Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 10 - Evidence for April 20, 2005
OTTAWA, Wednesday, April 20, 2005
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-10, to amend the Criminal Code (mental disorder) and to make consequential amendments to other acts, met this day at 4:17 p.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the Chair.
[English]
The Chairman: Today, we have a panel of interesting people as witnesses. From the Psychiatric Patient Advocate Office, we have Mr. David Simpson, Program Manager, and Mr. Stanley Stylianos, Program Manager. We have Ms. Jennifer Chambers, Coordinator, Empowerment Council, and Co-Chair, Mental Health Legal Advocacy Coalition. We also have a representative from the Canadian Association for Community Living, Dr. Michael Bach, Executive Vice-President.
Welcome to all of you. We are very pleased to have you with us today. Mr. Stylianos, will you start?
Mr. Stanley K. Stylianos, Program Manager, Psychiatric Patient Advocate Office: Good afternoon. Thank you for the opportunity to present here today and to voice our perspective on this important bill. I would like to provide a brief history of the Psychiatric Patient Advocate Office and a context for our submission, and then I will turn our presentation over to Mr. Simpson. The Psychiatric Patient Advocate Office, PPAO, is an arm's length program of the Ontario Ministry of Health and Long-Term Care. It was established in 1983 to protect the legal and civil rights of inpatients in the 10 current and divested provincial psychiatric hospitals. Broadly, our program is comprised of two service components, namely rights advice and advocacy. Our mandate has expanded since the inception of our program and now includes the provision of rights advice in 54 Schedule I and two Schedule 2 hospitals. Schedule 1 and Schedule 2 hospitals are general hospitals with mental health units.
On average, we carry out 20,000 first-rights advice visits per year. With respect to our advocacy program, we address approximately 4,500 individual instructed and non-instructed issues per year in the current and former provincial psychiatric hospitals. In addition, we address roughly 75 systemic issues across the province.
We believe that we can offer a particular expertise and vantage point with respect to the proposed legislation insofar as the majority of forensic units in Ontario are located in the hospitals we serve, and a significant proportion of the work carried out by our advocates across the province is in service to concerns raised by forensic clients. Forensic clients have consistently reported frustration with a system that fails to provide individual care, lacks effective rehabilitative programs and removes a sense of hope.
Our reason for being here today is to work towards strengthening the legal and civil rights of our clients, and to work toward restoring a balance between care, treatment and rehabilitation, and safety and security. For many, the forensic system is more reflective of a correctional facility than a hospital, and security often takes precedence over care, treatment and rehabilitation. To restore a balance, there must be an emphasis on rehabilitation and recovery, and a move away from what clients perceive as punishment.
Finally, the forensic label in itself can have a profoundly negative and stigmatizing impact, ultimately creating an invisible barrier that undermines successful community reintegration. Many clients, doubly stigmatized by mental illness and the forensic label, face profound discrimination and are thwarted in their efforts to obtain housing, employment and social acceptance. We see the mental-disorder provisions of the Criminal Code as a key mechanism to rehabilitate and reintegrate individuals suffering from mental illness, and to assist them in participating fully in society. It is in this context that we offer our recommendations.
Mr. David Simpson, Program Manager, Psychiatric Patient Advocate Office: Thank you, Madam Chairman and committee members for your interest in the work that the psychiatric patient advocate does with and on behalf of individuals with mental illness, including those individuals who are receiving care and treatment in the forensic mental health system. As partisan advocates for our clients, we are hopeful this afternoon that our submissions and recommendations will have an impact on this legislation, for the benefit of all individuals within the forensic system.
I will highlight a couple of points from our submission including victim impact statements, the right to annual hearings and mandatory attendance, treatment orders, guidelines for provincial review boards, and guidelines for forensic facilities.
The patient advocate office is concerned about the proposed changes to the mental disorder provisions, allowing victim impact statements to be presented at review board hearings. Victims deserve recognition and a voice, but in the appropriate forum. Historically, victim impact statements allow victims of crime to provide input into the sentencing process. However, mentally disordered accused persons deemed not criminally responsible, are not sentenced and are instead considered to be patients.
The goal of review boards are distinct from criminal courts. The PPAO questions how such statements would be effective in a process designed to rehabilitate and reintegrate individuals found not criminally responsible, and determine current condition and level of risk. Ultimately, such statements will divert the review board from concentrating on relevant evidence relating to the current condition of the forensic client, resulting in the least onerous and least restrictive disposition. Such statements focus exclusively on the effect of the forensic client's action while they were potentially at the low point in their illness, and neglect other considerations, such as the potential for rehabilitation and reintegration.
The introduction of victim impact statements at each annual hearing have the potential to set clients back in their quest for wellness and recovery, and may diminish any gains they may have made in their care and treatment. As a result, the PPAO recommends that clause 16(3), which permits victim impact statements to be presented at review board hearings, be repealed and that a more appropriate forum be considered for such statements.
The Psychiatric Patient Advocate Office does not supportthe proposal to permit review boards to hold hearings later than 12 months after a forensic client's recent disposition. Persons whose liberties have been restricted are entitled to annual reviews to ensure that the disposition is being followed, and that the person is in the least restrictive environment possible. The proposed amendments make assumptions about forensic clients, in particular their clinical progress, and appear to impose a presumption of dangerousness on the forensic client, which the Supreme Court of Canada in Winko v. British Columbia (Forensic Psychiatric Institute) deemed inappropriate and possibly discriminatory.
Some forensic clients may also wish to be self-represented before the review board. In this regard, the PPAO believes it is crucial that an unrepresented accused forensic client have access to an amicus curiae, or a friend of the court, to assist with strict legal matters and adjournment requests, et cetera, similar to the process in place in the Ontario Court of Appeal when a review board disposition is appealed.
The PPAO is opposed to any amendment to the code authorizing review boards to compel a forensic client's attendance before a review board. The PPAO respects review boards' ability to compel the attendance of witnesses, but some clients choose not to participate in the process and have their legal counsel attend in their place to protect their rights. Still others prefer to attend, but not to give evidence.
To compel the attendance of forensic clients is an abusive and paternal amendment that has no role in the forensic system, particularly where victim impact statements may be presented year after year. Indeed, forcing a forensic client to undergo such process could be counter-therapeutic and frustrate efforts at rehabilitation. As a result, the PPAO recommends that review awards continue to hold hearings no later than 12 months after each forensic client's disposition, and that duty counsel or an amicus curiae process be instituted to assist unrepresented forensic clients before the review board.
There is no more important principle in medicine and law than treatment with consent. The simple rule must be that there is no treatment without consent. The PPAO remains very concerned with court-ordered treatment orders under section 672.58 of the Criminal Code. Ontario's Health Care Consent Act deems each person capable of consenting to treatment, unless found otherwise. It also provides for the treatment of individuals who are found incapable of making their own treatment decisions, through the consent of a substitute decision maker, SDM. The act requires the SDM to consider the incapable person's prior capable wishes and if none apply, the best interest of the individual, according to specific criteria.
One of the checks and balances in Ontario's mental health care system is the provision of rights advice when a patient's legal status has been changed. Following a finding of treatment incapacity, a rights adviser by law must promptly meet with a patient to advise them of their rights. Any move to undermine the provision of formal rights advice would be a mistake with dire consequences. In fact, given the vulnerability of this patient group, perhaps the committee should consider strengthening rights advice provisions across Canada. The PPAO recommends that the treatment disposition section in the code be repealed and a mode of consent-based treatment be adopted similar to that available under Ontario's law.
Guidelines for provincial review boards: The PPAO previously recommended that the code be amended to provide guidelines to provincial review boards with respect to dispositions, rehabilitation, and dangerousness. Many clients complain of situations where review board dispositions authorize placement in the community, but a lack of appropriate community resources denies them the opportunity. Many clients are warehoused in facilities such that it is not unusual for forensic clients to reside in hospitals for years. Such realities do not comply with the code, which requires placement in the least onerous and least restrictive environments, and review boards are not given power under the mental disorder provisions to enforce their dispositions. This must change.
As the principles of rehabilitation and reintegration are as important to dispositions as public protection, specific factors relevant to rehabilitation should be articulated in the code. Again, review boards should be given the authority to order that the needs of the forensic client be addressed, and have the corresponding authority to enforce such orders. Many clients report that undue emphasis continues to be placed on forensic clients' index offence, or current inappropriate behaviours, rather than dangerousness. The common law duty created in Winko requiring review boards to make positive findings of dangerousness should be codified and strengthened in the code. This arises from the fact that review boards have not operationalized the Supreme Court's recommendations in Winko to seek out evidence that supports release. This has increased the number of forensic clients detained on trivial offences who languish in the system for extended periods of time.
