Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 5, Evidence - March 26, 2014
OTTAWA, Wednesday, March 26, 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: Welcome colleagues, invited guests, and members of the general public who are following this day'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 scheme for finding that some of those found not criminally responsible will be considered to be high-risk accused. It also enhances the involvement of victims in the regime.
This is our fourth meeting on the legislation. As a reminder to those watching, these committee hearings are open to the public and also available via webcast on the sen.parl.gc.ca website. You can find more information on the schedule of witnesses on the website under "Senate Committees."
On our first panel with us today is a familiar face, a frequent witness before the committee, the Federal Ombudsman for Victims of Crime, Sue O'Sullivan.
Ms. O'Sullivan, we will begin with your opening remarks.
Sue O'Sullivan, Federal Ombudsman for Victims of Crime, Office of the Federal Ombudsman for Victims of Crime: Thank you for inviting me here today to discuss Bill C-14, which seeks to enhance public safety and better meet the needs of victims in cases where an accused is determined to be not criminally responsible, or NCR. Our discussion today focuses on legislation specific to those not found to be critically responsible.
I would like to start by suggesting that throughout all of the discussions pertaining to this bill, we should keep in mind that the trauma any victim faces following any violent crime, regardless of whether the accused is to be found not criminally responsible or a convicted offender, is devastating in all cases. Regardless of the mental condition of an accused, victims have needs that must be met and their treatment and rights should be equitable to victims where the accused goes through the criminal justice and corrections system. We know that all victims will need to be treated with respect, to be informed of how the process works and their role within it, to have their needs and input be considered, and to be protected from intimidation and harm. My office has spoken on several occasions with victims and victim advocates who have brought their concerns regarding the issue of not criminally responsible to our attention.
Through these discussions, we have identified several significant gaps in legislation and policy that ultimately carry negative impacts on both the victims directly and, more broadly, on public safety. I have used these as the basis for previous recommendations to the Government of Canada.
I am encouraged to see that Bill C-14 addresses a number of our previous recommendations and I strongly support those proposed changes, including ensuring that public safety is the paramount consideration in the decision-making process for not criminally responsible cases; addressing victim safety directly by requiring the court and the review board to consider whether it is desirable in the interests of the safety and security of any person, particularly a victim or witness, to impose a non-communication order or to require that the accused refrain from going to particular locations; and notifying victims who request it of conditional or absolute discharges.
While I support many measures in Bill C-14, there are opportunities to further strengthen the proposed legislation.
As I mentioned at the beginning of my remarks, regardless of the mental state of the accused, victims have certain basic needs: the need to be informed of the process and their rights within it, and the need to have their safety considered.
Victims in NCR cases have significantly fewer entitlements to information than those whose offenders move through the corrections and conditional release system. To address this gap, I recommend that Bill C-14 be further enhanced to ultimately provide victims in NCR cases with more equitable rights to those of victims whose offenders are moving through the criminal justice or corrections systems.
Specifically, I recommend the bill be amended to include the following rights in cases where it does not pose a safety risk to the accused, the facility or an individual, and only in cases where the victim requests the information: that victims be advised of the location of the forensic facility where the accused is detained; that victims be given advance notice of any scheduled absence, either escorted or unescorted, from the hospital and the general destination — the city or town — to which the accused will be travelling; that victims be given advance notice of the destination of release or conditional discharge, or if the accused will be travelling to the vicinity of the victims on conditional discharge; that victims be informed of any conditions of release for the accused when they are conditionally discharged into the community, which may include such things as mandated medication or treatment, non-communication with children or others, the requirement to attend treatment sessions, general mobility restrictions and more; and that victims be given advance notice of any scheduled transfer to another facility, of a change in level of security of their ward, or if the accused is moved to another province or territory for the purposes of treatment.
In addition to these measures, I also recommend that, upon request, victims be given a chance to view, but not retain, a photo of the accused at the time of release; victims be notified when there are additional or increased restrictions on liberties placed on the accused, such as when the accused is brought back into the facility or has been transferred from a minimum to medium or maximum security unit; and that victims be notified when non-communication orders are put in place.
Finally, there are two points I would like to make which touch on provincial matters but which I feel must be considered in light of this bill.
First, it is my understanding that not all provinces and territories necessarily have a system in place to ensure victim notification. I would submit for consideration the need to ensure that these rights are implemented effectively and that clear roles and processes are in place in each province or territory to ensure victims receive the notifications they are entitled to. Without these systems being in place to ensure that victims are in fact being notified, a codified right to notification becomes notional.
Second, one of the concerns I hear most often from victims is about the level of supervision of the accused once he or she is integrated back into the community. While this may not be an element that can be addressed at this stage, I feel these are valid concerns and bear examining in the context of enhancing Canada's NCR system.
In conclusion, I strongly support Bill C-14's proposal to ensure that public safety is the paramount consideration in decision making related to release of an accused, and the inclusion of further measures to enhance victims' rights.
With the addition of the further measures recommended, I believe that Bill C-14 will help ensure more equitable rights for victims of crime in cases where an accused is found to be not criminally responsible. All victims of crime deserve to be informed, considered and protected, regardless of the mental state of the person who harmed them.
Thank you for the opportunity to appear before you today. I will be happy to answer any questions you may have.
The Chair: Thank you very much. We will begin the questioning with the deputy chair of the committee, Senator Baker.
Senator Baker: Thank you to the witness for her presentation.
I have just one question. In listing the deficiencies in the legislation, the witness is suggesting that victims be notified. I wonder how she would define the word "victim," if that would take the normal definition of "victim" as it stands in the legislation. Is the witness suggesting that notification be given to a victim upon request by the victim or, as an automatic measure, the victim is notified of all these instances, the place where somebody is incarcerated, movement between provinces and so on? Would this be done only if the victim were to make application to the court to be notified?
Ms. O'Sullivan: Yes, the recommendations say "at the request of the victim." You've heard me use these words many times: choice and options. I would suggest when we try to define a victim, there's a definition of "victim" in the Criminal Code of Canada and in the Corrections and Conditional Release Act. I think that is something. I've also listened to and read the transcripts of other witnesses that talk about the impact on many people if they either witness or respond to it.
You pose an excellent issue on the question we've raised about the whole definition of how we define a victim. It's at their request because of their choice and options. Victims will have a choice as to how and what information they want. The best analogy I can give you is if you register a victim, both with the Parole Board of Canada and CSC, you're given options as to what you want to be notified on. That's simply respecting the choice of victims. Some may not want to have this information and that's their choice. Some may wish to have only pieces of this information and that's their choice. It really is about respecting the victim and allowing them to make their choice.
We also have to ensure they know that they have these choices, and some of the challenges we see are that some people aren't aware that if you're a victim and want any information about a federal offender, you have to register. Many Canadians aren't aware of that. In order to exercise those choices and options, we have to ensure they're aware they have them.
Senator McIntyre: Thank you, Ms. O'Sullivan, for your presentation.
As we know, Bill C-14 contains three components: public safety, creating a high-risk designation, and enhancing victims' involvement. Victims' involvement is nothing new. In 2005, Bill C-30 amended Part XX.1 of the Criminal Code, allowing victim impact statements. In other words, victims were allowed to file, and if they so wished, read their victim impact statement in court and or at the review board disposition and hearings.
As a former chair of a review board, my experience showed that victims rarely participated in this process for various reasons, one of the reasons being that they were simply left devastated by the pain and suffering, having suffered at the hand of the mentally disordered offender.
As the Federal Ombudsman for Victims of Crime, was this also your experience?
Ms. O'Sullivan: I made one attempt to attend a review board. Unfortunately, it was cancelled five minutes before it was to go ahead. I have been to some of the facilities and had staff members who have attended one as well to help inform us.
Victims are all unique, and some are very much able and want to participate. Some cannot and make that choice not to. I have found through experience with victims that we need to ensure they have the information and are supported. If someone does choose to attend the hearing, they would need to know what exactly a hearing is, what their role is within that and that they have a support person present.
