Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 9 - Evidence for April 13, 2005


OTTAWA, Wednesday, April 13, 2005

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-10, to amend the Criminal Code (mental disorder) and to make consequential amendments to other acts, met this day at 4:20 p.m. to give consideration to the bill.

Senator Lise Bacon (Chairman) in the chair.

[English]

The Chairman: Honourable senators, today we are studying Bill C-10, to amend the Criminal Code (mental disorder) and make consequential amendments to other acts.

Appearing before us is the Hon. Irwin Cotler, and with him is Ms. Catherine Kane.

Welcome, Mr. Minister and Ms. Kane.

Hon. Irwin Cotler, Minister of Justice and Attorney General of Canada: Honourable senators, some senators have already heard me this week. I do not want to burden them again, but I am delighted at the opportunity to appear before this committee as you begin consideration of Bill C-10.

I am joined here today by Ms. Catherine Kane, who is the Senior Counsel for our Criminal Law Policy Section, also the Director of the Policy Centre for Victim Issues. She wears a number of hats, but she is the expert and resource on these as well as on other matters. In the case of this particular bill before you, I will call upon that expertise because it deserves to be shared with members of the committee far more than that which I would be able to share with you.

Honourable senators, this bill has a long history of development and one that is remarkable for the collaboration and cooperation among all political parties. Indeed, Bill C-10 is a product of a spirit of cooperation and common purpose. As you may know, the House of Commons Standing Committee on Justice and Human Rights, as it was then known, and of which I was a member, conducted a thorough review of the mental disorder provisions of the Criminal Code in 2002. This review was required by the 1992 act that brought about significant reforms to modernize the law governing persons found unfit to stand trial and persons found not criminally responsible on account of mental disorder.

The committee heard from over 30 stakeholders over a three-month period and their report and recommendations reflected this broad input and their scrutiny of the current law.

[Translation]

The committee report noted that overall, the code regime was working very well — but could be improved. The reforms in Bill C-10 are intended to build on part XX.1 of the Criminal Code — the part that governs mentally- disordered accused — to improve the regime in several key areas.

[English]

The government tabled a response to the standing committee's report in November 2002 detailing the proposed approach to each recommendation. The government undertook to introduce legislation to implement most of the recommendations calling for code reform and to pursue other non-legislative initiatives.

[Translation]

Bill C-10 includes these amendments and additional reforms, the need for which has been highlighted in our own consultations with provinces and territories, review board chairpersons and other stakeholders conducted by my department over the years.

[English]

Either my officials or I can provide further information on how the government is seeking to follow up on the recommendations that are not reflected in Bill C-10, if time permits.

Before elaborating on some of the main features of this bill, I would like to emphasize what has already been noted at second reading here in the Senate, that crafting the criminal law to deal with people who are mentally ill is a challenge. The mentally ill are amongst the most vulnerable in society. As I said elsewhere, the test of a just society is how it treats the most vulnerable amongst them. Many fall through the cracks and, due to their mental illness, may behave in a manner that puts them into conflict with the law. Many, however, cannot avail themselves of treatment or community support services. The mentally ill are not to be seen as a danger to public safety per se and should not be feared or stigmatized.

[Translation]

Some may commit minor or nuisance offences — while others may commit violent offences. Therefore, our criminal law must provide a range of options to adjust both those that pose a risk to the public and those that need rehabilitation and supervision to permit reintegration into society.

[English]

Part XX.1, therefore, of the Criminal Code seeks to strike an effective balance between protecting the rights of the mentally disordered accused and the protection of public safety.

I am aware as well that the Standing Senate Committee on Social Affairs, Science and Technology issued an interim report on mental health, mental illness and addiction in November 2004. That report reveals many of the challenges in meeting the health needs of the mentally ill. The work of that committee, which I understand will continue, will provide valuable information about the development of health services for the mentally ill, including persons who may come into conflict with the law. That work, like the work of this committee, is yet another example of the valuable and productive contribution that is made by the Senate to the parliamentary and legislative process. That report also canvasses the primary role played by the provinces in delivering services for the mentally ill.

[Translation]

I should note that the provinces' role includes providing health services for persons found unfit to stand trial and those found not criminally responsible on account of mental disorder. For example, a person found not criminally responsible on account of mental disorder who is ordered to be detained in custody in a psychiatric hospital will be entitled to receive the necessary treatment in accordance with the provincial mental health policies, programs and legislation.

[English]

The Supreme Court of Canada also scrutinized part XX.1 of the Criminal Code, the part that applies to the mentally disordered accused, in several recent cases and noted that these two objectives, treatment for the accused and the protection of public safety, must be equally respected. Bill C-10 amendments include, therefore, both reforms to ensure that the rights of the mentally disordered accused are protected and to improve public safety, where necessary and appropriate.

Before providing an overview of the key elements of Bill C-10, I would like to emphasize that we are dealing with the criminal law power, a matter of federal responsibility. The provinces are, however, responsible for the administration of justice, which includes law enforcement and the prosecution of offences. As I noted, the provinces are also responsible for health, so you see here a dovetailing of the jurisdictions in these matters.

[Translation]

It is often difficult to draw the lines with respect to the division of powers and responsibilities when dealing with the criminal law, and it is even more difficult when we are focusing on mentally-disordered persons who commit offences.

[English]

The criminal law focus, therefore, is on providing a fair process to assess their criminal responsibility and fitness to stand trial and on the appropriate disposition in consequence thereto. However, any treatment for a person found unfit on the grounds of being not criminally responsible on account of mental disorder will be provided by the provincial health ministries. Again you see the dovetailing of responsibilities.

As I mentioned, Bill C-10 is a product of a great deal of consultation and scrutiny. Most recently, the House of Commons committee, now renamed the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, before whom I appeared on this bill, made additional amendments to the bill based on its review and the input of those who appeared as witnesses. Several witnesses appeared and some commented on issues that were not or could not be addressed in Bill C-10. Witnesses were not always in agreement, but the committee fully considered all of the views expressed.

For example, several witnesses, including the Canadian Association of Chiefs of Police, advocated a greater role for victims of crime, while others, such as the Criminal Lawyers' Association, the Community Legal Assistance Society and other patient rights advocates were vociferously opposed to this recommendation.

Patient rights groups and the Canadian Bar Association expressed concern about the possible extension of the annual review for not criminally responsible accused in custody in hospital to two years.

[Translation]

The expansion of the review board's powers was questioned by the Criminal Lawyers' Association, who expressed the concern that too many assessments would be ordered. The Canadian Bar Association, however, sought further expansion of the review board's power to order an assessment.

[English]

The Canadian Bar Association advocated a lower standard for the judicial stay of proceedings for a permanently unfit accused without any test or consideration of the interests of justice. Others suggested that the review board, rather than the court, should have the power to order a stay. My provincial colleagues who did not appear, but who wrote directly to me or spoke with me, took the opposite view and advocated for a clear and high standard for a judicial stay by the court on the recommendation of the review board.

I anticipate that your committee will also hear from some of these witnesses, as well as others, but you can appreciate the compelling and sometimes competing considerations that obtain even in a matter in which there has been a shared purpose and spirit of cooperation from all parties in the reform and initial drafting of this proposed legislation. In considering Bill C-10, my basic commitment, therefore, is to a fair, effective and ongoing law reform in this matter.

[Translation]

Bill C-10 is a long-overdue bill to refine part XX.1 to ensure it reflects the current case law and addresses issues raised over the last 13 years of implementation. There are many issues that remain to be resolved in meeting the needs of mentally-ill persons including those that commit offences. We are well aware that many convicted offenders who are in federal penitentiaries and provincial jails also suffer from mental illness. We must continue to work together with our provincial and territorial colleagues to identify the problems and develop approaches within the health system and the justice system.

[English]

Bill C-10 is not intended to address all of the challenges, but it will greatly improve the regime that governs persons accused of criminal offences who are found unfit to stand trial or not criminally responsible.

Let me turn now to Bill C-10 and the key amendments in that regard. The first thing to appreciate — and I think one will appreciate this on the sheer reading of the bill — is that Bill C-10 is a rather long and complex bill, with 65 clauses. Some of the length, Madam Chairman, is due to the fact that the same regime applies to military personnel found unfit or not criminally responsible for offences under the National Defence Act. Indeed, clauses 47 to 61 amend the National Defence Act in the same manner as the code is amended by Bill C-10.