Unfortunately, undue emphasis is placed on behavioural issues associated with institutionalized living, detention and historical or static factors, as opposed to dynamic factors such as current condition and current level of risk. The mental disorder provisions in the code need to ensure those persons who find themselves in the forensic system do not remain there for longer than necessary.
The PPAO recommends that timelines for compliance be introduced into dispositions and that review boards be given the authority to enforce an order compliance with dispositions.
Last are the guidelines for forensic facilities. As a consequence of hospital divestment, many forensic beds in Ontario have been transferred from provincial government control to public hospitals. The lack of central oversight has resulted in inconsistent and fluctuating policies that hinder rehabilitation and reintegration efforts. For example, there is currently no uniform standard or definition for security levels such that some minimum-secure-level forensic clients are subjected to the same restrictions as those residing in medium-secure facilities. This is an issue of fairness.
A further concern voiced by forensic clients is that although section 672.56 of the code allows for board reviews following seven days of increased restriction on liberties, overly broad dispositions allow for broad and restrictive interpretation by facilities that, despite having the obligation to report to the review board, often fail or refuse to do so.
At present, there is no accountability mechanism or penalty provision in the code for facilities that fail to report such restrictions. The process for adjournment of these hearings should be initiated and driven by the forensic client.
The PPAO recommends that the code clearly define levels of custodial restriction and that the code clarify the phrase ``restriction on the liberty of the accused'' to give guidance to facilities that must apply to the review board for a hearing, and further, that the board be given authority to order compliance with the code.
The PPAO encourages the Senate Standing Committee on Legal and Constitutional Affairs to continue to consult with the public and stakeholders on this fundamental legislation. We advocate for equitable treatment for individuals with mental disorders or impairments and see the mental disorder provisions in the code as a key mechanism to rehabilitate and reintegrate persons with mental illness, and help them participate fully in society.
The PPAO believes there is much to be done before we can have an inclusive and accepting society for individuals with mental illness. We are confident that Canada can rise to meet this challenge. Doubtless, it will take much effort on the part of all stakeholders, but with modern and progressive mental disorder provisions in the code that focus on restorative rather than punitive justice, that dream will become a reality.
Ms. Jennifer Chambers, Coordinator, Empowerment Council, and Co-Chair, Mental Health Legal Advocacy Coalition: In Canada, as in the rest of the world, people considered mental disordered are subject to the most extreme social prejudice and scorn. Appalling assumptions go unchallenged. ``Dangerous'' and ``lunatic'' are often considered synonymous and the people most feared and despised are the so-called ``criminally insane.'' Instead of providing education and leadership to address the public's ill-founded fears, legislators all too often adopt and even inflame those fears. An example from Ontario was the naming of legislation affecting thousands of people who have committed no harm after a person killed by one man who was mentally disturbed. I refer to the legislation in Ontario as Brian's Law. Elected politicians may be inclined to pander to public prejudice, especially when a minority is as despised as this one. We appeal to you, the chamber of sober second thought, to uphold the equality right of this minority that we are discussing here today.
The Supreme Court of Canada was clear about what was necessary to save this legislation from being a Charter violation. Some parts of the proposed legislation will not meet that standard.
The U.S. National Council on Disability has concluded that one of the reasons public policy concerning psychiatric disability is so different from that concerning other disabilities is the systematic exclusion of people with psychiatric disabilities from policy making.
The Empowerment Council and Mental Health Legal Advocacy Coalition represent people with direct experience of the psychiatric system, including the forensic mental health system that is an ever expanding part of the mental health system. Our members have intervened in three Supreme Court of Canada cases concerning the rights of individuals in the forensic system.
In our brief we outline our positions on the proposed amendments. In a separate section we detail our non- legislative recommendations and cite research and experience supporting our recommendations on the amendments.
We beseech you to read both sections. I would like to offer to your researchers that any materials cited there that you require and we could assist with, we would be glad to do that.
In the appendix, you will find the preliminary results of the only survey we know of that has ever been conducted in asking people in the forensic system what they think of the system they find themselves in. It was a survey that we conducted thanks to Court Challenges Program of Canada.
A number of amendments seem to be based on misconceptions. For that reason, we offer the following information, with corresponding evidence offered in our submissions, to correct misunderstandings and assumptions about people in the psychiatric system.
First, mentally disordered people are no more violent than other members of the same community. Most people in the forensic system have not committed acts causing bodily harm. We refer you to the Center for Addiction and Mental Health statistics from the 2002 submission to the Parliamentary Standing Committee on Justice and Human Rights.
Even the numbers recorded as physical harm are exaggerated. For example, people can be in the forensic system for spitting on someone. This is recorded as an assault. What tends to happen in the forensic system is that, unlike the legal system where charges are reduced during plea-bargaining, people are recorded instead as having the highest of the index offences. Mentally disordered people of all kinds do recover. Contrary to popular belief, people with the diagnosis of schizophrenia have been found to recover. A significant percentage recovers without the use of psychiatric medications. Some do benefit from psychiatric medications. The assumption should not be made that one thing is true for everyone.
Evidence has shown that mentally disordered offenders are less likely to repeat than non-mentally disordered offenders. Evidence shows that for offenders at lowest risk supervision, detention and treatment can increase the risk of violence.
For the majority of time, being found not criminally responsible, NCR, or unfit generally has a worse result on the person's liberty interests than being found guilty of a crime. A large percentage of people in the forensic system are survivors of abuse and many people report abuse in the forensic system. Reports are often confirmed by outside parties.
Addressing the amendments to the criminal code, particularly now, we recommend an additional reason for ordering an assessment, and that is to seek reasons to discharge absolutely. This was one thing recommended by Justice Beverly McLaughlin in Winko. We oppose withholding assessment reports from the individual concerned, and the potential exclusion of individuals concerned from disposition hearings. A therapeutic relationship is impossible under such circumstances. It is critically important that the accused be allowed to see and correct errors in the report. Errors of great significance are not unusual. For example, an individual we met had mentioned to his doctor that he was able to perform magic tricks. He discovered later this was recorded in his record as being delusional because he believed he was magic. A fairly significant finding concerning someone's rehabilitation and of vital importance, he was able to see the record and make the correction.
Victim impact statements have no place in disposition proceedings that are a non-adversarial venue where the Supreme Court has been clear that the NCR accused is not to be punished. If someone had a heart attack that resulted in them driving their vehicle into a pedestrian, they would not be considered criminally responsible for the commission of that act because there was no intent to commit that crime. Would it be appropriate for the victim's suffering to be re- read at a hearing for that person on an annual basis? The person is not supposed to be punished. What purpose would that serve?
The same is true of people found NCR. There was no criminal intent. That is what NCR means. Victims suffer and want acknowledgment of that suffering. That is understandable and it should happen, but not before a body that is deciding what should happen to someone who is not criminally responsible.
We do not agree with giving any body the power to extend time between review board hearings. It is not possible to predict an individual's state of mind two years into the future, and current state of mind is what is supposed to be considered when determining detention, supervision or discharge.
Setting criteria so broad that it is likely to inflict severe psychological damage creates a standard that is both excessive and arbitrary, and has no possible foundation in evidence. This section strips away procedural safeguards that, taken in their totality, protect the Charter rights of the accused.
We concur with the Supreme Court and the parliamentary committee's recommendation to grant the power to absolutely discharge an unfit accused. We commend you for your attention to the plight of the person found unfit whose liberty is lost for a lifetime simply because of their inability to comprehend the judicial process.
The current forensic system does not offer what it should in a just society such as ours. People should not have to live in what has been described as a regime of state-mandated segregation and degradation. It is worth remembering that with great ill fortune, any of us could develop the state of mind that could place us in this abysmal system. I would like to finish by reading a quotation from the Supreme Court in Winko:
...it has been determined that the NCR offender is not morally responsible for his or her criminal act. Punishment is morally inappropriate and ineffective in such a case because the NCR accused was incapable of making the meaningful choice upon which the punishment model is premised....Any restrictions on the liberty of NCR accused are imposed for essentially rehabilitative and not penal purposes. In the words of Taylor J.A, unlike the sanctions faced by a convicted person, the scheme that addresses NCR accused ``exacts no penalty, imposes no punishment and casts no blame....''
Dr. Michael Bach, Executive Vice-President, Canadian Association for Community Living: Thank you for the opportunity to speak this afternoon about our perspective on Bill C-10. Let me begin by saying I am with the Canadian Association for Community Living, which is a national association that advocates for people with intellectual disabilities, and their families. We have been in existence for about 50 years, representing about 40,000 members in our association in 420 local associations. We are rooted in communities across the country and have a wide experience with adults with intellectual disabilities who have come into the forensic mental health system through the mental disorder provisions.