You absolutely have a touched on something. It can be a very emotional experience. We have to ensure they have the supports they need following the hearing.
I also have seen victims who, along their journey, and for many it is a lifelong journey, will change and make a different choice. I've had victims who have contacted our office who very much understand that the person is not criminally responsible and very much want to see this person reintegrate and want to support. There are different perspectives from victims on those choices and options available to them.
Senator McIntyre: My experience has shown they either participate or don't participate. If they participate, they actively participate. For example, a whole family will show up at the review board disposition hearings, or they don't participate at all. Are you of the view that this new legislation will encourage victims to actively participate at the court review board disposition hearings?
Ms. O'Sullivan: I don't think I can answer that question. I think there's been a lot of awareness brought to it. When we talk about the not criminally responsible, we are talking about a small percentage. I would hope that victims and their families have the information they need to determine whether or not they choose to participate, are well-informed about that process and their role within it, and that they're respected and considered during that process.
I don't know if I can answer that question. Again, every victim is unique. I've had victims who at the beginning have sentencing as a priority — if there was a conviction — and later on in their journey have chosen to engage in offender mediation and restorative justice. It's recognized that a victim's needs and choices may change.
Senator McIntyre: One interesting thing about this legislation is that it goes beyond Bill C-30 and it is enhancing victims' involvement. Thank you, Ms. O'Sullivan, for your presentation.
Senator Jaffer: Thank you for always helping us understand the challenges of victims.
As Senator McIntyre said, this bill has three components. The victim component is a very important one. You've added some other things we should reflect on and look at amending, because those are important things.
One thing I've been thinking about is everything we've all been saying is about where the victim takes responsibility, where the victim gets the information. I've been reflecting on about also having a no-contact order or a court order for the person who is being released so that there is responsibility on their behalf. Have you considered that?
Ms. O'Sullivan: Yes. In my comments, I absolutely look at whether there's an opportunity, and if the victim wants nothing to do, there is a non-communication order.
I know from a lot of the data that many times the victim may be a family member. I realize that's a high rate that they may be family members. What it gets back to is that the process allows and the authorities in this legislation will allow the victim to be informed on their choices and options, that their safety be considered.
If, in fact, one of the things that can be imposed is a non-communication order, then it would only make sense that the victim is aware of that as well. Obviously, they need to be informed about that.
You can only give what the legislation allows you to give with respect to information. So we put on a victims' lens and we give them the choices and options in relation to their having the information they need about what their rights and role are within the system, about the offender, or in this case, the NCR who harmed their family, and they also have the information they need about the system itself, because it's very complex and complicated.
I know, Senator McIntyre, that you were very involved with review boards. They are unfamiliar processes. How are you supposed to understand what your role is unless somebody informs you ahead of time and you have the information of what your expectations will be or what if you want to ask a question and can't. I'm getting into the minutiae, but it's emphasizing your point that we consider that they have the access to the information they will need to feel safe.
I've dealt with victims and I recently attended the review. I know it was in the transcript of that new movie about a positive outcome from working with an NCR and working with a family. I listened to that family speak about how important restorative justice was to them. It's recognizing that the legislation will allow for the information that's required, like if it's a non-communication order available to them, and recognizing there are mechanisms in place, that there are choices or changes along that journey.
Senator Jaffer: I first heard you when we were discussing Bill C-10, and since then I've heard you a number of times. Since that time, a number of months ago, when we studied that bill and now this bill, I always feel we're looking at a situation when it's too late and there's been so much injury.
You have a lot of experience across the country. Are there sufficient or consistent programs to help people who have challenges with mental disorder? Really, we should be looking at prevention rather than trying to help when too much damage has been done.
Ms. O'Sullivan: You've touched on something that is so important. We're talking about a small percentage of extremely violent incidences. There is a move in this country. We recognize that the answer lies in ensuring that people have the proper supports they need to deal with mental health issues, that we have those systems in place.
I have met with Louise Bradley from the Mental Health Commission. There's currently a conference going on about police and mental health. There's a huge recognition that we all have a role to play. Are there capacity issues? Absolutely.
As for the waiting lists, we just have to turn on the TV to hear some of the tragedies. It's a huge piece that we have the capacity and the appropriately trained people to be able to support and deal with persons with mental health issues, absolutely.
Senator Frum: Nice to see you again.
Critics of some of the measures of this bill say that it will stigmatize those with mental illness, but they go further. The Canadian Bar Association, for example, says it actually stigmatizes people who are declared NCR.
The Canadian Bar Association said that the ". . . NCR accused . . . are, by definition, not guilty of a criminal offence committed while mentally ill. Public safety is best served when the NCR accused is given treatment and, on review, reintegrated into the community through an appropriate program." From the victim point of view, I'm wondering if you can comment on that idea.
Ms. O'Sullivan: You've had many experts who have more experience than I do in terms of what the impact will be on persons who suffer from mental illness. I certainly defer to their expertise. I believe you've also had victim witnesses who perhaps have had different views on that as well.
The general agreement here is that once people, if they are back in the community, have — I hear all the time about the capacity to ensure the proper supervision. I have had the opportunity to speak to people in other countries about this challenge, about how to ensure that when people are back in their communities they have the appropriate supervision and are taking their medications.
Not only this witness, but watching that movie I know was referred to in your transcripts, that recently was released, also talked about the experts were asked that if people were off their medication they would probably be back to that space within as little as a month.
That's what I hear from victims: If they're back in the community, how do I have that assurance that they have the supports they need, that the proper supervision is there? Again, I defer to the experts.
Senator Frum: When you get asked that questions by victims, how do you answer? How do they get that assurance?
Ms. O'Sullivan: I can't give them that assurance. I'm sure in some communities, perhaps that assurance could be a higher assurance. When I look around this country — and I think this speaks to Senator Jaffer's comments — there are huge gaps across this country, depending on where you live and what you have access to. That's the challenge our country faces.
Senator Joyal: I was concerned when I heard your presentation about how far we should consider the two approaches we have to address in the victim situation. I base the comments I will make to you on the basis of a personal experience, not me personally, but somebody related to my family.
The person who has been the victim of a violent crime has, of course, a psychological trauma. For some people, the way to get out of it is to try and turn the page as soon as possible. They don't want to hear more details about the case, don't want to meet their aggressor and don't want to know the personal history of the aggressor.
I understand that for some other victims it is better to address, front and centre, the reality to try and cope with it in order to be able to reintegrate "normal" life. I say "normal" with quotes because you can never forget something that happened to you and has traumatized the person.
It seems to me the bill should take that into account. I would not like to see a victim forced to look at the picture of their aggressor: "I will tell you where he is." It seems to be counterproductive, at some point in time, for that type of victim. That's why I think we have to modulate, in my opinion, our approach to that. Again, I'm not an expert, you're much more —
Ms. O'Sullivan: Actually, we are in agreement.
Senator Joyal: You're much more versed than me; this is not my daily reality. I'm trying as a layman to understand the reality on the basis of my personal and family experience, but beyond that I defer to the opinion of the experts.
Do you not think that has to be reflected in the bill?
Ms. O'Sullivan: Actually, I thank you for raising that. If there is any confusion, my recommendation is that it be at the request of the victim and the choice of the victim. You have actually captured quite nicely the fact that every victim will come from their own experience, how they wish to cope, what supports they have in place. My recommendation on those being available is very much at the request of the victim.
I agree with you. People will be at different places in different times, and so you are really capturing it quite well. Every victim is unique. Some victims may have excellent support systems and make the choice, "No, I don't want this information." Some victims want to know if they are doing well back in the community. Are they actually sticking to the plan? Are things going well for that person? It might lessen my concern, especially if they're living in the community that I do.
Some, as you say, may not want that information. Thank you for raising that question because we are in agreement that that should be at the request of the victim.
