We know that does not happen.
We had grey-shaded sections to the mental disorder provisions of the code that eventually came out, and those would have been the capping provisions. So if we're going to return to that proposal, then let's get the guys with the minor index offences that have never hurt a flea out of the review board's jurisdiction quickly. That part of this bill is missing.
[Translation]
Senator Boisvenu: Thank you very much for your presentations. As Senator Plett said, I fully understand your briefs; you are on the side of the defence and people who have committed crimes, and we are on the side of victim representation.
Despite your pessimistic view of the bill, I am not as pessimistic. You say that 7 per cent of people reoffend, and that the bill will affect 1 per cent of people who have mental health problems. So there are still 6 per cent of high-risk people who will reoffend.
Last week I said that a mere 4 per cent of people attended board hearings, but I was mistaken; it is 0.4 per cent.
In Canada, the Mental Health Review Board holds hearings in camera. Victims are not involved at all. You seem very reluctant to inform victims of where criminals reside, whereas the Parole Board of Canada, in many cases, for at-risk criminals, informs victims of where they live. Increasingly, victims are turning to the Canadian Charter of Rights and Freedoms. Under section 7 of the Canadian Charter of Rights and Freedoms, we have the right to security. Historically, victims have never used this right; many more criminals have used the rights contained in the charter.
My question is quite fundamental; here we are attempting to balance public safety and the safety of victims. Do not forget that a court order does not guarantee victim safety. Ms. Gaston, whose two children were assassinated by her husband, ran into him in a mall when he was on a weekend pass from the Institut Philippe-Pinel. She had never been notified that he would be released for the weekend. Victims are completely left out of the process of release and questioning. And I would say that that is also true of the general population. The patient with the mental health problems is the only focus.
Can we strike a balance between public safety and the right to rehabilitation for a person who has committed serious crimes?
In your view, does this bill not establish a balance in a system where public safety is completely left out?
[English]
Mr. Carter: Can I respond to that? The first thing I'd like to point out is that in terms of our position, we support large portions of the bill that have to do with notification. There is no point in my talking about the things we agree with because we agree with it; there is no debate to be had, so we haven't focused on it.
But we've made it clear, in both my opening statement and in our written submissions, that there are portions of those notification provisions that we agree with. We agree that the victim should be notified with respect to when a discharge has occurred. We agree that victims should receive notification throughout the process. In addition, we agree that it's appropriate to place orders on an individual to have no contact with the victim and to have area restrictions, placing the onus on them with the threat of consequences. That's far more severe than simply giving someone an address. We emphasize that those amendments are important and protect the rights of victims.
The last amendment we see of little additional value to the original bill, which had strong amendments that we supported. The provision we feel offers no real additional support on that issue is problematic for a number of reasons, including privacy and the adverse effects that can occur in terms of affecting treatment, driving people away, giving them no place to stay and the ensuing problems that can occur when people feel that they've got nowhere to turn. That's our concern. I want to make it clear that we do support some aspects of that notification.
[Translation]
Senator Boisvenu: In Canada, historically, when we have given the address of a criminal to a victim's family, there have been no cases of aggression where people turned to vigilantism. There have not been any.
Is it normal for the criminal or a person with a mental health problem to know the victim's address? Often, the victim was assaulted at home. But the victim is forbidden from knowing the address of the attacker.
[English]
Mr. Carter: Sorry, was there a question?
Senator Boisvenu: Yes.
Mr. Carter: I appreciate that they may know that. Again, our position is that there are protections that we know work. Nothing is perfect; you can't have perfect protection, but the provisions proposed — which include the no-contact restrictions, area restrictions and notification of release — are adequate.
Senator Boisvenu: But not the address?
Mr. Carter: Not the address.
Senator Batters: Ms. Szigeti, right now, the review board can extend the review period to a two-year time frame, right?
Ms. Szigeti: Correct.
Senator Batters: So this bill would simply extend that one further year, to three years, and because of that, you say that portion would be unconstitutional?
Ms. Szigeti: No.
Senator Batters: Because you just stated in answer to Senator Baker's question that we have Charter-compliant legislation right now that works well. I think that was your exact quote.
Ms. Szigeti: Sure.
Senator Batters: So that was one of the provisions you indicated would not be Charter-compliant with this three-year review period, but currently it's two years, so I'm not sure why you think that extra year would make this not Charter-compliant.
Ms. Szigeti: You're giving me a lot to think about. That's a very good question. Maybe the two-year extension is not compliant, either. It's something I will have to reflect upon. I guess it hasn't particularly bothered me.
Senator Batters: You've never challenged it.
Ms. Szigeti: No, it has never been used with respect to my clients. The review boards are very mindful of the need for an annual review because people's treatment needs change, and their mental health conditions change. The risk that they pose changes. I've never been faced with it. There was one request of a Crown, at one of my hearings, for a 24-month review period, and it was abandoned when it became apparent that it just would not be granted.
The three-year thing isn't really what bothers me the most. It's the high-risk designation and the removal of the operative heart of the section, the least onerous, least restrictive covenant.
Senator Batters: You were just talking about the two-year time frame not being, in your experience — and you have vast experience, it sounds like, with this — frequently sought, so it's very possible, then, that the review boards will use that sort of diligence as well with the ability to have a three-year time limit.
Ms. Szigeti: I expect they will. I expect that very little will change.
[Translation]
Senator Dagenais: Thank you to our three guests. You know, Mr. Carter, that the objective of the bill — and I think that senator Boisvenu expressed it well — is to protect the victims from a repeat offense.