We have a number of concerns about the mental disorder provisions. We think there are some initial small steps that are positive that have been taken in this amendment, but on balance there remain some fundamental outstanding issues that have begun to be identified by my colleagues this afternoon.
I would like to begin by outlining some concerns we raised when we submitted our brief to the House of Commons Standing Committee on Justice and Human Rights back in 2002 in the original hearings that were part of the amendments to Bill C-10.
First, we were concerned that mental disorder provisions are often applied in a manner that undermine the equality rights of persons with intellectual and other mental disabilities. People are being held for indefinite periods even after review boards have ordered discharges to the community. There is no system of compliance, as has been already mentioned. We have people with intellectual disabilities who will not be remediated by medications, who remain in forensic psychiatric facilities even though they have been discharged.
Review boards are lacking clear criteria, guidelines and expertise with respect to community placements and supporting people with intellectual and other mental disabilities. The expertise remains primarily psychiatric and medical. This legislation remains firmly rooted in the medical model of disability, and there is a profound lack of understanding in our experience with review boards and their capacity to assess needs of people considered not criminally responsible or unfit.
We also believe that the language of the code continues to reinforce negative stereotypes on the basis of mental disability, which is a prohibited ground of discrimination in section 15 of the Charter. We were also concerned that those deemed permanently unfit, often the case for people with intellectual disabilities because they cannot be rehabilitated in the usual sense of that term, could not be absolutely discharged.
Those were the concerns we started with in looking atBill C-10. I want to identify a few factors that we keep in mind as we review Bill C-10, related specifically to people with intellectual disabilities.
First, the term ``mental disability'' includes both people with mental illness, mental health problems and psychiatric disability, and people with intellectual disabilities, who are usually born with what is considered limited intellectual functioning. I think it is important to keep both of these groups in mind because the latter group cannot be remediated, as I said.
Nonetheless, research has shown that people with even the most severe intellectual disabilities can be supported to live in the community. We have numerous examples of that across the country. People with even the most profound disabilities can be supported if the right supports are put in place.
Because of their intellectual differences, people with intellectual disabilities are often isolated, confined or excluded in communities. Their exclusion has reinforced a marginalized and objectified status in Canadian society that makes, for this group, a prevalence rate of sexual abuse, physical abuse, emotional abuse and violent abuse one of the highest rates of any group in Canadian society.
As well, it has been estimated that up to 40 per cent of persons with intellectual disabilities also have mental health difficulties. We are talking about a group that ends up in the forensic psychiatric system with both mental illnesses and intellectual disabilities. That said, it is important to say that mental illness is not inherent to intellectual disability, despite public assumptions to the contrary.
Keeping that in mind, I want to reference what we think are a few positive steps in Bill C-10. Expanding the definition of the assessment from medical professionals, usually psychiatrists to other qualified professionals, opens a small door in this legislation to have other types of professionals appointed to review boards. We had recommended in our 2002 brief that social workers, those with experience in community placement and support, also be included.
The intent of expanding the assessment to other qualified professionals is really to deal with medical shortages. We hope there could be clear guidelines on the assessment process to encourage and require that qualified professionals with community-based support experience be included there.
We support the repeal of the capping provisions. We feel these are better addressed in stay of proceedings provisions, so there are a few issues that I will mention.
We also feel that repealing this provision goes some way in addressing the stereotyping language of the code, because along with repealing the capping provisions, we are dropping the category of the dangerous mentally disordered accused. As we have already identified, that category simply contributes to a public imagination that marginalizes and further stereotypes this group in unfounded ways.
The third kind of positive step is the introduction of the stay of proceedings for those found unfit to stand trial or who are not criminally responsible. Under the current provisions, the accused cannot be discharged into the community without conditions. We feel that this is a violation of basic liberty rights, especially for people with intellectual disabilities who will never develop the capacities to be considered fit to stand trial.
On that basis, this group has been permanently confined to forensic psychiatric facilities. They will never be considered fit, but nonetheless would not be a danger to society or to themselves. We think this stay of proceedings provision is an important step.
I want to identify five or six outstanding concerns. First is the category of mental disorder. I recognize that Bill C-10 is not in a position to address this category in and of itself, but I want to start with my comments in terms of concerns.
The language of mental disorder reinforces negative and discriminatory stereotypes that contribute to disabling perceptions of people with disabilities.
The 1992 Criminal Code amendments dropped insanity because insanity was defined to mean a natural imbecility. The concern of the legislators was that this term was offensive and we should drop it. By maintaining mental disorder, which is defined as a disease of the mind, we believe we are no further ahead than the language of insanity and imbecility. This keeps us firmly rooted in a medical model of disability, especially for those with intellectual disabilities, and it continues to conjure the notion of danger in public consciousness even though we dropped the term, dangerous mentally disordered accused. We believe that the code should adopt the language of the Charter, mental disability, and keep it at that. We believe this would help to take another step in recognizing that people with mental disabilities may or may not require medical interventions. They may or may not have diseases of the mind, in that very outmoded language.
Allowance for victim impact statements: We agree with both our colleagues that there is no place for this in the review board hearing. We only add that these victim impact statements, in this particular context, can contribute to intensifying negative public perceptions about people with mental disabilities. You have an accused who is not on trial, no crime has been effectively committed, but you have impact statements that can continue to circulate outmoded notions of mental disability that contribute to public fear and, in fact, reprisals against people with disabilities.
I have already mentioned the point about assessments. We believe that there should be a much stronger requirement that assessments include other expertise.
One concern about stay of proceedings is that there is no explicit provision in the bill to provide for an application by the accused themselves for an inquiry to determine whether stay of proceedings is required or not. We believe that the accused should have the right to ask the review board to request the court to initiate that inquiry. It is much more cumbersome for the accused to have to go to the Court of Appeal to appeal a review board decision.
Similarly, we would support strongly our colleagues' position on the extension to 24 months between hearings. This can contribute to a vicious cycle where people remain confined for up to two years. This does nothing for their mental illness except exacerbate it, which justifies their further confinement. There is no reason, other than if it is a resource issue, why there cannot be annual reviews. We do not think that resource issue would be a justifiable limitation.
We are also concerned about interprovincial transfers, which are in place for the stated purposes of reintegration, recovery or treatment. We are concerned that this provision can be construed as a concession to a provincial underfunding of needed supports in communities. People with mental disabilities have often fragile, if any, systems of support in the community. We do not think some concern about public perception or concern is an adequate reason to have someone transferred out of a province. There needs to be clear consideration of why an interprovincial transfer is necessary, and a requirement on the provincial governments to demonstrate that everything has been done to provide adequate supports in that particular province where the accused is. Those requirements should be much clearer in the legislation.
To conclude, we are supportive of the relatively small steps.We do not think they are nearly enough. We urge you to consider at least some minor amendments: in the short term relatedto assessments that an amendment be provided to the no discretion on extending the time for review board hearing beyond 12 months; an amendment entitling an accused to seek an inquiry as to whether there should be a stay of proceedings; and an amendment to require review boards to demonstrate clear and convincing evidence that it is in the best interests of an individual to be moved to another province and to demonstrate the province is not reasonably able to provide needed supports.
We also urge in the longer term that the Senate committee recommend the following, possibly in a statutory review of the provisions: the need for reliable information on those found not criminally responsible or unfit to stand trial; the nature of their disabilities; the dispositions ordered; and the interprovincial transfers order. We urge a consideration of the language of mental disorder next time around. That will not happen in this round, but we urge that this question of the language of disability, which has been taken up by the Department of Social Development, be considered in the next round. That department has recommended that federal legislation take a much more social model approach to defining disability. We urge that if amendments cannot be managed in this round, the composition of review boards be looked at in a really comprehensive way in the next round. I will leave it at that.
Certainly, these provisions can contribute to further marginalizing one of the most excluded, isolated and confined populations in this country. This legislation is not neutral. We urge you to take steps to make it part of the solution, rather than part of the problem.
The Chairman: Many of the witness concerns appear to relate to the application of the Criminal Code or the enforcement of some of its provisions. Other concerns relate to matters outside the criminal law context, such as treatment in forensic facilities, which is generally a provincial matter, or a lack of resources. Other concerns relate to stigma or stereotypes, and many of these issues are beyond the scope of Bill C-10.
I might react to some of the recommendations that PPAO has presented to us today. You say the PPAO ``recommends that timelines for compliance be introduced into dispositions, and that Review Boards be given the authority to enforce and order compliance with dispositions.''