Senator Joyal: And clearly stated, because it seems to me if you are forcing somebody into living the psychological trauma, I could understand the emotional impact that someone is faced with, especially a personal violent crime. The person might have a different way of approaching his or her future. That, to me, is paramount to the decision taken.
Ms. O'Sullivan: Very well said. I've known victims where the NCR is a family member and they actively work with that family member, so it is about choice and options.
Senator Joyal: That's why I think the criteria of public safety mentioned in the bill is important for society as a whole. Because we don't want, of course, for that person who happens to be mentally disordered to be let free in society and commit other crimes. That's why in the context of society, public safety is an important element. But in the context of the victim him or herself, there is a different kind of approach that the bill has to reflect, in my opinion, to be clearly sensitive to the way a victim might want to choose to reintegrate into a normal life.
Ms. O'Sullivan: The reason that we have so many recommendations is because agencies, courts of review can only give what the legislation allows them to, so it is the information that is available for them to make a choice on. That is why those recommendations are there.
[Translation]
Senator Boisvenu: Ms. O'Sullivan, it is always a pleasure to welcome you to our committee. Thank you for your clear, precise and very solid testimony.
I am going to talk about the topic that interests me the most, the victims. When we look at the statistics concerning the presence of victims at hearings, we are talking about 0.4 per cent. Out of 6,300 cases, over the past four or five years, only 29 victims took part in these hearings. They are completely absent from the system.
What this bill does that is particularly interesting for victims is that it recognizes the importance of taking their experience into consideration.
I would like you to summarize in a few sentences what the bill will change for victims and their families. Because often, this type of crime occurs in families. A father or a son murders a relative. These really are terrible family dramas. What will this bill change in the life of victims?
[English]
Ms. O'Sullivan: I think there are two things when we look at the three pieces of the bill, obviously making sure that public safety is paramount. There is no twinning priority; it's public safety. Review boards are provincial boards and so I think it's also going to bring about that consistency across the country, which is something we're always looking for. As well, the access to information and the consideration of victims that this bill will provide in those processes are two of the keys.
[Translation]
Senator Dagenais: Thank you, Ms. O'Sullivan, for being here. I would like to go back to the fifth point on page 2 of your presentation. There is something that interests me particularly in this passage where you say, "Specifically, I recommend the bill be amended to include the following rights in cases where it does not pose a safety risk to the accused."
Can you give me some explanations on that? You are talking about risks to the safety of the accused. The bill of course focuses on victims. What do you mean exactly when you refer to the safety of the accused?
[English]
Ms. O'Sullivan: Hypothetically, if someone threatened a life and releasing that information would put their life at risk, it would be a concern. I am talking about these exigent circumstances; there is always an out and that nobody's life is ever at risk. However, part of that is one of the recommendations I made looking at the address, where they go and how you look at that. If they are in the community, they want them to do well and don't want them to reoffend. If there is specific information that could cause them not to go that area of stability, that might help in their treatment and keep them on track. But for that one specifically — and you will see the same language in the CCRA as well — when it comes to release of information, that's very reflective language. In other words, when victims attend a parole hearing, it is very similar language because there may be exigent circumstances where the release of information could put somebody's life at risk.
[Translation]
Senator Dagenais: Do I understand that if information is divulged to a victim, letting her know that her aggressor has been released, that he may be in such and such in area, this could endanger the accused? You fear that the victim may attack the accused?
[English]
Ms. O'Sullivan: I'm saying that this information should be released. But if an organization such as a review board, a court or a police service was aware of a threat and the release of information could cause somebody's safety to be at risk, then it has to be considered in the release of that information.
Senator Batters: Thank you very much for attending today, Ms. O'Sullivan. We very much appreciate all the work you have done on behalf of victims.
Some of the earlier witnesses our committee heard from talked about non-contact orders in these types of situations being made routinely and as a matter of course. They kind of dismissed provisions in this act as being unnecessary. Am I correct in assuming from what you have said today that you have certainly heard from many victims who have not received those types of non-contact orders in dealing with NCR offenders?
Ms. O'Sullivan: Again, we are dealing with a very small number, including those that contact our office on this issue, so I don't know if I can answer that with any level of large numbers. When I hear people say it is routinely done, I'd like to say, then let's make sure they must give it, because there are a lot of really good people working in our systems that work very hard to support victims, to support NCR. But when you don't make something that you must do, then it shouldn't rely on that you happen to get the right person that is going to routinely do this.
I also know that there are many review boards that have worked hard and have been around for a long time. Again, we want to ensure consistency. So by having it in the legislation, you don't have to rely on hoping that somebody who does this routinely and thinks to ask. It's now going to have to be looked at.
Senator Batters: Absolutely. Thank you very much.
The Chair: We heard some victims, and specifically Carol de Delley whose son was murdered on the Greyhound bus in Manitoba. They are allowed to provide impact statements at the review board hearings, but they are censored or edited in some instances so as to not offend the sensibilities of the accused. You would think that part of the process would be that the accused develops a full appreciation of the full impact of his or her actions. I wonder if you have some comment on that.
Ms. O'Sullivan: I hear the same frustrations of victims giving their statement at parole hearings. I know Senator McIntyre has extensive experience in this.
Currently, the code allows for preparing and submitting a statement at a court or review board. It allows for presenting a statement upon request, and so with respect to those frustrations, I think parameters are put out there and perhaps those could be reviewed. Are they still the appropriate parameters to have for presentation at a review board? I would suggest maybe that's something that could be looked at by the heads of review boards.
The Chair: I know you don't have the resources to look at lot of these issues in depth, but one of the areas that has been discussed during the process is the right to refuse treatment.
We've seen so many instances of that. I think Jeffrey Arenburg is a case in point. He murdered Brian Smith in this city, and when he was released by a review board, he was charged with assaulting a U.S. border officer and served two years in prison as a result of that assault. I saw him on the Fifth Estate recently where he openly said, "I'm not taking meds, I don't need them," and I think scared the bejeebers out of the interviewer.
I think that's a real and ongoing issue, and I'm not sure how we can overcome that.
Ms. O'Sullivan: I know that is a provincial matter, but I will say this: I hear that from victims. That was what I was referring to in my general comments. Even people who want to see and work to ensure people found NCR succeed back in the community, I've also heard them say, "As long as they still take their medications." I've heard experts speak. I've heard, as I mentioned, that video that was recently released, which was excellent, but basically said, including the psychiatrist who treated this person, "but if they go off."
I have talked to people in France who are faced with the same challenge: How do we ensure they stay on that? So at what point, I guess, does that right supersede the right of public safety?
Senator Baker: I have an observation. Usually when there are conditions of release, you see conditions of release that require somebody to take their medication and also give the authorities the right at any time to demand samples of the person's bodily fluids to make sure that they're taking their medication, and to enter their place of residence at any time during a 24-hour period. You often read that in orders of the court as conditions of release. I just want to make that point, Mr. Chair.
The Chair: That doesn't apply to NCR, though.
Ms. O'Sullivan: I've been reading transcripts and watching testimony. I believe Senator Dagenais raised that issue in his former role at the Sûreté and talked about the frustration of trying to get that authority on a weekend.
It's provincial, so I don't have this information, but there was a mention by one of the witnesses who said, "We have a legal tool in Quebec." And so my question was: Do the other provinces have this tool? It's a provincial matter, so if we're going to look at the ability in our country to ensure that when these people are back in the community, one, they get the support they need, the treatment they need and that they comply — I'm being very careful because I know as federal ombudsman that I'm not to tread on —
Senator Joyal: On the issue raised by Senator Baker, I heard recently there is now a system through the Internet by which the pharmacist or the doctor could know whether you have taken your medicine that day. I can't explain to you how it works. In other words, there is now the technology available, as Senator Baker has just mentioned, to follow up upon somebody who is ordered by the court to take his regular medicine to know if that person has taken it. It seems to me this is a very important approach to maintain the public safety that we know is paramount for everybody living freely in a society that we cherish to be in.