Some of the length and complexity is also due to the fact that part XX.1 is a complete code of law and procedure for the mentally disordered accused. We are not dealing just with fragmented amendments here; we are dealing with a complete code, both substantially and procedurally. Accordingly, an amendment to one provision has an impact on several others. Bill C-10 includes many consequential amendments.

The main features of Bill C-10 focus on: first, expanding the powers of review boards to enhance their ability to make dispositions. I must acknowledge that some of those provisions are not easily appreciable because of some of the related complexity to other provisions as well as their inherent features; second, repealing unproclaimed provisions; third, addressing the situation of the long-term or permanently unfit accused; fourth, addressing the concerns of victims; fifth, giving police more options when they arrest an accused for breach of a disposition order and, in turn, giving the accused more options; and, finally, clarifying or housekeeping-type amendments.

I will, in some instances, leave out some of these issues for reasons of time, but I will be pleased to answer questions relating thereto. I will try to identify where I am skipping through the text for time-related considerations.

With respect to expanding the powers of the review boards, I will only say at the outset — and then I will answer questions on this —

[Translation]

It is worth noting that review boards make the critical decisions about the accused — the disposition and the terms and conditions of the disposition. Review boards derive all their authority from the code and the code must, therefore, ensure they have the tools they need to make these decisions.

[English]

For reasons of time, I will not delve into the particular powers and authorities of the review boards, but I will be pleased to answer any questions relating thereto.

In the matter of the long-term or permanently unfit to stand trial accused, there are a number of new features or provisions. I will not go into the question of unproclaimed provisions because these, too, honourable senators, are of a more technical character. I will be pleased to deal with that as well.

I will move now into the matter of the long-term or permanently unfit to stand trial accused and deal with new provisions or features in this regard. Bill C-10 includes new provisions that will permit the court — not the review board — to order a judicial stay of proceedings for an unfit accused who is not likely to ever become fit and who does not present a significant threat to the safety of the public.

The review board may make a recommendation to the court to inquire into the status of the unfit accused. The court may convene a hearing based on the recommendation of the review board or on its own motion. The hearing will permit input from the Crown, the treating hospital, the physician and other parties. The court must order an assessment to determine the mental condition of the accused.

The new provisions do not permit the discharge of an unfit person who is dangerous. However, our law must provide a means to bring the criminal process to an end for a person who cannot be tried and who does not pose a risk.

[Translation]

The need for amendments to permit the court to grant a stay for a “permanently” unfit accused was highlighted by witnesses who made submissions to the House of Commons Standing Committee and was fully canvassed by that committee and by the Department of Justice. The Bill C-10 amendment responds to the recommendation by providing for a judicial stay and setting out in detail the process to be followed, the nature of the hearing, the factors to be considered and the appeal process for the Crown.

[English]

A judicial stay of proceedings is similar in terms of its consequences as an absolute discharge. An absolute discharge is the term used to describe the disposition for an accused found not criminally responsible based on the criteria set out in the code. The judicial stay is the remedy a court will consider for a permanently unfit accused who is not dangerous.

It is also important to note that the Supreme Court of Canada delivered its judgment in the Demers case in June 2004. This decision confirms the need for amendments to provide for a judicial stay of proceedings for a permanently unfit, non-dangerous accused. The Supreme Court of Canada struck down key provisions of part XX.1 of the code as they apply to the permanently unfit. However, the declaration of invalidity of the Supreme Court of Canada has been suspended until June 2005 to give Parliament an opportunity to amend the code.

I am confident that the approach set out in Bill C-10 ensures a constitutional regime for the permanently unfit accused who is not dangerous and that it comports with the Demers decision of the Supreme Court of Canada.

In the matter of a role for victims at review board hearings, several new provisions are included in Bill C-10 that are consistent, to the extent possible, with provisions that apply when the offender is convicted and sentenced. Indeed, I thought I ought to share some perspectives on developing considerations with respect to victims with your committee.

It should be noted that part XX.1 of the code already provides for a written victim impact statement to be considered. However, upon enactment of Bill C-10, victims will be permitted to read their victim impact statement aloud at disposition hearings. In some situations, the review board may refuse the oral presentation. This could occur where reading the statement could cause the accused to react negatively and, thereby, cause more trauma to the victim or otherwise disrupt the hearing, which should proceed in an informal manner.

[Translation]

Bear in mind that NCR accused are not sentenced — therefore the nature of a victim impact statement at a disposition hearing must relate to the criteria that are relevant to making a disposition for the NCR accused. The victim's statement may recount the impact of the crime and the harm or loss suffered and, in addition, any ongoing concerns they may have for their safety (as that may be addressed in conditions of a disposition). But a NCR is not responsible or accountable for the offence and it may be difficult for victims to reconcile this notion with the content of their victim impact statement.

[English]

Courts and review boards will also be required to ask whether a victim has been advised of the opportunity to prepare a victim impact statement before the first disposition hearing — a due-notice requirement approach. In addition, victims will receive notice of all hearings in accordance with rules to be established by the review board.

At all times, it is the victim's decision whether to submit a victim impact statement. Whether or not the victim reads the statement aloud, the review board is required to consider the statement.

Review boards will also be given the same powers as the court to order a publication ban on the identity of a victim or witness. For sexual offence victims, the ban will be imposed by the board, and for other victims and witnesses, the board may receive applications for an order to prohibit publication of the identity of a victim or witness and may make the order where it is necessary for the proper administration of justice. These provisions will mirror those in the code that permit the court to order a publication ban, and the application process and factors to be considered will be the same.

With respect to the enforcement of disposition and assessment orders, the police will have more options. I will just briefly touch on these and again be prepared to take this up by way of response to questions.

Where the police arrest an accused who contravenes or disobeys a condition of his or her disposition order — let me try to give some examples: the accused fails to report to the physician or hospital; the accused fails to attend treatment or training; or the accused travels outside any geographical limitation — the police may issue a summons or an appearance notice to the accused. The police may simply return the accused to his place of residence, which may be a hospital or a group home. The accused must then appear before a Justice of the Peace who will determine whether any other order should be made until such time as the review board can meet to consider the conditions of the disposition. This option will permit the accused to continue with any treatment or routine and avoid an unnecessary jail lock-up and another criminal process.

However, the police will not release the accused or return the accused to their residence if detention is necessary — for example, to determine identity, to prevent the commission of an offence, or where the terms and conditions of the accused's disposition need to be confirmed or where the accused is required to be in custody in a hospital. In such cases, the police will detain the accused and bring the accused before a justice within 24 hours.

Honourable senators, as I indicated at the beginning, there are a number of clarifying and housekeeping changes, and I will not include these in my remarks. As well, a series of recommendations from the House of Commons Standing Committee in the 2002 review were not included in this bill. I would be pleased, in the questions subsequently, to respond to those issues. It is particularly relevant for the committee to consider what was not included in Bill C-10, and why. It would take me more than a few minutes to do that now, and I would rather move to opening it up for questions.

In conclusion, let me say that we are committed to modernizing and reforming the criminal law and to ensuring that it meets the needs of Canadian society, particularly because we are dealing with the protection of the vulnerable. Bill C- 10 has benefited from the input of parliamentarians. Your committee's review will provide yet another check and oversight on the careful balance that must be struck in our legislating to protect both public safety and individual rights. I look forward to any questions that you may have in this regard. Ms. Kane, whom I regard as the expert in these matters, is, happily, here with me to provide the appropriate responses to those questions.

[Translation]

The Chair: Thank you, Minister. The bill provides for victims to present a victim impact statement. The court may even adjourn the hearing to permit the victim to prepare a statement, and even permit the victim to present the statement at the hearing. However, the bill is careful to put a limit on the victim's prerogative. It says that the court may refuse an adjournment or presentation of the statement by the victim at the hearing if it would interfere with the proper administration of justice.

The concept of the proper administration of justice gives the courts wide discretion in their decisions regarding victim impact statements. Do you think that the bill, as it currently stands, adequately protects victims, who often live in a real state of isolation or distress? Are we really being fair to victims with the proposed provisions concerning their prerogative to present a statement?

