Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 3, Evidence - February 27, 2014
OTTAWA, Thursday, February 27, 2014
The Standing Senate Committee on Legal and Constitutional Affairs, to which
was referred Bill C-14, An Act to amend the Criminal Code and the National
Defence Act (mental disorder), met this day at 11:02 a.m. to give consideration
to the bill.
Senator Bob Runciman (Chair) in the chair.
The Chair: Good morning. Welcome colleagues, invited guests and
members of the general public who are following today's proceedings of the
Senate Standing Committee on Legal and Constitutional Affairs. Today, we're
starting our study of Bill C-14, an Act to amend the Criminal Code and the
National Defence Act (mental disorder.) This bill amends the mental disorder
regime in the Criminal Code to specify that public safety is paramount in the
decision-making process. The bill also creates a high-risk accused designation
for some of those found not criminally responsible. It also enhances the
involvement of victims in the review board process.
As a reminder to those watching, these committee hearings are open to the
public and also available via webcast on the sen.parl.gc.ca website. You can
find more information on the schedule of witnesses on the website, under "Senate
To begin our deliberations this morning, I'm pleased to welcome back before
the committee the Honourable Peter MacKay, Minister of Justice and Attorney
General of Canada. The minister is accompanied by Carole Morency, Director
General and Senior General Counsel, and Julie Besner, Counsel, Criminal Law
Policy Section from Justice Canada.
Minister, we'll begin with your opening statement.
Hon. Peter MacKay, P.C., M.P., Minister of Justice and Attorney General of
Canada: Thank you very much, Mr. Chair, honourable senators. As was noted,
I'm joined here today by very capable individuals from the Department of
Justice. We hope to be able to answer your questions and present to you what we
believe is a very important amendment and update of our criminal justice system
vis-à-vis the "Not Criminally Responsible Reform Act."
As always, I am pleased to appear before the committee today to speak to Bill
C-14, the Not Criminally Responsible Reform Act.
Let me begin by saying, honourable senators, that this bill is a reflection
of the priority our government places on public safety and the safety of
victims, more broadly. As well, it reflects the priority that the government
places on improving the involvement and inclusion of victims in the criminal
Clearly, this is a very specialized area of our system. Specifically, the
"Not Criminally Responsible Reform Act" processes and proposes amendments to the
mental disorders regime both in the Criminal Code and the National Defence Act.
The mental disorder regime deals with individuals who have been found either
unfit to stand trial or not criminally responsible, or NCS, on account of mental
As senators know well, these are two separate verdicts that consider the
mental capacity of the accused persons from two different points in time. For
instance, the court may decide that a person is unfit to undergo a criminal
trial because they are suffering from a mental disorder that prevents them, for
example, from understanding the court proceedings.
To make this determination, the court considers the mental capacity of the
accused at the time of the trial. However, if a person is tried and is found to
have committed an act that constitutes a criminal offence but they lacked the
capacity to appreciate what they did or know that it was wrong, the court then
enters a verdict of NCR. In these deliberations, the court considers, among
other things, the mental capacity of the accused at the time of the commission
of the alleged offence.
In both of those circumstances, the accused person is neither convicted nor
punished in the traditional sense of our criminal justice system. Rather, they
are referred to a provincially established review board, which will make orders
called dispositions respecting the appropriate supervision and treatment of the
accused person. I believe you have an esteemed member of this committee who has
served as a chair of one of those review boards in New Brunswick.
In determining the appropriate disposition, the review board can choose from
three options: detention in custody in a hospital, usually a forensic or mental
health unit; discharge subject to conditions; or an absolute discharge if the
review board has determined that the accused person no longer poses a
significant threat to the safety of the public.
This regime was introduced into the Criminal Code in 1992, and it has
received significant support from those involved in the system who are dealing
appropriately with a small number of persons — and I stress "a small number of
persons" — who are found unfit or NCR.
However, recently this regime has come under increased scrutiny by Canadians,
and they've questioned whether or not the existing legislation is clear enough
or strong enough to adequately protect both the general public and victims of
NCR-accused persons and, I would add, individuals themselves who are deemed to
have been NCR or unfit.
Bill C-14 proposes amendments to clarify and improve certain aspects of the
mental disorder regime in part to address these concerns. Some of these reforms
focus on the key provisions of the Criminal Code mental disorder regime, which
is found in section 672.54, the disposition-making provision. Among other
things, this provision sets out factors that must be considered when determining
which disposition to order. It also sets out the available dispositions and,
importantly, the test to be applied when deciding which disposition to order.
Our Bill C-14 proposes three amendments to this decision-making process, so
the crux of this bill. First, it would clarify that public safety is the
paramount consideration in the decision-making process with respect to accused
persons who have been found by a court to be NCR or unfit to stand trial.
Currently the provisions state that courts and review boards must balance public
safety as one of four factors. Although there is jurisprudence from the Supreme
Court of Canada that the public safety factor is, in fact, the paramount
consideration, the principle is not being applied consistently across all
jurisdictions and was, therefore, a concern for provincial and territorial
attorneys general. Therefore, there was, I would submit, a need for codification
of this principle.
The second change is to the disposition-making provision as it relates to the
terms "least onerous and least restrictive." Currently, when deliberating about
the appropriate disposition of an NCR accused, the review board must make a
disposition that is "the least onerous and least restrictive" to the accused.
Bill C-14 proposes to replace those terms with a clearer phrase: "necessary and
appropriate in the circumstances."
This proposed wording is consistent with how this requirement was described
in the 1999 Supreme Court of Canada decision Winkov. British Columbia
(Forensic Psychiatric Institute), such that "the NCR accused's liberty will
be trammeled no more than is necessary to protect the public safety." This
amendment is not intended to eliminate the requirement that a disposition be the
"least onerous and least restrictive," but rather to make the concept easier to
understand. I would note that in many instances public confidence and public
understanding are critical considerations.
The third and final change to the disposition-making provision is the
proposal to codify the meaning of the phrase "significant threat to the safety
of the public." As I mentioned previously, the review board must make an
absolute discharge — meaning a release without conditions — if an individual no
longer poses a "significant threat to the safety of the public." Bill C-14
proposes to codify that phrase in a manner wholly consistent with the Supreme
Court of Canada's interpretation of that same phrase in Winko. In that
case, the court indicated that a "significant threat" means a risk of serious
physical or psychological harm to members of the public, resulting from conduct
that is criminal in nature but not necessarily violent.
Again, the federal government heard from provincial and territorial attorneys
general that there has been an inconsistent application of this test across
I believe that codification of this principle is certainly a valuable
amendment to clarify that the accused cannot be released if there is positive
evidence that they do pose a risk, even if the nature of that risk may not be
In addition to these important codifications, Mr. Chair and senators, the
other amendments to the decision-making provision in Bill C-14 propose to create
a new high-risk NCR accused designation. This designation is intended to apply
to only the most dangerous of accused and would effectively result in a
disposition requiring detention of the accused in a hospital until that finding
is revoked by a court.
I would like to take a few minutes to describe the process, the legal test to
be applied and the consequences of a high-risk NCR designation.
The application for the proposed high-risk NCR accused finding would be made
by a prosecutor at any time before an absolute discharge is ordered. In other
words, as long as the accused is still under the jurisdiction of the review
board, a prosecutor could make an application.
A prosecutor could only make this application if the original offence was a
serious personal injury offence that resulted in a verdict of NCR and that the
accused was 18 years or more at the time of the commission of the offence.
After hearing evidence, a court could make a high-risk NCR accused finding in
one of two circumstances. First, the first circumstance is if the court is
satisfied that there is a substantial likelihood that the accused would use
violence that could endanger the life or safety of the public. The standard of
"substantial likelihood" in the high-risk designation process is higher than
"significant threat" — so we are raising the threshold — which is the test in
the disposition-making provision. This distinction serves to differentiate the
two processes and ensure that the high-risk NCR accused designation applies only
to the most dangerous of individuals.
We looked, Mr. Chair, as you would expect, at the sections within the
Criminal Code that deal with designated high risk offenders in the traditional
The second circumstance in which a high-risk finding may be made is if the
court is of the opinion that the acts that constitute the offence were of such a
brutal nature as to indicate a grave risk of harm to another person. There has
been some commentary around the term "brutal nature" in this provision and some
have suggested that without definition the term may be too vague. However, I
would point out that the term "brutal nature" has been judicially interpreted in
Canadian criminal law, and I reference the case of R. v. Langevin, a 1984
decision found at 11 C.C.C. It is an Ontario Court of Appeal decision. In that
context they examined the dangerous offender provisions, which I just
referenced, and I am satisfied that the courts will be able to give meaningful
and effective interpretation and apply it in the context of NCR.
Moving on, if the court makes the high-risk accused finding, a disposition
requiring detention of the accused in a hospital must be made and no escorted
absences would be permitted except for medical reasons or any purpose that is
necessary to the accused's treatment.
One final consequence of the high-risk NCR accused finding relates to the
period of time between review hearings. Currently the review boards review cases
on an annual basis, and although this may be extended currently up to two years,
Bill C-14 proposes that for high-risk NCR accused persons the review board
could, in certain circumstances, extend the period of review for up to three
I want to be clear that a high-risk NCR designation is not permanent. The
designation can be revoked once the elevated risk level has been mitigated. This
would happen through a two-step process. First, the review board, after holding
a review hearing, would have to be satisfied that there is no longer a
substantial risk or likelihood that the high-risk accused offender would commit
violence that could be seen as to endanger the life or safety of another person.
If the review board is so satisfied, it will refer the case to the superior
court of criminal jurisdiction for a hearing. This is a new or additional
process that would require another hearing before the court of original
jurisdiction. The court would then also hold a hearing to determine whether
there is no longer a substantial likelihood of violence, and if so the court
would revoke the finding.
I want to be very clear that the legislation does not impose a burden on the
accused in this process. The court would have to be satisfied, based on all the
evidence presented by all the parties, that there is no longer a substantial
likelihood of violence that would endanger the public, and the nature of the
hearing would be more akin to inquisitorial review board hearings as opposed to
the traditional adversarial process.
Bill C-14 is designed to improve the involvement and inclusion of victims in
the mental disorder regime and ensure that their safety is taken into
Bill C-14 provides that, upon request, the victim is to be notified if the
accused is released absolutely or conditionally and, as amended by the Standing
Committee on Justice and Human Rights, the accused's intended place of residence
shall also be given to the victim upon request.
The goal of this amendment is clear. It is to avoid situations — which we
have heard of and which are documented — where a victim is surprised by an
unexpected encounter with an accused who has been released into the community.
It's fair to say, honourable senators, that we can imagine the horror that a
victim would feel and the emotional trauma and re-victimization of unknowingly
encountering somebody in a local community hall, a grocery store, a place of
gathering, knowing that that individual has perpetrated violence on the person
or on the person's family members. This is something that we need to remedy and
it is something that this amendment seeks to alleviate.
Bill C-14 also proposes that the court or review board must specifically
consider the safety interests of the victim during the decision-making process
and to impose a non-communication or non-attendance condition in order to ensure
Before I close, I wish to briefly speak about the consultations that took
place. The issue of protecting the public from high-risk individuals found NCR
has been a regular topic of discussion at meetings of the federal/provincial/
territorial ministers of justice and public safety and officials. All those
levels of government have been in regular contact and discussed these issues now
for some time. We have met regularly, as you would expect, with victims, who
have expressed concerns about the lack of notification in the current system,
which I just alluded to.
Finally, since taking over this portfolio, my office has arranged for me
personally to meet with members of the Schizophrenia Society of Canada and other
mental health advocates in preparation for this bill, this legislation. We have
held a number of round tables in several communities and have heard from various
stakeholders and participants in our justice system. I must say that this piece
of legislation is very well received while fully understanding the serious
nature and far-reaching implications.
I know that you will be hearing from a number of witnesses. I want to
emphasize that nothing in this bill would impact the mentally disordered
accused's access to health treatment. This is very much in keeping with the
current provisions that provide for treatment in a certified forensic unit. The
bill proposes a reasonable and balanced response to legitimate concerns that
have been expressed by the public and stakeholders about public safety.
I thank you in advance for your work on this bill. I look forward to your
questions, Mr. Chair.
The Chair: Thank you very much, minister. We will begin the questions
with the Senator Baker, deputy chair of the committee.
Senator Baker: I would like to welcome the minister to the committee.
As he noted, questions will be raised by some of the witnesses we will be
hearing from regarding the constitutionality of provisions of this bill.
Regarding the first question I want to ask the minister, I do so knowing that
many years ago he was a litigator and Crown prosecutor who dealt with the
Charter on many reported occasions.
I noted in a little research before I came here that in a case before the
Supreme Court of Canada some 20 years ago, the respondent was represented by
Peter G. MacKay and Kenneth W.F. Fiske. The case of R. v. Fitt involved a
Charter argument. I must admit that the Supreme Court of Canada ruled with the
minister's argument on the Charter issues. It was an appeal from the Nova Scotia
Court of Appeal. The minister is very familiar with Charter issues and the
litigation of such issues. On my question, I quote the Canadian Bar Association:
. . . subsection 672.64(1)(b) is likely unconstitutional as it violates s.
7 of the Charter. . . .
I ask the minister whether in his opinion, with all his experience as both a
litigator and otherwise, he believes that each clause of this bill is Charter
Mr. MacKay: Thank you very much, senator, for the question. Your
research is impressive and impeccable. I have had a long-standing interest in
this particular area of the law. As you referenced, I have been involved in
cases in the past that involve not criminally responsible accused.
To answer your question directly, I do believe that this legislation is
Charter compliant. As with all legislation at the Department of Justice, there
is a rigorous examination of all sections to see that, in fact, they do comply
in the judgment of the department through our litigation team. Our assembled
individuals here I think will agree.
Of course, an assessment is always made as to the Charter risk at the end of
the day. No one can say with certainty what every judge in the country would
interpret; and certainly not every judge would interpret in the same way the
cases before them.
Having said that, we have taken, I believe, considerable time and effort and
consultation. I say with the greatest respect to the assessment that you
presented here from the bar association that I respectfully disagree.
Everything we do has, as the backdrop, this ever-important process of
balancing the protection of the public versus the rights of the accused, the
individual, and Charter compliance. I believe that, on balance, we will meet
that test, and we will defend this legislation, if necessary, in the courts. We
present it, fully acknowledging that there are sections that create new and,
some would say, onerous obligations. I say for emphasis that we do so with the
greatest intent to protect the public.
I implore senators to keep in mind that we are talking about a very, very
small number of individuals' cases where these sections would apply in terms of
this high-risk designation that has been created. We are talking about less than
a percentage of a percentage point.
Senator Baker: Yes.
Minister, you also referenced the section that the Canadian Bar Association
says is vague and overly broad. You referenced a decision of the Ontario Court
of Appeal in Langevin in 1984 as being the court that had adjudicated
this very question; and there's no doubt about that. It was an adjudication
concerning the use of the words "brutal nature" — I believe it's in section 753
of the Criminal Code as it relates to the dangerous offender provisions. I will
read the section of the Criminal Code that uses the words "brutal nature."
