JUST Committee Meeting

37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Thursday, April 11, 2002

¿

0935

The Chair (Mr. Andy Scott (Fredericton, Lib.))

Mr. Vic Toews (Provencher, Canadian Alliance)

The Chair

Mr. Derek Eaves (Individual Presentation)

¿

0940

¿

0945

The Chair

Mr. Ronald Roesch (Individual Presentation)

¿

0950

¿

0955

The Chair

Mr. Vic Toews

Mr. Derek Eaves

Mr. Vic Toews

Mr. Derek Eaves

Mr. Vic Toews

Mr. Derek Eaves

Mr. Vic Toews

À

1000

Mr. Derek Eaves

Mr. Vic Toews

Mr. Derek Eaves

Mr. Vic Toews

Mr. Derek Eaves

Mr. Vic Toews

Mr. Ronald Roesch

Mr. Vic Toews

À

1005

Mr. Ronald Roesch

The Chair

Mr. Derek Eaves

À

1010

The Chair

Mr. Michel Bellehumeur (Berthier--Montcalm, BQ)

Mr. Derek Eaves

Mr. Michel Bellehumeur

Mr. Derek Eaves

Mr. Michel Bellehumeur

À

1015

Mr. Ronald Roesch

The Chair

Mr. Ivan Grose (Oshawa, Lib.)

Mr. Ronald Roesch

Mr. Ivan Grose

Mr. Ronald Roesch

À

1020

Mr. Derek Eaves

Mr. Ivan Grose

Mr. Derek Eaves

Mr. Ivan Grose

Mr. Derek Eaves

Mr. Ivan Grose

The Chair

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

À

1025

Mr. Ronald Roesch

Mr. Chuck Cadman

Mr. Derek Eaves

Mr. Chuck Cadman

The Chair

Mr. Ivan Grose

Mr. Derek Eaves

À

1030

Mr. Ivan Grose

The Chair

Mr. Ronald Roesch

The Chair

Mr. Ronald Roesch

The Chair

À

1035

Mr. Derek Eaves

The Chair

Mr. Ronald Roesch

The Chair

Mr. Ronald Roesch

The Chair

Mr. John McKay

Mr. Derek Eaves

À

1040

Mr. John McKay

Mr. Derek Eaves

Mr. John McKay

The Chair

Mr. Derek Eaves

À

1045

The Chair

Mr. Chuck Cadman

Mr. Derek Eaves

The Chair

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CANADA

Standing Committee on Justice and Human Rights

---

NUMBER 075

l

1st SESSION

l

37th PARLIAMENT

---

EVIDENCE

Thursday, April 11, 2002

[Recorded by Electronic Apparatus]

¿  (0935)  

[English]

    The Chair (Mr. Andy Scott (Fredericton, Lib.)): Good morning, and welcome.

    I call to order the 75th meeting of the Standing Committee on Justice and Human Rights. Pursuant to the order of reference of the House of February 26, 2002, we are undertaking a statutory review of the mental disorder provisions of the Criminal Code.

    First of all, I should explain that we originally had intended to hear from two groups. An unfortunate illness has prevented the other group from being with us. But we're very fortunate to have Dr. Derek Eaves, the vice-president of medicine and research at Riverview Hospital and a visiting scholar at Simon Fraser University; and Professor Ronald Roesch, the director of the mental health, law, and policy institute at Simon Fraser University.

    Welcome, gentlemen. I'm sure other members will be here soon. We are in the middle of a busy time with legislation. Please be patient with us, and don't take this as any indication of a lack of interest in the subject before us.

    Mr. Vic Toews (Provencher, Canadian Alliance): I have a point of order, Mr. Chair. I wanted to commend the staff for the research papers that have been provided in respect of the summary of the three Supreme Court of Canada decisions, as well as the chronology of the insanity and mental disorder defences in Canada. I find them very helpful. I know it's a very difficult issue to summarize concisely and clearly, and I certainly appreciate the work being done.

    The Chair: We can never speak too often or too fondly of our support. And on that happy note, to our witnesses.

    Mr. Derek Eaves (Individual Presentation): I'll go first.

    I'd like to speak a little about the research we've done on the Criminal Code. I have some slides, which unfortunately I only brought in English. The numbers are bilingual and I think the slides will speak for themselves.

    I want to say that since 1992, when the mental disorder provisions of the Criminal Code changed, we've done some research on the number of remands and the number of persons found not criminally responsible by reason of mental disorder in British Columbia.

    The first slide demonstrates the three years prior to 1992, when the changes were made. It shows that there has been a significant increase in in-patient assessments under the Criminal Code. This was followed in 1997 on by a drop in the in-patient remands. My colleague will probably speak a little bit about that. Probably the reason for this is that there has been a move toward outpatient remands for assessment.

    On the second page you'll see that this gives the figures of persons in British Columbia found not criminally responsible by reason of mental disorder from 1987 to 1999. This will show you that, on average, prior to 1992 in B.C., there were approximately 10 persons per year found not guilty by reason of insanity. Following the 1992 changes, there was a significant, in fact a fourfold, increase in the number of people found not criminally responsible.

    If you look at the changes to the kinds of persons who were found not criminally responsible, you will see some very dramatic changes. Number one, there are some changes in terms of the degree of previous psychiatric disorder. If you look at this slide, it shows the number of people who had no previous psychiatric admissions prior to the index offence. What is shown is that there's been a dramatic decrease in the number of persons with no previous psychiatric exposure and a dramatic increase in the numbers of persons who have had four or more psychiatric admissions. What we can say, therefore, is that the people found NCRMD are a much sicker group.

    If you turn to my last slide, this shows the type of NCRMD offences. Prior to 1992, almost half of the persons found not guilty by reason of insanity were on charges of murder or attempted murder. This has dropped dramatically from 42% to 11%. The actual numbers of people charged with murder, because there's been a fourfold increase in the total, is approximately the same. You will see on the slide it shows the number of persons charged with non-violent offences. There are some 29% of persons found NCRMD--a dramatic increase--charged with non-violent offences. That's one of the groups I want to talk about.