It seems to me this is a very important point maybe that in our observations, Mr. Chair, we could mention as being something that the Justice Department could look into and see how that could be integrated in the operation of the system.
Senator Baker: On a standard condition of release of somebody who has been convicted of a criminal offence, a standard release by the court can include such a requirement. Let me give you the example of somebody who is ordered to stay away from alcohol and/or stay away from drugs. I've read many, many conditions of release that allow the authorities to enter a residence at any time — any 24-hour period — to take samples of that person's blood or urine to make sure that they have abided by the conditions of release laid down by the court. Perhaps that's something we can go into further with other witnesses.
Ms. O'Sullivan: I know that in other countries they actually force the NCR person to appear at a certain point and get that done on a regular basis, so there are different approaches.
Again, it's my not my area, but I don't know how you would determine, even if you had access, if that person had taken their medication.
The Chair: Senator McIntyre could elaborate, perhaps, but when we went to the Brockville Mental Health Centre earlier this week, they indicated that an option upon release is a community treatment order, but the individual has to agree to that before they can monitor his or her progress.
Senator McIntyre: I wish to add that a police officer can arrest without a warrant a person in breach of a disposition order. That's in the code. That's clear.
I have a quick question regarding review board procedure. The Criminal Code is very clear. Review board disposition hearings must be held in as informal a manner as possible. At the time of the hearing, most parties of the proceedings are present, including the accused, his counsel, the Attorney General, or the Crown attorney. A stenographer is present, and the proceedings are recorded. At the end of the hearing, the chairperson or the alternate chairperson will render reasons for any disposition order. Copies of those documents are sent to all parties of the proceedings.
Have you ever attended one of those review board disposition hearings, and, if so, did you find that the board proceeded in a proper manner?
Ms. O'Sullivan: I did attempt to attend. I made it to the review board hearing, and the NCR person was outside in the hallway, as were some of us. Unfortunately, it was cancelled. Literally it was set to start and it was cancelled. I believe one person couldn't make it or something, but I did make that attempt.
When we talk about considering victims, if it was my first review board hearing and I was a family member and I had not been informed that the NCR person would be in the hallway just outside, that might have taken me aback. I'm using that as one simple example. Yet, if I was informed, if there was a place for me to be ahead of time — "just so you know, in this facility, we don't have the capacity, so the person will be here, but we have room set aside for you," these sound like little things, but when you are in an emotive state, you are there the first time and maybe you want to be because you want to support the NCR person as well. That would be a situation as well.
I did attempt, we did get into the room and I did see the set-up. As I have said, I have had other members of my office as well attend recently at some of those. But you have tremendous experience in that area.
I will get back to the point. If it is an informal process, I would want to know what my role is in that.
Senator McIntyre: Maybe one of the reasons you were not invited is you were not a party to the proceedings. The parties to the proceedings are the accused, the Crown attorney, the head of the institution where the person is incarcerated.
I think you should follow up on that and ensure that you are invited at those court or review board disposition hearings.
Ms. O'Sullivan: I would like to make a positive comment. I have to tell you our team did reach out to the review board. They were nothing but supportive and helpful to get us that. It was a very positive "please come," and not a problem.
Senator McIntyre: The court can render a disposition hearing or the review board. If the court renders a disposition hearing, the board has 90 days to review the matter. If the court does not render a disposition hearing, the review board has 45 days to review the matter. It's very important, as the reps of victims, that you are present and involved in the process.
Ms. O'Sullivan: Thank you.
The Chair: No other questions?
Thank you, Ms. O'Sullivan. I appreciate your appearance.
For our next panel, there are again some familiar faces. From the Canadian Association of Elizabeth Fry Societies, we have Kim Pate, Executive Director; and from the John Howard Society of Canada, we have Catherine Latimer, Executive Director of that association.
Ms. Latimer, the floor is yours.
Catherine Latimer, Executive Director, John Howard Society of Canada: It's a great pleasure to be here.
The John Howard Society of Canada, as you know, is a community-based charity whose mission is to support effective, just and humane responses to the causes and consequences of crime. The society has more than 60 front-line offices across the country, with many programs and services to support the safe reintegration of offenders into communities and to prevent crime. We like to believe that our work helps to make communities safer.
I particularly appreciate being invited here today to speak to you about Bill C-14, which proposes amendments to the not criminally responsible provisions of the Criminal Code and the National Defence Act, to address the needs of victims, and to establish a high-risk accused designation and procedures.
While the John Howard Society certainly supports some of the efforts made in the bill to address the needs of victims, the proposed changes to the NCR regime do not appear, to us, to have an evidentiary base. They seem to be unnecessarily punishing of the mentally ill in the NCR regime, and they will likely lead to more mentally ill people coming into the formal prison system where their mental health issues are likely to worsen.
Essentially, our specific concerns relating to the high-risk accused proposals include, first of all, simply referring to the person who has had his or her criminal charges adjudicated and then found to be NCR as an "accused" person. "Accused" does have a legal definition, and it's been interpreted by many courts and carries the connotation that a person is awaiting adjudication on a criminal charge.
For those found NCR, this issue has been addressed, and no "crime," in the formal sense of the word, has occurred. This designation wrongly imports the notion of pending criminality into the NCR regime. The NCR individual should be understood as a patient for whom treatment leading to a safe reintegration into society is the goal.
The next concern is that the ground proposed in paragraph 672.64(1)(b), which refers to acts of a brutal nature indicating a risk of grave physical or psychological harm to another person as a finding for the NCR really rests on a single past act. A single past act is not an indicator of future risk. Moreover, the ground in (b), which is the act of a brutal nature, does not align well with the judicial requirement in clause 16 relating to the revocation of the finding in the court.
In that case, they allow for the revocation if the ground in (a) — ". . . substantial likelihood that the accused will use violence that could endanger the life or safety of another . . . — is present, but there's no reference to the substantive ground in (b). Accordingly, the ground in 672.64(1)(b) should, from our perspective, be dropped from the bill.
The other concern we have is the delay in the review periods of potentially three years for those designated high risk could lead to unwarranted losses of liberties for those who have responded well to treatment and would have been able to return safely to society long before the scheduled review.
The John Howard Society is also concerned about the implications of the high-risk accused designation on scarce mental health resources in both the NCR and the prison systems. If a court designates a person as a high-risk accused, the court must order the person to be detained in custody in a hospital, whether medical clinicians deem that to be necessary or not. Thus, based on the label, limited and expensive forensic hospital space will be used for those labelled high-risk accused. Others who may not been labelled but who may be more amenable to treatment may not get access to this scarce resource because of this particular label.
Many suffering from mental health issues who were not capable of framing a criminal intent may decide not to invoke the NCR defence to avoid longer periods of confinement. Not only will this lead to the injustice of people who are incapable of forming a criminal intent serving criminal sentences, it will deny them access to treatment at specialized hospitals.
Instead, there may be more people with serious mental health conditions defaulting into the provincial and federal corrections systems. Under present circumstances, their mental illnesses are likely to worsen in the prison system before they are released back into the community. This, in our mind, poses a higher risk for future victims.
In conclusion, the John Howard Society strongly supports the policy objective of limiting the harms caused by mental illness both to the primary victims — those afflicted with the diseases and other victims. Bill C-14, however, will not achieve that objective. It imposes labels inconsistent with therapeutic goals of treatment and public safety. It will remove therapeutic expertise by making the labelling and associated regime judicially imposed. It will endanger public safety by allocating scarce psychiatric resources where they might not be most usefully used and by compounding the current crisis of those suffering from mental illness in our prison systems.
The current review board process for those not criminally responsible is working well and does not need, in our view, to be changed.
Thank you very much.
Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies: My name is Kim Pate. I am with the Canadian Association of Elizabeth Fry Societies, as many of you know, an organization that works with marginalized, criminalized and institutionalized women and girls throughout the country.
I want to start by concurring with the comments of Catherine Latimer, who has just spoken, and my comments therefore need to be very brief.