Section 753.(1)(a) states:
(iii) any behaviour by the offender, associated with the offence for which
he or she has been convicted, that is of such a brutal nature as to compel
the conclusion that the offender's behaviour in the future is unlikely to be
inhibited by normal standards of behavioural restraint; or
Now, the words that we're dealing with in this bill are not exactly the same.
The bill states:
. . . constitute the offence were of such a brutal nature as to indicate a
risk of grave physical or psychological harm to another person.
Your point is that this has already been litigated and several cases in the
past 10 years have referenced the case you referenced as being good law; but you
believe that the use of that term by the Court of Appeal and adjudicated
frequently after that would apply to the wording in this bill. You think it
would stand on the basis that it has been adjudicated previously and found to be
Mr. MacKay: I do, Senator Baker. I do so having read a number of
recent cases and having looked back retrospectively at that definition.
A case in point would certainly resonate here and will get referenced often
in your deliberations and future discussions around this bill: the brutal murder
of Tim McLean by Vincent Li and the not criminally responsible finding in that
instance. For further point of reference, this occurred on a Greyhound bus and
was highly publicized. That is certainly well within the description of a brutal
occurrence that epitomizes the type of offence that we're capturing here — so
outrageous and so shocking of our sensibilities that this type of descriptive
language envisioned in that 1984 case would apply.
Clearly, there will be a scale, if you will, when one gets into the finer
nuances and examination of facts in every case. But that fairly recent example
fits that description, in my estimation.
I have confidence in our judiciary and I have confidence in the Crown and the
defence when these facts are presented, not to mention the forensic evidence
that would be presented along with the psychological assessments that would be
done by the necessary forensic officials, that we can make those determinations.
I think that the evidentiary burden that is shared by all individuals in this
process could very easily make out what is clearly and what the public would
clearly deem as "brutal."
Senator McIntyre: Thank you, minister, for being here with us today.
As you rightly pointed out, Bill C-14 contains three elements: having public
safety as a paramount consideration, creating a high-risk designation and
enhancing victims' rights.
Over the years, both Parliament and the Supreme Court of Canada have dealt
with public safety and victims' rights, Parliament with the passage of Bills
C-30 and C-10 and the Supreme Court of Canada with leading decisions such as
Winko, Pinet, Conway, and the list goes on. To some extent,
it appears to me that public safety and victims' rights are nothing new.
What is really new is the high-risk designation that would only affect the
high-risk offenders found not criminally responsible. My question is: Would the
new high-risk designation apply retroactively?
Mr. MacKay: That's a very good question, senator. The retroactivity
aspects of this legislation could apply to those who are currently in the
system. There has yet to really be a determination as to how far back this could
go. I say that in the practical sense that we have cases that are currently
working their way through the system. One that comes to mind immediately is the
case of Turcotte. I'm choosing my words very carefully here, given that there
are considerations before the courts right now that this legislation could
impact, but there are components, if you will, of this legislation that could
impact persons who are currently in the system; that is to say, the
determinations of this high-risk designation could attach to some of those who
are currently in the system. The number is very small, as I said. We're talking
about a very limited number of cases in which this designation would attach.
Senator McIntyre: Thank you, minister.
Bill C-14 is the old Bill C-54, which died on the Order Paper. Bill C-54 was
debated in the House of Commons. It was then exhaustively studied by the
Standing Committee on Justice and Human Rights. My understanding is that the
committee heard from more than 30 witnesses from a wide range of backgrounds and
professional experience. All of these witnesses presented valuable viewpoints on
what is now Bill C-14.
I note that there were two amendments made by the standing committee. The
first amendment was in relation to victims' rights. The second amendment
provides for a parliamentary review of the mental disorder provisions five years
following Royal Assent. Obviously, the bill focuses on public safety and
enhancing victims' rights.
Do you see the need for further amendments to this bill?
Mr. MacKay: That is within your wisdom and your purview. I think every
minister would try to have you believe that the bill is in its perfect form when
it is tabled in either house, but I am not a minister who, having practised law,
having seen the living tree up close, views legislation as ever beyond any
constructive criticism. Take that as a very open signal that upon your
deliberations and upon hearing from witnesses, many of whom have great expertise
in this field, we are open to amendments. The sober second thought that occurs
here is very important to this process. This is the very essence, I would
suggest, of good legislation.
The Senate, I know, will examine this very rigorously. You, sir, are one of
the foremost experts in the country on this particular area. I look forward to
and am very open to any proposed amendments that come forward in this process.
Senator McIntyre: Thank you, minister.
Senator Joyal: Welcome, Mr. Minister. The sections of the bill that
propose or have the effect of excluding somebody from their community of origin
are very serious ones, in my opinion. There have been decisions of the Supreme
Court in relation to the capacity of a community to exclude or exile someone. We
can understand that there might be trauma on the victim's side to see again a
person who has committed a crime of a serious nature. They would, of course, be
troubled by the presence of somebody. Nevertheless, the Charter provisions are
quite clear, and the courts have already established the parameters for the law
to be respected in relation to that.
How are you satisfied that those provisions of the bill could stand the test
of the criteria that the Supreme Court has already established in relation to
Mr. MacKay: It comes back to, I believe, in part, Senator Baker's
question and comment with regard to the necessity to protect the public. The
very essence of the bill is the recognition that high risk not criminally
responsible accused are in a category above and beyond the traditional
definition, the traditional finding, wherein the exhibited behaviour of violence
towards the public, towards specific individuals, in the case of Tim McLean,
necessitates this higher threshold that allows the system and society at large
to put greater restraint and, in fact, to bring about this exclusion, this
removal from society, this exclusion from community. That is fundamentally
necessary to protect individuals from that behaviour for which an individual has
Yes, it is a very serious decision, and that is why I believe the parameters,
the safeguards and the process implicit in this bill not only meet
constitutional requirements and scrutiny but also strike that balance. They put
in place a further level of protection that, by the way, empowers judges further
in this instance. It requires now not only the review board in its wisdom and
its examination of circumstance but also puts in a further step where the
individual is now to go back before the court and have the review board's
decision examined further. Crown and defence counsel, on behalf of the accused,
have a further opportunity to present their evidence as well.
Senator Joyal: How far can you exclude somebody from a community? For
somebody from a small community, in a remote area, how far away would you
exclude that person to meet your threshold of public safety protection?
Mr. MacKay: This is a very big country; but, I would suggest to the
nearest and safest secure forensic unit. In the context of this bill, that's
what we're talking about. I think it's important that the public understand that
individuals who are deemed by the court of competent jurisdiction to be not
criminally responsible or not fit are not going to jail. They're going to a
secure medical facility for the purposes of treatment.
How they respond to treatment and when they are deemed ready and appropriate
to return to their community, to society at large, is very much the purview, the
responsibility, of medical experts, forensics, psychiatrists, as well as the
legal system working in tandem.
Senator Joyal: The Supreme Court in its previous decision, as you well
stated in your opening remarks, has established quite clearly the principles
that have to be balanced. The bill proposes to give to one of those elements a
Is this decision or proposal based on the review of a certain number of cases
whereby you came to the conclusion that the courts have erred in their
appreciation of the balancing of those principles?
Mr. MacKay: That's a very astute observation. I would put it this way:
Where courts previously have considered all of these factors together, I would
describe that the overwhelming necessity and responsibility to protect the
public is the ring fence around these other considerations. They have to occur
in unison, but the protection of the public element that is at the core of this
legislation I believe is emphasized with good reason, is given greater
prominence and, therefore, yes, greater weight in those deliberations, that the
protection of the public has to be the paramount consideration. I personally,
fundamentally believe that.
Senator Plett: Thank you, minister. First, let me say how happy I am
about the fact that you believe Vince Li would fall into this category. My first
question is based around that.
Justice Schneider in an article that he wrote says that Vince Li would not
fall into this category. I'm not going to ask you to get into Justice
Schneider's mind here and say why he believes that, but what can you tell me to
assure me or this committee that what you are saying in fact is correct? I'm
certainly going to ask Justice Schneider about that when he appears before this
committee I think later today. If you could elaborate a little bit on that, I'd
Mr. MacKay: Thank you very much, Senator Plett. I would answer your
question this way: I believe that previous behaviour is one of, if not perhaps
the most prevalent, indicator of future behaviour. I think that there are always
exceptions to that. When it comes to extreme violence, as was the situation in
the Vincent Li case, I think there's an obligation on all of us, weighing a lot
of factors, to examine very closely the circumstances in which we can, to the
greatest extent possible, avoid a recurrence of that type of violence.
I'm really trying to avoid being drawn into a discussion too specific of the
details because there are still deliberations going on there. But to talk more
in the abstract, when you have cases where there is random violence, for
example, violence that appeared to be so out of the ordinary, so brutal — to
return to the conversation and exchange with Senator Baker — so random, directed
towards an innocent individual who happened to be in the wrong place at the
wrong time, that is when I believe in this calibration that we are trying to
make to bring about a greater degree of both protecting the public but putting
in place gateposts, if you will, or gates that a person must pass through before
they can return to their community, before they can, in the view of experts,
safely reintegrate into society with the greater assurance that violence won't
be perpetrated, that further offences will not be committed. I believe it's
incumbent certainly on all of us, and the justice system in particular, to try
to make those changes to improve that standard and, again, with the very real
obligation to protect the public.
Senator Plett: I appreciate that answer. I think many of us have been
visited in the last few days by different organizations in regard to some
amendments. I was as well. The group has proposed three amendments, but I want
to focus on one that they are suggesting. It deals with the reverse onus.
I know that this bill was in a different form a while ago, Bill C-54. I
wasn't on this committee and I don't think you were Minister of Justice at that
time, but they told me yesterday that in fact the Justice Department had argued
that the reverse onus was a very important thing. Now we're being told that
there isn't reverse onus. I'm not saying that I have any issue with reverse onus
and I think there should be some. Nevertheless, is there a reverse onus in this
bill? What is the responsibility of the person who is found not criminally
Mr. MacKay: That's a very good technical question. Unlike the initial
hearing to determine whether the NCR accused does in fact meet that
categorization of high risk, the revocation hearing in order to have that
designation removed, this is initiated by the recommendation from the review
board itself. As such, the provision does not assign the burden on any
When you talk about a reverse onus, I would phrase it this way: the onus, the
burden, is shared by all the parties. The process is very much, as I described,
inquisitorial. It's meant to delve into the circumstances of the individual, of
the case, of the treatment, to make a determination so the court can be
satisfied, based on everything that's presented to them at that hearing, that
the substantial likelihood the accused would use violence again, endanger life,
commit another offence, that the substantial likelihood test has been met — that
they wouldn't, or that they would. You don't enter into that process with a bias
or a burden. You enter into it with the hope that both sides will present
evidence for or to the contrary to allow the court to make a determination.
Senator Frum: The committee has received a letter from the Canadian
Bar Association expressing its non-support for the amendment of section 7 that
would give the victim on request the NCR accused's intended place of residence
on discharge. Among their reasons of opposition includes their view that this
would violate the accused's constitutional right to privacy and also that it
represents vigilante justice. Could you comment on that?
Mr. MacKay: Sure. It's a question that I was asked in the context of
another bill that we have just introduced to Parliament involving sexual
predators, vis-à-vis children. Public disclosure that provides the public and
provides officials, police, with information on the whereabouts of accused even
after release does, in the mind of some, create this possibility of vigilantism,
of a risk to the offender. That is something that does have to be considered.
But I answer your question this way: I come down on the side of protecting
individuals, particularly those who are vulnerable. I come down on the side of
the obligation that our justice system, those tasked with protecting the public,
has a very high degree of responsibility. This is not to expose offenders to
further risk of public backlash, vigilantism, call it what you will. This is
simply making a choice that the higher standard here has to be in favour of the
innocent, law-abiding public.
In the case of child victims of sexual assault, I can tell you, as a new
father, that there is nothing about which I think we have a moral obligation of
any higher order than to protect children.
You are all very well versed in the choices that have to be made. The system
of justice is depicted as a balance. The balance causes us to weigh these
considerations very carefully. I come down on the side of protecting children
and, in this case, protecting the public from an individual who, albeit of
diminished capacity, has a proven record of a propensity to violence. I think
the public has a right to know if that individual is in their neighbourhood or
if that individual is in their community. Then, armed with that information,
they can make better decisions as to how to protect themselves and how to avail
themselves of certain protections and preparations.
Senator Rivest: I have two concerns. I listened to Senator Plett's
comments and your response about reverse onus. Is this provision really a key
component of the bill? It seems to override normal practices somewhat, and this
is a question of mental health. I do not want to blow this out of proportion,
but I feel that the process is a cause for concern.
My second point has to do with Senator McIntyre's comments about the
retroactivity of the bill. In your response, you mentioned the high-profile case
of Dr. Turcotte, which is again before the courts. However, if I read the bill
correctly, the retroactivity of the bill would apply to anyone currently being
rehabilitated or who is in the process of receiving care. There are no
Did you consult people who are familiar with mental health issues to
determine what effect this could have on those with mental illness who are well
on their way to recovery? This provision makes them vulnerable to recognition
and they may relapse. There is no guarantee that they will not be considered
high-risk under this retroactivity. Did you consider that aspect of your
Mr. MacKay: That is a good point. To begin, I believe that this bill
focuses on people in unique circumstances.
What we're talking about here are individuals who, because of very serious
issues of mental health, of capacity and of appreciation of not only the law but
also of social norms and values is diminished because —
Senator Rivest: A right is a right, whatever the number.
Mr. MacKay: Absolutely, but at the same time, a person's ability to
appreciate their own behaviour is the very reason.
That is the very reason the bill exists, and the same can be said of the law
that is now part of the Criminal Code.
In answer to your first question, I would say that, yes, I think that because
of the evolution of our system, certain nuances that exist within the existing
Criminal Code sections, an examination of recent cases and feedback that we have
received from the public, stakeholders, participants and victims, we believe
that these changes are necessary and do create a new threshold, a higher
standard, if you will, and mechanisms that are attached to it to protect the
public and insert further scrutiny by the courts in this instance.
To come to your question about retroactivity and its application should this
bill come to pass, it's important to know that the system is continuing. Anytime
you're changing criminal law, there is no ability to hit pause and to put those
cases on hold until we pass the law. We cannot freeze a moment in time and say,
"We're going to stop all criminal activity." If only we could.
For individuals who are currently in the system, unless they've been
absolutely discharged — and that is the notable exception — these sections could
attach. They could very much affect the future decision by a Crown prosecutor to
make application that the high-risk designation, if we're looking at that
particular part of the bill, be sought. Then the process would begin and would
have to be followed, whatever the final iteration of this bill.
I would say, again, that these are exceptional circumstances where there is a
retroactive element to this bill. Again, I underscore what we're trying to
accomplish here, which is to protect the public from individuals who have past
proven behaviour that is of a high-risk, brutal nature that justifies putting
this protective scheme, if you will, in place that has a high degree of
scrutiny, of judicial intervention, if necessary, and of involvement of
officials who are tasked specifically, as was Senator McIntyre in a previous
career, to look at all of the circumstances and make good decisions for the
individual and for the public.