He mentioned the case of Dr. Turcotte, whom you are undoubtedly familiar with, and who was found not criminally responsible. He had been released with certain conditions. I would say that because the entire trial had been covered widely by the media, he was recognized in a neighborhood where people called the police because they saw him in a corner store and people were afraid. The recidivism rate after three years for serious and violent offenses is approximately 10.4 per cent.
I would like to ask you two relatively simple questions. First, I would like to hear your definition of a serious violent offense. Second, I would like to know if you have an idea of the recidivism rate of people who are found not criminally responsible.
[English]
Mr. Carter: I don't have a number in front of me. Do you, Ms. Szigeti?
Ms. Szigeti: Tell me what the question is because my earpiece fell off, and my French is really not coming along as quickly as it should be.
Mr. Carter: A recidivism rate for violent offences for an NCR accused after discharge. Do I have the question correct?
Senator Dagenais: Yes.
Ms. Szigeti: Thank you. I really enjoyed listening to the French. Unfortunately, I understood only every third or fourth word. It was going to make for an awkward response.
My understanding is that fewer than 10 per cent of graduates of the review board system will reoffend. If you receive an absolute discharge, that means that an expert tribunal has indicated that you no longer pose a significant risk to public safety, and fewer than 10 per cent — my understanding is that it's in the seven and a half range — will reoffend. That's the statistic of which I'm confident. That's from the Crocker study that I think you are familiar with. Recidivism rates are much higher for individuals coming out of having served a sentence in a penitentiary without treatment. That makes sense. The treatment that these individuals receive over the very long term reduces their risk. That's the purpose of the whole of the NCR regime. I don't know if that helps.
[Translation]
Senator Dagenais: Could you also answer my first question? How do you define a serious violent offense?
[English]
Mr. Carter: For my own definition of a serious violent offence, you'd be looking at offences like murder, attempted murder, aggravated assault, aggravated sexual assault. It could be assault causing bodily harm and can encompass — and traditionally has done in criminal law — some forms of psychological harm as well.
Senator Frum: I want to ask about the idea of lawyers potentially counselling accused clients to seek jail time as opposed to seeking an NCR designation just in terms of the likelihood of that and also the ethics of that and the professional responsibilities of a defence lawyer in that situation.
Ms. Szigeti: Right, so our obligations as defence counsel to our clients with serious mental disorders are no different than our obligations to any other client. We don't make the decisions for them of whether or not they advance a section 16 defence. It's their decision. As long as they are fit to stand trial, they make the decision about whether or not they want to seek an NCR designation. They make the decision about whether or not they want to oppose the Crown seeking this kind of decision. However, it's our obligation, the same as with any other client, to fully inform them with respect to the consequences that they can realistically expect. Even now, responsible counsel will tell individuals with very minor offences, who could avail themselves of a section 16 not criminally responsible defence, that the better course of action may well be to plead guilty because they may find themselves landing in the review board system indefinitely because we don't have capping provisions, and they could be detained for 10, 20 years when their index offence is nothing of a violent nature. We have to provide that advice. They make their own decisions.
The people for whom the current regime works the best are the people with serious offences, who are able to receive the help that they desperately need in the review board system in the hospital to get the appropriate treatment and to be slowly and carefully, in a measured way, reintegrated into the community. However, even those with serious offences will want to think twice about the prospect of a high-risk accused designation. It's not something I would recommend to a client knowing that, until the Charter challenge is successful, that individual is going to be caged, in a sense, without access to the community, even with accompaniment, and without access, necessarily, off the ward at all unless somebody dies or there is a dental or medical emergency. It's very concerning. I would not advise any client to risk a high-risk designation under the amended provisions. That would not be the advice I would give. Although I'm confident that the designation itself will be overturned, it will take time. For you, the question is this: How many people, for how long, are we prepared to subject to this type of prejudice in terms of rights violations when we know that the amendments cannot survive Charter scrutiny?
Senator Frum: So you are saying that even if you had a client you knew to be a schizophrenic, someone who was not on any medication, you might still advise them not to seek that designation?
Ms. Szigeti: I will provide them with what they can realistically expect to experience in psychiatric detention. If it seems that they could qualify for a high-risk accused designation if the Crown chose to bring that motion and a judge may grant it, I'm not fussy on diagnosis — that's not for me to make — but I need to tell whoever the client in front of me is that, if they go the NCR route or don't contest it and receive a high-risk accused designation, that means a secure, locked unit in a hospital, without the ability to be reintegrated, rehabilitated or get off the ward. It will be an extremely restrictive existence for at least one year, possibly three, without review.
The Chair: I have a supplementary question on that. I know this has been brought forward by other witnesses as well. I am just wondering: You don't see an ethical problem, either in the duties to the client or to the public — it seems to me in the code of conduct of the Law Society of Upper Canada — if you're suggesting that you don't think you would have any obligation to advise the court of your concerns with respect to your client's condition?
Ms. Szigeti: I don't have any concerns about my client's condition because I make no personal judgment about that. What we're talking about is the choice between imprisonment or an indefinite detention in a psychiatric facility under these conditions. I'm not worried about my obligations to the law society. I've been doing this for 23 years. I feel confident that my ethics are in a good place, and I feel confident that the public safety is really well protected with the current regime and that adding any further restriction on the rights and liberties of these accused is simply retribution and punishment.
The Chair: I understand that. I just think there is a public safety obligation that you might want to consider as well with respect to at least not putting that concern before the courts.
What is the current notification procedure? Is there a requirement to notify the police agencies in the community that the individual is being released? Is there any notification requirement at the moment?
Mr. Carter: My understanding is that police services are notified, and that's similar to essentially what occurs right now with the sex offender registries. You have to register. You have to register your address and, every time you move, you have to re-register and check in. It's an internal mechanism for the police to monitor and enforce.