[English]

Mr. Cotler: Honourable senators, I will try to supplement my remarks. As I indicated in dealing with the matter of victims' rights, this has emerged, from a parliamentary and policy point of view — not only in this issue but in other issues — as an important perspective to be borne in mind in the consideration of legislation. Under this proposed legislation, victims will be permitted to orally present a victim impact statement at a review board hearing unless there are compelling reasons why this would be inappropriate. For example, the review board could determine that the accused might react to the statement in such a way that would further traumatize the victim and, therefore, would not achieve the purpose for which that victim impact statement was initially intended.

In addition, following the verdict of not criminally responsible, the court or review board chair will be required to ask, as a kind of due process requirement, whether the victim has been made aware of the opportunity to prepare and submit a statement, yet another important consideration.

One should note that the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, in its review of Bill C-10, made amendments to ensure that the victim receives notices of hearings, to which I referred in my initial statement, and that victims are advised of their opportunity to submit an impact statement if the accused is likely to be discharged.

Review boards will also be authorized to order publication bans, and it is worth noting that this amendment would apply only to identity and does not provide the authority for broader bans, including, for example, prohibiting the publication of other information. Therefore, this requires a careful balancing of competing Charter rights, but there will be authorization to order a publication ban on the identity of any victim or witness, including a sexual assault complainant, where it is necessary for the proper administration of justice based on criteria that are already in the Criminal Code. These amendments are designed to provide victims of crime, where the offender is found not criminally responsible, with similar rights as victims at sentence hearings, but with due regard to the particular situation and the status of victims' rights in the context of these hearings and Bill C-10.

Senator Mercer: Thank you, minister, and Ms. Kane, for being here. I am always intrigued when bills come before this committee whose length may only be exceeded by the length of the explanation of the bill.

I am concerned about the protection of the individuals involved. There is some discussion about who can conduct the assessments. Will giving the provinces and territories the option to designate other persons as qualified to conduct psychological assessments create inconsistency across the country, and will this create differences in the quality of assessments that may have an effect on correctly determining the mental condition of the accused?

Mr. Cotler: This entire subject matter has a certain complexity to it. I will ask Ms. Kane to respond to that question. As I say, she is the repository of institutional memory in this regard and can better share an expertise that I do not have on these matters.

Ms. Catherine Kane, Senior Counsel/Director, Policy Centre for Victim Issues, Justice Canada: Honourable senators, currently, only a medical practitioner can conduct an assessment of the mental condition of the accused. Over the course of several years of discussions about the practicalities of that, many have suggested that that is too narrow and that there are some parts of Canada where psychiatrists are not readily available. On the other hand, psychiatrists have told us that there are issues that must be considered. Only a psychiatrist, who is a medical doctor, can offer treatment or prescribe or diagnose, and often, with a mentally disordered person, other medical factors are at play as well as mental disorder-related illnesses, and hence the need for the medical practitioner.

The government initially had heeded that advice and in Bill C-10 retained that requirement that it be a medical practitioner. Amendments were made in the House of Commons to expand on that, again relying on the fact that there were not perhaps enough psychiatrists readily available to conduct assessments in a timely way. The option was proposed that the Attorneys General of the provinces could designate persons who in their view were qualified to conduct those assessments, and as other witnesses may tell you, there are people who are qualified but they cannot be captured in a particular profession. For example, we cannot say “forensic psychologists” because that is not necessarily a routinely recognized category of psychologist. The training is slightly different and so on, although there are many forensic psychologists who do participate in fitness assessments along with psychiatrists.

The amendment was carried to allow provincial Attorneys General to decide, based on criteria that they will establish, who in their jurisdiction would be qualified to conduct those assessments. We anticipate that Attorneys General will establish careful criteria and perhaps rely on the medical profession or the psychological associations or whatever to provide guidance in that regard. We do not anticipate that it will lead to uncertainty across the country because they will be duly qualified.

Something else that should be noted is that, as I mentioned, only the medical practitioner can diagnose and order treatment. These other persons who are designated to conduct fitness assessments and other assessments of the mental condition will likely have to work in concert with a psychiatrist, or will likely only be able to do the first part of the assessment; and when, for example, they find that the person is unfit to stand trial, the individual would then have to be referred to a medical doctor, a psychiatrist, to take it to the next step and say what treatment should be ordered.

We anticipate that the designation of others will certainly be of assistance in getting assessments done, but it will not be the complete solution and there will still have to be collaboration.

Senator Mercer: That being the case, how do we ensure that the quality of the professionals is standardized? What if there are no regulations or standards of competency governing particular professions such as psychologists in a province or territory?

Ms. Kane: I expect that Attorneys General will bear that in mind. If they are not satisfied that they can establish criteria and designate certain individuals then they will not do so, and as a result, in that particular jurisdiction only medical professionals will be conducting assessments.

Senator Mercer: Because it refers simply to another person designated by the province or territory, does the new definition of who may conduct an assessment open up the possibility of persons other than psychiatrists, psychologists and medical practitioners conducting assessments? For example, could it be nurses, group home workers or qualified caregivers who would be asked to give those assessments?

Ms. Kane: Yes, senator, I expect it could be nurses. I do not expect that Attorneys General would take it beyond nurses. They would have to be satisfied that persons conducting such assessments have some qualifications, likely in the medical field. Apparently, nurses do some preliminary types of fitness assessments and work with psychiatrists. Nurses are more readily accessible in some of the rural and remote parts of Canada. Nurses with particular training may well be conducting assessments.

Senator Mercer: Would that be particular training beyond the registered nurse designation, and would they need to have special training in psychology or psychiatry?

Ms. Kane: Exactly.

[Translation]

Senator Rivest: I think that in choosing between a psychiatrist and a psychologist, under the proposed amendment, criteria will be set by the provincial attorneys general. They are the ones who will choose. But officials may set criteria for dealing with a case. In criminal matters, a given individual has committed a crime and must undergo a psychological assessment. Who is going to determine whether a psychiatrist has to do the assessment or whether an assessment by a psychologist will do? A basic diagnosis must be made. That can only be medical. Faced with an accused, a judge or official is certainly not in a position to determine that a mere psychological assessment will do or that a psychiatric assessment is required. There is a difference between the two types of assessment. You clearly explained the difference between the two: a psychiatrist is a doctor and a psychologist has a different training. It should be seen not from the top down but from the bottom up. Who is going to determine that in an individual case, a psychiatric assessment is required or a mere psychological assessment will do? You understand my question.

Mr. Cotler: In light of Ms. Kane's answers, you can appreciate that I have discussed with her — in preparing for my appearance before this committee — the definition of an expert witness. I would therefore invite her to answer the questions.

[English]

Ms. Kane: I will have to reply in English to be as clear as possible.

Currently, judges who are ordering an assessment — because at present only a court can order an assessment — do not generally say who should conduct the assessment. They will be presented with persons whom the Crown or the defence counsel is saying require an assessment, whether to determine fitness to stand trial or to determine criminal responsibility if they are to be tried. Generally, the judge will say an assessment will need to be conducted, but he does not specify by Dr. Smith or Dr. Jones, although in certain jurisdictions they know quite clearly who is available to do those assessments.

Once the Criminal Code is amended, if that comes to pass, to indicate that other designated professionals can do the assessments, it would likely be whichever hospital the accused would be sent to be assessed that would make available someone to do that assessment. I would expect that where you have a serious offence, or an accused who seems to be presenting with a serious mental illness, most likely they would be assessed by a psychiatrist, as they are at present. However, where you have a person who is in the jail lock-up and it is not clear whether the individual understands what is going on or whether they can proceed to the next stage, the next remand or whatever, it may be sufficient that that assessment be done by a medical professional other than a psychiatrist to at least say, yes, the person is fit and matters can proceed. If that decision turns out to be incorrect, at any stage in the process the court can inquire into the person's fitness again and order another assessment. It is not a once-and-for-all determination.

[Translation]

Senator Rivest: The judge orders an examination. An individual diagnosis is made in the hospital in order to determine whether a psychological assessment will do or whether a psychiatric assessment is necessary. Like a patient with a mental problem going to emergency, the person is admitted and a determination is made as to whether a psychological assessment will do or whether a psychiatric examination is required. In each case, that will determine, when the accused is referred by the judge who ordered the examination, the clinical examination done in hospital, that is, which of the two examinations is necessary.