    If there are 29% of persons found not criminally responsible charged with non-violent offences, although some of these might present some risk, the issue of treatment need is perhaps pre-eminent in that particular group, not the issue of risk. After a finding of not criminally responsible by reason of mental disorder, the court may make a disposition or it can refer to the review board for a disposition. I would suggest that the court be limited to making an interim disposition and that all cases be referred to the review board.

¿  (0940)  

    Most judges are quite unfamiliar with the mental disorder provisions, and strange dispositions have been made in B.C. For example, we've had patients found NCRMD placed on probation and put into the community--a very odd disposition.

    In cases where the index offence is not one of violence and the person meets the certifiability requirements of provincial mental health law, the board might have the power to divert the case from the criminal to the civil mental health system. This would be (a) less costly and (b) more appropriate in linking the person with community facilities or rehabilitation.

    I'd also suggest the board have the power to direct that a person found NCRMD be sent to any forensic or civil hospital that's appropriate, after hearing evidence about the placement.

    Secondly, the review board should have four options for disposition--not three, as at present--with regard to NCRMDs. I would suggest these four categories are these: custody, meaning no access whatsoever to the community; custody with access to the community--treatment staff ought to determine the degree of access to the community, subject to outer limits set by the board. The review board should not interfere with a treatment rehabilitation process, which in all hospitals includes the possibility of graduated access to the community. Third would be a conditional discharge, in which the patient clearly lives--and is required to live--in the community; and the fourth, of course, is an absolute discharge.

    Thirdly, the review board should have the power to order independent assessments prior to the initial disposition or at subsequent reviews. The treatment and assessment process ought to be kept separate. Treating professionals should be able to give evidence on treatment need rather than risk. There is potential for significant bias if the professionals have either a positive relationship with the patients and act as medical advocates or a negative relationship that might lead to an over-prediction of risk.

    Psychologists and psychiatrists who have adequate training in risk assessment and experience in forensic mental health should both be able to perform assessments. This is different from the present situation, where psychiatrists primarily give evidence.

    Similarly, pre-trial assessments to determine NCRMD eligibility should not involve assessors who have had extensive treatment involvement with a client on a prior occasion--e.g., the treatment of a person found unfit. That is, assessments should be as independent and unbiased and uncontaminated as possible.

    The boards ought to have access to experienced, approved clinicians who need to maintain eligibility requirements. This is done, for example, in B.C. with the Forensic Psychiatric Services Commission with regard to dangerous offender assessments. Experienced professionals have been given additional training in risk assessment, and updated training is provided annually to maintain standards. That isn't true for most professionals across the country.

    With regard to persons found unfit to stand trial by reason of inherited or acquired severe mental handicap, and who are unlikely ever to attain fitness, the board ought to have the power to discharge absolutely an unfit person where the individual has been held in custody in excess of the minimum time the person would have served if found guilty of the offence and where there's no significant risk of harm.

    The board ought to have the power to order a person with such a handicap into any appropriate facility prior to absolute discharge. This presently is quite a difficulty.

    Fifth, persons deemed fit to stand trial after a period of treatment ought to be returned directly to the court for a trial of fitness without referral to the review board. The involvement of the review board in this process is redundant.

    Sixth, the prevalence of mental illness in both provincial and federal prisons is alarmingly high. It is known that mentally ill persons are arrested at higher rates than non-mentally ill offenders for similar anti-social behaviours. This selective bias against the mentally ill might increase if hospital orders are introduced.

¿  (0945)  

    In recent years, there has been a significant decline in hospital beds for the mentally ill, without a concomitant increase in community resources. Across the United States there have arisen mental health courts, which serve to divert mentally ill persons where appropriate. Such courts and associated court clinics ought to be established across Canada. There is otherwise a tendency to criminalize patients as a means of getting access to treatment. This is what hospital orders might encourage. I'm not generally in favour of hospital orders.

    Seventh, capping is a legal concept inappropriate to the issue of the mentally ill. If there is ongoing and significant risk, there ought to be ongoing confinement, subject to the reviews and protections afforded by the code. If capping were proclaimed, then the DMDA provisions, dangerous mentally disordered accused provisions, would be essential. In essence, we're not in agreement with the notion of capping.

    Eighth, the code is unclear about the parties appearing before the review board. Often the hospital and defence lawyers are the only parties present at board hearings. The attorney general of each province is responsible for protecting the interests of the community at large and ought to be represented in all hearings, in my view. Hospital staff or lawyers, by default, often have to fill this gap, whereas the hospital ought to be presenting evidence solely with regard to the issue of treatment response and not with regard to the issue of risk.

    Ninth, we suggest no changes to the present mental disorder defence criteria.

    Lastly, and number ten, non-insane automatism is not a psychiatric issue and ought not to be defined in the Criminal Code, unless it's defined in such a way as to exclude it as a possibility.

    Thank you.

    The Chair: Thank you very much.

    Dr. Roesch.

     Mr. Ronald Roesch (Individual Presentation): Thank you, and I want to thank the Standing Committee on Justice and Human Rights for providing me with this opportunity to participate in what I think is a very important review process.

    For many years I've been involved in research on both fitness to stand trial and criminal responsibility. It is that research I wish to review this morning, as I believe it has direct relevance to your mandate to review the mental disorder provisions of the Criminal Code that were enacted in 1992.

    There are two main areas I'll review for the committee this morning. First, I will summarize our research projects examining the impact in British Columbia of the mental disorder provisions of the Criminal Code. Second, I will focus on assessment issues related to the implementation of the outpatient assessment provisions of the 1992 changes regarding remands for fitness to stand trial.