The Chair: I would like to follow up on that, perhaps with someone else, because I know in my own community of Brockville, where we have a forensic unit, I have in the past had police services indicate to me that there were people in the community who had committed very serious crimes and they were unaware of their presence.
What control is there with respect to individuals where they lodge or when they rent — you referenced that, Mr. Carter — when they get to the absolute discharge stage, for example? We had a situation in Brockville recently, and I'm not sure how it got into the public, but an individual had rented a premise close to a school, and he was sex offender, a pedophile, and had committed serious crimes. Obviously public concerns were raised with respect to where he was residing. What requirements are in place today to deal with those kinds of situations?
Mr. Carter: In terms of the regular criminal justice system? You're talking about sex offender —
The Chair: With the NCR.
Mr. Carter: With the NCR, an absolute discharge is an absolute discharge. At that point, you've been discharged, so there is no ongoing current notification. What is being changed right now is that the victim will now be notified when that discharge occurs, which was not formally in the legislation before, which is a positive step forward, so notification of that release. Beyond that, currently my understanding is none after the absolute discharge.
Ms. Szigeti: I respectfully disagree somewhat with the CBA's take on things. All of these enhancements that the current amendments suggest they are giving to victims in terms of notification about discharge and so on are already in the existing legislation. In 2010, when there was any likelihood of discharge, victims were required to be notified. In Ontario, victims are notified if they show the slightest interest in being notified. They are notified of every hearing. They are notified of their right to provide a victim impact statement. These are wonderful things that this government has done already for victims, to bring them into the fold and allow for full participation for them in 2010. The only new addition is this business of telling the victim exactly where the individual will live in the community, which, by the way, is already done in a lot of disposition orders. If someone is discharged subject to conditions, they are frequently discharged to a particular residence, as they would be in a probation order, so a lot of this is already public, but to compel the production of the address in every case is certainly problematic.
The Chair: We understand that is your position. I would ask you not to continue to repeat those positions because we have six members who would like to ask questions on a second round.
You mentioned your concern about judges being qualified when having to deal with a high-risk application. Usually, when your organizations appear, you're talking about the removal of judicial discretion. This is a situation where the judge is involved in the original NCR designation. He or she listens to the evidence presented and reaches that conclusion, or the jury and the judge. How do you balance that? You're saying you're concerned about their ability to make a high-risk designation but, at the same time, they are involved in the NCR designation. There seems to be a conflict there.
Ms. Szigeti: I will tell you that one of the fundamental problems with the whole of mental disorder law that I see is that there is a disconnect between the NCR verdict and then what happens at the review board. The NCR verdict itself does not involve any consideration of dangerousness. The NCR verdict itself is just about whether or not the person had mental disorder that robbed them of the ability to appreciate the consequences of what they were doing, or the morality or legally of it. It has nothing to do with dangerousness. You can have someone who is NCR but not dangerous in any way, shape or form. Subsequently, when you're in the review board system, it's all about ongoing dangerousness and no longer about mental disorder. The saying used to be, "Mad gets you in; bad keeps you in." If you're dangerous, you remain in the review board system whether or not you no longer have mental disorder, are cured or it turns out you never had one in the first place. There is that disconnect.
Judges get psychiatric opinions competing on the NCR issue. They would do the same thing with respect to high risk. It will be expensive and it will be contested. It will go to the board. The board will kick it back with a recommendation to the court to remove the designation. We are going to be playing football with these guys for a long time to come. I'm not saying it can't be done. I just think that the review board has the psychiatric expertise built in and I would rather it be done there.
The Chair: I appreciate that. I will ask the next six senators for short and sweet questions, and comparable responses.
Senator Baker: I have a matter for clarification — you repeated this several times — as to the meaning of term "brutal nature." The term "brutal nature" has been adjudicated many times as it pertains to I believe the dangerous offenders provisions. Courts have ruled in this province that it is not vague. It survives. The Court of Appeal of Ontario has provided a helpful definition of "brutal nature." Is it then your position that it is not clear what the definition is within the meaning of this legislation and its applicability to the legislation? It is not about the actual definition of the words "brutal nature"?
Mr. Carter: The short answer is yes, that's our position. I want to follow up on something Ms. Szigeti said before, which I agree with. Psychiatrists are not in a position to define "brutal." When you do a dangerous offender application, and frequently the Crown requests the report, you get a copy of the report, and in all of these reports I see the same thing again and again because they go through each section to give their opinion on it, and they always say the same thing: "As a psychiatrist, I am not in a position to give an opinion on 'brutal'." It's a two-line sentence under that heading in every single dangerous offender application I have ever done. The difficulty is that these hearings and the nature of this are about individuals who have been found NCR. The mental status is the key. To introduce a term that is unknown to psychiatrists and is of no value to them is essentially of no use.
Senator Plett: I want to just go into the recidivism issue a little bit. Ms. Szigeti, you said that it's 7 per cent. Yet, the Crocker report that you talk about says all kinds of other things. At one point, you were saying you support the Crocker report, and then you don't. If someone decapitates someone on a Greyhound bus and gets the not criminally responsible designation, and two years later he is discharged and goes and brutally rapes somebody, it's not the same crime. Is that recidivism?
Ms. Szigeti: In the hypothetical, the individual is on a pass and reoffends.
Senator Plett: Whether on a pass or not. You say they don't reoffend. With that 7 per cent you're talking about, do you mean they don't reoffend with the exact same crime or that they don't reoffend in any way? I do use the word "brutal" even if psychiatrists don't. They reoffend in some other brutal crime. Is that recidivism or not?