[English]

Ms. Kane: That is correct. That will likely be the case, and usually they work in a team environment. In any event, the psychiatrist would be the one signing the report because it is his or her responsibility to oversee that assessment. Certainly we expect that will continue.

Originally, when the submissions were made for an expansion of who could conduct assessments, the focus was on assessments to determine fitness — only that first stage, not to determine criminal responsibility. However, as amended, it does leave it open for persons other than psychiatrists to conduct any kind of assessment of the mental condition, but I think we can be quite confident that those designated will appreciate their own limitations and, when in doubt, will defer to the medical professional.

Senator Ringuette: In your statement, on page 7 you indicated that the board may receive applications for an order to prohibit publication of the identity of a victim or witness and may make the order where it is necessary for the proper administration of justice.

Considering that from the outset you have indicated that this bill is to protect the most vulnerable in our society, and in particular the mentally ill, has there been any consideration of a publication ban on the name of the accused such as we have for those who are 16 years and younger?

Mr. Cotler: Senator, when we have reached that point with respect to the victim impact statement, the determination has already been made in terms of the publication of the name of the accused. At that stage, that will have already been done. It will have to have been at an earlier stage, when Criminal Code provisions will apply with respect to the publication of the name of the accused.

Senator Ringuette: You are saying that there was no consideration of that aspect under this section?

Mr. Cotler: No, because this dealt with the victim impact statement. The other, general application of the criteria would apply and would be incorporated by reference with regards to the publication of the identity of the accused.

Senator Ringuette: Can you share with us the provisions of this bill that deal with the powers of the review board?

Mr. Cotler: I indicated at the beginning that they have expanded powers under this bill.

[Translation]

As I said before, it is worth noting that review boards make the critical decisions about the accused — the disposition and the terms and conditions of the disposition. Review boards derive all their authority from the code and the code must, therefore, ensure they have the tools they need to make these decisions.

Let us continue the discussion of powers. I would like to make a few points that I did not refer to in my opening remarks. Review boards will now have the authority to order an assessment of the mental condition of the accused. They will be able to convene a hearing on their own motion and adjourn a hearing for up to 30 days — for example, when they need to gather more information.

[English]

Review boards would also have the authority to issue a summons or a warrant to compel an accused to appear before them. This is particularly important where the accused is on a conditional disposition, living in the community, and fails to attend for their disposition review hearings. Review boards will also have the authority to extend the annual review up to two years, with the consent of all parties, where the accused is represented by counsel. This would permit an accused on a conditional disposition and observing his or her terms and conditions to continue on without the prospect of a hearing that would simply endorse the status quo and would not be desirable.

The annual review may also be extended to 24 months for not criminally responsible accused who have committed serious personal violence offences and who are detained in custody or are in a psychiatric hospital. Where the disposition information and the assessment indicate that the mental condition of the accused is not likely to improve within the year and detention in custody will continue to be necessary, the review hearing can be postponed up to 24 months.

These are some of the main features of the expanded powers of the review boards. In my initial testimony, I only identified the important role that the review boards played and indicated that they had expanded powers, so I appreciate the question to allow me to identify what some of those powers in fact are.

Senator Ringuette: You also mentioned earlier that there are some clarifying and housekeeping changes. What would these be?

[Translation]

Mr. Cotler: There are two parts to my answer. First, there are provisions that are repealed. I will then deal with the clarifying or housekeeping issues. The capping and related dangerous mentally-disordered accused provisions are repealed. Capping is not constitutionally required and it is clearly not in the interest of the accused or public safety, hence the repeal.

The hospital order provisions that would have applied only to convicted offenders are also repealed. Because these provisions were never in force, their repeal will have no impact.

Now let us turn to the clarifying or housekeeping amendments.

[English]

As I indicated, there are several clarifying or housekeeping amendments in Bill C-10. Their intention is to address redundant or ambiguous or confusing provisions. I will just cite them ad seriatim.

Amendments will ensure that all documents or copies thereof are transferred from the court to the review board. Amendments will delete confusing wording that suggests that a disposition can expire. The code clearly provides that a disposition remains in effect until a subsequent disposition is made. There will be clarifying amendments that the criteria set out in section 657.54 that govern the making of a disposition apply to all disposition hearings, whether the initial disposition and annual hearing to review a disposition or disposition hearing held on request.

These are examples of those clarifying amendments with respect to where there might have been an ambiguity. Where clarification of language was required, these amendments serve that purpose.

Senator Milne: What on earth is the “capping” that you have been talking about, these provisions that have never been proclaimed?

Ms. Kane: “Capping” is a term that refers to a provision of the original act as passed in 1992 that would have set a limit on the time that a person found not criminally responsible could remain under the supervision of the criminal justice system. The Criminal Code as proposed included several caps that roughly parallel the maximum sentence that could be imposed if that person were convicted for the same offence.

For example, if a person is found not criminally responsible for assault and that type of aggravated assault carried a 10-year maximum, then that person could only be held under supervision for 10 years.

However, those provisions were fraught with controversy right from the beginning in terms of concerns about public safety if people were automatically released from, for example, a psychiatric hospital at the 10-year mark, even though they were perhaps seriously mentally disordered and still posed a risk to public safety.

The plan at the time was that provinces would examine their mental health legislation and determine what complementary amendments should be made to ensure that did not happen.

As events unfolded, there was more opposition to those provisions and there were several court cases. As those court cases wound their way to the Supreme Court of Canada, it became clear that capping was not constitutionally required. The Supreme Court confirmed in a case called Winko that we should not be comparing persons who are found not criminally responsible with persons who are convicted and sentenced, because that latter group are to be punished, and those found not criminally responsible are not. Therefore, it is a wrong comparison to make.

Those found not criminally responsible are to be given opportunities for treatment, and on the other hand, public safety is to be maintained. Therefore, the regime that has been in force for the last 13 years, which has not included capping and those provisions that go with it, is perfectly constitutional. It provides an opportunity for those who should be released to be released when they are not a significant risk to the safety of the public; and for those who should be detained for the appropriate length of time because they are a significant risk to remain detained. They can be kept longer. That is a long answer to what is “capping.”

Mr. Cotler: I should tell you, senator, I asked the same question. After she gave me the answer, when you asked the question, I felt it would be best to hear from her. Now you appreciate why.

These are not easy matters to appreciate, either in their substance or in their technical complexity. It takes a certain repository of experience and expertise in dealing with them to be able to reply appropriately to the questions. I think I would probably be remiss if I answered them and did not call upon Ms. Kane. You could inadvertently mislead by way of the response if you do not have the technical mastery of these issues.

Senator Bryden: I have two questions. One I have worked out and the other I understand the minister would like someone to ask, but on the victim statement —

Mr. Cotler: I may have already answered it. I am not sure.

Senator Bryden: You may have. The original purpose of the victim statement as I remember it from criminal law — because it did not always exist, but has almost become an integral part of criminal trials — is that after conviction and before sentencing, the victim would give a statement allegedly for assistance to the court, to the judge, in sentencing. There has been a tendency recently to use victim statements as a type of therapy for the victims and a means of gaining some kind of closure.

Having said that, where an accused is found not criminally responsible on account of mental disorder or is unfit to stand trial, and certainly where an accused is found to be permanently unfit to stand trial — and given the fact that the victim's impact statement may only be considered by a review board to the extent that it is relevant to the protection of the public, the mental condition of the accused, the reintegration of the accused and other needs of the accused — should there not be a similar requirement for the board in allowing the victim to present orally a statement? What would be the point?

Mr. Cotler: I will defer to Ms. Kane in a moment, but I think, as I sought to indicate earlier, the important threshold point here is that it is the victim's decision whether to submit a victim impact statement at all. Whether or not the victim reads the statement aloud, the review board is required to consider the statement. Then there are the due-process notices with regard to both giving the statement and the statements having been given and the like. There is the consideration of the victim's role here.

I might add, parenthetically, because it has not yet come before you, in Bill C-2, which deals with the protection of children and other vulnerable persons, there are such provisions. They are sometimes not appreciated because the bill has been highlighted as dealing with child pornography, but it has other important provisions. Some of those facilitate the testimony of children, and that of victims and witnesses, in proceedings. That is another source with regard to witness and victim testimony.

That having been said, I will turn it over now to Ms. Kane.