The Chair: We have three senators with questions and limited time. I'd
ask senators to try to tighten up their questions so that we can accomplish that
with the time left for the minister.
Mr. MacKay: I will take your admonition as well, Mr. Chair; shorter
Senator Dagenais: Thank you for being with us, Mr. Minister. It is
always interesting to have you appear before committee.
To start, you mentioned the Turcotte case in Quebec. I think the cruelty of
that crime shocked the entire nation. That said, I would like to revisit the
high-risk designation. We know that it will affect a small number of people. The
Crown would have to apply for this designation, and the onus is on the Crown to
prove that the individual is part of that high-risk category. Can you tell us
more about the designation of high-risk individuals?
Mr. MacKay: You raise a very good point. The Crown must demonstrate to
the courts that the high-risk designation is justified. There are a number of
aspects involved in that. First of all, the offence has to have been a serious
personal injury offence. I believe that it is a very reasonable proposal, one
that strikes a balance between public safety and the importance of high-risk
individuals receiving the help they need. The objective is always to achieve
that balance. We want to protect the public and victims.
At the same time, we are trying to prevent high-risk offenders from
committing another crime.
It is impossible to track and predict human behaviour 100 per cent of the
time in all cases. However, when criminal infractions occur, especially violent
criminal acts, that is when our system is designed and designated to step in.
These are very specific circumstances when a person's mental health is brought
into play. Therefore, a very specific forensic, scientific response is part of
the equation, but it still has to operate in a way that separates the individual
from the possibility of future harm.
Senator Batters: Thank you very much for being her, minister.
Spurred on by tragic events in my personal life, over the last five years I
have worked very hard to destigmatize mental illness in Canada, and I support
this bill. In my view, it does not stigmatize mental illness. Five million
Canadians suffer with mental illness over the course of their lifetime.
To your officials, I'm curious to know how many offenders of all kinds we
have in Canada. I'm trying to demonstrate that so many people suffer with mental
illness, but a very small percentage of those people would be subject to
anything remotely like this type of legislation.
Critics of not criminally responsible legislation argue that this bill might
stigmatize individuals with mental illness, so I'm wondering if you can address
that criticism to the committee. Also, please address how this legislation might
actually help protect the reputation of those suffering with mental illness.
Perhaps your officials could let me know how many offenders in general we
have in Canada every year, and then I'm wondering about what percentage of
offenders would be subject to this bill — so it would be the NCR people we would
be dealing with under this bill. My impression is that it is a very small number
compared to the massive number of people who unfortunately suffer with mental
illness in Canada.
Mr. MacKay: Thank you, senator, for the question. Thank you as well
for having become the leading voice that you are on issues with respect to
mental health in Canada. We admire you very much for that.
I don't have the large overall figures that you are seeking, but I will
undertake to get them to this committee. Some of those figures would have to
come from the Department of Public Safety and from our penal institutions, but
we will try to get those exact figures.
But I can tell you that in terms of the number of individuals affected by
this legislation, I'm told that less than two in a thousand adult offenders who
would come before the courts would avail themselves or be found not criminally
responsible. So the numbers are in the fractions. Then, to take it further, to
come back to this legislation and who would be designated a high-risk not
criminally responsible offender, that would again be a fraction of that number.
Your point about stigmatization — much like Senator Frum's reference to
vigilantism — is something that I have heard and certainly contemplated. I
believe this bill actually does the opposite of creating or furthering
stigmatization. I say that because by designating, within that category of not
criminally responsible, individuals who are deemed to pose a higher risk of
violence or of being capable of brutality, I believe that should actually cause
the public to say, "Well, not everybody who is not criminally responsible is a
risk or poses the potential for further violence or brutality."
I believe we have a very mature, informed public. These cases inevitably
receive a tremendous amount of attention through the media and other forms of
communication. When it is properly presented, when people are properly informed,
when you examine the desire to protect the public and look at the very rigorous
process that one goes through to arrive at that point of an NCR high-risk
accused, it doesn't further stigmatization.
It is a category of offender who, for reasons of protection of the public and
necessity — for them to get treatment. And let's not lose sight for a moment of
the fact — and I said this earlier — that these are individuals who are going to
forensic hospitals and to approved medical facilities where much of the
treatment is brought about by prescription drug use.
Not to get off topic here, but this is one of the more troubling aspects
within the mental health system that you are familiar with: An individual may be
fine while on medication and while under supervision to take that medication.
The difficulty often arises in the refusal to take the medication, for a variety
of reasons; there are very often severe side effects that result.
Having a mature, open discussion about this does a lot and goes a long way to
reduce stigmatization. I honestly believe that the very specific definitions
that attach throughout this bill and the way in which we have carefully chosen
the language lessen stigmatization when it comes to mental health issues and to
specific not criminally responsible findings.
The Chair: Senator Plett referenced the groups meeting with us. One of
the issues that seems to be fairly common among those who have concerns about
the legislation deals with clause 10. It defines some of the criteria a review
board must consider for all those found NCR, not just the high-risk accused. I
will quote from it. It says:
. . . a significant threat to the safety of the public means a risk of
serious physical or psychological harm to members of the public — including
any victim of or witness to the offence, or any person under the age of 18
years — resulting from conduct that is criminal in nature but not
Could you explain how the review board would define a risk of "psychological
harm"? It seems to be pretty subjective. Also, what kind of conduct would be
required to meet that test?
The concern is that it would be used to keep patients in custody because some
members of the public might fear them, whether or not they pose an actual
threat, and there could be more streaming into the criminal system rather than
through the NCR process.
Mr. MacKay: Yes, there is a very fine needle to thread. Much of the
language inserted here — and I know, Senator Runciman, that you are very
familiar with our criminal justice system — is drawn from the Winko case.
It is a codification of much of the language and the considerable deliberation
found in that particular Supreme Court case.
As to your point about how these sections would apply, as with all criminal
legislation, it would require a high degree of discretion on the part of the
police and Crown attorneys as to how to proceed. Finally, the safeguard would be
these review boards and judicial oversight.
But we included the language of both physical and psychological harm because,
again, in the context of the very bill, we have a heightened understanding of
the psychological harm that also attaches when violence occurs. When violence
occurs in the presence of many people, that can be just as harmful and
debilitating, quite frankly, as a physical injury. That's the reason for the
language, the origin being Winko and other cases where they have examined
the far-reaching harm that can flow from acts of violence, regardless of who the
perpetrator is. If the perpetrator does so because of mental capacity issues,
then we're streaming into this process of NCR.
The Chair: Thank you, minister. We've exhausted the time. We
appreciate your appearance here today with your officials. I'm sure we'll see
you again in the near future.
Mr. MacKay: I hope to be back soon.
The Chair: Our next witness today, from the Ontario Review Board and
Review Boards of Canada, is the Honourable Mr. Justice Richard D. Schneider, who
is the chair. I had the honour of introducing Justice Schneider just a few years
ago, back in 1993, when I chaired a committee in the Ontario legislature.
It is great to see you again and we're looking forward to your presentation,
Hon. Mr. Justice Richard D. Schneider, Chair, Ontario Review Board and
Review Boards of Canada: Mr. Chairman, it's nice to see you as well. Thank
you, as well, to honourable members of the committee for having me speak today.
Mr. Chairman, as the minister alluded to earlier, the committee is indeed
fortunate to have in-house expertise in the form of Senator Paul McIntyre, who I
have known for, I don't know, probably 20 years. I can assure you he is as
versed in these matters as anyone.
I don't have any specific remarks prepared, but I do have comments that I
would like to make. For the sake of continuity, perhaps it would be useful to
follow the format set out by the previous speaker, the minister.
I agree with the minister that while there are bits and pieces off to the
side, there are four main areas of interest with Bill C-14. The first has to do
with the considerations at the outset of 672.54 underlining public safety as the
paramount concern; second, the business of enhanced victim notice; third, the
business of replacing, in section 672.54, "least onerous and least restrictive"
with "necessary and appropriate"; and fourth and finally, the so-called HRA
Perhaps I should start with the easy one — public safety. As the minister
indicated, there's no contest here. Prior to the courts weighing in on the
matter, I can assure you that the review boards across Canada had always
considered public safety to be the paramount concern. The courts of appeal and
the Supreme Court of Canada have since made that the common law. What we're
really talking about here is the codification of the common law, which tomorrow
would change absolutely nothing.
The review boards take no position with respect to the enhanced victim notice
provisions. Comments that have been made with respect to those enhanced
notification provisions have been along the lines that they may be antithetical
to the position you sometimes hear that the victims don't want to be drawn into
this arena further, and that that process constitutes a form of
re-victimization, yet the enhanced victim notice provisions, some would argue,
draw them deeper into the pool. Nevertheless, the review boards take no position
with respect to those parts of the bill.
With regard to the business of replacing the "least onerous and least
restrictive" test in section 672.54 with "necessary and appropriate," it is,
frankly, an odd change. No one that I'm aware of has been able to offer an
opinion as to what kind of change this is designed to signal. Is it a
qualitative change or — raising or lowering of the bar — quantitative change?
Senators, you will notice that it is a conjunctive test. When would a
disposition be necessary but not appropriate or appropriate but not necessary?
I have to say I was somewhat confused about the minister weighing in on this
provision in that he said this was somehow in line with Winko, but the
courts and/or review boards would nevertheless be imposing the "least onerous
and least restrictive" disposition.
I think I'm with the group that would say, "We're not too sure exactly what
this means." The biggest concern — I think it's common ground — has to do with
the business of the high-risk offender provisions. It has been said — I guess
I've been among those who have said it — that Bill C-14, or erstwhile Bill C-54,
is odd in the sense that often we seek to amend legislation because of perceived
deficiencies. We want to plug a hole because there was a hole in the legislation
that allowed some bad event or set of circumstances to arise.
Implicitly, I think it's fair to say that the impetus for Bill C-14 has been,
at least in the media, a handful of outlier cases that really in no way
represent the bulk of close to 5,000 accused in Canada who are subject to the
jurisdiction of provincial and territorial review boards.
Coming back to my point on HRA, we must remind ourselves that these
individuals — Vincent Li, Guy Turcotte, Allan Schoenborn — were not subject to
the jurisdiction of this legislation at the time of the commission of these
heinous acts. Those provisions kicked in upon the verdict of NCR. These were
provisions that applied to them after the commission of the act. Therefore any
correction or adjustment to Bill C-30 or Part XX.1 of the Criminal Code is not
one that would have reduced the probability of these horrible events having
occurred. Sometimes that point, while a bit of a nuance, is missed.
On the other hand, I would submit that all of the data available, indeed data
financed or supported by the federal government, suggests that the present
review board scheme under Part XX.1is perhaps a notable exception, one that's
been working extremely well. The recidivism rates for individuals who come out
of the review board system are exceptionally low — lower than for offenders
coming out of any other portal, whether parole, probation or placed onto the
streets on judicial interim release orders, things of that sort.
Others have said, and I think I may have been one of them, "if it ain't
broke, don't fix it." There is the argument that nothing needs to be done.
There's also the argument that Bill C-14 might actually make things worse.
The impetus clearly is one driven by a concern for public safety. As I have said
before, there is no debate between those who are concerned for public safety and
those who are concerned for the rights of accused. That is a false debate.
Everyone involved in the business is concerned for public safety. Everyone in
the business recognizes that public safety is a paramount concern.
The proper debate is: How do we best achieve public safety? I would say to
you that Bill C-14 proposes a set of changes that has the potential to make
things less safe rather than more safe. Here is why, and Mr. Chairman please
flag me if I'm going over — I was told I had five minutes and I am confident I
am over that.
With provisions like the HRA in Part XX.1 of the Criminal Code, I, as a
lawyer going back a few careers consulting with my mentally disordered client
and considering tactically which way to respond to these allegations, would have
to discuss with my client the potential that an HRA designation may be made
against him or her. As the minister indicated, that would potentially cause my
client to be locked in a secure psychiatric facility with no privileges for up
to three years with no review, whether or not hospitalization was indicated.
That might cause my client to instruct me to avoid Part XX.1 of the Criminal
Code. My instructions might be, "Counsel, I think I'll take my lumps in the
regular prosecutorial stream."
You have an individual who under the current scheme might have availed
himself of the provisions of Part XX.1, avoiding those. NCR is a defence, one
that the accused can elect to avail himself or herself of. To the extent that
individuals could decide as a result of these provisions to skirt Part XX.1,
they will come, as you know, senators, to warrant expiry. I'm from Toronto, and
they have the potential of being dropped on Yonge Street, wearing an orange suit
and having received no treatment, with their prognosis worse as a result of
being a mentally disordered person and kept in a jail — and we know from the
Ashley Smith inquiry that that is counter-therapeutic — with no supports, no
treatment, probably no assistance and nowhere to go — a very dangerous situation
that escalates the probability of recidivism.
Committee members, while I agree with the minister that perhaps the HRA
provisions may pertain only to a small number of those in the review board
system, I think the numbers to look at are those who, as a result of these
provisions, might avoid Part XX.1.
I might also comment parenthetically that the infrequency of the application
of a settlement of provisions in no way validates those provisions. If they're
bad, they're bad, whether they're used frequently or infrequently.
My great concern is that while I applaud the government for the direction
they want to take in improving public safety, all of the data is saying turn
left, and the bill proposes that we turn right.
I've gone well over my time limit and would be pleased to answer any
The Chair: We will begin with the Deputy Chair of the Committee,
Senator Baker: I would like to thank the witness for his presentation.
I feel like not asking any questions because I found his presentation to be
fascinating and very informative and go to other members of the committee, who
might perhaps disagree with what the witness has said. I can't find anything
that I disagree with, which is very unusual.
Mr. Schneider: I'm a judge, sir; no one can disagree.
Senator Baker: You are before a committee; this is a judicial
proceeding under 118 of the Criminal Code.
What I find most interesting about your presentation is that you said this
could lead to an increase in the number of persons who have mental problems in
Mr. Schneider: That is an inevitable outcome because for every one of
my clients who instructs me, as a lawyer, to avoid Part XX.1 and proceed down
the regular prosecutorial road and in the event that they are convicted, that
same mentally disordered individual ends up in one of our correctional
Senator Baker: When the charge is laid by the police, the person
charged has the right to instruct counsel and so you have your meeting with your
client. You go over the consequences and explain the options and what happens if
you go one route and what happens if you go the other route. You are saying that
the person might choose the route of going through normal court proceedings and
not getting into the matter of not criminally responsible.
Mr. Schneider: That's right. My responsibility as counsel is to advise
my client to all liabilities that he's exposed to going down, whichever channel
he might choose, and the relative probabilities.
I can tell you, sir, that I go back a long way, prior to the proclamation of
Bill C-30, where we are dealing with the lieutenant-governor's board of review.
Bill C-30 injected into the system a breath of fresh air, a very dramatic change
in the legislation. Prior to that, as defence counsel, it would be seen by my
defence colleagues as tantamount to negligence to raise deliberately either the
issue of unfit to stand trial or not criminally responsible on account of mental
disorder — not guilty by reason of insanity in those days — in anything but a
homicide, attempted homicide or something of that ilk because the consequences
of raising the verdict could be so grossly disproportionate to the gravamen of
the offence that the accused was facing. When you put provisions like this back
into Part XX.1, the risk arises that the same kind of tactic will emerge within
the defence bar.