My reaction would be, assuming that this is in reference to compliance by third parties, let us say hospital, it is difficult to enforce compliance when it is not really the treating facility's fault that it has limited resources.
It would also be counterproductive to bring hospital representatives before the review board to answer for not doing something. In other words, this issue is perhaps better addressed by allocating more resources rather than by Criminal Code enforcement provisions. I would like to have your reaction to that.
Mr. Simpson: What we occasionally see is that a client will go to their annual Ontario Review Board hearing, a disposition order will be written, and the facility believes that as long as they take some action with respect to the provisions of the disposition order before the next annual hearing, they have met their obligation. One of the examples that I gave was with respect to housing or to moving into the community, because there is that broad discretion in the disposition order that allows the facility a lot of leeway. I think that has to be tightened up because if the board has met, they have fulfilled their obligation and reviewed the information. They are in fact holding to the Winko provisions in terms of the least restrictive environment. They say based on everything before us here today, we think that the disposition order should say this and this. At that point, if the facility does not move to implement the disposition order, there needs to be some accountability provisions in the law that the board can come back.
We see this often with transfers. A client will be transferred from a medium secure unit to a minimum one, and year after year they are going back before the Ontario Review Board, the same disposition order is coming out and no one is acting on it. My position is that there needs to be some accountability; that the disposition order that is written is complied with.
Ms. Chambers: There is a case that will be coming before the Supreme Court related to that issue called Mazzei v. British Columbia (Adult Forensic Psychiatric Services). It is about the failure to provide someone in the forensic system with the rehabilitation necessary for him to heal. In this case, it is culturally appropriate services.
The Chairman: Another recommendation would be that the code, ``specify the factors to be considered in determining the least onerous or restrictive disposition, and a range of treatment modalities to address rehabilitation needs, in keeping with the forensic client's wishes and choices.''
Factors for the least onerous and restrictive disposition are already listed in section 672.54. It says, ``...the need to protect the public from dangerous person, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused....''
Treatment modalities are probably a matter best left to provincial legislation and the doctor-patient relationship rather than a matter for the Criminal Code.
Would you agree with me on that? I am trying to have you agree with me.
Mr. Simpson: Our office deals extensively with clients in the forensic mental health system. It is not a system that meets the needs of the clients very well. There should be some standard set in legislation. Yes, it talks about the individual's needs, but what are those needs? Are they needs with respect to quality of care and life, reintegration, and rehabilitation? We have people leaving the system that have not been prepared with employment supports and skills training, have not finished their education, and have inadequate income. They are being placed back into the community without the skills to be successful. In some ways, that is a set up. That is what our recommendation talks to about there. What is the full range of needs, and does there need to be specific comment about the needs of the individual and the obligation of the facility to support the person?
I have had clients say, ``Dave, I am getting my apartment for the first time in years. I have a phone set up, but I do not know how to activate voice mail,'' or, ``I do not know how to use a bank card,'' or, ``No one has assisted me with making sure the things I need are in place.''
That is an indictment of the system in terms of preparing people for reintegration into the community so that they can be as successful as possible.
Ms. Chambers: You were asking whether the reference of least onerous or least restrictive should be in the Criminal Code amendments. It is important that it be included because there needs to be consistency in the application of that standard. Again, there was recently a Supreme Court interpretation of that in the forensic system. The case that we intervened is called Pinet-Tulikorpi. That particular case was about whether levels of security fell under the requirement of least onerous and least restrictive, and the Supreme Court said that they do. Yet, this system is unbelievably inconsistent even within a single province, in the application of that standard. There needs to be federal guidelines.
Mr. Bach: We see the assessment process as linked to that provision, because it will not be made real unless there is a way of identifying the needs related to the least onerous and restrictive. From our view, the code could specify more explicitly the types of qualified professionals required in that assessment process, rather than restricting it to medical professionals assumed to be psychiatrists. From our experience, they do not have the knowledge base to understand the range of needs and options for people with intellectual disabilites. Consequently, people remain in highly institutionalized settings.
Senator Mercer: Thank you for coming and we appreciate hearing from you, and your expertise.
I view this as four groups: society, the patient, the employees who work with them and various aspects, and then, of course, the victims.
My ultimate concern is for the patients, but you cannot help also to be concerned about society in general, and how they integrate or do not integrate into society. It is a very tough discussion to have because we are walking that fine line. Those of us who consider ourselves as civil libertarians want to ensure that the rights of the patients are protected, but we also want to ensure society is protected as well. It is difficult.
Mr. Simpson, I have a good deal of sympathy for the recommendations that you have made, but I am concerned that we are setting ourselves up for failure. One issue we constantly deal with is that we do set ourselves up for failure.
Many of your recommendations were to repeal or eliminate parts of the act. What we really need is a positive recommendation with practical examples. It is easy for us to sit here and have an intellectual discussion, but we do not have a practical example of that. Also, we need to address the ultimate problem of governments that we can design the best system in the world but if we cannot afford to pay for it, it will not work, and we will be frustrated because we have a good system that cannot be implemented.
Mr. Simpson, perhaps you can comment on that.
Mr. Simpson: I would say a provision, for example, where our clients get one opportunity a year to go before the Ontario Review Board and plead their case and state, ``This is why I should be released. These are all the things that I have done that I think should lead to being placed in a least restrictive environment.''
To extend the time frame up to 24 months would be horrible for most of our clients, because many things change in two years. A more careful review of disposition orders is where we need to go, and that 12-month period is something that is tangible, and has to stay there.
Senator Mercer: Ms. Chambers, you indicated by way of an example of bad record keeping or improper labels of patients as to what happened with respect to the case of the patient who knew magic. We can all come up with cases where patients are labelled early on in treatment to be delusional, schizophrenic or any number of disorders, but as they go on, there are many other things that happen to them. There are physical disorders that have an effect and can give similar symptoms.
How widespread do you think the improper labelling is in the system?
Ms. Chambers: There is a fundamental problem with some of the application and diagnostic categories. If you look at the research into the reliability of the application of psychiatric diagnosis, you will find it is surprisingly unreliable. Studies have found that even when psychiatrists are trained in diagnosis, and many of them do not get specific training, there is still a high level of unreliability. If the same person saw three different psychiatrists, he or she would end up with three different diagnoses.
There is the interpretation of people's behaviour that takes place within the forensic system that is subjective. It takes place before they get into the forensic system. It is often at the point of arrest. There is a case at the Centre for Addiction and Mental Health that caused us to draft a right in the bill of client rights at the centre to address it and other problems. A forensic patient was in the common room and a nurse who did not usually work on the floor saw him and wrote in his chart that he was looking threatening.
Apparently, this is just a common facial expression that he has. He just frowns; no one else thought it was threatening. However, the fact that one person did meant it was in his permanent record. There needs to be a better way of addressing that, and the person needs to know what has happened in order to be able to address it.
There are cases of trivial offences that are exaggerated through the arrest-prosecution process, one example being a man who urinated outdoors, completely unaware that anyone could see him. A woman interpreted this as a sexual assault on her. He was arrested for sexual assault, and by the time the police figured out what the problem was, he was so angry that he spit on one of them. He was charged with assaulting the police and ended up in the forensic system for five years. One of the reasons was because he showed insufficient remorse for his crime. It was a series of exaggerated interpretations that did not get remedied for a ridiculous period of time.
Mr. Simpson: If I could add to that, for many of our clients in the system, if they show a full range of emotion, that gets charted in their clinical record or record of personal health information, and gets trotted out at review board hearings. If somebody gets angry, which is a human emotion — and if you ever watch me drive in Toronto, you would understand that — so often if you show that full range of emotion, it gets pathologized. The other problem in the system is that you have a psychiatrist that goes to the board who has to have a therapeutic relationship with you so that he or she can help you get well so that you can be reintegrated back into the community. That same psychiatrist has to go to the board every year and talk about your risk and your dangerousness, and everything that you have done wrong since the last hearing. For our clients, that is a really difficult thing to accept.
Some of them, in fact, leading up to their review board hearing or afterward, go through a period of silence where they are adjusting to the fact that, ``I thought I had a good relationship with my doctor. Unfortunately, my doctor went to the review board hearing and said all these negative things about me.''
The system does not concentrate on the positive things that the client does. That is a problem.
The other thing is that if you have a client that is in a system for years, if not decades, every year at their annual review board hearing, their index offence gets trotted out. For the next 20 years, every year they hear what they had done 20 years ago. There is something unfair about that. We have all probably done things in the last 20 years that we would not want somebody reminding us about year after year.