Ms. Kane: Thank you. Senator, you raised points that come up often with respect to the role of victims. I have just a few points to clarify. Where persons are found unfit to stand trial, there will be no victim impact statement opportunity for those alleged victims. That opportunity will arise later if they are tried and convicted or if they are tried and found not criminally responsible. The intention is that it parallels the sentencing provisions to the extent possible. The unfit person has not yet faced the prosecutors.

The other thing I would point out is that the oral presentation of the victim impact statement must be of that which has been provided in writing. It has to relate to the criteria that are relevant to the board's consideration — reintegration, public safety and so on. Victims are not afforded the opportunity to come before the board, nor the court in the sentencing context, and say whatever they want. Their statement is provided in advance, and it is that statement that they would present orally.

Concerns have been expressed that, in some cases, it would go beyond that which the board should consider. However, the board will be guided by provisions in the Criminal Code that direct them to only consider those parts of it that relate to what they have to keep in mind when they are making a disposition. In most cases, the victims would be relating concerns about their safety should that person be in their community.

It could lead to conditions being imposed — for example, that you do not contact the victim, you should not be in a certain area where the victim is likely to be, that kind of thing; it is not submissions from the victim about what the disposition should be. In the same way, victims are not permitted to give their opinions on what the sentence should be in the sentencing context.

There should be sufficient safeguards to ensure that the victim impact statement is directly relevant to the board's considerations and not more far-reaching than that.

Senator Bryden: There are quite significant restrictions on the factors the board can take into consideration. I find it problematic when you have somebody who will never stand trial, never be convicted, and probably permanently under the care of some institution. Whom does it serve to have the victim or victims retroactively say “This is what I suffered?”

Ms. Kane: I do not know whether your committee will hear from any victims, but they do make a very compelling case for the impact that criminal offence has on them. For many, the outcome certainly is beyond their control.

The person will be tried, and a person who is found not criminally responsible is found to have committed the offence. That validates the fact there is a victim of a crime who has suffered at the hands of this person, albeit a person who cannot be found criminally responsible, and certainly victims we have had extensive consultations with understand completely that the person cannot be held criminally responsible.

On the other hand, they do still want to have a role that they feel is somehow denied to them because the person is not convicted and sentenced, to be able to tell someone who is responsible for supervising that person how this has affected their life. Even if it is limited to the criteria that the board needs to consider, about reintegrating that person into society, the safety of the public, they feel that that is an appropriate role for them. They are satisfied that it is limited in that regard, but they do want to have that opportunity.

Senator Bryden: Mr. Minister, can you discuss the role of the police in the enforcement of disposition and assessment orders?

Mr. Cotler: I did do that, senator, in my initial remarks. I initially thought that I would leave it out and invite a question, but I dealt with it in my original remarks.

Senator Andreychuk: I want to discuss victim impact statements. It seems to me that what a victim can do within processes where the person is not criminally responsible should not parallel what we do in sentencing. Here a judge has to, at the start, trigger somehow or other an assessment that is not laid in stone. When an accused goes before a court the judge does not know whether that person is or is not criminally responsible. There has to be some trigger.

If there is an assessment, it would seem to me that what has happened to a victim — and we use that term “victim,” perhaps we need an entirely new term — has some impact, both in the initial stages and later to determine how severe that person's behaviour was vis-à-vis the alleged victim when we take into account what should happen to the person brought before the court.

It seems to me that we are not so fixed in our understanding of what mental illness is today that we can definitively say if you have this diagnosis this will happen to you. A lot of the illnesses are evolving. They can manifest themselves differently in different people. Therefore, what a victim has suffered, or a person who has come in contact with the accused at that point, would be relevant. It seems to me that throughout this bill there is a difficulty whereby we are trying to respond to the victims who are accustomed now in our society to saying that if they have been aggrieved in any way, they have the right to give a victim impact statement. Surely we should be thinking of how to integrate those people into this process, not paralleling the sentencing procedure. I would like your response.

Mr. Cotler: I will provide an initial response and then ask Ms. Kane to elaborate.

Part XX.1 of the Criminal Code already provides for a written victim impact statement to be considered. However, upon enactment of Bill C-10, victims would be permitted to read their victim impact statement aloud at disposition hearings.

Now, in some situations — and we get to the particularity here — the review board may refuse an oral presentation when reading the statement could cause the accused to react negatively, thereby causing more trauma to the victim so that the hearing itself could be disrupted.

You have here a particular interaction with respect to a not criminally responsible accused and a victim facing a different kind of accused. Therefore, one has to bear in mind that the not criminally responsible accused are not sentenced and the nature of a victim impact statement at a disposition hearing must relate to the criteria that are relevant to making the disposition. That is why I say the specific interaction here is different.

The victim statement may recount the impact of the crime, or the harm or loss that has been suffered. It may, in addition, contain ongoing concerns that victims may have for their safety in relation to the non-criminally responsible accused, and that may be addressed in the conditions of a disposition. However, a non-criminally responsible accused is not responsible or accountable for the offence and it may therefore be difficult for victims in this particular setting to reconcile this notion with the content of their victim impact statement.

That is why the particularity of the nature of the non-criminally responsible accused has to be taken into account in assessing the victim impact statement in that context.

Ms. Kane: I will just make a few other points in case they address what you are concerned about.

Apart from the unfit accused who will not be tried — and there is no victim involvement there because they are still kind of waiting to be made fit and to be tried — in other cases the accused will be tried just like anyone else. Only at the very end will there be the verdict that they are not criminally responsible, so the victim's role in the trial process is exactly the same as if the accused might be acquitted or convicted, and that is left to be determined.

The victims' role is very limited in the criminal process. There are provisions in the Criminal Code now to facilitate their participation in order for them to give their testimony, to protect their identity and so on, but the only real role that a victim has now at sentencing is in terms of providing a victim impact statement or, where a person is found not criminally responsible, a victim impact statement for the review board to consider. That amendment to the Criminal Code was made in 1999.

Although you may hear submissions from victims and victim advocates that they do want a greater role and that they want to have copies, for example, of assessment reports and so on to know more about the accused, that currently does not happen. Their role is as limited — or more limited — as it is in the criminal process. As the minister noted, when it comes time for the review board to take over the supervision of persons found not criminally responsible, the board will see them at least every year and more frequently if necessary. Victims may attend as observers at those review board hearings. Some provinces have policies in place now to send notices to victims, and they do attend and they observe, but they do not take any further role, or they submit a written victim impact statement, and now they will be able to orally present that statement, but again, with those limitations.

As in other parts of this bill, and as the minister noted, it is striking the balance between the need to protect public safety and to protect the rights of the mentally disordered accused, who are quite vulnerable and need protections.

Senator Andreychuk: While this is a good effort and an update and you have tried to balance all of the issues, it seems to me that we are only learning now how to put victims and their statements into this role, and trying to replicate or modify what we do in the case of those who can be held criminally responsible may not be the way to go in the future.

I think of children in the youth justice system. Sometimes the victims are siblings, parents, neighbours, who can tell you a lot about the needs of that not criminally responsible person. The victims can take on different roles with the not criminally responsible person than they can with the criminally responsible.

It seems that we should be monitoring that for future reference. If you narrow it down to a victim impact statement, as you would in a court process and a review process, you are missing the opportunity to get the right treatment and, therefore, protect society. The victims have a different role with the accused in many cases, although not in all.

The other point I wanted to return to was who can make the assessments. Having the benefit of having been on the bench, I know how difficult it was and continues to be to get assessments done. We are short of these kinds of health facilities. You pointed out that the standing Senate committee has commented on the resources we need for those with mental incapacities.

If we open it up now to those who are not psychiatrists to make the assessment, Attorneys General will determine who can assess, but we do not really have any accountability mechanisms thereafter. It was already difficult for judges with psychiatrists. I can remember cases where a psychiatrist would say that if the man takes his pills and reports three times a day, he can be released. However, those are the two things the man would not do. When you said to the psychiatrist, “I doubt he will follow it through,” the reply would be, “I am giving you my opinion.” We knew that opinion would have to stand the test of the college of surgeons and physicians and the psychiatric institute, et cetera.