Senator Baker: You are suggesting that the reasons for introducing the
legislation are perhaps based upon some high-profile cases.
Mr. Schneider: I can't know the mind of the government. I am a regular
consumer of the media and I think it's implicit that a number of dramatic cases
have been headlined, and following that there are proposed changes to Part XX.1.
The dots we are asked to connect, I suppose, are that if we change the
legislation, perhaps the public will be safer and implicitly things like this
As I was saying at the outset, those customers who have committed these awful
outlier offences were not subject to this legislation at the time of the
commission of those acts anyway. Changing our legislation will in no way reduce
the probability of a future Vince Li coming along or a Mr. Turcotte. They are
Senator Baker: In your opinion, this is a substantial change in the
Mr. Schneider: And underline "substantial."
The Chair: I will ask a quick supplementary. If you don't use the NCR
defence, which is what you are referencing, is there not some type of
professional obligation in such cases? Would it not perhaps be interpreted as
professional misconduct if a lawyer willingly and knowingly didn't raise this
defence for someone who is clearly not criminally responsible? Is that not a
Mr. Schneider: I don't think so, sir. The reason is that if you go
back to Swain you will see observations like that made by Justice Lamer.
With the proclamation of Bill C-30, which came subsequent to Swain — in
fact Swain was what sent everything back to Parliament, as you know — we
still use this term "defence," but really the NCR verdict is a separate and
distinct verdict. It's not an acquittal, it's not a conviction and it's not
something in between. It's a discrete entity unto its own.
As a defence lawyer, there are many things that may or may not work, but for
the mentally disordered accused, his or her objectives are no different than any
other accused. Their key objective is "fastest path to liberty," I can tell you
that. As long as my client is not instructing me to do something that is illegal
or in some way misleads the court, whether he or she elects to avail themselves
of a defence is entirely within their prerogative. I think it would be, on the
contrary, irresponsible to force a path or legal response upon an accused that
was inconsistent with where they wanted to go.
Senator McIntyre: Thank you, Mr. Justice Schneider for appearing here
today and for your presentation. It appears to me that you have concerns
regarding the high-risk designation by the courts.
Mr. Schneider: Yes.
Senator McIntyre: I would like to go over with you —
Mr. Schneider: Well, not just the fact that it's by the courts, but in
Senator McIntyre: In general, yes. I would like to cover that angle
with you and, more particularly, as it relates to the high-risk designation.
Under the current law, the court finds an accused person fit to stand trial.
Under the current law, the court finds an accused person not criminally
responsible by reason of mental disorder. Under the current law, the court also
finds a mentally disordered offender unfit to stand trial.
The court also confirms the finding of fitness to stand trial after the
review board has found the mentally disordered unfit to stand trial, as you
know, and it orders that the matter be sent to court to render a verdict. The
court also grants a stay of proceedings in the case of a mentally disordered
offender following a recommendation by the review board, as long as the accused
is permanently unfit to stand trial and does not represent a significant threat
to the safety of the public.
The court also has the first choice in rendering a disposition, not the
review board. I know that the courts have the first choice, but they don't
always render a disposition. Very often they simply refer the matter to the
review board to render a disposition after they have found the accused not
criminally responsible on account of mental disorder, and the list goes on.
Now with Bill C-14, as in the case of NCRs, fitness to stand trial and stay
of proceedings, the court would designate a mentally disordered offender as a
My question is: In what way is Bill C-14 lessening the power of the review
board by passing it to the court? After all, it is the court that hears the
facts of the case after an offender has committed a very serious criminal
offence and appears in court for the first time.
Obviously after the HRA status, the court remands the accused to a hospital
facility, will not grant a conditional or absolute discharge, and the matter is
then turned over to the review board. The review board holds a first hearing,
which needs the consent of the accused and the Attorney General, and the board
will keep holding hearings until, as in the case of NCRs, fitness to stand trial
and stay of proceedings, make a recommendation to the court that the high-risk
designation be revoked. I would like you to enlighten me a little further on the
role of the review board as opposed to the role of the courts.
Mr. Schneider: You've set out the provisions perfectly. That's exactly
the way things work. Whether or not it's the court managing the HRA or the
review board, I can comment on that. As you know, courts are generally not in
the business of making dispositions upon a verdict of NCR or unfit, and that's
for a complexity of reasons. Typically the courts, at that first instance, don't
have what he we call sufficient disposition information and could not move ahead
in in any event.
The courts — and I know, senator, you understand the scheme — don't have the
first decision as to whether or not to make a disposition at first instance. It
would only be upon one of the party's applications to the court to hold a
hearing, to make an initial disposition.
There are some exceptions, like the mental health court in downtown Toronto,
but courts are generally — "timid" would be the wrong word — unfamiliar with
these sorts of matters, sometimes uncomfortable. When a court is uncomfortable
or perhaps not as familiar as they might be, their decisions tend to be quite
conservative. For that reason, counsel are, at first instance upon a verdict of
unfit or NCR, very unlikely to ask the court to make that initial disposition.
With the HRA provisions, as you know and pointed out, there is no disposition
to be made. Upon the HRA designation, the review board's hands are tied. There
is nothing that can be done. That accused is locked up in a maximum security
hospital with no privileges, whether or not hospitalization is indicated or
might even be contraindicated. As you members all know, forensic psychiatric
beds are very rare and expensive commodities in Canada. We cannot be squandering
those on individuals who don't need them, where it is clinically
contraindicated, where there are lineups out the door with individuals who
genuinely do need those hospital beds.
Senator McIntyre: After the high-risk designation has been made by the
court, you're absolutely correct, the accused person is sent to the hospital
facility. But he can leave the hospital facility for two reasons: medical
reasons or further medical treatment. There has to be a structured plan in
Mr. Schneider: Senator, as you know, those provisions have always been
in place for individuals even held at maximum security psychiatric hospitals.
The way those are generally interpreted is those exceptions are for necessary
medical and dental emergencies. They are not designed to nor do they anticipate
rehabilitation in a broader context, as you might include terms in a regular
disposition under section 672.54. I am anticipating that Parliament's being
consistent here. Those exceptions in 672.64 are to deal with medical or dental
Senator McIntyre: Perhaps another final question, if I may.
The Chair: No, I'm sorry. We've chewed up about eight or 10 minutes on
Senator Joyal: Welcome, Mr. Justice Schneider. I would like to come
back to one of the elements of your presentation, the one at the bottom of page
1, when you say that Bill C-14 creates a scheme where mentally ill individuals
obtaining verdicts of NCR are incarcerated in a hospital bed for up to three
years without review. In your opinion, why did the bill choose a period of three
years and not two years? On what facts, in your opinion, is the three-year
Mr. Schneider: I don't know. I don't think that's ever been addressed
in anything I've read. It could have been three, four, five. What's the magic in
three, is your question? I don't know.
Senator Joyal: I was trying to rationalize in my mind the three years.
I said maybe, on medical grounds, it's based on a clinical conclusion that you
need that span of time to see the evolution of mental disease to a point whereby
on a three-year basis you can come closer to a real conclusion than just in a
year. That's why I was trying to understand the scientific basis for three years
instead of two or four.
Mr. Schneider: You can have the benefit of hearing from my colleague
Dr. Simpson, who is a medical expert, but to the best of my knowledge, three
years does not correlate with any medical benchmark along the rehabilitative
trajectory. If there is some magic to it, it's a magic that I'm not aware of.
Senator Joyal: In your opinion, if there were a possibility of review
based on criteria during the three-year period, would it, in your opinion,
improve the bill to a point where it would be more acceptable?
Mr. Schneider: Sure, obviously, but I would really want to underline
again that I don't think that the HRA provisions are going to take us down the
road we want to be travelling, in any event. Obviously, if that's the way it's
going to be, more reviews are better than less reviews.
I put it this way once: If you have a pot in the kitchen that you think is
about to boil over, do you want to check on it every ten minutes or every two
minutes? Obviously, if you think you have a dangerous situation, the more
frequent reviews, the better.
Senator Joyal: Which improvement in your opinion would the bill need
most to make it less damaging to the conclusion that you have outlined?
Mr. Schneider: As indicated at the outset, sir, and I'm only speaking
wearing the hat of a review board chair, the public safety paramountcy, fine;
the enhanced victim notification, fine; the "necessary and appropriate,"
confusing — we're not too sure what it means. To my mind, the real danger in the
bill is contained within the HRA provisions.
Senator Joyal: You don't see any way for us to —
Mr. Schneider: Salvage it?
Senator Joyal: — to alleviate that kind of concern?
Mr. Schneider: Not from my perspective, sir.
Senator Plett: Thank you, Justice Schneider, for your comments. I want
to continue along regarding what Senator Joyal already asked.
The way I understand the bill, and correct me if I am wrong, but I'm reading
Library of Parliament notes: "Furthermore, the review board may decide to extend
the review period for up to three years . . . ." I don't take that as that they
can't do it every year if they so choose, and it is indeed the review board, not
the courts, that decide if they want to continue with a review every year.
Senator Baker: That's right.
Senator Plett: So what's the danger in just saying they may decide to
extend it? If the review board wants to do this every year, they can continue to
Mr. Schneider: It wouldn't be the review board wanting to do anything
on its own motion. It would be upon an application by one of the parties that
the review period is extended for up to three years. You're quite right; it's
exactly the way it reads.
The HRA designation doesn't contain with it an automatic three-year
incarceration in a hospital without review. What it does speak to is the level
of privileges and access to the community that the accused has, which are none.
Yes, you're quite right, sir: The business of three years is an application
that would have to be made by the Crown attorney. The review board would have to
consider the evidence and submissions and, on the basis of that, go along with
it or not.
Senator Plett: And it likely would do so only in the most serious of
Mr. Schneider: One would hope; or, conversely, they might think the
more serious case requires more frequent review, as your colleague alluded to.
Senator Plett: You mentioned earlier that I had put you on notice for
my next question.
Mr. Schneider: You did, sir.
Senator Plett: I will ask that question. I want to read a little bit
of a quotation out of an article in The Globe and Mail, which uses
something similar to your pot boiling. One psychiatrist who used to work in
Ontario's system for those not criminally responsible said, in an interview with
The Globe and Mail:
"Psychoses in an individual tend to follow a pattern. If you get paranoid
when you're psychotic once, you're going to get paranoid in a similar way
another time. If you get paranoid enough to kill once, you get paranoid
enough to kill another time." . . . This psychiatrist compared community
supervision of people like Mr. Li to allowing babies to sit by a pool,
subject to checks every five minutes. Drownings would occur.
If somebody doesn't take his or her medication and we aren't checking up to
see if they take their medication, do you not agree that that is very dangerous
and drownings would occur? Could you comment both on that and why you believe
Mr. Li would not fall into this NCR category?
Mr. Schneider: I know the quotation you're referring to, and I, just
to sum it up, don't agree with it.
Let me speak to the question you put to the minister regarding the fact that
I think I had said that Vincent Li may not qualify for an HRA designation.
Implicit in the HRA provisions is an assumption that the gravamen of the index
offence is in some way correlated with the danger that the accused poses. If you
read the provision, and this would be the hook presumably that Mr. Li, if any,
would be caught upon, that he might have committed an offence — and I'm
paraphrasing — of such a brutal nature as to indicate a risk of grave physical
or psychological harm.
The connector there is "brutal nature as to indicate a risk." The problem,
the misunderstanding in the legislation, is that brutality is in some way
prognostic; that if you commit a brutal offence, that means you are in the
future going to be more dangerous. There is not a correlation between the nature
of the index offence and one's subsequent dangerousness.
Let me put it to you another way. You will often have an individual come
through the review board system with a verdict of NCR all in respect of a
relatively pedestrian matter that wasn't particularly serious. Nevertheless, the
verdict was obtained and the review board reviews him. The psychiatric reports
coming in indicate that this fellow is very dangerous, very unstable, resistive
to treatment, responding to command hallucinations, and is very dangerous.
Conversely, you can have an individual obtaining a verdict of NCR who has
committed an atrocious offence, but they were unstable at the time, sometimes
through no fault of their own, sometimes through manipulation of medications
while under a doctor's care. Sometimes those individuals are hospitalized, put
back on the rails very quickly, in remission in a matter of months, and
compliant with treatment. Notwithstanding the brutal nature of the index
offence, they can get to that magical point in Part XX.1 where nobody can
demonstrate that they constitute a significant threat to the safety of the
Senator, all I was saying with that comment, which I don't have in front of
me but you correctly attribute to me, and again this was based on the early
information we had about Mr. Li as doing particularly well along the
rehabilitative trajectory, is that the brutal nature of his index offence may
not or, at least on what we've heard in the press, does not indicate a risk of
grave physical or psychological harm.
The point I wanted to make is this disconnect between seriousness of
offending and the risk that the accused currently presents, and that you have to
take a robust and fulsome look at the accused when assessing dangerousness. To
make that assessment simply on the basis of an historical event is, clinically,
not the way to be going.
The Chair: I understand it is a difficult issue to be brief on, but I
would encourage that. I know we want all senators to have an opportunity, so if
we can tighten the questions and responses, I think we can accomplish that.
Senator Batters: Thank you very much for coming today, Mr. Justice
Schneider. Prior to the honour of being able to sit in the Senate, I was the
justice minister's chief of staff for five years in Saskatchewan. During that
time, we always viewed the review board in Saskatchewan as one of the most
important boards that we had under the purview of the provincial justice
minister, so I thank you for your service to Ontario.
In a recent answer here, you indicated that, in your view, enhanced victim
notification was fine, so you may well agree with what I'm proposing here.
This bill amends the Criminal Code to enhance the safety of victims and
provide them with opportunities for greater involvement in the hearing process,
providing that the victims be notified when an accused is discharged if they
request the information, and it allows for non-communication orders between an
NCR accused and a victim. It also requires the courts and review boards to give
specific consideration to the safety of the victim in determining whether or not
an accused poses a significant threat to the safety of the public.
I am just wondering whether you would agree, then, that these particular
demands that our government has certainly heard from victims would be fair and
Mr. Schneider: Yes. I can't get briefer than that.
I would assure you, senator, that again, as with the public safety being
paramount, review boards routinely put non-communication clauses in their
dispositions. Dispositions are the orders that we issue that dictate how the
accused is to be contained in the community.
So, yes, that's perfectly reasonable.
Senator Batters: Great.
Now, I do take a little bit of issue with something that you said a while
ago. You were talking about — and I no doubt agree — these beds being very
valuable, but you said that we cannot be squandering these beds. With respect,
Mr. Justice Schneider, I disagree that keeping an obvious high-risk offender,
someone like Vincent Li, in this type of facility to protect the public would be
squandering a bed.
Mr. Schneider: Again, you have to assess this on a case-by-case basis.
The point I wanted to make was that what we have to do is mitigate the risk an
accused poses to an assumable level in some kind of an environment where after
an assessment it is determined that an accused does not require a hospital bed,
does not require hospitalization, and furthermore if they do require a hospital
bed or hospitalization, they don't require it in a maximum secure facility — and
it isn't appropriate that they have no privileges. My point was that that isn't
what we should be doing with that individual. Hospitalization and use of
hospital resources should be a clinical determination, not one that's automatic
by virtue of a piece of legislation.