Often our clients were found not criminally responsible when they were at the low point of their illness. Since that time, there has been a journey of recovery, and treatment available to them. Often the review board forgets about that; the Crown is there to argue that this person should be held and here are all the reasons. We will now introduce a victim impact statement that I think has the potential to set back our client's quest for wellness recovery and reintegration into the community.
Some of these review board hearings hit the front page of local papers because it is sensationalized. The headlines are less than flattering. It reinforces this whole notion that everyone in the forensic system is a murderer or a rapist, and that is just not true.
There has to be a whole amount of resources devoted to creating understanding about the forensic mental health system, and educating people about the clients in that system. We need to stop calling the way our clients are treated, stigma and start referring to it as discrimination.
It is tough for our clients in the forensic system to get employment or enrol in university when the treatment team is saying, you need to disclose your index offence to that party or we will not allow you to do that. Those are the kinds of barriers that many of our clients face.
Mr. Stylianos: We are hearing about are the ways in which security issues overshadow treatment and rehabilitation issues. When you asked your question about the kinds of errors that occur in the record, this is something we see across the system, and we have offices around the province in various psychiatric facilities. By and large, treatment teams are vigilant to issues that relate to public safety and security, but do not pay nearly as much attention to issues relating to treatment and rehabilitation. It is that vigilance that skews the process and undermines the stated goal of the whole system, which is to rehabilitate and reintegrate folks into society.
Senator Mercer: I do not understand the importance some of you seem to be putting on the victim impact statement. If a person has been found not criminally responsible, then the victim impact statement should be separate for another process. It should not impact, if they have been found not criminally responsible.
My last question is with respect to the Canadian Association for Community Living. I am familiar with that organization. My sister-in-law lived in several of the facilities over a 25- or 30-year period.
I was and still am concerned about the protection of her rights in the facility where she lived on an ongoing basis with good professional people. I am concerned that she would encounter someone who was not a good caregiver and was abusive or whatever to her. Then the protection of the rights for the Canadian Association for Community Living becomes a little skewed because who do you protect? Do you protect your employee or do you protect the client?
While I know the answer will be the client, I do not know that it is always the case. The person that is involved here is the person who is also supposed to be their advocate. When the advocate is bad, the patient is left dangling at the will of unscrupulous people.
Mr. Bach: That is certainly the case in community service systems across the country. While the related provisions to address that particular situation are not in the mentally disordered provisions, there are other provisions in the Criminal Code that make it difficult for people with intellectual disabilities to give testimony on their own behalf. They are not considered credible witnesses despite some positive changes to the Evidence Act.
For all those reasons, when it comes to this particular set of provisions, we are concerned that there be some very positive, intentional steps taken to ensure that the needs of this particular group are addressed. We have examples across the country, similar to the examples that we have talked about, where for no apparent reason other than very long-standing assumptions that someone will not ever become fit, they languish in these facilities.
Mr. Simpson: I guess that is why we have raised the issue too around court-ordered treatment. As a rights protection organization, our job is to protect, as a partisan advocate and rights adviser for the client, the interests of that person; to ensure they are aware of their rights and if they require assistance that they have it available to help them exercise those rights. The court-ordered treatment really takes that away.
In our opinion, there should be a finding of treatment incapacity. When that assessment is done and the person's legal status is changed, under Ontario law, the rights adviser is required by law to be notified promptly, which then triggers therights-advice visit by one of our rights advisers.
What we want to continue to see is consent-based treatment; that the court cannot simply order treatment for people, that they be assessed by a psychiatrist, and if there is a finding of treatment incapacity, that the protections in Ontario law be extended to everyone. We think that is a really important step. If we are going to protect vulnerable people — and as Ms. Chambers said, most of the people in the forensic system are vulnerable for a variety of reasons — then we have to make sure that there is a formal process of rights advice. Ideally, if there was independent advocacy available across the system, that would be even better.
Senator Callbeck: Following on that Ontario example, you mentioned substitute decision makers. Would you talk more about that role? How does that work?
Mr. Simpson: In Ontario, if a person is found incapable of consenting to their own treatment, then there are provisions in the law for a substitute decision maker to be appointed. That could include a spouse if they had a spouse, or a parent or sibling. It is set out in order of priority in the legislation. At the end of that list, if no one is willing to be the substitute decision maker on behalf of the individual, the Ontario Public Guardian and Trustee would be appointed to act as the substitute decision maker for that person. The whole role of the substitute decision maker is set out in legislation; what they are required to do and the things they are required to consider, such as prior capable wishes — whether the person has ever said, ``I want this treatment but not that one.'' That makes the process a whole lot cleaner. There are times when a person may be at the low point of their illness, and in fact, has a substitute decision maker appointed. As they get well and they are reassessed, sometimes they regain that capacity to make their own treatment decisions.
Senator Callbeck: Are these assessments always done by psychiatrists?
Mr. Simpson: That is right.
Senator Callbeck: None of you want the victim impact statement. I noticed, Mr. Simpson, that you want it repealed, and that a more appropriate forum be considered for such statements. Why? Would you explain that? What do you mean there?
Mr. Simpson: We agree that resources need to be devoted to supporting victims across the system; not just with our clients but that there is support for victims and they should be given an appropriate voice at the appropriate place in the system. There is some discussion whether victim impact statements even work well in the criminal justice system. We do not think they have a place in Ontario Review Board process. We think that victims need to have a say in the system. They need to have supports and services available to them, so that in fact they are able to move forward in their journey of wellness and recovery.
Senator Callbeck: You say an appropriate voice at the appropriate place.
Mr. Simpson: That is right.
Senator Callbeck: Expand on that.
Mr. Simpson: I was going to leave that to you.
Ms. Chambers: One of the errors in the discussion about the victim impact statements that has taken place is that it is described as therapeutic to the victim. It is important that victims of violence have an opportunity for a therapeutic dialogue, but the criminal justice system and the mental health system that governs the forensic population is not the right place. People need therapeutic assistance and therefore it should take place in a therapeutic environment, not at a hearing of someone who is not criminally responsible for committing the act that harmed the person.
Senator Callbeck: All of you would repeal that.
Mr. Bach, you talked about transfers out of the province as though people are sometimes transferred and they find no supports there at all. I thought, generally, that they were transferred because they have family or friends there, where they will get support.
Mr. Bach: That can be a reason but there have also been considerations, and not necessarily only within the context of the Criminal Code, where basically the respective provincial government is not putting in the resources needed to keep a person in the community where they live; they may not have the needed supports and services. The supports and services are available in some other province, and so an agreement is made.
Our view is that there needs to be some clear criteria on when and why this transfer is made, and that really the only reason it should be made is after reasonable efforts have been taken to put those supports in place, or unless there is some very clear concern about public interest that cannot be addressed. Then, that would be adequate. There does not seem to be guidelines in these provisions to guard against review boards being instruments of a provincial government that is not adequately resourcing community supports. That is what our concern is.
Senator Joyal: I was listening to you very carefully, as my other colleagues were. Have you been consulted by the Department of Justice in the preparation of this bill; any of your associations or somebody within your own association? Maybe each of you could answer separately because it is important for our record.
Ms. Chambers: No we were not consulted by the Department of Justice. I do not know of anyone who was.
Mr. Stylianos: I do not believe we were consulted.
Mr. Bach: Our association made a brief in 2002, when the House of Commons Standing Committee on Justice and Human Rights was holding hearings. No we were not consulted.
Senator Joyal: I mean preliminary consultation. Normally, the process of the Department of Justice is that they would get in touch with the professional associations that are active in the milieu to ask for their input in the development of the legislation, especially in legislation as complex as this one is because there is a human reality behind it that is very challenging for any one of us.
Mr. Bach: We were not consulted.
Mr. Simpson: It is important that clients have a say when something as significant as this comes along. That is why, in our submission, we talk about the need to consult widely with stakeholders. Clients and consumers of the system are stakeholders and they need of a voice at the table, and because they are living the experience, to be able to provide the lived experience, because they and their lawyers know where it is working and where it is not.
Ms. Chambers: There are people who are currently in custody at Penetanguishene Mental Health Centre who would like the opportunity to address this committee and Bill C-10. I know they would be grateful for an opportunity to do so.
Senator Joyal: I know Senator Callbeck is a member of a special committee of the Senate that is charged with the responsibility of reviewing the conditions of Canadians suffering, among other things, with mental illness. Did you appear, or were you invited to testify, before that committee on the basis of Canadians suffering from the condition you have described, and are in a more difficult position because they have the additional problems that you have described in your brief.
Ms. Chambers: In the first rounds of consultations the committee held, we were the only group in the country that represented psychiatric people directly experiencing the psychiatric system who presented to the committee. More recently, the committee came to Toronto and heard from a large number of members of our community, and we were appreciative of that.