We will now have Attorneys General, already squeezed by limited resources, putting in people to do assessments who will have different or lesser qualifications. Will society be able to hold Attorneys General accountable for those actions? When a psychiatrist fails, I know where to go. Where do I go if the system fails me under this new regime?

Mr. Cotler: I will reply initially and then hand it over to Ms. Kane. The House of Commons committee recommended in its 2002 review that the code should permit assessments to be conducted by mental health professionals and not be limited to psychiatrists. I did not have time to share with you that part of my statement. Bill C-10 as originally introduced did not include such an amendment. An amendment made by the House committee in its review of Bill C-10 will expand the category of professionals who conduct assessments to those health professionals designated by the provincial Attorneys General. That raises the concern, and I will turn it over at this point to Ms. Kane.

Ms. Kane: Senator, your concern is who will be accountable for assessments made by non-psychiatrists when the assessment may not meet the needs of the court; am I correct?

Senator Andreychuk: I am concerned about it meeting the needs of the court, the expectations of the public and any future victims.

I know what happens when a psychiatrist indicates that someone can be released. If something happens, it is very easy to fault the court. Politicians do it. The public does it. We all say, “Why did you let him out?” We have fought back by saying that there is a professional standard that that person's opinion had to meet. What standard will these others meet? How will we make the system accountable should it fail us?

Ms. Kane: The Attorneys General will be considering those same factors when they determine whom they will designate. They may see fit to not designate anybody and just rely on the tried and true, which is the medical professional. It may be that in some of the northern territories, the Minister of Justice who is the Attorney General there may have to look at designation of additional persons because of the unavailability of psychiatrists on short notice. There could also be other restrictions put around that. Perhaps they could only do some types of assessments and not others.

Ultimately, the court will order the assessment, and it is a determination of the court based on the expert advice provided to them. If the judge is not satisfied with the expert advice that has been provided or has any reservations, then the judge could simply request that another assessment be done by a psychiatrist in order to be satisfied that the person could be released, whether on an interim basis or otherwise.

Initially, the court will usually only be in the position of ordering fitness assessments and then determining if the accused is fit to stand trial. In the course of the trial, if the person is tried, there may be a whole range of assessments conducted to address criminal responsibility. As mentioned earlier, it would be our expectation that in those cases, it will likely be psychiatrists, who are accustomed to doing those assessments, who will continue to do them. Thereafter, Bill C-10 proposes that review boards would also have the power to order assessments so that they are armed with complete and up-to-date information when they do their annual reviews, and the review board would likely be relying on what they have available. If they are not satisfied that it is sufficient, they would be asking the Crown, or whoever is representing the accused, to get additional information for them.

Senator Andreychuk: I understand why the House put the amendment in. It looks like a facilitating provision to get quicker assessments and protect the public. However, there is, in my opinion, a loophole. You put the onus on the judge now to determine the quality of the assessments. We have taken years and years to understand the quality of psychiatric assessments. You will now involve a new category, and the accountability and scrutiny of that assessment process is, as yet, untested. I flag that. I fully appreciate it was not the ministry that brought that amendment in, but we have to look at the consequences down the line for both the judicial authorities who will have to grapple with that and the public who may be subject to it.

Mr. Cotler: Madam Chairman, I gave notice of my having to leave. A number of recommendations of the House of Commons standing committee in the 2000 review were not included in this bill. I had that in my initial testimony, and I left it out for reasons of time. I was hoping I would get a question on it. I might perhaps share that with you. It may help your deliberations to understand what the House of Commons committee did not include in Bill C-10. You might want to have a better appreciation of it. I regret that thereafter I would be required to leave, but Ms. Kane could still stay for some of those questions.

I will deal with some of those recommendations not included in Bill C-10. I should mention that Bill C-10 responded to the majority of the recommendations, and it should be noted also that recommendations were made on Bill C-10 in the December 2004 House standing committee that addressed some of the issues that were not addressed in the original bill. Bill C-10 seeks to include amendments that respond to the majority of issues, both from the December 2002 review by the standing committee and the one in 2004. The specific amendments may not be exactly as the committee proposed them.

For example, the committee recommended an amendment to permit the absolute discharge of a permanently unfit accused. As noted, Bill C-10 provides for a judicial stay of proceedings and sets out a process in the relevant considerations for the court. This is something that you may want to look into as well.

We discussed how the House committee recommended that the code be amended to notify victims of their rights and entitlements. As originally introduced, Bill C-10 provided for the court or review board to ask whether the victim has been advised of the opportunity to prepare a victim impact statement.

Additionally, special notice provisions were added as amendments by the House committee following its review of Bill C-10. As a result, the code will require that notice of all review board hearings be provided to victims. In addition, special notice will be provided to victims where the hearing may result in a release from hospital custody.

Since there is this proper appreciation and concern for victim rights, other victim rights are generally dealt with — one must make reference to that — through provincial victim legislation and policy. They cannot be included in the code; but in doing this kind of review, one must appreciate the relationship between the provincial and the federal governments in the matters of victims' rights.

The Department of Justice intends to prepare fact sheets as part of a series for victims that will inform them about their role when an accused is found unfit or not criminally responsible. These fact sheets will be released as soon as Bill C-10 is passed, and will provide an appreciation of the framework with regard to respective federal and provincial responsibilities in that regard.

In addition, the FPT working group on victims of crime — that is another group whose importance needs to be noted — is exploring how existing victim services can better meet the needs of victims where the accused is found not criminally responsible on account of mental disorder or unfit, for example, by supporting them at review board hearings. A meeting to that effect took place recently, on March 1, 2005.

The House of Commons committee, in its 2002 review, recommended an amendment to provide for a new offence of breach of a disposition order. The government's view is that a new offence of a breach of a disposition would bring the not criminally responsible accused back into the criminal justice system on new charges. Of course, where an accused commits a new criminal offence, for example, a robbery or an assault, a charge must be laid and any treatment associated with a disposition will be interrupted. However, for a breach of the terms of a disposition, a new offence may not be the best option. This is something, again, that you may wish to consider. That is why I am reviewing some of these points.

The Bill C-10 amendments give police more enforcement options to get the accused back to the hospital or back to their routine and to permit the review board to revisit the accused's disposition as soon as possible. I would suggest, for your own appreciation here, that we monitor these reforms and revisit whether there is a real need to provide a new offence of breach of a disposition order at a later date.

I am coming to a close. On the issue of fitness to be sentenced, because reference was made to that, Bill C-10 does not include amendments to provide for a verdict of “unfit to be sentenced” or to provide for assessments at the time of sentencing. This is an important issue on which we felt further research and consultation is needed. Therefore, I share this with your committee as well.

The specific amendments that may be needed here relate as much to the principles of sentencing as they do to the law of governing those with a mental disorder. The Department of Justice has commissioned academic research on this issue that suggests that unfitness at the time of sentence requires a different conceptualization or test for fitness and different consequences from those that would follow from a finding of unfit to stand trial.

While I agree that this issue must be addressed, we have not included specific amendments in Bill C-10 in relation to it. Amendments may be considered for inclusion in a forthcoming criminal law amendment bill following further consideration and consultation with provincial and territorial ministers responsible for justice, to which this has been referred.

In its 2002 review, the committee made several recommendations for further consultation on a number of issues, and these have been launched. As in all areas of law reform, a consultative process involving provincial Attorneys General and relevant stakeholders may be considered as beneficial as it may be necessary.

The FPT working group on mental disorders, another group whose involvement is relevant here, meets regularly to discuss emerging issues. This group has been exploring several recommendations, including on the role of Crown attorneys, the standard for fitness, whether fitness at sentence should be recognized in the law and how to gather better and more consistent data.

In addition, my officials hosted a round table in 2003 to explore the needs of youth with mental disorders. A round table with review board chairpersons was held in February 2004 on a range of issues, including how to work together to gather the essential data so that we can have evidentiary-based proposals in this regard.

In May 2004, federal officials from our department and Public Safety and Emergency Preparedness Canada met with the national associations active in criminal justice to discuss the human rights of mentally disordered offenders, which I know is also of interest to this committee. This forum explored the links between mental health and the criminal justice system.

Finally, we intend to pursue consultations with stakeholders as Bill C-10 would be implemented to identify emerging issues, and to do so with the benefit of your report and recommendations.