During the first read of this bill and its predecessor, one of the first questions that came to mind to many of us who were working within our organization on these issues is: Why not repeal the provisions entirely if, in fact, these kinds of restrictions are going to be made?
We recognize that it really is because of some very high-profile, very tragic cases that this review is happening, but we already have a reluctance on the part of accused to use the not criminally responsible provisions because of the potential likelihood of a lifetime of confinement. Our concern would be that when we have individuals we know might benefit from the mental health provisions or entering the mental health system rather than the criminal justice system, it is already very difficult to encourage them to do so, and this will only make it more difficult, particularly with the infusion of the high-risk provisions.
We have no particular concern with the victim notification process. That already occurs, and there are already mechanisms in place to ensure safety through not just the mental health provisions but also existing criminal law mechanisms.
I would encourage us to have some discussion about how we might try to ensure that the resources are more appropriately placed on developing earlier interventions and mental health provisions for people more broadly across the country in terms of national standards for health, and in particular, mental health care, and also provisions so that those individuals who are criminalized have access to appropriate mental health services.
I'm, of course, most acutely aware of this, having just concluded in the last few months the inquest into the death of Ashley Smith.
Thank you. I look forward to your questions.
Senator Baker: Thank you to both witnesses for the excellent presentations they've made on this legislation and in a great number of cases in the past on legislation.
I have just two questions, but I first have an observation regarding the first question.
Witnesses have raised the possibility before this committee that defence counsel will be reluctant and may not request that an assessment be made in order to raise the issue of an exemption from criminal responsibility on account of a mental disorder. So that the general public or the committee does not misunderstand the issue, it is the judge who makes the determination as to whether or not there's going to be an assessment under section 672.12.
When I read recent case law on this issue, I see, for example, in Quebec, R. v. Sealy [2010] Carswell Quebec, 15811, that defence counsel disagreed with the client on this particular matter. The judge ruled that the person ruled against defence counsel and against the Crown and ordered an assessment.
In R. v. Firman [2006] Carswell Ontario, 6588 — and these are only examples; there are lots of others, where both the Crown and the defence said prior to guilty plea — counsel for both sides agreed not to raise the issue of exemption from criminal responsibility on account of mental disorder. The judge ordered the assessment and said, "I disagree with both of you," because that's the way the legislation is written, as I'm sure you will understand.
I just wanted to clarify the point so that we understand this and the general public understands it, that it's not up to defence counsel and the Crown as to whether or not an assessment is done; it's actually up to the trial judge.
Ms. Latimer: Yes. There is a presumption at law that people who appear in the courts are compos mentis and capable of framing an intent. Generally, if you want to reverse that presumption, it would often be defence counsel who would see this as a possible defence, but certainly the judge could order the assessment, which could lead to certain findings. It's hard to know what the judge would base that on unless there was some interaction with the accused. If they're entirely represented by defence counsel, it's hard to know how the judge would comprehend that that was needed in a particular case.
Ms. Pate: I would agree. I think the difficulty is often by the time we end up before the court, at that decision-making point, an individual who may have been seen as NCR — I'll use that term; obviously, they haven't been designated by the court — or could be argued as NCR may be on their medication and may then be in a position where if they committed the act for which they're accused right then, they might not be found NCR because they were on their medication. So it would be unusual for a judge to actually see that behaviour. If they saw that behaviour in court, in our experience, they're more likely to take the recommendation of defence counsel, particularly if it's a joint submission, at least to send for an assessment.
I do have an example of a situation where we actually pushed very hard to have a woman assessed, even when she initially said she didn't want to be assessed. She's a woman who has been somewhat public since the death of Ashley Smith. She was in very similar circumstances when I first met her in custody. She was starting a short sentence, ended up serving 10 years in prison, most of it in isolation. She had never actually committed a violent offence in the community, but she had become self-injurious and eventually started to assault staff in the institution during that period of isolation as her mental health became worse and worse.
When she was in the community, she initially breached her section 810 order because she was detained until warrant expiry, which is a whole other issue. I think we see similar detention provisions in terms of the high-risk measures here. She was detained and then released at warrant expiry, was under a section 810 order, breached the 810 order by — I can't remember now if it was drinking or staying out, so a fairly minor breach in the scheme of things. In that process, we managed to have her continue in the community, despite a fairly long sentence, almost all of it accumulated in prison.
But then a couple of years later, after she was off the 810 order, she went off her medication. By then she was properly diagnosed as schizophrenic and not as having a personality or behaviour disorder, as was presumed in the prison. She went off her medication. She called the police. We had a whole series of events. I'm being a bit long, but I want to explain it adequately.
She called the police. She knew she wasn't doing well. She didn't want to take her medication. She told the police and they took her to two different hospitals. They said they were full and didn't have time to do an assessment; they had no beds or capacity. She then said she was afraid she was going to hurt someone, mostly herself. The police took her home.
When the police went to leave, she was talking about her roommate being a robot and her cat videotaping her through its eyes. When they went to leave, their assessment was she panicked that she was going to be left alone with these monitoring devices, as she understood them to be, and stabbed her roommate. The first ever violent offence was in this context.
The police then took her into custody for obvious reasons. She was placed in isolation, in segregation, and had already started to decompensate but was then taken over to the medical side. That particular institution is in Nova Scotia. There is a psychiatric NCR unit on the other side of the same building. She was taken over there and went back on her medication.
By the time we were in court, she was found fit to stand trial and not seen as NCR. She was about to be sentenced for an assault after a long series of assault charges in prison and was likely to get federal jail time, more than two years. We argued that they should go back, reassess and determine whether in fact on the night in question she would have been found criminally responsible. In fact, the judge did order that. She went back.
Sometimes she doesn't take her medication now. She goes back and forth to the hospital. She has not spent a long period of time in isolation, has not further decompensated and has been properly diagnosed. The interests of public safety are paramount, but the interests of her treatment are also taken into account.
Senator Baker: One final point on this business of defence lawyers. The suggestion has been made by previous witnesses that the defence lawyer would make the determination. The way the law is written, as I see it, the way it's interpreted in case law, it says the court may make an assessment order at any stage of the proceedings. In other words, it's not the initial presentation during plea: Are you guilty or not guilty or are you making another plea? It's at any time during the proceedings. That's why we see in the case law that it's up to the judge who orders the assessment, and it could be in agreement with defence counsel or not in agreement with defence counsel, or with the Crown or with the accused in that particular case.
I agree with your assessment, but I just want to make that perfectly clear, that it's the judge who can at any time during the trial say, "Look, this person has a certain problem, and I'm going to order an assessment, let's have a hearing."
I only have time left now for one question.
Ms. Pate: Sorry.
Senator Baker: That's okay.
The point you're making about the three years, I presume what you're saying is this: It removes the power from the psychiatrists in the institution to be able to start treatment as to reintegration into the community. Am I correct that that is the main argument against this three-year restriction?
Ms. Pate: Yes.
Ms. Latimer: Yes. I mean, A person could respond very quickly and then be safely reintegrated into the community after a couple of months maybe and will have to wait likely another two and a half years before they're actually reintegrated, and that may be inconsistent with their therapeutic plan.
Senator McIntyre: Thank you both for your presentations.
This bill was debated in the House of Commons. It was exhaustively studied by the standing committee in the House of Commons. My understanding is that the committee heard from approximately 30 witnesses from a wide variety of backgrounds and professional experience, and probably both of you appeared before that committee as well. All the witnesses presented valuable viewpoints on what is now Bill C-14.
I note that the standing committee made two amendments. The first amendment was in relation to victims' rights. The second amendment provides for a parliamentary review of the mental disorder provisions five years following Royal Assent.
Bill C-14 contains 33 clauses. Some clauses contain minor amendments, including linguistic amendments or reformulations, such as section 672.54 of the code, which is to be codified. My understanding is that the reason for those amendments is to clarify the legislator's intent and meaning, such as the clause, for example, "least onerous and least restrictive" is to be replaced by "appropriate and necessary in the circumstances." Then there are other provisions, such as the high-risk designation.