    The first study I will describe examines the impact of Bill C-30 on the remand process in British Columbia. We reviewed files of 653 defendants in B.C. who were remanded for evaluations of fitness to stand trial and/or whether or not they were criminally responsible on account of mental disorder. That was for the fiscal years 1992-93 and 1993-94. Let me highlight the key findings of that research

    The mean length of evaluation of fitness in NCRMD was about 21 days, far exceeding the desired goal of completing remand evaluations within five days plus some travel time. Almost all the evaluations, approximately 88%, were conducted in an in-patient forensic facility. Conversely then, only 12% of the evaluations were conducted in outpatient facilities or jails. There is some evidence, as Dr. Eaves presented, that the percentage has increased in the last couple of years, and I think this is a positive development.

    The majority of defendants, about 76%, had been charged with offences against the person, and this seems to be relatively constant. I think it might have decreased a little, as Dr. Eaves pointed out, with a slight increase in the number of remands for defendants charged with non-violent offences.

    The vast majority of defendants remanded for fitness to stand trial are found to be fit to stand trial. In our research--and this is pretty consistent across a fair number of studies--we've generally found about 80% are fit to stand trial at the end of the initial remand period. So four out of every five defendants remanded for evaluations are found to be fit within the two or three weeks they're evaluated. I can elaborate on some of the reasons for this in the question and answer period if there is interest in that.

    For NCRMD remands, the court reports favoured NCRMD in nearly 30% of the cases; in other words, they recommended to the court that NCRMD might be appropriate. The number of defendants who received recommendations of NCRMD appeared to be increasing during our study, but we did not have the funds to continue collecting data beyond 1994 to determine if this trend continued.

    Overall, this research, which found results similar to those of projects that were going on at the same time in Ontario, Quebec, and Alberta, suggests that the remand evaluation process was not meeting, at least in the two years following the Criminal Code changes, the expectations that were set forth in the new provisions. These were that the evaluation period should be shorter and that most evaluations should be conducted in outpatient settings or most frequently in jail rather than in a central forensic facility or hospital.

    The second area I wanted to talk about relates to assessment of fitness to stand trial. Along with my colleague Dr. Eaves, as well as with current and former students, including Patricia Zapf and Jodi Viljoen, I've conducted a series of research studies that have led to the development of a structured assessment guide for evaluating fitness to stand trial. This guide is known as The Fitness Interview Test, or FIT for short, and it's available in both English and French. Its major sections parallel the three prongs identified in the Criminal Code, namely understanding of the nature and object of the proceedings, understanding of the possible consequences of the proceedings, and communication with counsel.

¿  (0950)  

    A primary use of the FIT is to conduct community-based screening evaluations, and the interview on which it is based can be completed in less than one hour. In a number of studies, the FIT has been shown to be both a reliable and valid method for making a judgment about whether a criminal defendant is fit to stand to trial.

    Let me just summarize one of our studies to illustrate its use as a screening instrument. Using the FIT we evaluated 145 defendants who had been remanded to an in-patient facility for an evaluation of fitness. We compared the judgments we made based on the fitness interview test, which took an hour or less, with the judgments made by the hospital's forensic psychiatrists, which were typically based on evaluations that lasted an average of 21 days. Our interviews were conducted within 24 hours of admission, so we were able to compare it as a screening instrument, if you did it initially, with the hospital judgment.

    The FIT judgment and the hospital judgment were in full agreement that of the 145 evaluations, 106 of the defendants were fit to stand trial. Of the remaining 39 defendants, the FIT and the hospital agreed that nine defendants were unfit. The other 30 defendants were considered possibly unfit by the FIT but were found to be fit by the hospital psychiatrists.

    The results show that the FIT works well as a screening instrument in that it correctly identified defendants who were clearly fit and did not misclassify any defendants who were subsequently found to be unfit by the hospital evaluators.

    What are the implications of this study? It shows that 73%, 106 of the 145 cases, could be assessed without the need for in-patient evaluation. These evaluations can be brief, less than one hour, as I've noted, and could take place in a jail or an outpatient facility if the defendant has been released on bail.

    The cost savings are perhaps obvious. The community-based evaluation would cost well under $1,000, compared with the thousands of dollars an in-patient evaluation costs.

    Of course, there are gains in terms of reducing the need for the deprivation of liberty for defendants who are going to be found fit in any case.

    Our research has shown that community-based evaluations are feasible and that the Criminal Code's presumption against in-patient evaluations can indeed be met.

    I should add that the shift to community-based evaluations would not affect public safety, as evaluations of defendants considered to be at risk for violence would be conducted in a custodial facility.

    A related issue we have addressed in our research is what professional background and training is needed to conduct fitness assessments. As you know, the Criminal Code specifies that the evaluations must be conducted by a physician, and in practice it is psychiatrists who conduct these evaluations. It is my opinion, based on the research we've conducted, that the Criminal Code in Canada should be changed to reflect the reality that other professionals have the training and competence to conduct these evaluations.

    In one of our studies, medical doctors, forensic psychologists, nurses, and graduate students in psychology were trained on the fitness interview test and they then viewed two videotaped interviews of actual fitness assessments. Using the FIT, they rated the fitness of each defendant portrayed in the videotapes. The agreement between evaluators was extremely high, suggesting that other professionals can be trained to conduct these evaluations.

    Specifically, I believe that psychologists in Canada have the necessary training and expertise to evaluate fitness to stand trial. In the United States, psychologist have, since the early 1960s, independently conducted such evaluations, and I would urge this committee to consider expanding the Criminal Code provisions to allow psychologists to conduct these evaluations in Canada.

    Thank you for your consideration of this submission.

¿  (0955)  

    The Chair: Thank you very much.

    I'm going to go directly to Mr. Toews for seven minutes.

    Mr. Vic Toews: Thank you very much.

    Dr. Eaves, first on the issue of the mentally ill courts in the United States, where are these courts located?

     Mr. Derek Eaves: I haven't read too much literature on this issue. They're just being established now. I'm certainly aware there's one in Florida. I believe there are several across the United States. There's actually one in Canada too, which was established in Toronto. It's operational now and somewhat different from the ones in the United States, where they focus more on diversion and the court actually governs the treatment the person receives. The ones in Canada are established on a slightly different basis.