Senator Batters: Yes. Thank you very much, sir.
Senator Dagenais: Apparently, only a small number of not criminally
responsible individuals will receive the high-risk designation. You heard the
Minister of Justice speak earlier.
The Crown will have to make an application to obtain the high-risk
designation, and it will be up to the Crown to prove that the individual falls
into the high-risk category.
Do you believe that this constitutes a fair balance between public safety and
the human rights of an individual who has committed a serious offence?
Mr. Schneider: Well, senator, I'm not too sure how to respond. The
process is much like any other. When the Crown thinks that it is in the public
interest to have a particular designation apply to an individual, they have to
make an application, play by the rules and adduce evidence in accordance with
convention. I think that's a process we all would accept as one that is in
My concern isn't so much with the process — in other words, how the Crown
would apply to obtain the designation — but rather with the wisdom in seeking
I'm having the feeling I may not have answered your question, sir. If I
didn't, please —
Senator Dagenais: The bill maintains a certain balance. The Crown will
have the onus of asking for the NCR designation. The bill upholds human rights.
You seem to be saying that this is already happening and that this bill will not
improve the process.
Mr. Schneider: Again, I think that, yes, the process is one that is
balanced, and one could trust that the courts are ensuring that everybody's
interests are protected during the hearing of the matter.
I apologize, sir. I still don't think I'm nailing your question exactly, but
I think that's maybe the best I can do with it at the moment.
Senator Boisvenu: Thank you, Justice Schneider, for being with us here
today. I have done a lot of work with families who have had a loved one
murdered. I created the Murdered or Missing Persons' Families' Association in
Quebec. This issue affects about 600 families. Nearly 20 per cent of the
association's members have a family member or loved one that was killed by a
We know that the deinstitutionalization of psychiatric patients — which began
in the 1970s and ended in the 1990s — resulted in a nearly 50 per cent decrease
in psychiatric beds, for reasons I will not get into today. In 1995, there were
approximately 60 cases of very serious crimes in Canada: homicide, attempted
murder and so on. In the year 2000, there were 500 cases.
Previous legislation stipulated that the commission's decisions be the least
onerous and least restrictive on freedom as possible since psychiatry was not
one of the "poor cousins" of the health care system, we released individuals
whether they had committed a crime or not and there were effective front-line
services. This concept was applied in the 1980s, when there were effective
front-line psychiatric services.
In Montreal in 2012, two out of every three nighttime calls that police
responded to involved individuals with mental health issues. Front-line
psychiatric services are practically non-existent.
Does it not make sense to review the basic criteria when releasing
individuals who have committed a crime as serious as killing their own children?
Does it not make sense to review the basic criteria so that public safety is the
paramount concern and the patient's release is secondary and so that the
decision is based on the idea of keeping danger to a minimum?
Mr. Schneider: I would agree that public safety is the paramount
concern, and the accused's reintegration into society can only proceed to the
extent that it is consistent with maintaining public safety.
The length of the leash, if you will, extended by the hospital administrator,
dictated by the review board, is directly a product of the risk that the accused
poses. Presently, if the accused is in the early days and poses a grave risk,
they may find themselves hospitalized with very few privileges. As their
condition improves, and as the risk can be mitigated with less and less invasive
procedure or containment, they can be granted liberties again — but, as you
underline, keeping public safety as the paramount guiding light. So I think that
I'm agreeing with you.
As to the numbers, I think you referred to 1975.
Senator Boisvenu: 1995.
Mr. Schneider: 1995.
Senator Boisvenu: Sixty cases across Canada of very dangerous, ill
people; in 2012, 500.
Mr. Schneider: I don't have those numbers. All I can tell you is that
as the civil mental health systems across Canada become weaker, we can expect
more of this business in the criminal justice system.
The Chair: I'm going to have to jump in here, Justice Schneider. We
are running overtime. Obviously, we could have continued the dialogue for some
time, but we thank you very much for your contribution to the committee's
Mr. Schneider: Thank you very much, sir.
The Chair: Our next panel of witnesses, from the Schizophrenia Society
of Canada, Mr. Chris Summerville, Chief Executive Officer; and from the Centre
for Addiction and Mental Health, Dr. Alexander Simpson, Chief of Forensic
Welcome, gentlemen. We appreciate your taking the time to be with us today. I
believe Dr. Simpson will lead off.
Dr. Alexander Simpson, Chief of Forensic Psychiatry, Centre for Addiction
and Mental Health: Thank you to the committee for having us. It is an honour
to be here this afternoon and to be able to present to you on this important
piece of legislation.
Perhaps I will do things from a slightly different perspective. Put simply,
what is this "not criminally responsible" regime about? It is a moral judgment
that we have made down through the ages that there are some people who we should
not hold responsible for their actions and that legitimizes, from a moral and
ethical basis, our right as a society to punish everybody else and hold them
accountable for their action. It is not an acquittal, as we have heard already;
rather, it is saying, "We cannot punish you for what you did because it was the
illness that gave rise to that. But what we can do is hold you to account for
the meticulous mental health well-being going forward that we now require you to
It is in most parts of the world — and in general terms in Canada, from that
which we know — a successful regime in that it dramatically reduces our rates of
recidivism over that which you could expect if you did not have this regime
available to you. I come as someone who has practised in this area and in a
number of jurisdictions over a number of years, and I try to see: Is this
legislation helpful in terms of enhancing that process of holding people to
account, of giving them the capacity and the opportunity to successfully but,
most importantly, safely rehabilitate? Does it assist or impair that process of
I'm afraid, frankly, it impairs that process. In what way?
First, by limiting or potentially limiting the access for a subgroup of
people to regular procedural review of their case, particularly of the people
who are at highest risk and are liable to need the most finely tuned and
thoughtful review, to make those reviews less regular is counterintuitive.
Second, it makes aspects of the person's progress proportionate to the
severity of what they did, not to their accountability, insight and risk they
pose going forward. That is a disconnect which is difficult to make sense of
with people in recovery, in a rehabilitative sense.
Thirdly, we currently have a regime which does balance the paramount need for
public safety with the risk and recovery needs that the person poses, as Justice
Schneider has already described. By changing the wording around that, it
unsettles a currently settled regime, and we don't know quite which way that
What is the origin of this legislation, as best we can see it? It is clearly
out of empathy and compassion for families who have suffered grievous loss
because of actions by people with a serious mental illness, and a sense that we
have to do what we can to assist them, to provide some relief from the processes
of the review that occurs. It is very hard for victims who have suffered to the
magnitude that they have that this person is not being punished and cannot be
punished, and the system of accountability for them is harder to make sense of.
The improved victim notification and involvement goes some way to addressing
that, and those are amendments that I and the psychiatric community in general
support. It is not enough for victims in terms of recovery and healing that must
occur, but it is a helpful process along that direction.
What would I recommend or ask that you do with this legislation?
First, I would want to be clear that this amendment will not improve public
safety. I'm sorry to put it quite as boldly as that, but that is the case. None
of these amendments will address issues that have currently been identified
where the forensic system is failing; there is no evidence put before us that is
There is evidence and experience of grievous trauma that families have
suffered, but that is not the same as the risk that people are opposing and that
the forensic system is releasing people on a regular basis who are then going on
to commit acts of similar grievousness that went before.
Second, we would support the improved notification system to victims; we wish
these cases to go through. But we would also wish a wider public policy
discussion around what we should do for victims of NCR accused.
Third, I don't support the high-risk category, and nor do my colleagues
within the forensic mental health world, but we do recognize that the government
is very keen that those provisions pass, so I recognize that they may well still
I would specifically ask that you not enact clause 9 and the parts of clause
10 that change section 672.54. Those changes are not necessary for the creation
of the high-risk category, but they extend a much more restrictive sense across
the entire review board regime in the absence of evidence that the entire review
board regime is failing.
To emphasize the point that Justice Schneider made about, therefore, people
not coming down the NCR regime, is there any evidence that is the case here? The
evidence is convincing. When Bill C-30 was passed, the number of people being
subject to NCR orders in Ontario rose within 18 months from about 40 a year to
over to 200 a year.
Did people with serious mental illness suddenly become five times more
dangerous? No, they didn't. What happened was, as Justice Schneider has
described, this became a regime where people could see people could get
treatment and recover and enhance public safety. We do not want to see an
undoing of that by a tightening of the whole NCR regime.
Therefore, clause 9 and clause 10 amendments that would apply to everybody
under the NCR regime would not, in my view, be a good public policy initiative.
Keep the victim piece and the high-risk piece if you must, but please do not
change the rest of the regime. Also, could we please not do things that will
drive people away from this regime and into the penal system where they will
emerge at a higher risk of recidivism?
I will restrict my comments to that, but I am happy to take questions.
Chris Summerville, Chief Executive Officer, Schizophrenia Society of
Canada: Mr. Chair, honourable members, I would like to thank you for
providing me the opportunity to testify on Bill C-14. I am here not only on
behalf of the Schizophrenia Society of Canada and all of its provincial
counterparts, but also on behalf of 11 national mental health organizations that
see the necessity of working together to minimize the negative impact of Bill
Let me say that all of those national mental health organizations agree with
Dr. Simpson and Justice Schneider's presentations.
I sit before you today asking you to please take the politics out of the
issue. The politics has perpetuated fear when it comes to people living with a
mental illness and has allowed it to trump evidence. As professionals and
lawmakers in Canada, we have a responsibility to ensure Canada's laws
effectively look after their welfare and well-being. Therefore, again, I would
humbly ask you to study and debate the issue on the evidence and facts and not
The mental health community, senators, has been told that Bill C-14 will not
negatively impact people with a mental illness. If this were true we would not
be here today. This bill will negatively impact people living with a mental
illness, even if they have never come in contact with the law. I think of
Canadians out there who start to realize that something is not right with their
mind, perhaps even hearing voices, and not wanting to seek help, knowing what
society and their government may think and do to them. It is frightening and
We would like to emphasize, as we have done since the introduction of the
bill, that we wholeheartedly support changes that create greater involvement for
victims in the process. Why? Because it's heartbreaking to see the issue turned
to one of "us against them."
When debating this issue and the bill, many often discuss striking a balance
between the needs and rights of both victims of crime and those found not
criminally responsible on account of a mental disorder. These discussions are
often misguided, we believe. The solution is not about giving up certain rights
and needs of people with a mental illness in order to provide greater ones to
the victims. It is about understanding mental illness and providing the tools
and resources to ensure the crime is never committed in the first place or will
never occur again. This is not an issue of give-or-take but rather one of
The mental health community does not support the creation of a high-risk
accused category based on the brutality of the crime. This is simply not
evidence-based, and there is no correlation between high risk and the nature of
the crime. It is stigmatizing and will not protect Canadians or help victims in
any shape or form. And you know that the legal community in Canada also concurs.
While the mental health community does not support a high-risk accused
category, we recognize how misguided fear has made it a politically attractive
option. So if the Senate and government choose to move forward with Bill C-14,
the following three changes are required to minimize the harm it will cause.
First, undo the reverse onus set upon the new high-risk accused, requiring
the review board or court to be "satisfied that there is not a substantial
likelihood that the accused will use violence that could endanger the life or
safety of another person." Canada's legal system usually places the onus on the
Crown to prove why individuals should be detained when a crime is committed. An
accused who has a mental illness should not face a greater burden than that
faced by criminals who are fully aware of the crime they committed. Maintaining
the high-risk label should be the responsibility of the Crown. Giving courts
greater responsibilities within Bill C-14 has been welcomed and/or encouraged by
Second, remove restrictions that will limit access to treatment. Without
argument, victims who wish to have no interaction with the individuals found not
criminally responsible should be provided with safeguards to ensure no such
interactions occur. We support the changes in the bill that better inform
victims. But the purpose of treating people found NCR is to help them recover
and lead healthy living, including being reintegrated into society. This
requires many forms of treatment. Therefore, we seek that the bill allow for NCR
accused to be absent from the hospital for reasons related to his or her
treatment, if the accused is escorted by a person who is authorized by the
hospital and a structured plan has been prepared to address any risks related to
the accused's absence. This amendment adds significant safeguards for the public
and the victims without limiting the patient's access to community-based
Finally, senators, eliminate the retroactivity of the bill for patients who
have already been granted a conditional discharge. Eliminating the retroactivity
will not affect any of the high-profile cases that have been associated with
this bill. What the proposed legislation has done is cause uncertainty and
anxiety to stable individuals who have been granted conditional discharge, with
some of these individuals fearing that certain characteristics of their offence
or their history will result in the granting of the high-risk designation and an
automatic return to custody. Making the bill retroactive for those well on their
way to successful community reintegration will not enhance public safety or
victims' rights but only reverse progress made by these individuals.
Senators, I cannot emphasize enough that these three recommendations will not
decrease public safety or minimize victims' rights in any way. In fact, they
contribute to the success of both. If there is no intention for Bill C-14 to
negatively impact people living with a mental illness, then all three amendments
will be put forward by this committee.
I would like to conclude by thanking the committee again and asking them to
stand up for people living with mental illness in Canada. These are our mothers,
fathers, brothers, sisters, children and grandchildren. It is possible to stand
by them as you stand with the victims. The mental health community is already
Senator Baker: These two presentations were excellent. I thank both
witnesses and support their comments.
I have no further questions, Mr. Chair.
Senator McIntyre: Under the current law, that is section 672 of the
Criminal Code, the court or review board can render one of the following
dispositions: detention in a hospital facility, an absolute discharge, a
discharge subject to conditions, or an absolute discharge.
The difference between detention and a conditional discharge or a discharge
subject to conditions as opposed to an absolute discharge revolves around the
issue of dangerousness. The board in rendering a disposition deals with minor or
more serious matters. Minor matters could be stealing a purse or a chocolate bar
at the local grocery store. More serious offences would involve murder,
attempted murder, arson, criminal harassment, sexual assault and so on.
I should add that three quarters of the patients who appear before the board
suffer from paranoid schizophrenia, and I'm sure as psychiatrists you are well
aware of that very serious mental illness, or they suffer from affective
disorder such as bipolar disorder, schizoaffective disorder or major depression.
I understand, Dr. Simpson, that you are inviting this committee to eliminate
clauses 9 and 10. I'm quite aware of those clauses. Clause 9 reformulates
section 672.54 of the code. At the moment, this is the key section in the
Criminal Code. This is the section where the board has to decide on the issue of
However, by reformulating section 672.54 and replacing it, if I'm not
mistaken, with section 672.64, it puts public safety as the paramount
consideration. As for clause 10, it redefines the wording of "significant threat
to the safety of the public." I understand, Dr. Summerville, that you are also
concerned about the high-risk designation.
One of the problems we've been facing and that the Justice Committee in the
House of Commons has been facing is that various witnesses who appeared in front
of them were wondering if public safety was truly the paramount consideration or
simply one of the four factors listed to be taken into consideration. For
example, the Canadian Bar Association was of the view that public safety was
only one of the four factors to be considered, the other factors being the
reintegration of the accused into society, the mental state of the accused and
his other needs. As a committee, we have to be concerned about the definition of
"significant threat to the safety of the public." In your view, you don't see
any need to change that definition.