Senator Joyal: Madam Chairman, we can expect that the Senate committee will come forward on that. I share the points raised by Madam Chair, at the opening. There are points that you raised that really would be part of a strategic approach to the overall community. Around the table, we would feel uncomfortable if we dealt with the Criminal Code aspect, but the rest was left uncharted anywhere else.
At least, I think, we can expect on behalf of our Senate colleagues that, at that point in time, the Senate's and the government's attention will be focussed on the general conditions of Canadians suffering mental illness and disability.
Ms. Chambers, are you satisfied that this bill meets the test of the Charter, and precisely, section 15 of the Charter?
Ms. Chambers: No, there are portions of the bill that we feel would violate section 15 of the Charter. We would be prepared to intervene to support the challenging of some of the proposed amendments.
Senator Joyal: Could you explain more about that? We are the Legal and Constitutional Affairs Committee, and that is one of the first questions we ask in any bill, whether it is about children, women, Aboriginal people or any group of disadvantaged Canadian, and singularly, the group you are addressing professionally is one of those. We want to be sure that the conclusion of the Winko decision in relation to this bill is properly addressed because this is the opportunity for Parliament to pronounce on the re-establishment of a fair condition for that group of Canadians.
Could you be more specific on which aspect of this bill that you feel does not meet the test?
Ms. Chambers: I am glad to hear what you had to say.
We intervened in Lepage, which became Winko at the Supreme Court, and became familiar with the ruling.
The first example I gave of what ends up being a Charter violation is victim impact statements, because of the understanding that the system is entirely rehabilitative and the person's liberty dependent on their state of mind not at the time of the index offence, but at the disposition hearing. The procedural safeguards that separate the NCR system from the criminal justice system would be violated if the person ended up having the dual burden of being assessed both on their mental condition and on their index offence.
Another example would be the suggestion that some people should have hearings only every 24 months. This would mean that the person would be judged on the index offence because it is based on a dangerousness criterion rather than on the person's current state of mind at the time. It could be challenged on a scientific basis because it is impossible for anyone to predict the state of mind of an individual two years into the future. However, that is what would be done by delaying the review board hearing for 24 months on the assumption that the person would continue to be dangerous based on their index offence.
We addressed some parts elsewhere in our brief. An additional one may be the withholding of information from individuals so that they are unable to address points raised by their doctors. They are unable to correct them in the quasi-judicial hearing.
The Supreme Court in Winko was clear that there is no assumption of dangerousness. There is no burden on the individual to prove that they are not dangerous. It must be proven they are dangerous, and the person must have an opportunity to seek out evidence of' release as well as evidence of detention.
Senator Joyal: Do any of your other colleagues want to comment on that before I ask my next question?
If I read Winko, as the Supreme Court would say, in the remedial way in relation to Canadians who suffer from mental disability and have to face the criminal justice system, they have a very systemic approach to treating the person, which compels me and society to take a more proactive attitude towards people who not only have been charged, but society has a responsibility to deal with them.
In the case of ordinary citizens facing criminal justice, the system is rather simple. You have a lawyer; you defend yourself; you make your proofs; and if the Crown succeeds, you are found guilty and you make a presentation, and depending on the sentence, you deal with the system. The system tries to rehabilitate you and so on. We understand the principle on which our system works.
However, in the case of Canadians or persons suffering from mental illness, there is an additional burden that the system has to take, and that is the way I read Winko.
I listened very carefully to you, especially, Mr. Simpson, for the Ontario experience. I was puzzled when my colleague, Senator Mercer, referred to the transfer, because it seems to me that if the Ontario system has a kind of — what I call — internal ombudsman to look into the person at each procedural step that has to be taken to deal with the obligations that are stated in the legislation, I said to myself that this obligation remains the same all over Canada. It is not up to a province to decide to treat the person according to the principles stated in Winko. Another one may decide for all kinds of reasons that you have stated such as availability of money, political will, lack of availability of facilities, overcrowdedness and so on. To me, the obligation is Canadian. It is across the board. That is probably the most difficult part of the interpretation of the decision of Winko, which is to go much beyond the simple steps of procedural penal code such as the trial, prison, rehabilitation and then the release. In the case of the Canadians who we are dealing with, there is an additional component I will call the clinical aspect, the additional assistance that has to be given to the person. The way I read Winko, this obligation is put on the system.
Am I stretching it or do you think that the obligation under Winko is one that has to be understood, and the bill has to reflect that?
Ms. Chambers: Not only do I agree, but the Mental Health Legal Advocacy Coalition is funded by the Court Challenges Program of Canada to bring forward a case supporting exactly that. The system has stated in Winko that there is an obligation to meet the accused's personal needs. One relevant quotation is that, it ``reflects the view that NCR accused are entitled to sensitive care, rehabilitation, and meaningful attempts to foster their participation in the community, to the maximum extent compatible with the individual's actual situation.''
I believe there is a case that we will be seeking to intervene in coming out of British Columbia called Mazzei v. British Columbia (Adult Forensic Psychiatric Services). It is about an individual who has been attempting to get services that are supportive of him as an Aboriginal person, and he has been unable to access those services in the forensic system. It is fundamental to the system. Otherwise, it becomes warehousing and a punitive system that Winko says it should not be.
Mr. Simpson: I like your interpretation. It is really important that I say this, because every Canadian should be alarmed at the trend towards criminalizing individuals with mental illness. Our jails cannot become treatment facilities. That is not their role.
We cannot simply close psychiatric beds, and not havebed-based care accessible to our clients. They would be shifted over to being a problem for the police and the justice system. I think we should all be alarmed by this trend toward criminalization of people with mental illness.
The other thing we have to demystify quickly is that people say if you can get your loved one into the forensic system, they will get a gold standard of care. I can tell you as a partisan advocate for our clients, I disagree with that assessment. It is not a gold standard of care. Sometimes after people find themselves in the forensic mental health system, the families will say to us, this was a mistake, and now we get only one opportunity every year to get our loved one out of the system.
This goes back to what I said earlier about the need to educate people about the forensic system and what happens once you are there. How will your needs be met by that system?
Yes, you are off the street and yes, you are in either a minimum-, medium- or maximum-security facility; but I can tell you our clients are saying that these treatment facilities or hospitals look a whole lot like jails. They have bars on the doors; they have sally ports; and they have cameras. They look more like corrections than treatment, and something has gone wrong with the mental health system in Ontario.
We have to stop the trend toward criminalization, and we have to start looking at how to meet the needs of individuals with mental illness. How do we as a community support them in their quest for wellness and recovery? At this point, we are doing a poor job of that.
Senator Andreychuk: I want to go back over some of the comments made about psychiatrists in the system, and some of the difficulties. I found your testimony almost at odds on one point. At one point, you said you need this valuable assessment; at the other time, you could find one psychiatrist saying one thing and another saying something else.
Is that not part of the problem that the corrections systems has, and the review boards, et cetera, because they are so heavily reliant on one medical opinion? We know — I practiced law — if you have one, I will find one. We could always find an alternative point of view because it is a thriving medical discipline; there is a lot of experimentation and different opinions.
I was confused when you suggested that we need to rely on them and we should yield to them and they can give us a definitive opinion, but really you cannot get a definitive opinion from a psychiatrist. Do you not believe that?
Ms. Chambers: As to the scientific evidence, the ability to predict dangerousness is almost nil. Even with the best actuarial assessment tools that are currently available in Canada, you do not surpass an accuracy rate of about 20 per cent, which is low on which to base an individual's future. That is 20 per cent when applied to an individual. When you cluster people into groups, it looks higher but you need to consider that the way it is used in practice is on an individual basis.
Psychiatry does not possess the ability to predict dangerousness and yet the system relies on that ability. It is quite a paradox. Everyone is just guessing. Part of the problem is that people fear the public criticism too much that comes from releasing someone, so they tend to err always on the side ofover-detention. I want to support your comments about the need to include more than just the medical analysis.
Mr. Bach: If Winko, and we would agree as well, establishes a positive obligation on the part of the state, and the review board is one of the core mechanisms by which that positive obligation will be established, to have one psychiatrist — in addition to the problem that they cannot predict dangerousness — they certainly are not in a position, with their knowledge base, as valued as it is, to be the mechanism for delivering a positive obligation on the state to identify the range of appropriate care and support needs for a person.
In addition, positive obligations require some kind of accountability mechanisms, and that is the major failure. It is one thing to say the Criminal Code establishes a positive obligation, but it does not provide any accountability mechanism for delivering on that.