    Mr. Vic Toews: So the court in the United States determines the treatment these individuals receive.

     Mr. Derek Eaves: It does so on advice. It supervises the treatment and the response to treatment.

    Mr. Vic Toews: The Canadian experience is more to simply divert them into a different stream--

     Mr. Derek Eaves: That's right, and they speed up the process, which is very important. They deal with guilty pleas, for example, so if a person wants to plead guilty, they expedite the appropriate disposition of that individual. They also deal, of course, with the issue of fitness remands and so forth in a very speedy way.

    There are attached clinics, and that is the important aspect of it, because when the court asks for a fitness evaluation, it can be done, as Dr. Roesch pointed out, very quickly. I think it's nonsense to require 30 to 60 days for a fitness assessment when you can do it, in essence, in a day or two.

    Mr. Vic Toews: There was another issue you raised. You stated later on in your testimony that you were against capping, and I think that's been a fairly consistent theme we've heard. However, you stated earlier--and I guess I was a little confused as to what you were saying and in what context--that people should not be confined longer than the sentence they may have been subjected to by the criminal courts. Isn't that what capping is?

À  (1000)  

     Mr. Derek Eaves: Yes. I was just talking about it in one particular context, with mentally handicapped persons. The danger with the mentally handicapped is they get stuck in the system as being unfit and they never move out. So I was not speaking about capping, in general, I was speaking about the right of the review board, at an appropriate time, to say enough is enough.

    Mr. Vic Toews: I see. I appreciate that distinction didn't come out in the testimony as clearly, and maybe I wasn't listening as closely as I should have.

    That raises a serious issue with the capping of sentences for mentally handicapped people who might have fetal alcohol syndrome, or others who we know are never going to be cured, if I can use that word.

    How do we deal with the public interest, in terms of the safety issue with some of these individuals, who can be quite violent? If we accede to what you're saying, they should be released, regardless of whether--

     Mr. Derek Eaves: No, that's not what I said. I said that where there was an issue of risk, then that ought not to apply.

    Mr. Vic Toews: I see.

    Mr. Derek Eaves: A lot of the mentally handicapped people do not present the kind of significant risk, if you like...but they nevertheless may be held as unfit. For the issue of those who present the risk, then I think this would not necessarily apply.

    Mr. Vic Toews: So to get it clear then for myself, for someone with, let's say, fetal alcohol syndrome, where we know it's physiological and maybe the problem is not going to be cured, if they continue to present a risk, they would be held in a facility--

     Mr. Derek Eaves: Yes, of course, the issue of risk is a pre-eminent one and there are circumstances when people ought to be held. And that's the issue of capping, that sometimes you can't prescribe a particular time when someone is better and doesn't present a risk. That's an obvious point, and I think it's why most people aren't against that notion, provided of course that there are sufficient guarantees, that there are ample reviews, and that the rights of the persons confined are respected and so forth.

    Mr. Vic Toews: Yes.

    Mr. Ronald Roesch: May I comment on risk as well?

    Mr. Vic Toews: Yes, please.

     Mr. Ronald Roesch: I think risk is the issue and should be the controlling factor either way. If somebody is considered at risk, they could be kept in a facility in order to protect the public. On the other hand, if somebody is not considered a risk, then they could be released. The capping provisions might keep that person in for too long a period of time, so I think that rather than having a cap you need to have some good assessments of risk and make decisions based on treatability. There are two factors: treatability and level of risk. Is the person treatable? If they are treatable, then you can treat them for some period of time. If they are not treatable, is there a risk? If not, then they could be released.

    The fact of the matter is that most defendants who are found unfit--and again, it's a very small percentage of defendants who are found unfit--are restored to fitness within a few months of treatment, and mostly through responding to medications. So it's a very small percentage of defendants, in terms of the fitness issue, who would need to be held for any extended period of time.

    Mr. Vic Toews: That leads me perhaps to another area. It's always so difficult to predict risk and danger. I know that as a lawyer for the provincial government in Manitoba I dealt with the provisions of the old Mental Health Act, which was struck down. New provisions were brought in, and of course the concern of lawyers challenging the legislation was always how could they properly assess risk and danger.

    That is still, I understand, a very significant issue. Perhaps that's why in Canada we have limited these fitness assessments to psychiatrists as opposed to other professions. It's simply that we have not yet learned to trust those other professions. It's not that psychiatrists have done a flawless job, but there is a concern as to what professions do we extend this and how can we trust these professions to do the right thing in terms of assessing that risk given that risk is such a difficult thing to determine in any event.

À  (1005)  

    Mr. Ronald Roesch: I certainly agree with you that risk is a difficult matter to assess. But we've come a long way in the last 10 or 15 years in assessing risk and improved on the quality of risk assessments quite substantially.

    There is still a large number of false positives and we still make errors because it's an imperfect science; we'll never achieve perfection in this regard. But it is clear that we are doing better at making risk assessments.

    Psychologists and psychiatrists, sometimes working together, have primarily done the research in this area in both Canada and the United States over the last 15 years or so. For example, the Mental Health, Law, and Policy Institute, which I direct, publishes the HCR-20, one of the risk instruments widely used in both Canada and the United States--and actually throughout the world. Dr. Eaves is a co-author of it. The other co-authors are psychologists.

    So psychologists and psychiatrists have actually been working quite closely together in the last 15 years on developing better ways of assessing risk. In terms of training, I was director of the clinical doctoral program at Simon Fraser University, which is accredited by both the American Psychological Association and the Canadian Psychological Association.

    Some of our students who have graduated with PhDs have taken positions in the United States, where they're conducting both fitness assessments and risk assessments, even though they couldn't do that--

    Mr. Vic Toews: They couldn't do it here.

    Mr. Ronald Roesch: Well, they could conduct the risk assessments here but not the fitness assessments. So we have graduates of our program who are doing this elsewhere.