Dr. Simpson: That's correct. As Justice Schneider has already said,
the primacy of public safety is the first consideration. You cannot recover and
continue to pose a threat and continue to offend against others.
Senator McIntyre: The problem we're running into is that across Canada
there has been an inconsistency as far as public safety is concerned. Some
provinces, some review boards have been putting public safety as the
frontrunner, while others have been using other factors, such as the
reintegration of the accused into society, his mental state and his other needs,
putting public safety last.
Dr. Simpson: There is huge variety across the country as to how this
regime is used. For instance, Quebec has 1,200 new NCR and unfit cases per year
going under the review board. In Ontario we have about 300. There's a huge
simple numeric difference there. In the rest of the country, it's much lower
than that. B.C. had rising rates. They have now been falling for the last
decade. That's at a rate of about a third of that which is in Ontario, and most
of the other provinces are lower still.
How the review boards make decisions, therefore, is often determined by the
sorts of people who are coming under it and the number of cases they have. Of
course, each provincial review board is relatively autonomous. The problem of
consistency, of how this jurisdiction is run, relates to local courts, local
Crown, as well as the review boards. The requirements from Winko are very
clear. They are consistent across the country. That is the law now. If that is
being inconsistently applied across the country, I'm not sure if it is a lack of
understanding of what the law is or through other factors that feed into that.
Senator McIntyre: As far as I'm concerned, this legislation has
nothing to do with low-risk offenders; it has to do with high-risk offenders.
This is why the government is bringing in the high-risk designation.
Senator Joyal: Dr. Simpson, you might have heard Justice Schneider
when he commented on the relationship between the crime committed and the danger
of recidivism. In other words, he didn't make the equation "the more horrible
the crime, the greater the chance that the same person will repeat the crime."
Is this something that you also concur in in terms of medical science, that it
is not the factor that should be determinative of a final decision on the level
of threat of somebody?
Dr. Simpson: I agree with Justice Schneider's comments. Severity is
not correlated with frequency. There are different phenomena. You may have
one-time offenders who commit a single, very heinous action but whose risk of
recidivism is low. You may get other people who are relatively
treatment-resistant and have ongoing persistent frequent offending. So what
somebody's risk status is is put together as a synthesis of issues of severity,
of frequency, of imminence of how it emerges. The brutality of what one does or
what one has done as one's index offence is not well correlated with the risk
one poses going forward.
That said, if you have committed a very brutal action when you have been
unwell, the standard of wellness that you have to achieve is very high as we
work rehabilitatively with someone. They may not present huge and immediate
risk, but we will certainly take great care to ensure that people have
integrated the insight and the self-responsibility that they need before they
can begin to make those slow and progressive moves from high security to lower
security and to the early phases of community reintegration.
Mr. Summerville: In fact, the Mental Health Commission of Canada
submitted to the Department of Justice, through Dr. Anne Crocker of McGill
University, this very information, that there is no correlation between
brutality and recidivism rates, and that recidivism rates are about 7.5 per cent
for people released from forensic units as opposed to recidivism rates being 45
per cent for people released from the federal correctional system.
Public safety should be paramount, and where Mr. Vince Li is living, the CEO
has gone on record saying that public safety is paramount. Also, the recovery
process of the individual should be paramount and his or her being able to
successfully reintegrate into society. People with even the most severe
schizophrenia can and do recover; not all, but they can in light of modern
I believe in restorative justice, rehabilitation, recovery and, in fact,
redemption. I would plead with you to keep in mind that even though a person may
at one time be high risk, with modern science we know that people can recover,
live beyond the limitations of their illness, manage their illness like any
chronic illness, and live successfully in the community. That's what the
schizophrenia societies all across Canada do every day in working with thousands
of people with schizophrenia and psychosis.
The Chair: You would agree that mistakes have been made, and I cite
R. v. Jones and the Ontario Court of Appeal — I don't know if you're
familiar with that situation. It was in my community, where he was given an
absolute discharge, which was appealed by the Crown; but by that time that
determination was reached, he had already murdered an elderly woman in the
community. Past behaviour is never an indicator of future behaviour. You can't
say that as a blanket statement because there are situations that do occur.
Dr. Simpson: Absolutely.
Senator Boisvenu: As I said earlier to Justice Schneider, I work
primarily with families who have had a loved one murdered. I created an
association to help them. In Quebec, since the year 2000, more than 200 fathers
and mothers, brothers and sisters have been murdered by someone close to them.
Mr. Summerville, your opinion strikes me as odd. You are saying that if this
bill is adopted, these people will not seek out help, or are at risk of not
asking for help. How do you explain the fact that right now the vast majority of
those 200 families who have been affected by crime in Quebec did not ask for
How can you say that if the bill is adopted, people will not seek out help?
The people who are committing serious crimes are often individuals who do not
take their medication, have addiction issues and do not seek help. Could you
please explain your logic?
Mr. Summerville: I'm sorry; I have a little hearing problem in my
Senator Boisvenu: Since 2000 in Quebec, about 200 families have had a
relative murdered by a son or by a father who has a serious mental illness. You
affirmed in your testimony that if we adopt the bill, there is a chance that
people will not get some help if they are sick. In almost all of those 200 cases
since 2000 in Quebec, those boys, and it is mainly boys, never asked for help.
If we adopt that bill, people will not get help. They don't want help because
they have a problem or they don't take their medicine. I just want to understand
your point of view on that.
Mr. Summerville: If I understand your question, sir, my answer is that
the number one reason people do not seek help for their mental health problems
and illness is the social prejudice or stigma. The way the bill was introduced
and has been debated, there have not been the appropriate disclaimers that 97
per cent of people with mental illnesses do not come in conflict with the law,
that the number of cases of people to be deemed NCR are less than 1 per cent,
and nothing was said about the recidivism rates being low. The way the bill has
been couched, sir —
Senator Boisvenu: We had 60 cases in 1995 and 500 serious cases in
2012. Do you not think that the increase creates a negative point of view to
Mr. Summerville: I'm going to defer to my colleague.
Dr. Simpson: We've published studies of the rates of homicide by
people with mental illness post-deinstitutionalization in New Zealand, and have
reviewed the literature on that question internationally. There isn't anywhere
in the world that I know of where the process of deinstitutionalization has
increased public risk from people with mental illness. We do see a lot more
disruptive behaviour by people with serious mental illness on the streets,
however. There is very limited evidence from Canada — we don't have evidence one
way or the other — to know the size of the problem you're concerned about.
In general, that has not been the case. It is so that the highest risk
periods though for you behaving violently or for you committing a serious act of
violence against a family member, such as you describe, is in the period before
people get treatment or where they have made approaches for treatment and have
been turned away. The early access of good, effective treatment is the most
crucial thing that we could be doing to drive down the need for this sort of
legislation and to address the sort of problems you have described.
The sector more widely is saying: What can we do to reduce that resistance of
people to engage in treatment to help them get on it early and stay on it
effectively? Stigma is of considerable concern as one of the barriers that stops
people getting into care. If we want to prevent serious offending by people with
mental illness, that's where we need to put our focus.
Senator Dagenais: I would like to thank our two witnesses. To begin, I
should tell you that I was a police officer. I am neither a social worker nor a
doctor. In the past, I have had to arrest this type of individual, which put me
into contact with victims or victims' families.
I can tell you that no matter what effort is made, you can see the fear in
the eyes of the victims' family when an accused is released. They are worried
that the accused will reoffend. In a high-profile case in Quebec — I am sure you
have heard of it —, the person was found not criminally responsible and was
released. Neighbours called the police because the individual was seen at the
corner store and everyone was afraid of him. In addition, the individual had
medical knowledge and so on. I have often noticed that these people are very
manipulative and refuse treatment. This individual was admitted to Pinel and,
during his institutionalization, he was willing to play by the rule so that he
could leave the psychiatric institution.
Will it take another murder for us to do something? I do not think this is
being politicized; I think we need to be considering the victims.
I believe in rehabilitation, but when I see the victims, when I see the fear
in their eyes, I feel that something must be done.
Dr. Simpson: I respect your wisdom and your sensitivity to victims on
that, sir. One of the immense difficulties is the disconnect between the care
and treatment that the accused person receives and the help and support and
understanding that many victims receive. I speak as somebody whose professional
life is around treating people with psychosis and violence and helping them to
recover successfully. Often the violence is within the family, so if we want to
work on community integration, we have to help the families heal as best they
can from that. We're not good at it and we've underemphasized it. The victim's
fear, of course, is that their sense is frozen in time with the horror of what
occurred, and they haven't had a context in which to make sense as to how much
they need to continue to be fearful going forward.
On Monday night, the NCR documentary is being shown here in Ottawa. That is
actually a lovely example of restorative justice via documentary, where the
victim and perpetrator restitution that John Kastner achieves in the documentary
is extremely moving. It strikes me as ironic that the forensic mental health
service didn't enable the victim/perpetrator restitution to occur within that.
It took a documentary filmmaker to make that happen. We don't serve and
integrate the trauma of victims well enough into our thinking. We need to do
that therapeutically, but I'm not sure we need to that by increasing punishment
on the accused. I hear you in terms of the issue, but I have concerns about the
mechanisms we use to address those issues.
Senator Batters: Thank you very much for being here today and thank
you for the work you do with so many people suffering mental illness. The issue
is near and dear to my heart. I'm not sure if you were here earlier when
Minister MacKay appeared, but he and I discussed this very point.
Mr. Summerville, I have to disagree strongly with the assertion in your
opening statement that this bill will negatively impact people living with a
mental illness, even if they never come into contact with the law. I have
personally worked hard over the last five years to destigmatize mental illness,
and my mission has been to get out the message to Canadians suffering with
mental illness, a very simple message: You are not alone; there is help; please
In my view, this bill does not stigmatize mental illness. Were you saying
that 97 per cent of people suffering with mental illness never come into contact
with the law? I think that is an excellent percentage to get out there. That's
the sort of thing Minister MacKay and I were discussing today. I would not
support this bill if I believed that it did stigmatize mental illness. I wanted
to get that on the record.
Mr. Summerville, with respect to your comment that you wanted us to remove
restrictions that would limit access to treatment, I would like you to expand on
what types of treatment you are talking about. It's my understanding that you're
not talking about medical treatment but things like day trips out into the
community to go the grocery store or things like that. Is that the sort of
treatment you're speaking a about here?
Mr. Summerville: Part of the therapeutic process is, obviously,
allowing the person more freedom and also to access community supports and
services. So, for example, attending a schizophrenia society self-help group or
accessing psychological supports that may be found in the community as opposed
to in the forensic unit. There were questions around the interpretation as to
whether the escort would be limited to primarily specifically medical non-mental
Senator Batters: Non-mental illness issues, though, things like
reintegrating, as you call it, into the community, like going to a grocery
store? Is it that sort of thing?
Mr. Summerville: That's obviously part of the reintegration process,
to see how well the person does. But there would be times when we feel that the
person would need to have access and be exposed to community mental health
community supports and services that exist out in the community.
Senator Frum: As a layperson, I imagine a connection in my mind
between the brutality of a crime and the likelihood to reoffend, and you have
obviously been very clear on your opinions and your statistics on that.
I think also in many laypeople's minds there is a connection between the fact
that what might prevent someone from being a high-risk accused or not is their
willingness to stay on a medication regime. Again, for the general public, there
would be a perception that you are more of a high-risk offender, or you have
that potential if what separates you from committing a violent crime is
medication or not. From the public's point of view, an individual's willingness
to adhere to a regime or not creates the risk, and that is partly what this bill
is designed to do. The designation is based on a judgment that's made about an
individual's ability to adhere to a regime of medication. Is that right?
Mr. Summerville: Certainly, we espouse and advocate very strongly that
there be those appropriate community supports and services that help a person
with managing such a chronic illness, let's say, schizophrenia. Part of that is
helping people to stay on their medication, dealing with side effects, as well
as learning their signs and symptoms of potential deterioration so that they
then can contact family or friends or their doctor.
Dr. Simpson: The hard thing to get our heads around is the brutality
of the offence not predicting risk of reoccurrence. Of course, brutality of
offence measures magnitude of the harm done. Part of forensic rehabilitation has
to be addressing the magnitude of the harm done, which is why, even though
somebody's illness may be treatment-responsive and they may be agreeable to be
on medication rapidly, they are not straight back in the community if they have
committed a grievous act, because the magnitude of the harm done takes a long
time to integrate, to make sense of and to deal with, and that we go very slowly
From the point of view of victims and of wider society, of course, normally
the gravity of what you do is correlated with the length of sentence you serve,
and that doesn't quite join together under this regime because of the illness
factor within that. But we would destroy the moral and ethical position of this
regime by making it directly proportionate, yet it has to in some way be
respectful of those two sides. In that regard it's not a simple issue of saying,
"Well, you committed a dreadful act because you were ill. You're back on
treatment; you're treatment responsive; you're no longer unwell, so you should
leave hospital straight away." It doesn't work that way, because the magnitude
of the damage you did has to be slowly integrated and made sense of.
Senator Frum: If you're dependent on medication to make you a
non-high-risk offender or repeat offender, that is a high-risk situation.
Mr. Summerville: The Li case has come up several times. As of you
probably know, I visit Mr. Li periodically, four or five times a year. He has a
conscience today; he's not the same man as six years ago. He knows it was wrong.
He never wants that to happen again. So severe is the shame that he has that
some have postulated he might even "suicide" in the future, not being able to
live with what he did. He knows about schizophrenia and illness management
today. He never wants that to occur again. He has no reason not to take his
medication. I have worked with him privately, the therapeutic team at the
Selkirk Mental Health Centre, so that is the reason why his current doctor, Dr.
Kremer, says his chances of recidivism are less than 1 per cent. I know the
public wants zero per cent.
Let me say that any time I do a media interview or come before the committee,
I'll always ask myself this question: What if it was my daughter on that bus? I
also have to say if it was my son who had committed that atrocity, I would want
justice for both.
Senator Plett: Thank you, gentlemen. Mr. Summerville, you're a fellow
I was bothered, sir, by one of the comments you made in your opening comments
when you suggested that those of us who were supporting this legislation might
be doing this because it's politically attractive. I support this legislation
not because it's politically attractive but because, first and foremost, I am
concerned about public safety. This is what I believe is the right way to go for
You have visited Mr. Li; I obviously have not. I have not visited Timothy
McLean's family, either. But I'm from Winnipeg and I know that Winnipeggers and
Manitobans are concerned about Vincent Li walking the streets of Winnipeg
unsupervised. I think most of us would be okay if he was under supervision. You
say he has no reason not to take his medicine, and he may not have any reason
not to take his medication, but two, three, four, ten years down the road, he
may think he's over his situation and be without his medicine. If we have a
situation where someone could repeat if they are not on medication, as Senator
Frum has rightfully said, that person is a high-risk offender.