Senator Andreychuk: We were talking about accountability for the resources even, and that is a problem throughout the entire criminal justice system, whether you talk about youth, adult or not-criminally-responsible justice. We talk on paper, but when it comes to deliverance we are short of resources all the time.
This point of calling somebody accountable for not providing the services; it would seem the only person you could hold accountable would be a minister of the Crown, as opposed to some poor worker. Maybe I am out of date, but in my limited work in the system, I found pretty good people on the ground who cared about their clients — whether it was a case worker or the treatment facilities — but they were hampered. They often put clients in inappropriate places because that is all there is.
We seem to have given criminal-incarceration type of facilities the first leg up. We will build that facility to house the really dangerous because that is a priority; and we will do all those other preventative or least intrusive things later but we never have the dollars to do it. Who did you mean you want to hold accountable, because I see a lot of caregivers and practitioners who care about the clients but who are hamstrung by not having these services?
Mr. Simpson: I hope I did not leave the impression that we think the professionals who provide treatment are uncaring. That is not the case. There are some very good people in the system. I think, too, for frontline nurses, social workers, occupational therapists and vocational rehabilitation counsellors, by default they have had to become advocates for their clients because of the resource issues you talk about. If we can stop the system from manufacturing forensic clients, and devote the resources to the people who need that level of care, treatment and observation, that is the way we go.
There are many individuals in the system that I am left wondering day in and day out, why is this person still here?Could they be held in the mental health system under civil commitment as an involuntary patient? Do they need to be in the forensic system? Why do we have a bottleneck of people in the medium-secure system? It is simply because there are not enough beds in the minimum-secure facilities. How do we get the people in minimum back into the community?
The barriers our clients face, if they are unfortunate enough to have that forensic mental health label attached to them, are housing providers that will not take them; and all kinds of different programs that exclude them, so they get the double whammy. They have the mental illness they are struggling with and they have this forensic label that is stigmatizing. It seems to be that every door they try to open, that label gets brought up again.
We have to look at how the system uses its resources and are they using them the best way possible? If we continue to manufacture forensic clients, at least in Ontario, I have heard projections that in the next 10 years, every mental health bed will have a forensic client occupying that bed. That should be alarming to every one of us.
Senator Andreychuk: Could I follow up on that? I would say it is the criminal system that is doing it, but is it not the last resort?
In other words, people should be treated earlier, afforded resources and, when they are not, they then come in conflict with the law.
If we were to look at the entire mental health field and put it as a priority, that may be one way that we would have fewer clients coming in touch. Most clients who come before you will have a defence counsel or someone with them who will start to explain that person's behaviour. You do not have to scratch far to find some dysfunctional thing, either alcohol, abuse in the background, or a medical condition that was not treated at the right time.
How do you know whether this is a slight criminal behaviour or whether this is symptomatic of more problems to come? You have a court system and review boards and all of those people trying to make the kinds of assessments and interventions that should have been made long before they were in the courts.
Mr. Simpson: When you see the diversion model in the mental health court that is available to clients in Toronto, where some of that quick assessment determination is made and there is a diversion process in place, there are problems with diversion. Is it a solution for some clients to be able to get access to services and supports they need? Absolutely.
We have to look at that. I can tell you when our clients end up in the criminal justice system, their mental health needs are not met. That again is something else that Canadians should be alarmed about. Mental health clients that end up in the jail system are made fun of, victimized and tormented by the other inmates. There is a problem, and we have to open that door and say are we doing the best job possible. The answer is no.
Ms. Chambers: We are talking about something that starts before the mental health system. We are talking about social determinants of health and why people require the mental health system in the first place. That is the point that members of my community start with. The majority of people say, ``I am here because of life experience.'' Yet, this is what almost never gets addressed, including in the mental health system. Because of the way people's problems are interpreted at this particular point in time, there is so much emphasis on medical interpretation that often the original problems go unaddressed.
In terms of legal accountability for types of services people receive, I agree and we constantly state that there are not enough resources. They are misallocated, and one of the reasons is that people's self-determined needs are not paid attention to. Instead, the funding and needs are based on the services that the service providers want to deliver, not the services that people need to receive and are identifying as most essential to them.
An example would be how people's history of abuse goes almost completely unaddressed in the mental health system, and is almost never addressed in the forensic system, as our survey showed. Accountability needs to take place throughout the system. Fault lies at all levels. It depends on different situations.
There was an inquest into the death of a man who hung himself in the North Bay detention centre. He was in the forensic system. He could not get housing. This is one reason he was despondent. One reason he could not get housing was there was no housing available to forensic clients, which is a huge problem. There is also a difficulty of someone in the system revealing his history where he might otherwise have gotten housing. There are many levels of responsibility that people should be taking about but are not.
Mr. Simpson: Accountability is important. Right now, it seems our clients are the only ones that are held accountable. A client can go to three or four hospitals and say, ``I need admission because I am feeling suicidal,'' or ``I need admission because I am feeling homicidal,'' and everyone says, ``You do not meet the criteria to be held as an involuntary patient and we will not treat you.'' Clients know because they live in their skin and go from hospital to hospital. Everyone turns them away and they go out and commit a criminal act and are held accountable. They are in the forensic system long term. Who holds all those hospitals accountable that turned the person away when they said, ``I know I need care and treatment.'' Yet, the media's spin is that our clients are irresponsible and do not get treatment and do not go for help when they need it. There are times when they do go and they are turned away from the providers.
The other thing I want to say about accountability is that the forensic system is not giving people a hopeful future orientation, that today will be better than yesterday and tomorrow will be better than today. Without that hopeful future orientation, we hear about the tragic cases that Ms. Chambers just mentioned and some of the other inquests that have happened in Ontario last year. We have been so alarmed by the number of patient deaths while the patients are in care, after they have been denied access to care or immediately following discharge that we filed a complaint with the Ontario Human Rights Commission that there should be mandatory inquests when a patient dies in a mental health facility. If you are an inmate in jail and you die, there is a mandatory inquest. If you are a patient in a mental health facility and you die, it is at the discretion of the coroner.
We have seen so many disturbing cases in the last two or three years that we had to ask the Ontario Human Rights Commission to look at that issue of mandatory inquests as discriminatory.
Getting back to the resource issue, a society is often judged by how it treats its most vulnerable people. History will not be kind to us at this point in time about how we are treating our most vulnerable citizens.
Senator Andreychuk: Perhaps victim impact statements should be an ability for those that have been in some way involved in the incident to give information, because some witnesses who came before us said that a high proportion of victims are usually friends and family who have had a long history with that person, and will continue to have by virtue of blood lines or what have you. Their involvement might be helpful and conducive to them and to the person because of the ongoing relationship. Do you see any value to that approach?
Mr. Stylianos: I would ask the question: What would the purpose of the victim impact statement be? Appearing before the board is not a therapeutic process, yet what you describe might have therapeutic value. It goes back to our contention that this is the wrong venue for this process and for these statements.
At the outset, there are victim impact statements. To be faced year after year with the same process being rolled out again and again and to hear the same information again and again, what has changed? I think we need to focus on more dynamic factors and variables. If the goal is to rehabilitate and reintegrate the folks who find themselves within the forensic system, how does bringing the victim impact statement into the process facilitate that goal? Does it, or is that counter-therapeutic? Does that damage the process of rehabilitation in some way?
There might be something to be had on the part of a victim, but in terms of impact on the client who is the recipient of forensic services, what would be the impact of inviting victims to make a statement year after year? What value would that be? Would it inform the board any more than the initial impact statement?
The circumstances and the reaction to the event itself, when you focus on the index offence, historically will never change; it will always be the same. Yet, the client within the forensic system may be working very hard over the years to change and address many of the issues that brought them into conflict with the law in the first place, and brought them to victimize another citizen.
I question the motivation in including this at this point in the process on a permanent basis.
Senator Pearson: I have appreciated all your presentations. It has been a rich exchange.
We have two competing types of system. We have the judicial system where you are innocent until you are proved guilty. We have the forensic or the psychiatric system where you are sick until you are well.
Then you have the tension between the federal law and provincial implementation of law, which is something we are always struggling with in this committee. The criminal law is federal, but the implementation of the law is always provincial.
Then you have the third tension, which we have been skirting around, the one between a victim and how that victim gets some kind of surcease in some way.
I first became interested in this kind of issue way back on one of the most notorious cases, which was Joseph Fredericks. It is a tragic story. He was a creation of us. We took him from his mother at birth. He was improperly placed as being mentally retarded, or mentally disabled as it was called in those days. He was raped when he was 11 in that facility. Afterwards, he went through a series of crimes in which he raped 11-year-old boys, and the final one was the Stephenson case, where he killed the boy.