    We do have training programs now in Canada that are accredited, with standards in terms of registration of psychologists. At Simon Fraser University, as another example, we have a specific specialty area in forensic psychology at the doctoral level. So graduates in the clinical program also take a number of courses and get supervised experiences in forensic areas, including fitness and risk assessments.

    The Chair: Mr. Toews, I'm sure you'll get another chance.

    Dr. Eaves.

     Mr. Derek Eaves: I'd like to respond to this issue as well in a small way. I'm a psychiatrist, of course, and I work with my colleague, Ron, very closely, and he's a psychologist. We tend to agree about these things. But there may be some issues of protectiveness towards one's profession that keep coming in here, which we should perhaps allude to.

    I believe the training of psychologists in general with regard to the issue of risk is in some ways superior to the training of psychiatrists. Most of the research has in fact been done by psychologists, not by psychiatrists, with some exceptions.

    With regard to psychologists doing assessments and giving evidence under the Criminal Code, the issue is one of the standard of psychology. Dr. Roesch has very eloquently spoken about the incredibly high standard that prevails in British Columbia because Simon Fraser has one of the best training grounds for psychologists in forensic assessment and risk assessment. This is probably not true across Canada. There's probably a better standardization of psychiatric training across Canada.

    In some provinces there are people with less training who are psychologists with only master's degrees. In my view, assessments ought to be conducted by those persons who have the requisite training, whether they're psychiatrists or psychologists. This may not be true for all psychologists as a group, but it would be true for those psychologists who are trained at the doctoral level, such as those out of Simon Fraser University.

À  (1010)  

    The Chair: Thank you.

    Monsieur Bellehumeur.

[Translation]

    Mr. Michel Bellehumeur (Berthier--Montcalm, BQ): I would first like to thank you. You have been quite specific. But I am going to be very honest with you. I am going to read over your testimony because you raised 10 very specific points about changes that you deem necessary, and I would like to go over them in greater detail and give careful thought before asking questions. It is unfortunate that we did not have your brief earlier so as to better prepare ourselves, but be assured that I will read it over.

    I only have two questions. You said that, before 1992, only 10 people were found not criminally responsible by reason of insanity and that that number is four times higher now. Has the legislation changed in 1992? People are not crazier than they were before. Have the diagnosis techniques changed so that we can now make a better assessment? What has happened since 1992 to justify that the number of people found unfit to stand trial should be four times higher?

[English]

     Mr. Derek Eaves: That wasn't what I said, actually. I said there was a fourfold increase in persons found not criminally responsible by reason of mental disorder. The reason for that almost certainly is the Criminal Code changes. Prior to that it was seen that persons would stay because of the politics of it.

    In British Columbia, for example, it was the cabinet that made the decision to release people. The review board had the right only to recommend releases, and it was an incredibly conservative process. The political process made it difficult for people to be released. I think the review boards have a greater degree of courage, and of course assessment techniques have improved considerably, so now they can feel more assured about decision-making.

    So if you like, the prospect prior to 1992 was for a person found not guilty by reason of insanity to be held for an inordinate amount of time. As events have proven, now people are held for much shorter times. Most people in B.C. would be released within two to three years now, whereas previously it was seven years. And a lot of them, of course, were never released. Some of them are still in the hospital.

[Translation]

    Mr. Michel Bellehumeur: If we look at the numbers before 1992 and after 1992 in terms of public safety, we could say that we have better diagnosis and that society is therefore better protected. These have been positive changes.

[English]

     Mr. Derek Eaves: Well, I think, of course, prior to that people were held for inordinate amounts of time, so there was that built-in safety factor of just not releasing people.

    Are the review boards doing a good job, and are they releasing people who are potentially dangerous? I would have some concerns about that. I think certainly we've done follow-up of cases released, and there tends to be a fairly low recidivism rate, but we do know one who recidivated very seriously in British Columbia. So mistakes are always made with regard to prediction, and although we're way better than we used to be with regard to the issue of prediction and making sure people are reasonably safe, I think there still are some concerns left.

[Translation]

    Mr. Michel Bellehumeur: My last question is for the second witness.

    If I understood you correctly, right now approximately 88 per cent of assessments are done in in-patient facilities. Is that correct? So there are only 12 per cent which are done in out-patient facilities or in jails, whereas 73 per cent of the accused could be assessed in prison, without going to an in-patient facility. That's understandable. For one thing, it would be a lot less costly. Why isn't done? Why is the proportion the reverse of what it should be? The majority of assessments are done in in-patient facilities whereas, as you rightly pointed out, they could be done in prison. What should be changed? The way we do things?The way things are managed? What?

À  (1015)  

[English]

    Mr. Ronald Roesch: I think that, as I suggested at the end, the 88% figure was based on the two years following the changes. There may be a shift in the last couple of years to the community in any case. I think that is inevitable.

    Part of the problem has been the lack of some administrative structure to conduct these evaluations in outpatient settings in the jails and the training of people to do it. We saw a large number of people come not from the lower mainland of British Columbia but from other places throughout the province. You have communities that are fairly small without professionals, without psychiatrists, for example, who could conduct those evaluations.

    If we begin to broaden the number of people who can do assessments of fitness and develop training programs to specifically assess them, I think that's an important part of this. Whether you have a degree in psychiatry or psychology, it doesn't necessarily qualify you to conduct these kinds of assessments of fitness. It doesn't necessarily qualify you to conduct risk assessments. I think you need specific training in those areas. Some programs have that built-in in graduate school.

    What we need to have is some training similar to the experience that I know of with colleagues in the state of Virginia, where the equivalent institute to the one I direct, the Institute of Law, Psychiatry and Public Policy at the University of Virginia, trains the evaluators for the entire state of Virginia. They conduct periodic updates of the training to bring people up to date, because this is a very evolving field, particularly in risk assessment. You need to have constant updates. The fact that you have a PhD in psychology, as I said, doesn't train you to do that. You need to have that kind of ongoing training.

    We need to develop those kinds of training opportunities for people and to broaden the number of people who are equipped to do these assessments.

    The Chair: Thank you very much.

    Mr. Grose.

    Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chairman.

    It was stated that of the people referred to determine fitness, four out of five are found to be fit. I have a problem with this figure inasmuch as in previous testimony we've heard, it seems to be a median figure that 50% of people in our penitentiaries have mental disorders. The two don't seem to fit inasmuch as especially the people that are referred to determine fitness would be a small percentage of those before the courts.

    Mr. Ronald Roesch: Yes. It is quite possible for somebody, even somebody who is psychotic, to be fit to stand trial. That's the distinction I think that's important. In research we've done and research in other jurisdictions across Canada, you have a certain percentage of people who are psychotic who are nevertheless able to communicate with an attorney, are able to understand the proceedings, and are able to participate in those proceedings. The mental disorder by itself does not preclude a finding of fitness.

    In fact, somebody who successfully raises the defence of NCRMD would have to have been found fit to stand trial prior to that, or at least be considered fit to stand trial, or would not be able to even raise that defence. There are a large number of people who have no health problems who nonetheless are able to stand trial.

    Mr. Ivan Grose: What is your opinion on this? Is this as it should be?

    Mr. Ronald Roesch: Yes, I think it is as it should be actually. I think the issue is a very specific one for fitness. Does the mental disorder, if it is present, affect the person's ability to participate in the trial? A mental disorder does not render someone unable to conduct themselves in a defence by virtue of itself. You would have to show that the psychosis, and the symptoms related to the psychosis, actually affect the person's ability to adequately participate in the defence.

À  (1020)  

     Mr. Derek Eaves: Can I add to that issue? It might be helpful.

    If you take people off the street who are just charged with offences and are felt to be psychotic, and you do the fitness assessment at that point in time, you may get a higher figure. If you remand the person for a 30-day period, things happen during that period of time. That period of time is often used to treat people, or they spontaneously improve, because one of the great problems now is that mentally ill people take drugs, drugs of abuse. The consequence of taking drugs of abuse is to make them much more disorganized.

    So one of the problems would be, if you bring back fitness assessments too early in the system, then you'll find more people unfit to stand trial. The review board will be dealing with more persons who are unfit. That's why I think it's probably better for persons who are found to be fit after a period of treatment to be returned more quickly than they are at present without the review board reviewing them.

    That's why I think it's very important too that when people are assessed at the front end of the system, there are possibilities for diversion out of the system, especially for the low-end offenders who needn't be held in the system for any period of time. For example, if they meet certifiability requirements, they can be transferred to the civil hospital system as opposed to being dealt with by the criminal hospital system.

    Mr. Ivan Grose: You're very good at assessment. You anticipated my next question.

    But we're faced with the problem that, although these people may be determined fit under our existing rules, instead of going to a mental institution, as you admit that some of them may be psychotic, they are then put in prison, where there's virtually no treatment at all. So they come out exactly the same or worse than they went in, whereas if they'd been diverted into the hospital setting, we might have been able to correct whatever was wrong with them, by use of drugs or whatever.

    So, really, we're only determining part of the problem.

     Mr. Derek Eaves: It's not as bad as you suggest.

    Mr. Ivan Grose: It is as bad as I suggest.

     Mr. Derek Eaves: Well, let's dichotomize the problem. If you take people in the federal system, there are something like 4% to 5% of severely psychotic persons more than you'd expect in that system. There is a system of regional health or regional psychiatric centres across the country that do have very high standards of treatment and care. That's probably not true for the provincial correctional centres that don't really provide a high standard of psychiatric care, and it's predominately those people who are reverberating around the system who get lost by the correctional system. So I would certainly agree with you that it's a profound and serious issue.

    As to how that's dealt with in England, they have legislation that allows much better access to the hospital system from jail than Canada does. In British Columbia we allow persons who are certifiably mentally ill to be transferred from jail to our forensic hospital. In theory, in actual practice, it doesn't occur.

    Mr. Ivan Grose: Thank you.

    Thank you, Mr. Chair.

    The Chair: Mr. Cadman.

    Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair. My apologies for coming in late, and please, if I ask something that has already been answered, let me know.

    I have a brief question on--we got into this a number of times--how we deal with people who have been diagnosed, who are on medications, and then willfully go off their medications and reoffend or commit a first offence. How do we approach people like that? How should they be dealt with?

À  (1025)  

    Mr. Ronald Roesch: I think a good number of the defendants who are found fit, in response to the last line of questioning, are fit because they are on medication, and they do fine while they're on medication. That's why I think it's important they be returned to court and the process begin quite quickly, without having to go through review boards and so forth that might delay it.

    But the other part I think is the need for a better community-based system of monitoring people who have been released from these institutions, in terms of their medication and just generally in terms of treatment. That's where we fail people. We see in the jails large numbers of people who are living on the streets in Vancouver, who have mental health problems, who do okay when they're on medication, but when they're back on the streets and are not supervised they deteriorate and end up coming back into the jails. Some of them get referred to the forensic facility. We see many of the same faces.

    I direct a project in Vancouver and Surrey pre-trial jails, where we assess everybody who comes into the jail--a brief mental health screening. I think that's a very important part of a comprehensive jail program: that you identify people who need some mental health intervention. In Vancouver, we find about 15% have very serious mental disorders: high levels of psychosis, schizophrenia, and the like. We're identifying them and then we do things with them in the jail.

    Once they leave the jail we don't have that kind of supervision and interaction with them, and they're out for a while and then come back in. The interviewers I have doing these assessments begin to see the same people coming through. That's because I think we're failing at the community level to provide the services we need.

    Mr. Chuck Cadman: So what you're saying is--oh, I'm sorry.

     Mr. Derek Eaves: I was going to add that my understanding is the federal government believes they can't mandate treatment, so it's left to provincial law to mandate it. In British Colombia, for persons found not criminally responsible, we have a strange notion of deemed consent so that patients can be treated, if necessary against their will, when they're in-patients. Oddly enough, it doesn't apply to outpatients, where I think it perhaps ought to.