Ms. Latimer, in your presentation, you made reference to specific clauses in the bill, such as the one dealing with an act of a "brutal nature." The standing committee made two amendments. Are you suggesting that this committee make amendments as well?
Ms. Latimer: My perspective is that amendments do need to be made to be bill.
Senator McIntyre: Could you be specific as to the type of amendments we should make, if any amendments are to be made by the committee?
Ms. Latimer: My preference would be that you didn't pass the bill, but I think that's a long shot.
I would like to see the second criteria for the designation of somebody being a high-risk accused, which is the (b) section of —
Senator McIntyre: 672.64.
Ms. Latimer: Yes, (1)(b) dropped. To me, one single incident in the past does not have predictive value of what is going to happen in the future, so I'm not sure what the benefit of that is except to give comfort to those who have borne witness or vicariously experienced a very horrific act. But that's the mental illness; it isn't necessarily a predictor of what's going to happen in the future.
Senator McIntyre: It contains stronger language than being a significant threat to the safety of the public.
Ms. Latimer: Right, but if you go to clause 16 of the bill, it deals with the review of the designation of high-risk, and you get into the criteria for asking for the judicial review of the designation. If they're not persuaded that there would be an endangerment to the life and safety of another individual, which refers to the (a) component of the original designation, and if the court is satisfied that there is not a substantial likelihood that the accused will use violence, then they're to remove the designation. There is nothing in there that refers to subclause (b) criteria. It strikes me, having seen a lot of bills in the drafting process, that (b) might have been an add-on late in the day and it was not connected to the subsequent review processes later in the act.
Senator McIntyre: As I understand the bill, in the case of high-risk offenders the court would use a higher test and ensure that the substantial likelihood that the accused would not use violence be there.
It appears to me there are two tests. The first is used in ordinary cases. For example, the board has to be satisfied that the accused person no longer remains a significant threat to the safety of the public. We agree on that.
Ms. Latimer: Yes.
Senator McIntyre: But as far as the high-risk offender, you would have another test being that the court would have to ensure that the accused would not use violence on another person. That's the bottom line as I understand the legislation.
Ms. Latimer: Yes.
Senator McIntyre: There is no onus, for example, on the accused. The prosecutor simply makes an application to the court.
Ms. Latimer: How would you overturn the high-risk designation if it wasn't based on (a), which is a "substantial likelihood that the accused will use violence that could endanger the life or safety of another," but in the opinion of the court the offence was "of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person"?
The way I see this, you could have the designation that the person is high-risk under (b), the review could be sought immediately, and the designation would be dropped by the court because while it may have conformed to (b), it wouldn't have conformed to (a) criteria. You asked me for specifics of things that you might want to change, and that would be one of them.
My own preference is if you would call it something other than the "accused" if you're going to proceed because the accused —
The Chair: We're going to have to move on.
Senator Joyal: It seems to me that there are two criteria on (a) and (b). On (a), it's the person themselves, the total appreciation of the mental condition of the person. In the second one, it's not the condition of the person; it's the brutality of the acts committed in the first instance. They are not exactly the same. One is personal, the other is objective.
Ms. Latimer: Right.
Senator Joyal: I wouldn't describe any brutality, but if the act was brutal, that is an objective fact. The first one is an appreciation of the person; it's totally directed to the person. That's the way I read the clause.
Ms. Latimer: You're using the designation in (a) to come up with a finding that the person is high risk, i.e., likely to commit similar acts in the future, where the second is just one very seriously brutal act that may have caused psychological damage. And a past single act isn't really predictive of what somebody would do in the future.
The Chair: I will let you pursue this later.
Senator Jaffer: I have so many questions.
The committee went to Brockville on Monday and one of the things that will always stay with me is that the head of the Brockville institution said that people in this institution have two stigmas: that they have committed a crime and, secondly, their mental disorder. After this bill, there will be three stigmas, for those that get it — the high-risk designation, the criminal and having a mental disorder. Adding stigma, how do you reintegrate those people into communities?
One thing that I came away with on Monday was that they talked about discharge plans from the time the person comes. Discharge plans are out the door if you have to wait three years. I also heard they don't come in here until four months before they are about to be discharged. From all the things we have heard on this bill, the person could come in and have done something terrible but respond to treatment very quickly and could be released earlier. However, they will be held for three years under this bill. I'm having great difficulty; we are going backwards in society. This is not how we treat people with a mental disorder. I wanted both your comments on this.
Ms. Pate: Essentially that's why I started out by saying — and I would agree — that we would prefer not to see this bill pass. It essentially undoes what the NCR provisions are supposed to do, which was to say very clearly that because of mental disorder, someone cannot be found to have had the criminal intent to commit the act that clearly they have done, without criminal intent. So the emphasis is on mental health interventions.
Of course, the best way to address public safety, and therefore the needs of the rest of the community, is to have those treatment options be first and foremost aimed at addressing the mental health needs that gave rise to the actions in the first place. In our view that is the best way to address public safety.
The reality remains that when we've had some horrible tragedies, there are victims who are entitled. As we know from the film made that was referred to earlier in the hour, families are involved. Families are notified so people can be aware of that. I don't think there's any argument from either of us on that point. The issue is fundamentally about how we assist people who have mental health issues who otherwise could be made worse.
Again, I think of the very few individuals who I know we've managed to get out of the prison environment and into the mental health setting. This kind of provision could be used against them even though all of their behaviour was linked to their mental health issues while in isolation in a prison cell, because that is where they have accumulated high-risk repetitive behaviour.
Senator Jaffer: My second question is that for all of us who deal with the legal system and know the challenges with legal aid, the high-risk designation will be found by the judge and will be removed by the judge. There is a three-year wait, if I understand this properly.
You deal with people all the time who have real challenges. At least when they were going through the review board, as Senator McIntyre said, it's an informal proceeding. It's different. The reason for informality is because these people have mental challenges; they're sick. Now I'm really concerned that sick people will first be designated, then the high-risk removed, and there will be a longer period of waiting. I would like your comments on that.
Ms. Latimer: That's a very interesting observation. One of the benefits of the review panel is its informality and the expertise that's accumulated or represented in the members of the review panel. I think you do lose that if you keep bringing the person back into a criminal court setting.
When you spoke earlier about legal aid, there is a real difficulty in finding access to justice in terms of good representation. This will put further strain on already limited resources. Far too many people are representing themselves now. I think it will be generally a problem and a less salutary procedure for achieving the outcome that we all want, which is for people with mental illnesses to have their health promoted and to be able to live as constructive and safe citizens with the rest of us.
Senator Batters: My first question is to Ms. Latimer. You indicated in your opening statement that the current process is working well and does not need to be changed. Right now it's the case that the review period can be extended to two years from one year. We've heard earlier witnesses testify that that is relatively rare.
I'm wondering the following: Simply allowing a period to be extended to three years — and again, earlier witnesses have said they would expect that that would also be on a relatively rare basis — how would you justify saying that that is not going to be working well in the system? Right now your comments are making it sound like someone goes into this particular process; maybe they're going to be completely treated by three months down the road, and meanwhile they're having to wait two and a half more years. But we've heard that the normal case is that it is still a one-year review period. A two-year period currently exists, and this is simply allowing for one further year.
Ms. Latimer: Essentially, a three-year period, potentially three years for all of those designated as high-risk accused.
Senator Batters: Potentially.
Ms. Latimer: The reason I say that is because you are really making a judicial determination. The progress that a mentally ill person makes under a therapeutic regime varies. Sometimes the psychiatrist just happened to hit the right set of medications and the person can come out of whatever mental health problems they were having relatively quickly. In that case, you would want to continue on that trajectory, try to get them stabilized in the community so they're continuing to take their medication and all of that.