The process of law reform with regard to the subject matter under consideration here is an ongoing one. It will not end with the adoption of this bill, nor should it. There will be ongoing consultation, through FPT working groups, with stakeholders, appreciating that recommendations have been made both by House committees and will be reported out from this committee. As I said, the good thing about this approach thus far has been the spirit of cooperation and the common commitment to the twin goals of protecting public safety while protecting the rights of the mentally disordered accused.

Thank you for this opportunity to appear before you. I know that I am leaving you in the best of hands with Ms. Kane. I regret that I must leave for a prior commitment that actually began about 15 minutes ago.

Senator Cools: Perhaps he can come back soon if we need him to.

The Chairman: Ms. Kane, you will be able to remain as there will be more questions.

Senator Milne: I am concerned because not only is this bill complex, the procedures in it are complex as well, Ms. Kane. I regret that I cannot ask this question of the minister.

In the case of a stay of proceedings for a permanently unfit person, it is my understanding that the review board must review the case, and then they pass it on to a court and the court duplicates this review. It seems to be pretty complex. Should a review board, based on its expertise, have the power to grant a stay of proceedings for a permanently unfit accused, just as it has the power to grant an absolute discharge in the case of a person found not criminally responsible? That is my first question.

My second question is I know that this bill has been, partially, a response to the Supreme Court ruling in Demers, but the ruling suggested that a permanently unfit accused is entitled to an absolute discharge, and this bill does not do that. It provides for a stay of proceedings. How is this bill then a proper response to the suggestions of the Supreme Court of Canada, and how do we know that they will not do the same thing again?

Third, we have had military justice issues before this committee in the past. Every time they start talking about “subject to regulations,” I become nervous. This proposed legislation gives a court martial similar powers to grant a stay of proceedings in the case of a permanently unfit accused; however, it can only hold an inquiry of its own motion or order certain assessments of the accused “subject to the regulations.”

Again, this makes me nervous. What is the reason for this qualification, and what restrictions will this place on the court martial to grant a stay of proceedings or to make an assessment order? Regulations can be pretty arcane.

Ms. Kane: Perhaps I will start with the question with respect to the courts martial. I think you would get a better answer if you heard from somebody from National Defence. We have been working closely with them to address the parallel amendments to the National Defence Act. I can either arrange to have a written answer provided to you or I can provide the name of someone who could come before the committee to explain how the National Defence Act amendments parallel those in the Criminal Code.

With respect to the questions about the review board's power and the judicial stay of proceedings, I would agree that it is a complex procedure that we are proposing, but there are valid reasons for that. We are talking about ending the criminal proceedings once and for all for a person who has been accused of a criminal offence but who is determined not likely to ever become fit. The judicial stay will mean that the person cannot be prosecuted for an offence that the police have reasonable and probable grounds to believe has been committed by that person. Otherwise, the charge would not have been laid. It is a serious matter to stay proceedings, and there must be serious consideration given to whether a stay should be ordered.

The review board sees that person regularly. The court will not see that person after the initial finding of unfitness. They will be referred to the review board, which will see them at least annually. They are the ones who have that opportunity to see whether the person is still unfit and the reports from the treating doctors saying that he is not likely to become fit. They would then refer that issue to the court so the court could conduct an inquiry into whether a judicial stay should be ordered.

The court has the power to do that and not the review board because the board would be usurping the role of the Crown in the opportunity to prosecute that person. The review board does not, on its own, represent the public interest in the prosecution; only the Crown does. A recommendation would be made that the court conduct an inquiry, and the court would have the power to end the proceedings against that person once and for all after a hearing, during which time they would consider submissions by the Crown, medical professionals and so on.

It does seem to be a two-step procedure, but the review board is only looking at two conditions precedent: Is the accused unlikely to ever become fit and, based on the information they have, does the accused not pose a significant risk to the safety of the public. The review board does not go on to the next step and ask, is a stay in the interests of the proper administration of justice. That is a matter for the court to decide. The court will confirm for itself that the two preconditions are met and will order a judicial stay where it is in the interests of justice. There are factors set out in the Criminal Code for the court to consider in making that determination.

With respect to the Demers case and the terminology used, when Demers is read from start to finish, the court uses the terms “absolute discharge” and “judicial stay” almost interchangeably. In our view, what is important is the outcome. Demers has stated clearly that there must be an end to the proceedings for a permanently unfit accused who is not a danger to public safety. The term “absolute discharge” is used in the Criminal Code for other persons, for people who are convicted and would be sentenced but are given an absolute discharge, and for persons who are not criminally responsible, who do not pose a significant threat and the review board decides they can be absolutely discharged. Those categories of individuals have been tried and have been found to have committed an offence, and then they are discharged. In this category, they have not been tried.

It is more appropriate to use “judicial stay” both to avoid confusion and also to better reflect what is happening. The court is saying that these proceedings are stayed. They have not happened. They are stayed for ever. We will not prosecute this person because he is unlikely to become fit. That is why we have employed this terminology in the bill. The minister and others who have reviewed it are confident that it comports with what the court has said in Demers.

Senator Milne: Can proceedings that have been stayed ever be resumed?

Ms. Kane: There is a provision in the Criminal Code whereby some stays can be reinstituted within one year. Those are where the Attorney General stays the prosecution. What we have proposed in this bill is a stay that would be final for that accused. However, the Crown may appeal that decision whereby the court imposes the stay if they feel that the criteria have not been properly considered or whatever. The Crown will have an opportunity to appeal that stay.

This provision is there because a determination has been made based on the best medical evidence available at the time that this person is not ever likely to become fit and there will not be an opportunity to try that person; and secondly, that they do not pose a danger to the public. In those situations, there would likely be no interest in reinstituting those same proceedings against that person because they will not be able to be tried at any time in the future.

It should be noted that if they commit another offence, they could be charged with that offence. Similarly, if they are felt to pose some danger to society short of committing an offence, a recognizance or a peace bond to prevent some harmful behaviour from occurring could be sought. The proceedings that brought them into the justice system in the first place would be stayed, and that would be final.

Senator Pearson: I have one question to put some substance on some of this. How big is this problem? How many cases do we have in a year where somebody is declared unfit and how many in the second category of being declared not criminally responsible?

Ms. Kane: That is an excellent question and one that we always have some difficulty answering. The court data are not totally complete. We have data from provincial courts that do not include all cases, but only from eight of thirteen jurisdictions that would only tell you where somebody is found not criminally responsible. Those who are found unfit may be found unfit today, but a week from today they might be found fit. You can only have snapshots of who is unfit at any point in time.

However, we do have some information based on a survey done by the review boards themselves to indicate how many hearings they are holding per year and how many new unfit accused there are, and I can provide those numbers to the clerk to share with the committee. I am reluctant to recall them in case I get it dead wrong.

Senator Pearson: It would be very interesting.

Ms. Kane: We are not talking about huge numbers of people. For example, if I recall correctly, in the year 2000, the number of new unfit persons was under 200.

Senator Pearson: The second question has to do with numbers of young offenders. I am sure that among the young people who have committed crimes, there will be some in this category. I know that there is new sentencing for specific psychiatric treatment for severe crime. I do not know how those two meld together.

Ms. Kane: Youths may be found not criminally responsible for an offence for which they have been convicted. If they are, they will fall under the same regime that we have in the Criminal Code. However, those numbers are very small. Those who deal with youth have pointed out that it is difficult to diagnose them as having a mental disorder at that point. It may be just part of their maturation process. They try to avoid the outcome of finding them not criminally responsible wherever possible if there are other interventions that can be made. The last time we canvassed our provincial colleagues to get some of those numbers, they were almost negligible; six persons who could be identified across Canada who were found not criminally responsible in the youth criminal justice system. Again, I do not want to be quoted on those numbers, and I will endeavour to share that information to the extent that we have it.

Senator Cools: I would like to say that this bill contains, to my mind, a few novelties. I hope that the committee will take the opportunity to give it the kind of study that it deserves.

My first question is about the nature of mental disorder.

I wonder if the witness could tell us how many mental disorders there are? Roughly, that is. It is a very important question.

Ms. Kane: I would not be able to answer that question because I am not a psychiatrist. The mental disorders are set out in what the profession refers to as the DSM-IV that guides them in what is a recognized mental disorder. It changes over time. There are mental disorders now that would not have been acknowledged or recognized 20 years ago. I would hope that the committee will be hearing from some doctors who can better answer that.