    We have provincial legislation that allows patients who are released from provincial mental hospitals to be treated on extended leave, if necessary against their will. I think you're absolutely right about the issue now. We have very good and potent medications without many side effects that can be used to maintain and stabilize people in the community, and this, as Dr. Roesch says, is the biggest problem: people stop taking their medication when they leave institutions and sometimes relapse in violent ways.

    This is a serious issue. Probably the way to resolve it is by having some standard approaches to the management of people, using provincial legislation. In certain provinces there are outpatient certification processes where you can mandate treatment, but it's not consistent across the country.

    Mr. Chuck Cadman: Thank you, Mr. Chairman.

    The Chair: Thank you, Mr. Cadman.

    Mr. McKay, did you--

    Mr. John McKay (Scarborough East, Lib.): No.

    The Chair: Mr. Grose?

    Mr. Ivan Grose: I have a comment, which may or may not be well received. Possibly you could respond.

    You two gentlemen seem to get along very well. Your different trades are complementary to each other. But we have heard testimony, before you got here, that the two--psychologist and psychiatrist--were not complementary. Would you like to comment on that? You're much the same as the outpatient studies, which are uneven across the country: we're getting an uneven report from psychologists and psychiatrists.

     Mr. Derek Eaves: Well, I think a lot of that is about turf protection. I'm a psychiatrist, and I know that in the past, my colleagues have said that's our business. I think it makes some sense in some ways, and for some pragmatic reasons it makes sense for psychiatrists to do most of the assessment.

    For example, if someone is picked up off the street and they're mentally ill, and you have a psychologist do the fitness assessment, then you'd be able to say, well, the person's fit or unfit. But there's also the other issue of whether the person is seriously mentally disordered to the extent that they're certifiable under provincial mental health legislation, and across the country that's restricted to MDs.

    So while, if you like, psychologists have in many areas the requisite skills, it would not necessarily make sense to use psychologists for some screening or other assessments because you have to look at the wider picture of involvement. But I certainly do feel that psychologists have a much more important role to play than they have done in the past, particularly with the issue of risk assessment. I think as I said before, it's my colleagues in psychology, apart from people like myself who are interested in the issue of risk assessment, who have made most of the notable advances in the research and the practical aspects of assessing risk.

    I think things have changed, but there are some pragmatic reasons why physicians are more useful in certain contexts, though not necessarily all of them.

À  (1030)  

    Mr. Ivan Grose: I didn't mean to embarrass you, but we have to listen to testimony from both disciplines, and knowing absolutely nothing about either discipline--that's why we're listening to the testimony--I wanted to be able to determine just exactly where you stood. I very much appreciate your straightforward answer.

    Thank you, Mr. Chair.

    The Chair: Dr. Roesch, I think you wanted to....

    Mr. Ronald Roesch: Yes, I just wanted to say Dr. Eaves and I have worked together for over 20 years and we work well together. We've published together. We collaborate on research together. And most of the time we agree.

    But I do want to say that in terms of fitness assessment, psychologists clearly can conduct these assessments. I think the issue of certifiability is such a small percentage of cases, and those cases would be referred to somebody who, under the provincial legislation, would be appropriate to make judgments about whether somebody should be hospitalized. So I don't think that precludes psychologists from being involved in those assessments, and it shouldn't be considered as such.

    The Chair: Thank you very much.

    You should be aware that yesterday afternoon we had the Canadian association of psychologists and the Canadian association of psychiatrists on the same panel, so we discussed this a little. But we also had Justice Ormston from Toronto, from the facility you referred to.

    I have a couple of questions myself.

    The first thing is, I believe it's fair to say that in terms of risk assessment...and this speaks to the question of our capacity, let's say, to undertake the noble mission that is contained within the legislation in the context of not having order in council decisions, as Dr. Eaves referred to, being quite political and ultimately quite conservative. So I think the test as to whether the system we're trying to engage is successful speaks to our capacity to do risk assessment.

    Is it fair to say Canada's reputation on risk assessment is very high internationally? It's been my understanding and experience that we're called upon often to export our capacity in that regard.

    Mr. Ronald Roesch: Yes, I think that's accurate. And as I noted, Simon Fraser University's mental health law and policy institute has conducted a lot of the research in developing risk assessment instruments, both broad risk assessment instruments and very specific ones, for example, dealing with spousal assault. We have the spousal assault risk assessment guide, the SARA, that was developed, and we have the broad one, the HCR-20, that assesses general risk for violence.

    So I think it is fair to say that we in Canada have had a lot of influence on risk assessment throughout the world.

    The Chair: In explaining the fourfold increase, Dr. Eaves earlier said he felt that prior to the amendments of the early 1990s, when the decision was left to cabinet, obviously politics had a big part to play and therefore the decisions were quite conservative. When we discussed the fourfold increase, I got the impression that when you said that, editorially you were saying it was perhaps too conservative. I don't want to put words in your mouth if that wasn't the case. When we get to the place we are now, you didn't mention that the rate of recidivism was low but that we had some pretty visible exceptions in terms of that.

    I guess what I'm trying to get at is if the old system perhaps was a little conservative because of the pressure that would have been on those making the decision, do you find that the system now is somewhere unacceptable on that spectrum?

À  (1035)  

     Mr. Derek Eaves: I'm not sure I could say that. I'm not sure the research has been done yet that will prove that point. I was pointing to some individual...we are conducting research across B.C. and across Canada, looking at the recidivism rates of persons who are found NCRMD. The evidence to date seems to suggest that the recidivism rate is somewhat low for that group. We're doing an international study among different countries to see whether the recidivism rates for similar kinds of people are different.

    One of the things that was very important for us in British Columbia...we recognized pretty fast that when the legislation changed in 1992, the issue of risk assessment was absolutely pre-eminent. We recruited Professor Webster, who is one of the experts in that area, to help us develop some risk assessment instruments. Going back to your earlier point, I think Canada is renowned internationally now for its research work in two areas. One is in the corrections field, where there has been a lot of research done, and another is in the forensic mental health field.