But if you had to restrict their liberties — which would be a greater intrusion on and restriction of their liberties than would have been necessary by virtue of their medical requirements — that is very prejudicial against the person getting the designation of high-risk offender. I would much rather have the latitude of the psychiatrists being able to advance that review, when they think it's appropriate, to make the call about whether or not the person should be released into the community, based on the individual progress that a particular patient is making.
Senator Batters: My point is that it already is potentially an extension to two years — in most cases, it sounds like it's a one-year review period — and this simply allows, in those types of cases where it's warranted, the discretion to allow a three-year extension.
You've referred to the scarce mental health resources, and I certainly agree with that, but then you went further and indicated that these limited and expensive resources would potentially be — I can't remember your exact wording. I don't think you used as strong a word as "squandered," but that's sort of what you were leaning towards, to be used for those labelled high risk.
What I would point out here is that we've heard that the number of people who are designated as NCR is less than 1 per cent of all offenders, and those who would be labelled high risk are a very limited percentage of those NCR numbers.
In my view, although we do have scarce mental health resources, I think they would be very much welcome, and I think the Canadian public would think that they would be very much welcome to deal with that limited category of offender.
Ms. Latimer: I may have read it incorrectly, but when I read this, to me, it indicated the judge would require the person who is found to be a high-risk accused to serve their time in a hospital. It's that scarce access to psychiatric hospitals that would be a problem. At a certain point in the therapeutic process, they may not need the intensive, expensive care that is being delivered through a hospital, and it may prevent others who should be there and need access to those resources from getting the space. You're in that psychiatric hospital until you lose the designation, whether it's part of the medical regime or preference of the medical regime or not. That was my concern: the judicial requirement that they be placed in the hospital.
Senator Joyal: Mr. Chair, to give additional information on the point I made earlier about how to follow up on somebody who has or has not taken his medicine, the information came from the publication Le pharmacien, The Pharmacist, and it is January 20 of this year. I will quote essentially what it says. The title is "Alerte sur smartphone," and it states:
[Translation]
The first of these, the most practical at first blush, is the use of a smartphone equipped with a system of alerts that can let the patient know when it is time to take medication. . . . The principle is simple: after programming, the alerts go off on the smartphone when the medication must be taken, with in general a validation from the patient, which then allows for a compliance follow-up by the pharmacist.
[English]
I have the document. Maybe my colleagues will want to read more extensively once we have adjourned today.
This seems to be real. There is an additional technology to be able to follow up on that. Thank you for allowing me to give those additional details.
I want to come back to page 7, on (b), which Ms. Latimer commented on. When I read 672.64, I read it in the following context: First of all, the accused was 18 years of age or more. That's the preliminary condition. Then there are two options to consider: One is that "the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person." In other words, the court will assess the condition of the mentally ill person. Second, the court could go down another avenue, which is essentially that "the court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person."
I find the text a little ambiguous. Does it mean that the brutality of the act that has been committed might harm another person? Who is that other person? Me? I'm troubled by the atrocity of the act? Or is it the fact that the brutality of the act would constitute a danger for another person? In other words, there is still the possibility that another person could become the victim of that person.
I read both the French and English texts and was not convinced that I was right in my reading of it.
There is another step, whereby in (2):
In deciding whether to find that the accused is a high-risk accused, the court shall consider all relevant evidence, including
(a) the nature and circumstances of the offence;
We come back to brutality of the act.
(b) any pattern of repetitive behaviour of which the offence forms a part;
We come back to (a), and then:
(c) the accused's current mental condition;
It's again on (a).
(d) the past and expected course of the accused's treatment, including the accused's willingness to follow treatment;
That is again (a), and:
(e) the opinions of experts who have examined the accused.
That is again (a).
I have difficulty in finding any additional elements that will help me to understand the impact of (b). Again, I'm trying my best, as an average person who reads law text, to try to understand what it means. Could you help me understand what it means?
Ms. Latimer: I must say, Senator Joyal, that I went through exactly the same logic process. If I look down the margin of my notes, under (a) I've got "both." And then the rest I've just got (a), (a), (a); it would only apply to criteria (a).
That's why I'm anxious about the (b) criteria, because it looks as though this would apply to very high-profile cases of significant brutality. I think it might allay public concern, but I don't think it's necessarily vested in good medical practice about what's predictive of future violent behaviour.
The designation has to do with high risk, so it's troubling. To me, (b) is troubling. Exactly the same logic process that you used is the one I tried to apply.
Senator Joyal: I'm trying to figure a case where it would apply. I don't want to start describing situations, because it's so horrendous. It's not the way to do legislation. It seems to me that the brutality is linked to the risk of another person that would be linked to the victim; another member of the family, for instance, or something like that. I don't want to start giving names of cases because it's not the proper way to interpret legislation.
It seems to me that if the brutality constitutes a risk to another person, it would mean that the person at risk had something to do with the first victim.
Ms. Latimer: Yes.
Senator Joyal: Otherwise we come back to the first one, to the first criteria.
Ms. Latimer: Yes.
Senator Joyal: The likelihood of hitting anybody.
Ms. Latimer: Right, or you're psychologically harmed because you're thinking about the brutality of the past act and it makes you feel ill or whatever, yes.
Senator Joyal: Does it mean, for instance, that the spouse or the parents of a child who had been murdered, for instance, would have psychological harm because of the brutality of the person? Is that what we want to have considered by the court?
Ms. Latimer: Right. And it goes to the other point.
Senator Joyal: You understand how I tried to figure out what it means.
Ms. Latimer: Yes. What amount of treatment could you give to the individual that would allay that? It's really connected with the past act and not the future deeds.
Ms. Pate: With respect, it's not just connected to the past act but to the supports that need to be in place for the victim, the corollary victims.
I think combined with the change from "least restrictive" to "appropriate and necessary," it may be sending messages to judges that they should be doing something that may not be actually what the legislation intends, or if it is what is intended by the legislation, then I think causes more problems. You would be sending a message that we want people to be treated differently than really having their treatment needs met in the interests of public safety. Instead we want to take into account the impact of the initial crime or the initial act and exact a penalty in what looks more like a criminal process than a mental health process on the individual.
Senator Joyal: I was trying again to read (b) as being, in fact, the case of a person who is not the victim of the act directly — it's not the person for instance who has been the object of the brutality — but somebody, a person who would be close to the victim and would suffer psychological harm. In other words, that would allow the court to consider the conditions of a relative of the victim that would be psychologically harmed on the basis of the brutality of the crime. That's the way that I understand these criteria. In other words, these criteria are not linked to the mentally ill person. These criteria are linked to a person who is connected with the victim of the crime.
Ms. Latimer: I think it bears that interpretation, yes.
Senator Frum: Ms. Latimer, I wanted to clarify my understanding of your objection to clause 15 of the bill, this is the possible three-year extension review period for the high-risk accused. As I understand it, clause 15 of the bill states that, in the case of a high-risk accused, the review board "may" extend the time to hold a hearing for a maximum of 36 months. It may; it's not required. The conditions would be if the accused is represented by counsel, and the accused and the Attorney General consent to the extension, and the review board is satisfied that the accused's condition is not likely to improve, and that detention remains necessary for the period of the extension. I thought I understood you to say that your objection was that this will happen automatically, but it's not an automatic provision.
Ms. Latimer: No, you're quite right. I think it would be interesting, in the five-year review of the legislation, if you took a look at the extent to which it did slip to the 36 months or it was held in advance of the 36 months.
What we have seen for parole hearings and a variety of other things where you give latitude to have it within a certain period, it tends to push out to the maximum time, but it would be beneficial if it didn't happen in this case. It would be interesting to see, but you're quite right that the reading says "may."
The Chair: Senator Joyal may take a look at 672.55 of the code, whether that has relevance with respect to an absolute discharge and the ability to follow someone or obligate them to take treatment. I would appreciate it if you would take a look at that.