Ms. Szigeti: I appreciate the question, and I understand the concern. The statistics I'm relying on are for graduates of the review board system.
Senator Plett: Even a graduate. If they commit another crime but it is not the exact same crime, do they fall in that 7 per cent?
Ms. Szigeti: Yes, that's recidivism.
Senator Plett: That's recidivism?
Ms. Szigeti: Absolutely it is.
Senator Jaffer: I want to clarify one thing: The only duty a lawyer has is to the client; isn't that correct?
Ms. Szigeti: If only. We have a duty as an officer of the court —
Senator Jaffer: Yes, of course.
Ms. Szigeti: — and there are limitations. We can't lie to the tribunal. But in terms of who I'm there to represent, it is my client.
Senator Jaffer: The advice is just for the client.
Ms. Szigeti: My client, yes.
Senator Jaffer: I have a concern about the high-risk designation. The judge decides who has a high-risk designation; that is something that is decided. If the prosecutor asks to get high-risk designation and you get the high-risk designation, for it to be removed, you have to go back to court.
Out of all of this, one of the things that hasn't been spoken about is legal aid, because most of the clients that you deal with are —
Ms. Szigeti: It will bankrupt legal aid — that process.
Senator Batters: I want to go back briefly to the comments and the questions that Senators Frum and Runciman raised with you, Ms. Szigeti. Earlier, your quote was that the assessment and treatment model does work, and then you provided your assessment of the difficulties that the current prison system has for dealing with people who are mentally ill. Yet despite those two comments — the assessment and treatment model does work, and you talked about the negative impacts on someone suffering from mental illness in the prison system — wouldn't that be part of your advice that you would render to your clients? Would you not counsel them on that when they're deciding whether or not to plead NCR?
I would think that would be a pretty important part of your advice that you would render to them.
Ms. Szigeti: I understand; that's a very thoughtful question. If I thought they were going to get treatment and assessment in the way that the scheme currently provides it, that might change my mind, even if they were designated high-risk.
But based on the amendments as they currently stand, they may get medication treatment and they may get forced some antipsychotic medications, but to what end? Under the current system, when individuals are robustly responding to treatment, forced or otherwise, that reduces that risk, which is regularly reassessed. And in the face of that treatment, as their risk diminishes, their liberties increase and they're reintegrated into the community. That's the goal of the system. If you take that away, it's a problem.
The Chair: I'm sorry. We have to keep this moving.
Senator Joyal: I'm tempted to ask you a very common sense question, which is the following: You have had a lot of experience with people who find themselves in that mental condition. How can you explain the rights of somebody or the consequences of a choice when the person is mentally ill?
Ms. Szigeti: It takes a very long time. If the person is unfit, there are some real difficulties. But when there are no concerns of fitness and someone has been found fit, I take for granted that such a person is able to instruct me and they're able to appreciate the court processes. As long as I'm confident they're fit, I just give them the information as plainly spoken as I possibly can. It's their life; they will make the decision, as long as I'm confident I have provided as much information realistically as I can. But I cannot make decisions for them. In my view, it would be wrong to do that. I never would.
Senator Joyal: Were there any cases where you were totally convinced that the person was not in a position to give informed consent to a suggestion that you might make to that person?
Ms. Szigeti: In almost every case, I'm convinced that my client is instructing me against their own best interests.
Senator McIntyre: Upon reviewing the material submitted to us from both of your associations, it appeared to me that you have concerns regarding the high-risk accused designation. In other words, it should not be enacted and, if enacted, certain clauses should either be redrafted or eliminated.
Under C-14, the court and not the review board would be empowered to grant the high-risk designation. I can understand why the courts would do that, because the courts have the power — not the review board — to find someone unfit to stand trial, fit to stand trial, and not criminally responsible on account of mental disorder.
The court also has the power to grant stays of proceedings following a recommendation made by the review board if the accused person is permanently unfit to stand trial and it does not represent a significant threat to the safety of the public.
The Chair: Could you move to the question, please?
Senator McIntyre: The court has the power to make the first choice disposition.
I think we need a high-risk designation because under the system, an accused person could commit a very serious criminal act and appear before a review board, and a review board could either grant an absolute discharge or a conditional discharge.
With the high-risk designation, the accused person would be sent to a hospital —
The Chair: Senator, we need a question here.
Senator McIntyre: My question is this: Don't you think that the high-risk designation is important?
Ms. Szigeti: I don't think it's helpful. Embedded in your question: All of the risk assessment happens at the review board; the review board reviews the unfit, and the review board makes the recommendation for a permanently unfit accused to be discharged or to give a stay. It accomplishes what public sentiment wants to see, which is some parity between the brutality of an index offence and time served behind bars. It is inappropriate and unconstitutional in the context of the mentally ill, with respect.
The Chair: Thank you all for appearing here today. We very much appreciate your contributions to our deliberations.
Our next witness today is from the Toronto Police Association. Welcome to Rondi Craig, Director of Uniform Field Services. Mr. Craig, it's good to have you with us today. I assume you have an opening statement, so please proceed.
Rondi Craig, Director Uniform Field Services, Toronto Police Association: I do, sir. Thank you. Good afternoon, everyone. I am Rondi Craig, Director of Uniform Field Services with the Toronto Police Association. I would like to take a minute to thank the Senate Committee on Legal Affairs for having me and providing me the opportunity to come and speak to you today in relation to Bill C-14.
Our association represents over 8,000 members of the Toronto Police Service. Before I start, I would just like to put into context some of my comments regarding my support and my association's support for this bill. I'm going to touch on my background a bit so you can understand where I'm coming from.