NCR aside, whether we have NCR or not, should the rights of violent criminals
take precedence over the rights of victims? Notwithstanding NCR, regardless of
whether it's there or not, should the victims' rights not supersede those of the
Mr. Summerville: As a Canadian, I think both rights are of equal
Senator Plett: I disagree, respectfully.
Dr. Simpson: If you have been wronged by somebody, then we
collectively invest in the justice system to address that wrong. We don't judge
people individually. The courts do that and impose the punishment, which
Parliament has said is appropriate for that action.
The perpetrator must take responsibility for that and for the punishment, and
serve whatever punishment is given out. Victims have ongoing rights of
notification and involvement if they wish that.
What we know works —
The Chair: Can I ask you to be concise, please.
Dr. Simpson: What we know works best for victims in terms of their
recovery and for reducing risk of reoffending is restorative justice processing.
We know that for violent offending generally and youth offending particularly,
but also for adults. It is not simply a battle of rights, but somehow an
integration and resolution we should be seeking.
The Chair: Dr. Simpson recommended the NCR documentary and I would
recommend that as well, but also the
Fifth Estate documentary on Jeffrey Arenburg, the individual who murdered
Brian Smith right in this city, who is now living in Nova Scotia and openly off
of his medication in a town that is running scared with that individual. He even
threatened the interviewer on the television program, so there are always two
sides to many of these issues.
Now, we have two senators who have asked to have a second opportunity and I
would ask them to be very brief and the responses likewise.
Senator McIntyre: Well, very briefly, gentlemen, I have before me Bill
C-14, and I'm looking at proposed subsection 672.64(2). It states that the
court, in deciding whether to find the accused as high-risk accused, must take
into consideration various factors. The factors are all listed:
(a) the nature and circumstances of the offence;
(b) any pattern of repetitive behaviour of which the offence forms a
We are talking murder, attempted murder or sexual assault.
(c) the accused's current mental condition;
That is if he suffers from paranoid schizophrenia, for example.
(d) the past and expected course of the accused's treatment,
including the accused's willingness to follow treatment;
Let's say in the past he refused to attend at the community mental health
centre when he was on a conditional discharge or a discharge subject to
(e) the opinions of experts who have examined the accused.
I'm putting you on the stand here, but assuming you are one of those experts
having to prepare an opinion in the form of a psychiatric evaluation, and
assuming the accused does not meet some or any of the criteria set under that
section, how would you frame your diagnosis?
I know you don't have an accused in front of you, but would your diagnosis be
such that he simply represents a significant threat to the safety of the public
or both a significant threat to the safety of the public and a high-risk
Dr. Simpson: There would be two ways in which one could approach that.
Clearly every time we write a report for a review board we have to address the
Winko standard as to whether the person represents a significant threat,
otherwise they don't continue under the board. We're always doing that.
The type of opinion here is not dissimilar to that for the dangerous offender
legislation, so psychiatrists can address those things.
Senator McIntyre: That relates to high-risk offender.
Dr. Simpson: Quite. There's an analogy, psychiatrists are already
assisting courts in that area. I understand it is a practice that could come
about to address these. The major problem is 1(b), the court is of the
opinion that the acts that constitute the offence were of such a brutal nature —
and this is the problem — as to indicate a risk of grave physical or
psychological harm to another person.
That's where you are arguing purely on the basis of the events from the past
into the future. That's an unscientific test. Clearly professional standards can
be developed to address the questions under (2).
Senator Joyal: I asked that question to Mr. Justice Schneider in
relation to NCR and the period of three years to be kept under custody. Is it
your opinion that the three-year period is based on scientific or medical
observation? Is it the span of time needed to do the observation to better
evaluate his or her condition and level of risk that the person might present to
a society, or is it your opinion that the three-year period is a figure and it
could have been two years or four years?
Dr. Simpson: If somebody is of high risk, you would want higher levels
of judicial oversight, or review oversight of them. So it doesn't make sense
that they're of the highest risk category but they get seen less by the review
board. It doesn't correlate with any clinical process. Let's be clear. What it
correlates with is giving the victims a sense of relief that they don't need to
go back to the board every year. The ones who feel they must attend the review
board hearings would be given some period of relief where they thought they
didn't have to go back to the board on an annual basis.
I think that's the genesis of this recommendation. It doesn't fit in terms of
the risk category. It doesn't fit in relation to any clinical process other than
giving the victim some sense of relief that they don't need to be back before
the board every year.
The Chair: Thank you, gentlemen, for your testimony today. Much
Our next witness is a respected Canadian who has appeared before the
committee before. From Royal Ottawa Health Care Group, we have with us Dr. John
Bradford, Forensic Program and Professor of Psychiatry at the University of
Welcome, Dr. Bradford. I understand you have some opening comments. The floor
Dr. John Bradford, Forensic Program and Professor of Psychiatry,
University of Ottawa, Royal Ottawa Health Care Group: Thank you very much.
To give you some background, I have been a member of the Ontario Review Board
since 1980, and I continue to be a member of that.
I have testified in well over a hundred dangerous offender hearings under the
Criminal Code of Canada. Currently I work in the rehabilitation of high-risk NCR
patients, and I do that by choice. Within the last month, for example, I put a
person, who had been in hospital for 37 years, out into a supervised community
setting and somebody who had been in hospital for 23 years.
I also had the opportunity of evaluating people like Jeffrey Arenburg, Willie
Pickton, Russell Williams, Kachkar more recently in Toronto, Paul Bernardo and
I was also part of the mental disorders project, which was a project in 1988
which was chaired by Gilbert Sharpe and Ed Tollefson of the Department of
Justice. That project actually became the background to the current mental
disorder section of the Criminal Code.
Within that we had a recommendation for dangerous mentally disordered
accused. The high-risk accused in the present legislation is very similar, with
some changes. So that's some of the background that I think is important.
I think Dr. Simpson had mentioned a documentary known as NCR, which
was made at Brockville where I work. There's a new one coming out which will be
at Hot Docs in Toronto, and that's Out of Mind, Out of Sight, which also
offers a lot of insight into the forensic system.
I've given you a set of PowerPoint slides, which I'm not going to talk about
other than to make some points that you can follow in the slides later on when
you have an opportunity to read them.
The first point I want to make is that the World Health Organization, in
2002, did a lot of studies around the world on violence and health. When you
look at those studies, you realize that mental disorder and violence is a very
small part of overall violence in our society. Although the World Health
Organization looked for other countries and other societies to pick up on
studies from that, very few people took them on.
If you look at some of the statistics, about 520,000 people die each year as
a result of interpersonal violence: about 1,400 a day or three large planes
crashing a day. The number of people involved with violence and mental disorders
are a very small fraction of that.
The other point that I want to make — and I think you've probably heard about
it but I'll say it anyway — there's a consistent relationship between mental
disorder and violence. To deny that would be denying a truth.
I've given you, in the set of slides, some of the associations between mental
disorder and violence, be it from people released from psychiatric facilities,
violence within psychiatric facilities, and I'll call it the 20-to-40 per cent
rule. Roughly 20 to 40 per cent of people are violent before they are admitted
to psychiatric facilities, 20 to 40 per cent are violent within psychiatric
facilities, and about 20 to 40 per cent are violent when they're released.
If you look at the large epidemiological surveys that have been done, and
there have been a number of them, I pointed you towards one, which is the
largest one done in the United States, known as the Epidemiological Catchment
Area Survey. What you will see is that any mental disorder has an increased risk
of violence over the general population without mental disorder.
I would also point out, just out of interest, that when you look at cannabis
dependence and abuse, the rate of violence is increased about nine times that
the general population. If, before this house, at some other time, there is
something about legitimizing cannabis, we need to think about its role in
The other point I want to make is that if you look at the models of
predicting violence and mental disorder, it's a multivariate, multidimensional
model. It's psychosis, which is critical, and usually combined with substance
The important issues, generally speaking the violence that's perpetrated by
people with a major mental illness is mostly against family members, not against
the general public, although attacks on strangers is typical of what can occur
out of a psychotic condition.
I also included some investigative journalism, and the reason I included it —
you probably get sick and tired of us throwing out statistics and talking about
it — is because this was done in 2002. It was done in the New York Times,
and it was a study of rampage murders in the United States. This would have been
the Staten Island murder, for example, the incident on the train coming in from
Connecticut. The important point about it, and I'll just read the lead from it,
is that the New York Times, in 2000, studied 100 rampage murders and
. . . most of the killers spiraled down a long slow slide, mentally and
emotionally. Most of them left a road map of red flags . . . plotting their
attacks and accumulating weapons, talking openly of their plans for
bloodshed. Many showed signs of serious mental health problems.
Then there's a lot of statistics about how 60 per cent or higher tried to get
help and didn't get it.
If I'm going to summarize it, there's no question there's an association
between violence and mental disorder. I guess that's the bad news. I guess the
good news is if you treat it, the risk is substantially reduced. That is when
you compare it, for example, with people coming out of correctional facilities
without a mental disorder, that is a big difference. It's much harder to control
the risk of that violence than it is with mental disorder.
Having said that, and I think I've heard some of my colleagues talk about it
so I'm not going to repeat it, I don't think that the criminal review board
system in Canada is broken. I don't think it is at all. The recidivism rates are
low. I've given you examples of people in my facility that have been in hospital
for many years, and because of the need to protect the public and because they
haven't recovered well enough to go into the community, they're only going into
the community now, many years later, and with very strict supervision. I think
the review board does a decent job to protect the public.
Having said that, and I've testified in many dangerous offender hearings, I
think there is a small portion of people who have a serious mental disorder who,
not so much because of the nature of the crime but because of a pattern of
violence that precedes it, may fit into the category of being a high-risk
accused or what we looked at in 1988, which was the dangerous mentally
I think that the public has a right to look at that, look at those
individuals. As Dr. Simpson said, I don't think you can look at brutality on its
own as a factor to take you into that area, but I think it's one of the things
that could be considered.
So, for example, if you look at the literature on cannibalism, there's not a
lot of literature, but people who cannibalize themselves or other people usually
suffer from a severe mental disorder.
I would also warn you about the fact that a single case can influence the
legislative system, and it has happened in other countries. It happened in Japan
after an attack in a school where a number of people were killed. Certainly it
happened in the U.K. with some high-profile cases. In most cases, there was a
sense that there had to be legislative amendments, and I think that's what has
I would argue, though, that in Britain, for example, not only were there some
changes in legislation, but they also set up the National Confidential Inquiry
report, which now continues to look forward on all homicides by mentally
disordered persons, and it's in the form of a commission. The idea behind that
is to make sure that this type of problem won't occur again.
When you look at the problem with mental disorder and violence, in my opinion
it has nothing or very little to do with the criminal review board system: It's
what happens beforehand. Vincent Li was released from a hospital in Toronto; he
wasn't treated, he was seriously mentally ill and we know what happened. The
question really becomes issues such as the right to treatment and the concerns
related to the general mental health system.
The only other thing I wanted to show is there are a couple of graphs that
show where people who are being treated for schizophrenia, the percentage of
them who discontinue their medication. In a study known as the CATIE Study,
which is a very well-known study by the National Institute of Mental Health, 85
per cent of people discontinued their medication in 18 months; in the Caffey
study, it was 75 per cent in 12 months.
So as far as I'm concerned, the legislation and high-risk accused, you can
debate it, but I think it does have some merit to protect the public. I think
you can debate some of the criteria.
I don't think the mental health system as it relates to Ontario or Quebec or
any of the Criminal Code review boards is a problem. I think it is working quite
But I do think there are problems in the general mental health system.
My suggestion would be that one of the things you could consider is
recommendations for a uniform mental health act, recommendations for legislation
around right to treatment for people who have a mental illness, because I think
that's a problem, and maybe even a commission such as they have in the U.K. with
the Confidential Inquiry Commission to evaluate further mental disorder and
violence when it does occur.
Senator Baker: Thank you for your very informative presentation, Dr.
Bradford. I'm going to ask you your opinions on the three main elements of this
First of all, putting public safety first: Do you have any opinion on that
Dr. Bradford: I don't have a problem with it. I think public safety
has to be put first. I would say that currently, in my experience with the
Ontario Review Board, it is put first. I would add that Ontario was the first
province to add Crown attorneys into the review board system to make sure that
the protection of the public was protected, and it has now been adopted across
the country. In the beginning it was voluntary. I think it is a good thing and I
think it is imperative that we have it.
Senator Baker: As an aside, reading the reported cases in this
jurisdiction, I notice that most of the reported cases in which the person is
seeking early release, or release, are turned down by the review board.
I don't suppose you look at the reported cases — you know all the cases
whether they're reported or not — but that seems to be a general impression. It
is not easy to obtain a release upon first application.
Dr. Bradford: No. But I would say that what happens in Ontario may be
different to British Columbia, it may be different to Quebec. There's not
uniformity; hence, my remark about a uniform mental health act and some
uniformity across the system.
Yes, in Ontario, for example, a person will remain on a hospital detention
order for a long time, even if they are in the community. And the rationale
behind that is that the person — it is called a hybrid order. They actually live
in the community while detained in hospital.
So tonight, if I get a call that there may be some concerns about a person
living in the community, we can bring them back immediately. The police don't
need any other extra documentation, or very little, and they bring the person
back to hospital and we can manage the risk that way. I think that's very
helpful. It doesn't happen in all jurisdictions, but principally in Ontario it
Senator Baker: It is not unusual, then, to have somebody restricted
for a period of three years.
Dr. Bradford: Oh, not at all. I gave you examples of people who have
been in hospital for 37 and 23 years. I have another person who has been in
hospital 33 years and who at some point will be going into the community.
In the hospital setting that I work in, in which many of the people are
treatment-resistant with a schizophrenic illness that have committed crimes of
violence, the process of getting into the community, even on a detention order,
is prolonged, I would say, three to five years. Even in the community, from
there to conditional discharge is probably another two to three years, and then
an absolute discharge would be some time after that. So the length of stay is
The one person that I have talked about who is going after 23 years, he had,
as his index offences, two counts of sexual assault which were relatively minor.
Even though his index offence is minor, his passageway back, because his illness
is so difficult to treat and hard to control, has delayed his process of getting
back into the community.
Senator Baker: Do you have any opinion on the second element of this
bill, which refers to enhancing victims' involvement and notifying them when the
NCR accused is released, along with their intended place of residence?
Dr. Bradford: I think that the public need to be informed. The one
thing I have noticed in occasional hearings where members of the public who are
victims have joined a hearing — and don't forget that the accused is a person
with a serious mental illness which you are trying to maintain their stability —
I have seen hearings which have been highly emotional, both for the persons, the
victims participating, and the person that I'm responsible for, the accused and
his treatment. I didn't think that some of those hearings were helpful. I do
think, however, there can be control in the discretion of the chair, and
generally I don't have an opposition to it.
Senator Baker: The third and final element is a new category of
accused. A new designation intended to protect the public against a high-risk
NCR accused will be created; not able to contain a conditional or absolute
discharge; therefore have to be detained in custody in a hospital; and extend
the review period up to three years. Do you have any opinion on that?
Dr. Bradford: I don't have a problem with it if it's properly applied.