Senator McIntyre: I simply wish to review with you this three-year extension period which, to me, is clear. As the law now stands, there is an obligation on the review boards to review matters on an annual basis. As a matter of fact, they can even extend to two years. There are provisions under the code for that.
Also, the board has discretionary power to review. In other words, if the accused person is not satisfied with a decision, they can ask the review board to review this matter.
The code also makes it very clear that the accused person can appeal a decision of a review board to an appeal court: for example, if there is a miscarriage of justice or if the chairperson rendered a decision that was not based on the evidence.
As far as the high-risk designation is concerned, we have to remember — and I think you will agree with me — that once the court finds a person to be high risk, he is sent to a hospital pending disposition by a review board. At the first hearing, the board cannot extend the next hearing to 36 months unless the Attorney General gives his agreement and the accused gives his agreement. That is very clear in Bill C-14.
As far as the other hearing is concerned, in other words, when there is another hearing after that, then the consent of the accused is not needed, as long as the review board is satisfied, based on any relevant information, including an assessment report, that the accused's condition is not likely to improve and that detention remains necessary for the period of the extension.
To me, Bill C-14 is very clear.
Also, I'd like to go back to the powers that are given to the court, in other words, the powers the court has to consider in order to find an accused to be a high-risk offender. As you know, there are several clauses. For example, the judge has to look at the nature and circumstances of the offence, any pattern of repetitive behaviour, the accused's current mental condition, the past and expected course of the accused's treatment, including the accused's willingness to follow treatment. I understand what that means, having been a former chair of a board. There are a lot of people who are unwilling to follow treatment in the opinions of experts who have examined the accused.
Having said this, do you still see a problem with the three-year extension period?
Ms. Latimer: It's interesting that there are built-in protections. Why move it to three years?
Senator McIntyre: Because he remains a high risk to the safety of the public.
Ms. Latimer: Under (a), but not under (b).
Senator McIntyre: Then, again, under (b) — and I understand what Senator Joyal was driving at. You have (a) and you have (b), but you have to look at section 672.64(t)(ii) — which are the factors the court has to take into consideration.
Obviously, before the judge finds an accused to be a high-risk offender, he will have to take a lot of factors into consideration, such as those I just mentioned. It's not just one clause as opposed to another clause. You have to put all the clauses together. The bill contains 33 clauses.
As far as I'm concerned, I don't see a problem with this bill, to be honest with you, because it deals with high-risk offenders as opposed to low-risk offenders. Nothing will change in this legislation as far as low-risk offenders are concerned.
Ms. Latimer: High-risk offenders having committed a personal injury offence, but you could have high-risk offenders who hadn't committed a personal injury offence. They were high-risk at committing thievery or something of that sort and they wouldn't hit the benchmark.
Senator McIntyre: It's up to the court to determine if they are high-risk offenders or not. Then the matter goes to the review board, and the review board, once they have determined they are no longer high risk, they send it back.
The Chair: I think we've agreed to disagree.
[Translation]
Senator Dagenais: Thank you, ladies, for your statements. Bill C-14 concerns high-risk offenders. Fortunately, there are few of them, relatively speaking. The purpose of the bill is to protect the victims, just like Bill C-10, with which you also did not agree. One cannot be against virtue, and the vast majority of people advocate social reinsertion, but it has to begin with respect of the conditions imposed when an inmate is released. The bill concerns persons who were not criminally responsible, and who often take medication. We have to ensure that they take their medication according to the prescriptions so that they do not reoffend. As you mentioned, these people have to take part in programs, and we have to modernize the disciplinary sanctions.
How can we ensure that the person will respect these conditions and take his medication? How can we ensure the victim's safety? Unfortunately, after a few weeks or a few months of good behaviour, it happens that these people stop taking their medication, which increases the risk of recidivism. What do you think?
[English]
Ms. Pate: Those are the key questions. This legislation, with respect, does not address those key issues. The more punitive you make a series of provisions, the more likely it is you have people avoiding them and having counsel assisting them to avoid them, if at all possible.
One of the thoughts that crossed my mind as the last series of questions was going on is if this is in fact about a small percentage of people and if there are already mechanisms, which there are, within the legislation, it begs the question of why have yet another piece of legislation. Why spend the resources we are talking about for this piece of legislation — others, as well, but we're talking about this one right now — to put in place something that is really about addressing issues of individuals in very horrible, tragic, high-profile cases of individuals — some of whom were not known to the mental health system before, in part, we would argue, because we have not a robust mental health system and national standards for health care that ensure people who need services and support are identified early on and have those supports in place. Some of these individuals are high profile, as well as ones we know of who want support but cannot get it.
I would strongly urge this committee, as well as all members of Parliament and senators, that instead having more and more resources looking at replicating or recreating or identifying very minute tinkering with the system, we need resources now in the community for individuals. And we need national standards to ensure that there aren't more people being marginalized and victimized, that there aren't more people with mental health issues that are becoming to the point, the critical stage, where they are involved and end up in the criminal justice system.
Senator Jaffer: I've spoken to many psychiatrists about the words "brutal act," because to get the high designation, you will have to, I assume, have a medical-legal. Apparently, "brutal act" is not defined in psychiatry. I will put my lawyer hat on. How will this get in front of the judge? You are both more experienced than I am.
Before the chair cuts me off, I would like to speak about something that is haunting me after Brockville. Brockville is the best facility in North America for men. What about women? There is nothing. I'd like you to comment on that.
Ms. Pate: I can say the one woman we have managed to get to Brockville has done very well and no longer is self-injuring on a daily basis but I think might be captured by this legislation, sadly enough. Yet, right now, she benefits from community treatment releases, goes back into the hospital when she does do something that may put her at risk, for example, not taking her medication or not participating. She's exactly the sort of individual who we would not want to see captured by this legislation but who is benefiting immensely from the transfer into the mental health provision.
Senator Jaffer: Can you comment on "brutal act" and the medical-legal?
Ms. Pate: I heard Ashley Smith's name. Part of the reason we got her there was because a woman had died in isolation in prison, and there are others who are trying to get out for the same reason. But those women will already have the background that will allow them to be designated, by my read of this legislation, as "high risk" under these provisions.
Ms. Latimer: I can't be much help to you as to what constitutes a brutal act. Probably what they're considering is excessive, gratuitous violence, which isn't rationally explained, which would be something that you might expect to see on rare occasions with people who are suffering from serious mental illnesses.
Senator Joyal: I have a side question. Would you say that for a mentally ill person who finds himself or herself in the justice system it would be preferable to be outside the prison system to get medical support or stay in to get medical support?
I know you're laughing. My question might seem ludicrous, but I think it's a serious one.
Ms. Latimer: Correctional Service Canada has a mental health strategy. The problem is it's not being implemented on the ground. You have many people behind bars who are really suffering with very serious, Axis I mental health issues and not getting the types of treatment they need.
Kim will, I'm sure, have more to say on this, but it would be much better to get some of the most seriously mentally ill people out of the prison system and into the communities under supervision, as was one of the recommendations in the Ashley Smith coroner's inquest.
Ms. Pate: Yes, I would agree. The penitentiaries for women in this country have some of the best mental health units that exist in prisons, but those individuals who have mental health issues are mostly held in isolation, men or women, and so don't get access to those very services. We have had deaths in those units as well.
I think it is important to point out that none of the recommendations have yet been implemented by the Correctional Service of Canada related to the inquest into the death of Ashley Smith, including very easy ones like posting the recommendations on their website, as was requested by the jury, and making sure that the recommendations are available in every penitentiary in the country. Neither of those recommendations has even been implemented, let alone the provisions that say there are 20 to 30 or more women, and countless other men, who right now we could be saving the human as well as the financial cost of keeping them in isolation if in fact the beds were contracted with provincial and territorial mental health services so they could be transferred into those units.
The Chair: Thank you, witnesses. I very much appreciate your assistance in our deliberations today.
Members, we will be meeting tomorrow and hopefully beginning clause-by-clause consideration of this legislation.
(The committee adjourned.)