Prior to being elected to the board of directors, I served as a police officer for 15 years. I have worked in one of the most challenging communities in downtown Toronto where dealing with individuals with mental illness was a common occurrence. I know first-hand the difficulties that mentally ill people deal with on a daily basis and the challenges that police officers face when responding to persons with mental health issues.
As an officer, I worked in 14 Division and I worked closely with the community and dealt with an array of issues in relation to law enforcement, including drug trafficking, prostitution, gang activity and violent street crime offences.
As a police officer, I have been directly involved in responding to the needs of the mentally ill. My experiences range from assisting mentally ill individuals in acquiring basic needs, such as food and shelter, to being involved in arrests and violent confrontations. So I share this information with you to give you a bit of context into why my association supports the bill and the proposed amendments to the Criminal Code provisions dealing with persons who are found not to be criminally responsible.
On January 12, 2011, as I'm sure you are well aware, Sergeant Ryan Russell, a uniform member of the Toronto Police Service, died in the line of duty. He was standing in uniform beside his police vehicle, emergency lights flashing, when Richard Kachkar murdered him. Mr. Kachkar was arrested and charged with first-degree murder. During a highly publicized trial, the jury found Mr. Kachkar neither had the mental capacity to appreciate the nature of his act, nor did he know that the act was wrong. As such, he was found not criminally responsible.
The evidence we heard at the trial confirmed that Mr. Kachkar suffered from major mental illness at the time of Sergeant Russell's death; he suffered from depression and schizophrenia, and he may have also suffered from a personality disorder.
Sergeant Russell's widow, Ms. Christine Russell, spoke to the House of Commons committee examining the bill containing the proposed amendments to the NCR provisions in the Criminal Code.
In February, when the Prime Minister introduced Bill C-54, the not criminally responsible reform act, it appeared to us that the primary objective of this bill was to ensure that public safety is and should be a priority in the decision-making process with respect to accused persons who are found not criminally responsible. This would be a way to enhance victim safety and promote greater victim involvement in the Criminal Code mental disorder process.
The public has a right to feel safe in their communities and to be protected against dangerous and violent offenders like Mr. Kachkar. The association supports the new high-risk, not criminally responsible designation introduced by Bill C-14, which proposes to allow the courts to designate the most violent, not criminally responsible offenders as high risk.
The NCR defence is rarely used. It appears only in two out of every thousand criminal cases and is less commonly linked to violent offenders, who account for an estimated 10 per cent of all NCR cases. The high-risk, NCR designation would apply only to the small number of accused who have been found not criminally responsible and who pose a higher threat to public safety.
The Honourable Rob Nicholson provided some interesting facts in the House of Commons debate on March 1 when he stated:
. . . A little over 27 per cent of individuals found not criminally responsible have had a past finding of not criminally responsible; 38 per cent of those found not criminally responsible and accused of a sex offence had at least one prior NCR finding; 27 per cent of those accused of attempted murder had at least one NCR finding; and 19 per cent of those accused of murder or homicide had at least one prior finding of not criminally responsible.
The Toronto Police Association agrees with the proposed amendments provided for in Bill C-14, including that high-risk offenders would not be discharged unless a court, not the provincial review board, agreed to lift their high-risk designation; that high-risk offenders would be ineligible for unescorted passes into the community; and that the mandatory review period for high-risk offenders could be extended from one year to three.
Having seen first-hand the re-victimization of victims and family members going through this process year after year, we support all of these amendments.
The association endorses the enhancement of victim safety and victim involvement in the mental disorder process. This bill gives victims of crime a greater role by requiring that the courts and provincial review boards consider the safety of the victim when they make decisions with respect to persons found NCR and require the review board to notify the victim, upon request, if the accused person is to be released into the community.
On April 29, 2013, after hearing his case, the Ontario Review Board ordered Mr. Kachkar to be sent to the Ontario Shores Centre for Mental Health Sciences. This exposed serious systematic problems and serious flaws in the current review board system. The board was unanimous that Richard Kachkar suffered from a serious mental illness and represented a significant threat to public safety.
During the course of the hearing, a board psychiatrist asked Dr. Klassen, the vice-president of medical affairs at Ontario Shores, why he was recommending putting Mr. Kachkar on antipsychotic drugs at this time, 30 days after the NCR verdict. Keep in mind that while Mr. Kachkar was in custody for over two years prior to this hearing, pending trial for Sergeant Russell's death, no questions had been raised or decisions made to put him on antipsychotic drugs.
In the absence of proper assessment, the review board gave the hospital — and this is key — the power to give Mr. Kachkar privileges in the community escorted or accompanied by hospital staff. The hospital medical staff was given the power to make decisions about whether Mr. Kachkar could be allowed into the community. If this occurred, he would be accompanied or escorted by hospital staff, not police armed with use-of-force options.
The proposed legislation outlines that a high-risk, NCR person would not be allowed to go into the community in this instance, either unescorted or escorted, and would only be allowed out in narrow circumstances and subject — this is key to us — to sufficient conditions to protect public safety.
What we found absolutely shocking was that these provisions allowing Mr. Kachkar into the community had not been asked for by his counsel. They were granted without the understanding of the depth of Mr. Kachkar's mental illness. He had not even been fully diagnosed. His mental health issues were major, and he represented a significant threat to public safety, yet the Ontario Review Board was going to allow him into the community. Our concerns are that without discussion and without evidence, this is the way the board was behaving; Mr. Kachkar was going to be allowed back into the community in 30 days.
In considering Bill C-14, we urge you to look at providing further statutory guidelines to the provincial review boards. The guidelines should establish a proper, evidence-based balance between the need to protect the public and the requirements to treat people with mental illness who commit criminal offences.