I think my concern is that some of the definitions are fairly arbitrary. You
have heard some of the concerns around brutality as an indicator of recidivism
I also worry about the fact that once you have a designation, I think that it
technically would only apply to a small number of individuals. But once it is
there, it may get overused, which has happened not to a large extent but to a
small extent in the dangerous offender legislation under the Criminal Code.
Those are my reservations. Otherwise, I don't have a reservation.
Senator McIntyre: Dr. Bradford, I understand that you have been
sitting on the Ontario Review Board for numerous years.
Dr. Bradford: Thirty years. Actually, it is 33 now.
Senator McIntyre: If there's a section in the Criminal Code that you
understand, it is section 672.54, which deals with the issue of dangerousness.
I also understand that you are a forensic psychiatrist, so therefore you
perform forensic psychiatric evaluations. I also know for a fact that there's a
difference between normal psychiatric evaluations and forensic psychiatric
evaluations. If I'm not mistaken, forensic psychiatric evaluations are being
conducted in situations where you have a high-risk offender. Could you elaborate
a little further on what is involved as far as the psychiatric evaluations and
high-risk offenders are concerned?
Dr. Bradford: Well, let me correct one thing. I think they're not
always a high-risk offender. For example, I think that the use of NCR, which has
escalated in Quebec and has increased in Ontario, has occurred in part because
of persons being found not criminally responsible for less serious offences.
Often those are resolved at a mental health court level.
When you go beyond that, certainly you get into cases, particularly of
homicide and extreme violence of some sort or other, and, yes, those are often
contested within the Criminal Code. I prefer to work under a court order to
assist the person, whether they are NCR or not. If that's the case, it then goes
back to the Crown and the defence, and it will go to the jury, ultimately; and I
will testify, hopefully objectively, to give an opinion as to whether that
person fits the criteria for NCR.
Senator McIntyre: That's the initial psychiatric evaluation?
Dr. Bradford: Yes.
Senator McIntyre: In other words, to determine if the person is exempt
from criminal responsibility.
Dr. Bradford: Correct.
Senator McIntyre: Then the court uses it to find that person not
criminally responsible on account of a mental disorder?
Dr. Bradford: Absolutely.
Senator Joyal: I will ask the doctor the same question I have asked to
your predecessors, the experts we have heard today. Is that period of three
years essential to measure the level of risk that an NCR might represent?
Dr. Bradford: I would say generally no, but in some circumstances,
I'm going to use filicide as an example. People who often commit filicide,
parents who kill their children, often suffer from a major mental illness known
as a major depression with psychosis, and they have something called "altruistic
delusions." In fact, that's a very treatable condition, and you can actually get
them into recovery mode within a couple of months. In that particular case, if
they have a history where they've never been violent before, you've actually got
a low-risk situation, provided they remain on their medication and follow
treatment and other things.
There are certainly people in my outpatient category that I've been
following, one person from 1984 to currently, and recidivism is zero. But they
remain on medication, and they're seen monthly, et cetera.
The answer to that is no, but I think there are some people for whom I think
it is different. I'll use Jeffrey Arenburg because his name came up as an
example. I was involved in Jeffrey Arenburg's fitness hearing and his NCR
hearing. The one thing about him was that, although he suffered from a major
mental illness, he was very clever at suppressing the symptoms, and that became
obvious to me early on. He ended up going to Penetanguishene and was eventually
released from Penetanguishene. I had been concerned all along about his ability
to do that. I also didn't think he would ever be motivated to follow treatment
if he got an absolute discharge.
In that particular case, he remained in Penetanguishene for quite a lengthy
period of time, and I think they try to do a very good job of trying to deal
with those factors. In the case of Jeffrey Arenburg, it may have been warranted
that he be reviewed every three years and maybe in a different category. What
happened was that, after a period of time, he was taking medication, appeared to
be doing quite well and was released, and, as you know, in a short period of
time, he was back in trouble.
With the benefit of hindsight, I think I was probably correct, and he might
have been a case that might have benefited from being a high-risk accused.
Senator Joyal: In other words, there should be flexibility in the
system to take care of the individuality of those cases.
Dr. Bradford: Right.
I think there are a small number of people for whom the category would fit.
In 1988, I felt that. I still feel it today. I'm just worried about it being
overused, but there is a category of individuals who fit that category. I think
there is a need to protect the public by having them in that category, and I
think it will do that if they're categorized that way.
Senator Dagenais: Thank you, Dr. Bradford. I know that your services
have often been called upon and that you have testified as an expert witness
during several trials, including the 2011 trial for Toronto police Sergeant Ryan
Russell's killer. As you know, there is no such thing as a perfect bill. The
minister said so himself. Bills can be reworked, corrected and improved — I
think that is how it should be. Do you agree that Bill C-14 is a step in the
right direction? Will justice be better served?
Dr. Bradford: Thanks for the question. I'm not sure that it improves
the system. I don't think the system is broken. So, no, I don't necessarily
agree with that. The recidivism rate is low, and I think review boards do a good
job generally. I've got to be very careful because I think it's inconsistent
across the provinces. So, when I make that remark, I'm mostly talking about
Ontario, but it's pretty consistent on the recidivism rates.
I think, for the very small number of individuals to whom it may apply, and
where there have been incidents — Senator Runciman mentioned an incident and I'm
aware of other ones — hopefully it would make a difference if it's applied
appropriately. If that's the case, then yes, it works.
The Chair: Doctor, looking at some of the stats with respect to the
number of NCR decisions per year by provincial review boards, I'm looking at
Quebec and how there seems to be such a dramatic difference between Quebec and
the rest of Canada. I'm curious if you have an opinion on why that's happening.
I'll leave it up to you. Do you have an opinion on that?
Dr. Bradford: I do and I don't. I think it's under review and people
are trying to understand it at the moment.
The one thing I will say, though, is that this is a change. It didn't always
used to be that way. The other thing is that Quebec doesn't have a typical
forensic system like you have in other provinces, so many of the persons found
to be NCR end up in general psychiatric hospitals and are relatively low risk. I
think that — and this is just my guess — in part it has a group of individuals
who are probably resistant to treatment, caught up as NCR in the system and
probably become easier to manage with the structure of that system. In other
words, it's compensating for the deficiencies in the general mental health
system. I think it's a bit more complicated than that, but I do think that's one
The Chair: I have a question not directly related to the legislation,
but hopefully you can give us your views. We've witnessed an inquest recently in
Toronto, dealing with the deaths of three individuals who were suffering from
mental illnesses but were in conflict with the Toronto police and lost their
lives. I know there are situations that police confront on almost a daily basis
in dealing with individuals like those three. We know the challenges with
respect to individuals having the right to refuse treatment. Even though they've
been in constant contact on a regular basis with police services and with the
courts, they still have that right to recognize their own challenges and refuse
treatment. As a result, we get into a very serious conflict, which can result in
the death of the individual or others. Is there any way that that can be
approached, either provincially or federally, that could address those
Dr. Bradford: I'm going to make a disclaimer, first of all, because
I'm working with Justice Iacobucci on the review of the police shooting in
Toronto, so anything I say is not related to that committee. I'm just speaking
I think there is a problem in the general mental health system and I think
there's a problem in terms of the right to treatment. In your slides, you have
the two studies that show that, by far, the large percentage of people, even
when followed in studies like that, discontinue their medication. What that
means is that they get sick again. They then start to live in low-income
housing. They get into drugs and alcohol, and they start to get into trouble
with the criminal justice system. That's happening all over the world. That's
why we have the criminalization of the mentally ill.
I think you would hear most police forces say that they've become a mental
health service, picking up people off the streets, having to take them to
hospitals, spending many hours in emergency services. I think that's a big
problem of what's going on with people who are mentally ill, who subsequently
may become violent and become NCR.
You're right. Particularly in Ontario, what happened was that we split the
capacity to consent to treatment and involuntary hospitalization into two
factors. So what happens is that you get caught up in this conundrum. It
happened, for example, in the Arenburg case. What happened in Arenburg's case
was that he attacked the manager of a radio station in Ottawa, and he was then
brought by the police to the emergency in Ottawa. He came into the Royal Ottawa,
where I was working at the time, in the schizophrenia program. Not into
forensic; he didn't have any crimes that he had committed. He was certified and
held under the Mental Health Act and was also declared incapable to consent to
treatment. He challenged both of those. That went to a review board. The review
board upheld the certification, but they said he had the right to refuse
treatment, which led to a difficult situation. Eventually, he was discharged,
and the rest is history.
One of the problems is that the right to refuse treatment in our society,
particularly in Ontario but also, I would argue, elsewhere, has become the
predominant issue. People who have schizophrenia have a brain disorder. It
responds pretty well to treatment, and part of the success of the forensic
system is not that we have the right to force treatment but that we have a
structure that allows them to follow treatment. That, in the general mental
health system, is very difficult to implement.
Part of the hope was that community treatment orders would fill that gap, but
certainly as they operate in Ontario, they really don't work very well. The
person has to agree. If they don't agree, the thing falls apart and there are
hours and hours of work to get to it.
That's a long answer to that question. Once before this Senate I talked about
our need for a uniform mental health act. I still think we need it.
The Chair: A national act?
Dr. Bradford: Yes, a national, uniform mental health act. I think
issues like the right to treatment could be part of that. This is something the
Government of Canada could do, and I don't think it has to be punitive. It is
something that could start to work well and do two things: reverse the
criminalization and enhance the lives of people with major mental illness.
Senator Frum: You mentioned the Vincent Li case as well. You feel
there was a right he was denied or declined a right to medicine in advance of
committing the murder. Can you elaborate on what the failure was there?
Dr. Bradford: I don't want to go into the specifics of it, but I think
that he was a patient in the general mental health system and for whatever
reason he didn't receive the treatment in the general mental health system. His
illness deteriorated, he ended up in a bus in Manitoba, and we know what
If you look at the trajectory of people who come into the forensic system,
most of them have been in the general mental health system for repeated
admissions. The reports that I write on those with previous psychiatric
histories before they've committed serious acts of violence is quite long, with
admission after admission after admission. What we should be paying attention to
is why we have these repeated treatment failures and then they become a forensic
system client where they then do well. We have the proof, as you've heard many
times. I think we could do a hell of a lot better in the general mental health
system in the broad overview of the right to treatment in order to manage
Senator Boisvenu: I have been advocating on behalf of victims for more
than a decade. I speak with many mothers in malls or when they are doing their
grocery shopping. Mothers with a schizophrenic son tell me that they are afraid
and believe he will kill them one day.
I have been following the issue of mental health in Quebec for 10 years. Do
you know what percentage of families attend mental disorder review board
Dr. Bradford: I'm not sure of the percentage, but what I can tell you
is that if you look broadly at the violence perpetrated by individuals with a
major mental illness, a large percentage of it is against family members.
Senator Boisvenu: Only 4 per cent of families attend the hearings. Is
it fair to say that mental disorder review board hearings in Canada are held
behind closed doors?
Dr. Bradford: Technically, they're open to the public, but the public
Senator Boisvenu: Do you think it is unusual for the public to believe
that the individuals released are high-risk offenders, given the lack of family
and public presence? On the other hand, there is media coverage for "normal
killers," in the newspapers and so on — the information is readily available.
Does it not make sense, then, that more people feel they are in danger?
Dr. Bradford: Yes, I can see how it happens, but, again, the hearings
are open. You can't videotape them, you can't record, similar to a court, but
anybody can attend. Today notice goes out for hearings, so people are made aware
of it if they are victims and things like that.
On some of the more high-profile hearings, yes, the public attends and media
is there. I have been involved in a number of those. You're right, though, that
as a routine it's very infrequent for members of the public to be there.
Senator Joyal: In your experience on those committees in the past,
does it lead you to believe that the protection of the public has never been
given the consideration that it deserves and that in fact the way those
committees have been operating up to now, on the basis of your experience, have
always met that threshold as being one of the paramount elements to be served?
Dr. Bradford: Most of the hearings that go through are relatively
routine. You would have the hospital psychiatrist testifying as to the mental
status of the accused, their progress in treatment, and then you would have the
Crown attorney reviewing the criminal record. They've looked at the hospital
chart and their role is to bring out the factors necessary to protect the
public. I think that works quite well in Ontario and the results in terms of
recidivism show it; more importantly, even if it's different across the country,
the results are pretty consistent.
I think we could do better across the country and maybe the percentages would
come down even lower, because I think the percentage in Ontario is lower than
some other provinces.
No, I do think it's dealt with quite adequately, and I do think it is a
Senator Joyal: Who speaks on behalf of the public?
Dr. Bradford: The Crown attorney. In Ontario there are Crown attorneys
across the province that specialize in mental disorder, so they become familiar
with it. They attend all the hearings. They come ahead of time and review all
the hospital charts. If I'm the attending physician they would meet with me and
ask me questions. Generally they meet with me before a hearing and I talk to
them very openly.
In the hearing, let's say the hospital is recommending an absolute discharge.
If they agree with it, that's fine, but if they don't agree with it and they
feel that the public is at risk, they will argue strongly against it. The board
will take all of those arguments into account and decide on the outcome.
People in the forensic system stay there a long time. It's not an easy system
to get out of in Ontario for sure. This is despite the definitions from the
Supreme Court of Canada around "significant threat" and what it actually is and
the clarification of an absolute discharge. Even with that, people remain in the
system a long time.
Senator Joyal: Could you give us instances whereby the Crown attorney
would have requested that the person be kept in custody for the sake of public
interest and whereby their recommendation has been set aside by the board?
Dr. Bradford: There are so many of them that I can't think of them. I
can tell you that just about every application for an absolute discharge that is
made by our hospital, I would say a significant percentage of them, perhaps 30
per cent, would not be granted on the first instance. A lot of it would have to
do with reservations around concerns to protect the public.
If I'm asked questions as the attending physician, the first thing I would
say is that if this person receives an absolute discharge, there's no guarantee
that they are going to continue their medication. There's no reason why they
should. The structure is moved away; they become non-compliant. If they are
non-compliant, they become psychotic. Psychosis and violence is where the risk
factors are. That comes out routinely in hearings, and most of the Crown
attorneys that I'm aware of are aware of that and they'll bring it out.
Where that may change is if the person's lived independently in the community
for many years, or a number of years, and they've taken their medication, and
there's been no problem, the absolute discharge would kick in. I have patients
that I've been seeing now for 25 years. I saw a patient this week who had
committed a double homicide 30 years ago. He's complied with his medication and
he's had an absolute discharge for 15 years. It does work as well.
One of the things that I think needs to be looked at, and I think, again, is
not consistent, in our system in Ottawa when somebody gets an absolute discharge
they do not go back to general psychiatry; they remain with us as part of a
continuity of care. I think that that helps. That's not consistent across the
province or even across the country.
Senator Joyal: Would it be one of the recommendations that the royal
commission you are recommending would have to consider?
Dr. Bradford: It would be very difficult to implement. I'd love it if
you could. I think it would be a good idea. However, we can't even really get
community treatment orders to work very well or capacity to consent to
treatment. We need to look at a whole package of things that we can do to make
The Chair: Thank you, doctor, for a very helpful contribution to our
deliberations today. We very much appreciate it.
Members, next week we will continue our deliberations on this legislation.
We'll have legal and law enforcement organizations appearing at that time.