Senator Cools: I wonder if then the witness could tell us the difference between mental disorders and character disorders and whether character disorders can be disguised as mental disorders.

Ms. Kane: Again, my medical knowledge is limited. I am a lawyer who works for the Department of Justice. I am not a health professional.

Senator Cools: This is about mental disorder.

The Chairman: We will have some specialists in.

Senator Cools: This is the interesting thing about the new language. In the old language, we all knew what “criminally insane” meant. This we do not know. In this whole issue of the psychiatric institutions, for example, say in Ontario, the one in Penetanguishene, the real concern of the people who work in this field is that the truly criminal- minded not use these provisions to gain entry into the psychiatric institutions, because it is a huge problem. In other words, to quote one psychiatrist in a conversation with me, he distinguished between the sick and the bad. There is a difference between those who are sick and those who are bad. That is why I was talking about mental disorder and character disorder. It is a huge problem in this business. For example, could a Clifford Olson be classified under these provisions as having mental disorders?

Ms. Kane: Well, I could provide a little background information that may be of assistance.

In order for someone to be found not criminally responsible on account of mental disorder, which, as you noted, is the new term, but has been used for over 13 years —

Senator Cools: It is still very new in terms of the total amount of literature on this subject matter, particularly in the criminal law and in the history of the criminal law.

Ms. Kane: That is really only a change in terminology. The test has not changed. The test that has been in our law since it was inherited from England remains. It has to be a disease of the mind. A “mental disorder” is defined as a disease of the mind, and in order for the verdict to be entered the court has to be satisfied on the basis of medical information that the person suffered from the disease of the mind at the time the offence was committed to such an extent that they did not know the nature and consequences of the act, or that it was wrong. That test remains the same, therefore. The terminology has been modernized.

Senator Cools: I am aware of that, but I must caution you that I took a fair amount of time some years ago to read some of the psychiatric and psychological assessments of Karla Homolka, and these highly credentialed professionals were assuring all that she was no danger. Those assessments were all made before the later revelations about her actual involvement.

I ask you to bear with my alarms, because I know of a particular case where a serious psychopath succeeded on one set of crimes in getting himself a Lieutenant-Governor's warrant as a sick person. As he continued his career with another set of murders, the particular judge was able, in having the case before him, to impose a life sentence. Sorting out the jurisdiction on this individual case was no easy matter. In other words, where did the parole board, the federal authorities and the provincial ones overlap, and it was no easy matter. The judge in the second set of murders made it quite clear that this person was a psychopath and should not have gone the other route; however, it was a done deal.

That is one of the great fears in this problem — “criminal” now has a different meaning from what it used to — that the criminal-minded not use the mental health provisions to gain entry to the psychiatric institutions. If I could remember the name, although I would not say it here, obviously, it would be interesting if I could put my hands on some of that material, but this was the prevailing challenge at the time.

I was on the parole board and have seen very dangerous inmates, but I had assessments before me saying they will be okay under these and those conditions, but these and those conditions are never met. Therefore, I am just wondering if in drafting and producing these provisions, the minister and the professional help available to him considered this factor, which is, can these provisions be accessible to the psychopathic and the criminal-minded?

Ms. Kane: Well, yes, those factors were certainly considered throughout the consultations we have had over the last 13 years on how the 1992 amendments have been implemented, and before that when the more significant reforms were made in 1992. The information we have had from all those who have been consulted and have shared information is that they do not believe that anyone can fool anyone in terms of being found not criminally responsible when in fact they are, or that they would want to, because the consequences of being found not criminally responsible and a danger to society are that you may be detained far longer than if you were convicted and sentenced.

With respect to your comments about the complexity when someone is found not criminally responsible for one offence and later convicted for others, it is complicated, but the Criminal Code does address which provision governs. You could have someone who is found not criminally responsible for, for example, a sexual assault and under a disposition, and while they are under that disposition they commit another offence for which they are convicted.

Senator Cools: The case I was thinking of was where a series of events had already happened and different proceedings were taking place on these different events in different provinces.

Ms. Kane: Would it be the same accused?

Senator Cools: Yes, the same accused. It does happen, especially if there is a series of murders.

Ms. Kane: The Criminal Code does include provisions to govern situations where there is a multiplicity of proceedings. Usually, one will end before another starts.

If you have a situation where there is conviction for one offence and a finding of not criminally responsible for another, there is a procedure to determine where that person should be housed, in a jail or in a psychiatric institution.

Senator Cools: In any event, the real issue is: Does the creation of these provisions anticipate those kinds of problems?

Ms. Kane: Bill C-10 does not change the law as it stands now in terms of the definition of the verdict of “not criminally responsible” or the definition of “mental disorder.” Those provisions of the law remain intact from 1992. There have not been significant concerns expressed about how those provisions operate, although this committee may hear witnesses who will address those concerns. That is not addressed in this bill.

Senator Mercer: My questions have to do with the protection of witnesses, the accused, and others involved in the process.

Has there been any discussion on the determination of the level of medication of the accused? Many people with mental disorders are highly medicated, and we have heard stories in the last few days about the confusion around medication for seniors in nursing homes.

I am also concerned about the protection of a witness if something happens in an institution such as a group home where the witness is also a resident or a staff member. The protection of that witness is extremely important. We can protect the witness's identity, but how do we protect their safety in an environment such as a group home? I have been in many group homes, some of which are very safe and some of which are not.

Ms. Kane: With respect to the protection of a witness in a group home after someone has been found not criminally responsible, is your question related to if another offence happens in that group home?

Senator Mercer: No. My second question relates to an incident that might happen in the group home itself where a resident is a witness to an event, either outside or in the group home, that involves a non-resident. My first question was with regard to how the amount of medication persons may be taking when they commit a crime affects their mental capability and the determination of whether they were fit to stand trial.

Ms. Kane: Medication is a factor that is taken into account in determining, first, whether a person was suffering from a mental disorder and, second, whether they appreciated the nature and quality of their act and knew that it was wrong. There will be medical evidence on what was affecting their capacity at the time they committed the offence.

There are situations where people who are not mentally disordered take medication. They have taken medication, voluntarily or not, and it does impact their behaviour. It may not result in a verdict of not criminally responsible. It may be taken into account in another way, but that would be based on medical evidence as to whether it meets the test in the Criminal Code for a person to be found not criminally responsible. It will be a case-by-case determination.

I expect that the protection of witnesses would have to rely on what is already available to protect public safety. The police would be involved. There would likely be an opportunity to move a person into a different residence if their safety was a concern. Most likely, the accused would be detained in another facility where they would not present a danger to the witness or anyone else pending the next review board hearing or an appearance in court. The ordinary precautions would be taken to protect public safety, whether that means detaining an accused who otherwise would not be detained or making some other arrangements.

Senator Callbeck: I would like to have a couple of terms clarified. In the amendment made to the proposed legislation in the other place they added that in order for a stay of proceedings to be granted, the accused must be unlikely to ever become fit on the basis of clear information. What is meant by “clear information?”

As well, it says that the stay of proceedings must also be in the interests of the proper administration of justice. What is meant by that requirement?

Ms. Kane: “Clear information” is the term used by the Supreme Court of Canada in Demers. Several witnesses who appeared before the committee were concerned that there needed to be a higher standard imposed before the court ordered a judicial stay of proceedings and they wanted it to be as close to the wording in the Supreme Court of Canada decision as possible.

The amendments also require that an up-to-date assessment be done. There has to be disposition information, which is all the information that the review board has at their disposal about that accused. All of that would have to clearly point to the fact that the person met the two preconditions; that they were not likely to ever become fit and that they did not pose a significant risk to public safety.

“Clear information” would have the dictionary definition; something that is unequivocal. “Proper administration of justice” is a term used in various parts of the Criminal Code to reflect the fact that the court has to balance a variety of rights and do what, in its view, is in the best interests of the proper administration of justice. In this case it will determine whether a person should be under the supervision of the criminal justice system indefinitely, even though they might never be tried, or whether proceedings against them should end now; and there is a variety of suggested factors to be taken into account.

It is a term that the courts use regularly when exercising their discretion. Their final test is whether it is in the interests of justice.

The Chairman: Thank you. You have been helpful to us.

The committee adjourned.