The Toronto Police Association supports the initiatives reflected in Bill C-14, and we're not insensitive to the difficulties of persons living with mental illness. We understand first-hand the devastating impact that mental illness has on the mentally ill, their families, their community, and in this tragic case, Sergeant Ryan Russell, Christine and her family, who became unwitting victims in the struggle of mental illness.
This bill does not target persons with mental disorders or those whose illnesses are non-threatening to others, nor does it seek to impose punitive consequence on persons found to be NCR due to mental illness. This bill speaks to the people who commit horrendous, heinous crimes and who, like Mr. Kachkar, are found to be NCR.
We in the policing community are committed to protecting our communities. Our challenge is to find a way of reducing the potential for those found NCR to reoffend, to obtain the medical attention they require, as well as to protect potential future victims.
As key stakeholders in the mental disorder regime, we want to ensure that people have access to medical attention, that they're taking their medications, that they do not have contact with their victims and that there is a support system in place to monitor their mental health and reduce the likelihood of recidivism.
At least through the court process there should be an ability to impose conditions to assist in these protections, conditions that may include boundaries, living arrangements, participation in treatment plans, abstinence from illegal drugs and alcohol, and conditions to stay away from victims to prevent their re-victimization.
Under the current NCR provisions, there is no ability to impose these conditions upon release. The proposed reforms are designated to protect the community and to protect the person suffering from the mental disorder from himself or herself.
Those would be my comments on behalf of the Toronto Police Association.
The Chair: Thank you, Mr. Craig. We will begin the questions with the deputy chair of the committee, Senator Baker.
Senator Baker: Thank you, witness, for your excellent presentation, your views and so on.
You were critical of the decisions of the Ontario Review Board in your presentation. The review boards are set up under federal legislation. The chair of the review board, according to the legislation in the Criminal Code, is someone who has been a judge of a court or, there's a saving section, could qualify as a judge of a court, and then there are two psychiatrists and other medical experts on that board as well. Yet, you are critical of their judgment that they made in a particular case.
Is there some change that you would like to see take place to restrict the power of the review boards, or is there some suggestion that you wanted to make regarding the composition of the review boards? Do you have any opinion on that?
Mr. Craig: Thank you for the question. It would be nice to see some police officers on there. What I can tell you in relation to that and being critical, if you spoke to the Russell family and listened to their plight and listened to them speak when they talk about it, they understand being not criminally responsible. Although it doesn't sit well with them, the bottom line is it exists. We understand that. But then for him to be able to walk out into that community in that short period of time, it is offensive.
Senator Baker: Are there things that you wish were in this legislation or anything that you feel could have been in this legislation to further the points that you have made that the government has not included in the legislation?
Mr. Craig: I guess our position would be that we're comfortable with where this bill sits at the moment. With regard to providing other tools that could exist, maybe we have to examine it more thoroughly, but we are comfortable with Bill C-14 as it exists now.
Senator Baker: I might remind you that on this committee we have a former police officer from the province of Quebec, Senator Dagenais, a person who voices his concerns as you express them. Of course, we have a former chair of a review board, Judge McIntyre, sitting here on the committee.
Senator McIntyre: I'm not a judge, not a former judge, but I was a former chairperson of a review board in New Brunswick. Under the system, a court or review board can render one of three dispositions: detention in a hospital facility, a conditional discharge or a discharge subject to conditions, or an absolute discharge. The difference between detention in the hospital facility as opposed to an absolute discharge or a conditional discharge revolves around the issue of dangerousness.
As a former chair of a review board, I remember that one of the biggest concerns that law enforcement officers had was when an accused person was granted a conditional discharge. A conditional discharge is a conditional discharge. There are several conditions attached to that discharge, such as keep the peace and be of good behaviour and so on and so forth.
Would you say that this remains the biggest concern for law enforcement officers when a mentally challenged offender receives a conditional discharge as opposed to an absolute discharge?
Mr. Craig: Yes, I would say that's accurate. I would say that when you have conditions placed on someone, as we all know, those are great tools to have. If the goal is to reintegrate that person back and those can be used to assist in that, then those are positive things. It is positive for law enforcement because it is a way to make sure that the person who is back in the community is not doing things they shouldn't be doing. If they have conditions to reside at a specific address or not to consume alcohol or drugs, then it is definitely a great tool for law enforcement to have those conditions. Yes, I think it is an extreme problem when there's an absolute discharge and a person is just back out into the community with no conditions whatsoever.
Senator McIntyre: Especially the follow-up with the local community, the mental health centres, for example, is very important. Once those conditions are breached, then they have to go back to the review board for annual reviews or discretionary reviews.
Mr. Craig: Yes.
Senator Jaffer: Thank you very much for being here today. I come from British Columbia. I spend a lot of time on the streets in Vancouver. I have the greatest respect for your work, because I think you have the toughest task — I know you're from Toronto, but I'm sure it is the same — of dealing with mental health patients, whether it is on the street or you take them to the hospital where you try and find them a warm blanket. You have a horrendous job on the streets, and it is only getting worse.
Sooner or later, hopefully, the person will be reintegrated into the community. You see this first-hand. Should there have been something in the bill that would have helped you in the reintegration? Support service-wise, what would help you to reintegrate these people? Sooner or later, they will be in front of you again. How do we make the community safe by having good support services for reintegration?