    You can never talk about “no risk”. You can only ever talk about high risk, medium risk, and low risk, and to my own personal distress, if you define people in the low-risk category, it doesn't mean “no risk” and occasionally surprises occur. But I would think in general we have a reasonable system.

    I don't think that across Canada we are using risk assessment techniques as widely as we are in some areas, so there is a great diversity in the application of that new knowledge. Risk assessment is right at the kernel of releases in British Columbia. It hasn't always been with regard to certain other provinces.

    The Chair: Dr. Roesch.

    Mr. Ronald Roesch: I would add one other point to that. I think we are, as noted, getting better at making risk assessments, but we're not putting enough emphasis on risk management. We must use the risk assessments to identify people who are at various levels of risk and then link that with some interventions that manage that risk on an ongoing basis. That again relates to both institutional management as well as community-based management. Some of these people are going to be in the community, and the issue is, how do you manage any level of risk for a person in the community?

    The Chair: I'm going to go to Mr. McKay, but before I do and before I forget, I would like to ask if perhaps you could make available to the committee your FIT.

    Mr. Ronald Roesch: I have a copy of it here, and I was already going to leave that with you. I don't have them here, but I can send copies of the risk assessment instruments we've developed as well if you like.

    The Chair: Thank you very much.

    Mr. McKay.

    Mr. John McKay: I have in my riding an example of someone who is clearly a high-risk individual. I would be very surprised if this individual was assessed as anything other than high risk, but he had completed his sentence and was gone. The tools for risk management seem to be severely lacking. The conviction involved a person with pedophilia. Am I correct in assuming that with respect to risk assessment virtually all pedophiles would be put in the category of high risk?

     Mr. Derek Eaves: I don't believe that to be true. There are real problems in defining pedophilia. For example, a lot of people who commit incest might be classified as pedophiles. I think the classification system is wrong with regard to that. In general, people who commit incest would be regarded as low risk. The persons you're referring to as pedophiles are probably a subsection of those who might be classified as pedophiles, and those are ones who have deviant sexual interests together with probably some other anti-social personality traits and so on. The recidivism rate for homosexual pedophilia, if you characterize pedophilia in that narrow kind of way, tends to be amongst the highest risk categories.

    It depends what you call high risk, because recidivism rates with sex offenders in general are not high. It depends how long you follow them up for. The risk for some pedophiles seems to be lifelong, and that's why they brought in the dangerous offender and long-term offender legislation that allows very long probation periods. I certainly applaud that legislation because I think it gives us a new risk management tool for managing sex offenders in the community, particularly that group that otherwise would serve a period of time and then be released without any requirements. The LTO legislation allows that long follow-up.

    As Dr. Roesch pointed out, I think we're not so good in terms of our risk management techniques as we are at risk assessment techniques. We're not all that good at risk assessment techniques either. I think there are still some profound limitations on that. With regard to risk management, I think there are some severe issues.

À  (1040)  

    Mr. John McKay: I don't understand, then, your comment that there are gaps in the assessment. I understand that when you break it out, there are different categories of pedophilia in particular, but I didn't follow the point that there were gaps. Where do you see the errors in your assessment, or where do you think there might be errors in your assessment?

     Mr. Derek Eaves: Well, I think it's more errors in the management of those persons.

    Mr. John McKay: Oh, in management. Okay, thanks.

    The Chair: Thank you, John.

    I apologize for not remembering in whose testimony, but earlier in the testimony there was a reference to the problem at the end of the process. There's a great deal of treatment and control, and then at some point there's a release and they're not under the authority of the review boards any more and that sort of disappears. We've had a lot of that testimony, actually. Generally it has been about resources. At least, I've interpreted it as being about resources generally. I was just thinking that in this exchange, perhaps I've missed a little bit. There's also a legal control.

    You mentioned the benefits of long-term offender legislation and your capacity to manage risk over a longer period of time with some legitimate authority. Have I been wrong in hearing that it was mostly about resources, or are we talking about a weakness in the legal structure that would allow people to have greater control over people beyond the status quo?

     Mr. Derek Eaves: Maybe I could answer that. It's probably equally split between the two. In B.C., a lot of effort has been put into wrapping around resources according to the level of risk. I think that's been a very helpful process, but the Criminal Code doesn't allow mandated treatment. So even on an in-patient basis for persons found NCRMD, you have to rely on either voluntary treatment, where the person recognizes that they have an illness, or the provincial legislation, as in B.C., that allows treatment even against the person's will. When a person is released in B.C., there is no mandated requirement that they take their medication.

    What can happen with the legislation, of course, is that you can make a requirement that the person agrees to take medication in order for that person to be released. If they then stop that medication, it would be a criterion to readmit them to a facility.

    So it is possible. If you had the perfect world, it would be nice to have a requirement that people continue their medication beyond release where it's indicated, particularly in the area of those persons who are suffering from illnesses such as schizophrenia, where it seems that it's a lifelong condition that requires lifelong treatment.

    One of the profound issues in the management of schizophrenia is that people don't take their medication in a continuous way. The reason behind that is that in the past, the side effects of the medication were absolutely colossal and really quite awful. We now have medications that are just as effective and don't have the same kinds of side effects. The problem is that most of these medications are taken by mouth, and you can't give them by injection to ensure that people are actually taking them.

À  (1045)  

    The Chair: Mr. Cadman.

    Mr. Chuck Cadman: Just as a very quick follow-up on that, you said the federal legislation didn't allow for mandated treatment. If there were a way to reflect that in the federal legislation, would you support something like that at the federal level? We'd probably be dealing with making it charter-proof.

     Mr. Derek Eaves: I think I said that in a perfect world it would be nice to have that kind of standardized system of care, either by agreement by the provinces, with general legislation, or preferably by federal legislation. But I recognize that may not be possible.

    The Chair: I thank you very much for your testimony. You've advanced our understanding of the issue. Thank you very much in advance for those things you've offered to provide, and have a safe trip home.

    The meeting is adjourned.