I remember that whole history as being one that showed how completely impossible the system had been. Everyone failed that man and, in the end, the poor child, of course. That child could have been preserved with our new sex offender registry because police would have been able to locate him. It was two days between the time he was taken and the time he was found. That we got that legislation is something we can be proud of.
I do not know the answers to these questions. Although it seems to me, and I am picking up on what Senator Andreychuk said earlier, so many of these issues start right at the beginning. So many of these distressed people that you deal with are coming out of situations in early childhood that have facilitated or provoked them into the kinds of situations they are.
Regarding most of the cases that you have described where there is inappropriate understanding and so on, one always wonders where the point of entry is to try to make a difference because so many of the systems seem to be failing everywhere. Some of the suggestions you have made have been helpful, but it does not get to the core of the problem, namely, you still have an individual, unfortunately, who may commit a crime such as a rape. You will have a woman who has been raped or a child who has been raped, and you will have the person who has been declared not guilty ``for reasons of,'' as per the phraseology. We have to figure out how to enable the victim to have some kind of surcease.
Mr. Stylianos: I do not want to be dismissive about the rights of victims because, as my colleagues and others have said, we are sympathetic although our role is that of a partisan advocate, and right now we are here to advocate for our clients.
I would also ask the question who the victim is. In the situation that you described, we might surmise there was more than one victim. I do not want to be too facile about that, but maybe what is needed in terms of victims of these crimes is another venue and another process that would support them in their journey toward recovery.
That is important. Maybe my colleagues would agree that is important.
Focusing on the needs of clients within the system, we have to acknowledge what their need are, and the whole purpose of the system is to ensure a return to society, and are we doing all we can to achieve that?
For example, we have learned many lessons in mental health in terms of what is best practice. Are those lessons being learned in the forensic system, and is that information being propagated within the system? I submit it is not. In a way, there is a disparity between what is practised in the mental health system at large and what is practised in the forensic system. We keep looking for a mechanism of accountability and a way of ensuring that the same resources will be available to folks in the forensic system.As Mr. Simpson was saying, it may not be the gold standard of care that people are looking for it to be.
Senator Pearson: I want to finish the story. The final end to that particular story was even more tragic. He was murdered in prison by other inmates. I always see that as a complete failure.
Thank you very much, all of you, for your presentations. It was extremely interesting.
Ms. Chambers: I would like to respond to your comments. The idea of victim's surcease, it is essential that there be more healing opportunities for victims. If there were, people would not seek these kinds of forums so much. People need to understand, and perhaps it should be better explained to victims, that when there is no criminal intent, as in the case of someone who is not criminally responsible, it is like being the victim of an accident, which is just as traumatic. Yet, the answer is not in a punitive approach to what took place.
Similarly, when there is family involved, and I have heard of such situations before, if they will be involved with the person in the future there are opportunities to work on how that involvement would take place, both while the person is in the system as part of discharge planning, and as part of the individual's therapy, as opposed to people repeatedly talking about the index offence. That is not the only way to address it.
Mr. Simpson: The other issue we have to consider is that many of our clients have been ill for a long time. In fact, there is caregiver fatigue that sets in at some point, where, by the time our client gets into the forensic system, the family and their supports are worn out by the demands placed on them. They still love their loved one and want to be supportive, but they are glad they are in a place where they are getting care and treatment. We have to be careful about what are the competing interests for how long somebody should stay in the system. I wanted to add that to what Ms. Chambers said.
Senator Joyal: I was listening to all of you wondering where you get your financial support to be active in the various associations of which you are members or representatives. Who supports you?
Ms. Chambers: Who pays my pay cheque?
Senator Joyal: Not you personally, but the activities of your group.
Ms. Chambers: I am here on behalf of both groups, the Empowerment Council, which is a group that primarily represents clients at the Centre for Addiction and Mental Health in Ontario, which is the largest mental health and addiction treatment facility in the country. Essentially, our organization, which consists of two and a half people, represents the 20,000 clients of the Centre for Addiction and Mental Health, and that works by the centre providing funding for our organization. However, our organization is an independent corporation to ensure we take our direction from clients, not from funders.
The Mental Health Legal Advocacy Coalition is an unfunded organization, with the exception of project funding, such as the Court Challenges Program or the funding supplied to our legal counsel for our various interventions. We have not sought core funding to date because we have not found funding sufficiently independent for us to be able to proceed with challenging all the various levels of government that we tend to be involved in challenging, in the court cases that we are involved in.
Mr. Simpson: We are an arm's length program with the Ontario Ministry of Health and Long-Term Care. We wereset up in 1983 to protect the civil and legal rights of inpatients and the 10 current and divested psychiatric hospitals.
We are entering into our twenty-first year of service and our mandate had expanded to include provision of rights advice. In 56 of 59 Schedule 1 hospitals in Ontario — Schedule 1 hospitals are general hospitals that have mental health units — that service is just the provision of rights advice. It is not provision of independent advocacy services.
Mr. Bach: We are supported through our provincial associations, as well as through project funding from Social Development Canada, Justice Canada, and the Canadian International Development Agency, CIDA, for international work, as well as by private foundations.
Ms. Chambers: If I may, seeing as I am constantly mentioning this to various levels of government, I will mention it here as well. We strongly believe there needs to be a national mental health legal advocacy organization. There are incredible disparities across the country in the application of law. We are required to recreate the wheel in every province. It is wasteful, as well as being detrimental to the rights of Canadians.
The Chairman: Whatever money is spent, I think it is money well spent because you have been great representatives of your groups. We thank you for enlightening our discussion here and our study of Bill C-10.
I would ask Ms. Catherine Kane to come to the table to explain the question of consultation.
Ms. Catherine Kane, Senior Counsel/Director, Policy Centre for Victim Issues, Department of Justice Canada: In response to Senator Joyal's question about who the Department of Justice consults with in the development of this legislation, I would like to remind the committee that Bill C-10 arose after the Standing Senate Committee on Justice and Human Rights review in 2002 of the provisions of part 20.1 of the Criminal Code, as was required in Bill C-30 that was enacted in 1992.
That review should have taken place five years after coming into force, which would take us to 1997. The review was started in 2000 and ended because of the dissolution of Parliament, and started again in 2001. Finally, it started and completed in 2002, and it was a very comprehensive review.
As we were anticipating that review, we did not engage in the same sort of consultations in terms of the development of the bill. We did do consultations on specific aspects of part 20.1. I should say that in the development of Bill C-10, we reviewed all the testimony that was submitted to the standing committee, which includes the groups that are represented here before you today. We did not just review the recommendations of the committee, but we reviewed all the transcripts. We did not do any independent consulting. We relied on that process, as extensive as it was.
However, there have been other consultation forums throughout the history of this part of the code. We have had the federal-provincial-territorial working group on mental disorder that has been in existence since 1990. That includes officials of Attorneys General offices that also consult with their own provincial counterparts on the mental health side. We have the Federal-Provincial-Territorial, FPT, Advisory Network on Mental Health that is chaired by colleagues at Health Canada, and a provincial co-chair that changes occasionally. We have had some joint sessions with them and the FPT working group on mental disorder. In 1994, we did specific consultations on the capping provisions of the Criminal Code with provincial officials and with the review board chairpersons.
In 1998 and 1999, we did consultations with various hospital administrators, review board chairpersons, psychiatrists and psychologists, in anticipation of the standing committee's review of the provisions of the code, to get a sense of how they were dealing with part 20.1 of the Criminal Code, and what some of the emerging issues were. Annually, the Department of Justice consults with the Canadian Bar Association, the Canadian Association of Chiefs of Police, the Uniform Law Conference of Canada and the National Associations Active in Criminal Justice, NAACJ. The Canadian Association of Community Living is a member of NAACJ. For example, last year, there was a special session with our colleagues at the Department of Public Safety and Emergency Preparedness and with the National Associations Active in Criminal Justice on the topic of human rights of mentally disordered offenders. At that occasion, I was a speaker and we were able to describe the provisions of Bill C-29, which was the predecessor of Bill C- 10, and invite comments on that legislation.
At those annual events, we tend to give an overview of legislation that is proposed or anticipated. It would not be the type of specific consultation on, for example, specific proposals.
Is that sufficient information?
Senator Joyal: Did you consult specifically with Aboriginal associations?
Ms. Kane: No, we did not. However, we got good input from review board chairpersons from specific provinces such as Saskatchewan, who face a number of Aboriginals who have mental illness. We had good input from them, and from our provincial colleagues that are developing policy in the provincial governments on the special needs of Aboriginals with mental illness.
The Chairman: Thank you very much, Ms. Kane.
The meeting is adjourned to tomorrow morning at 10:45.
The committee adjourned.