Mr. Craig: Well, one program that has worked extremely well, and I can speak to Toronto, is where we put a nurse in the company of a specifically trained officer, and they go out together. They deal with major issues or minor issues, but the bottom line is they don't let anything fall through the cracks. When they have the information, they follow up with it. Having that relationship, and then going beyond that and having a good relationship with the local hospitals and support staff there, they make sure that they're receiving proper benefits in relation to health care. I know for a fact that they will even have conversations with local employment places. It is kind of a streamlined effect to try to get everybody swimming in the same direction so they can get back to where they need to be.
It is becoming more and more of a challenge. There is no question about that. Oftentimes, you are seeing law enforcement dealing with those front-line issues over and over and over again. When we have these types of relationships that we are able to build upon, I think that's a great example that Toronto has set. I don't know if it's done in other communities, but I know it has been beneficial to Toronto. I think it has allowed kind of a broader understanding of issues relating to mental illness, because our goal is not just to lock everyone up and throw away the key. That's not what we want. That's not what drives us. When we can help, that's what police officers do.
Senator Jaffer: You might not know now, or you might have to reflect and let the clerk know, but is there anything this bill could have to help you with the issues you deal with to reintegrate the people that have offended?
Mr. Craig: That's a good question. I could go back and take a look at it, and I would be with more than willing, probably in conjunction with the Canadian Police Association, to determine if there are some things that could be added. If that's something that can be looked at, we definitely would provide that to you.
[Translation]
Senator Boisvenu: Mr. Craig, thank you for your very practical presentation. Other witnesses who have appeared before you have heard me say that in the current system, barely 0.4 per cent of victims sit in on hearings. We can thus state that this process is focused exclusively on the rights of the patient.
There is also another very worrisome statistic. Barely 45 per cent of crown prosecutors sit in on hearings, whereas over 70 per cent of defense lawyers do so. Once again we see that people who could object to the release of the patient are in the minority at these board hearings.
The question I want to ask you, Mr. Craig, is tied to your work as a police officer, but also tied to the safety of victims. I was looking at statistics from Montreal, and arrests done at night, and I saw that two out of three people have mental health problems. I am convinced that in Toronto the proportion must be about the same.
How will this bill improve, first, the work and safety of police officers, and second, the safety of victims?
[English]
Mr. Craig: If I understand your question correctly, it is in relation to how this will protect police officers. If we have people who are being integrated back into the system, conditions are key for us, because knowledge is power. If we can have a truer understanding and the picture can be painted so we know exactly who and what we are dealing with, that's always helpful. The more information a police officer can have, the better they can do their job, and it's also a means to protect yourself — protecting victims.
Again, I'll take you back to Christine Russell. You can only imagine what they felt knowing that if they'd lived in close proximity to where that person was, she could have walked by that man on any given day when he was out. That is not acceptable from where we come from.
[Translation]
Senator Boisvenu: One of the witnesses who testified before you said that in all cases, the Mental Health Board of Ontario notified police services when a patient who appeared before the board was released. Is this the case? Do police services, in all cases where someone with mental health problems is released by the board, get notified?
[English]
Mr. Craig: I believe that they are, but I can't say with certainty that all services are; I don't know that for sure. I can find out.
Senator Boisvenu: If you can check on that.
Mr. Craig: I will make a note of that and I will let you know.
The Chair: That would be helpful, because I think it might be discretionary at the hospital level.
Senator Joyal: I listened to you carefully when you presented your brief. I would like you to turn to page 3. The middle paragraph says:
What we found absolutely shocking was that these provisions allowing Mr. Kachkar into the community had not been asked for by his counsel. They were granted without the understanding of the depth of Mr. Kachkar's mental illness. He had not even been fully diagnosed. His mental health issues were major and he represented a significant threat to public safety, yet the Ontario Review Board was going to allow him into the community
When I heard you, and when I read that again, I'm tempted to have the following reaction: Is it the operation of the board, the regulation or the framework within which it operates, that is defective, or is it the system that failed? In other words, should we not inquire into the review board procedure, and do they have the right guidelines before they release? Is it due to a defect of the present Criminal Code legislation, or is it just that the system failed? Do you understand my point?
Mr. Craig: I do.
Senator Joyal: You say it will come again. This is the way to operate with someone who is mentally ill and is a serious threat to himself and to society generally.
Mr. Craig: If you're asking me, did the system fail in that instance? I would say yes.
When we have the ability for hospital officials to make a determination as to when that person can go out, escorted or unescorted — The bottom line is if that person who is clearly a high risk chose to leave, how would they stop them? They wouldn't. In fact, I believe their protocol is to call the police and hopefully they get there in a reasonable amount of time to try to find that person. They are not equipped to do that, in my opinion, with high-risk people like that.
Did the system fail? I would say that it did. As a result of this, we at the association have had a lot of discussions about review boards. We continue to work with local politicians at the provincial and federal levels in order to make sure that the things that need to be done are done. They weren't done in this case, and it was of grave concern to us.
Senator Joyal: Especially when I read your brief that nobody had a real understanding of the depth of Mr. Kachkar's mental illness. It's because the psychiatrist on the board didn't order the proper evaluation. Even counsel for Mr. Kachkar — it is his duty to make sure that everybody understands the mental status of his client and that the board is in a position to make a sound decision. It seems that at each step of the board's operation something went wrong.
Mr. Craig: I don't disagree with you. Along the path, numerous errors occurred.
Senator Joyal: Yes, accumulations of errors that came to that conclusion.
Is it the way the system operates, or is it, as I say, a single case whereby there was a mishap at the point in time along the line of the decision making?
That's essentially what I try to understand at this stage, namely, if it is a lack of guidelines and responsibilities in the way they are defined and implemented, or if it is a case whereby one in X number happens to fall outside the table.
Mr. Craig: The legislation that exists now, if properly implemented and if good decisions were being made — clearly in this case, a thorough job was not undertaken or else how could they have come to that determination in such a quick period of time?
Senator Joyal: I understand that. And it's puzzling because if it happened in that case, it could have happened in other cases. In other words there is something defective in the system.
Mr. Craig: What's even more mind-boggling to me is that this is a high-profile case, so how did this slip through the crack?
Senator Joyal: Exactly.
In fact, we should be as concerned with the operation of the review board. We should look into the operation of the review board to really understand what are the steps and what are the guidelines and parameters for each of the steps to assure ourselves that the system works fine in its objective to protect the public, to protect the person against himself or herself, and to pay due respect to the victim's plight.
We must have all of that in mind when we conclude making amendments to the Criminal Code, but I don't think we have the whole picture at this stage to ensure that what happened with Mr. Kachkar will never be repeated again sometime in the future.
Mr. Craig: I think support for victims is paramount. Through no fault of their own, they fall into these situations, and we want to make sure that the support is there for them afterwards. To have that individual potentially walk down the street, in that short period of time, is not acceptable.
Senator Joyal: Of course.
[Translation]
Senator Dagenais: Mr. Craig, thank you for being here tonight. It is always a pleasure to see my former work colleagues.
You are an experienced police officer. In your introduction you said that police officers feel a great amount of frustration due to the fact that after long investigations, after having conducted flawless procedures, the individual, because he is found not criminally responsible, will be released after a year or two. I understand that that can be frustrating for both police officers and victims.
Furthermore, as you said, in big cities — in Toronto, in Montreal and surely in Vancouver — homelessness causes many problems. People in the streets often suffer from mental illness, and police officers have to sometimes act as social workers on top of being police officers. That is a difficult context.
When a criminal is pulled from the penal system, it is the health care system that takes over. Do you know if the health care system really does its job when they begin to manage that person's case? Or is it that for whatever reason, the criminal is examined by a hospital psychologist, who then releases him often to the street, which only makes the vicious cycle restart?
[English]
Mr. Craig: One of the things that happen is that officers will be dealing with someone, and if they have grounds under the Mental Health Act to apprehend them, they will. Then they take them to a hospital. One of the things that I can tell you first-hand has been frustrating in the past is that you are dealing with that person, and whatever caused the police to become involved at that point — there are all kinds of situations — you have apprehended this person under the Mental Health Act and have taken them to a hospital. I have seen first-hand that before we are even pulling out of the parking lot, so are they. It happens. Is that frustrating? You bet. That's extremely frustrating because you're trying to provide them with the service. You're trying to provide them with some help. We all know that hospitals are strapped. There's a lot going on, especially in a place like Toronto. Sometimes, the process is not thorough, and, as a result, as quickly as you brought them in, they are leaving.
Senator Plett: Thank you, Mr. Craig, first of all for being here, and thank you for the service you provide to the city of Toronto and, indeed, to your country of putting yourself out there each and every day. We certainly appreciate that.
I'm from Winnipeg, and we've been in the news lately with an NCR situation there. The people of Selkirk are concerned about Vince Li walking the streets of Selkirk. I'm concerned, as somebody from Winnipeg, not knowing where Vince Li is going to be. Yet, he will be getting unescorted passes.
How would you respond to critics who say that notifying victims of an NCR accused's release date and intended place of residence would infringe upon the accused's right to safety and privacy? I think most of our concern is more about the victim's right to safety and privacy, but how would you respond to the critics who use that as their argument on this bill?
Mr. Craig: To that, I would say that it is a balance in protecting people's rights — and I understand that — but, with regard to balancing a scenario like that out, how can it even be seen as just? I don't think that it can, and I think the ability to know when that person is released is a good thing. I think the ability to know where that person is now residing is a good thing. I think communities can then judge themselves accordingly. As I said, knowledge is power. We certainly wouldn't want any type of vigilante behaviour going on, but isn't it fair to say that in order to protect the victims specific to that case or any other case and the communities that they will reside in, the community should have the ability to know that the person is living in their community? I would say they should.
Senator Batters: Mr. Craig, thank you very much for coming to our committee today about this important piece of legislation. I just have a few comments. I wanted to thank you for all of your service, particularly all of your work to assist people who suffer from mental illness. You are often the first people on the scene to deal directly with these people, whether that's in the context of a crime or, unfortunately, probably much more frequently, a suicide attempt. De-stigmatizing mental illness is a very important issue to me personally, so I very much appreciate the statistics that you brought to our attention today and relayed to us that clearly demonstrate that this bill does not stigmatize mental illness. Instead, the NCR designation applies to such a tiny percentage of the millions of people who, unfortunately, suffer from mental illness in Canada. I also found it very helpful to have the example that you carefully outlined to us today to provide some context as to why this bill is necessary. Thank you very much for coming today.
Mr. Craig: I appreciate your comments. Thank you.
The Chair: I think we all appreciated your appearance here today. We thank your association. Maybe in my community, because we do house a forensic unit, we've had more of those incidents than most communities across the country, but you talked about escorted passes. We had a situation a couple of years ago where an individual was out with escorts and stopped at a Tim Hortons. The escorts stayed in the van. The individual went into the Tim Hortons, followed a young child into the washroom and sexually assaulted that young child. That individual has now been declared a dangerous offender, so I guess that's one way of dealing with individuals like that. Hopefully, this legislation will also provide another course of action. Thank you very much, sir, for being here.
Mr. Craig: My pleasure. Thanks so much for having me.
The Chair: Tomorrow, at 10:30, we will be hearing from victims and mental health organizations. Meeting adjourned.
(The committee adjourned.)