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37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Tuesday, April 9, 2002

0935

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

Mr. Edwin A. Tollefson (Individual Presentation)

0940

The Chair

Ms. Barbara Fisher (Legal Counsel, B.C. Forensic Psychiatric Services Commission)

Dr. Mark Riley (Psychiatrist, B.C. Forensic Psychiatric Services Commission)

Ms. Barbara Fisher

Dr. Mark Riley

Ms. Barbara Fisher

0945

Dr. Mark Riley

Ms. Barbara Fisher

0950

Dr. Mark Riley

Ms. Barbara Fisher

Dr. Mark Riley

Ms. Barbara Fisher

The Chair

Ms. Barbara Fisher

0955

The Chair

Mr. Corey Bow (Lawyer, Mental Health Law Program, Community Legal Assistance Society)

1000

Ms. Diane Nielsen (Lawyer, Community Legal Assistance Society)

1005

1010

The Chair

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance)

Dr. Mark Riley

Mr. Kevin Sorenson

Dr. Mark Riley

1015

The Chair

Ms. Diane Nielsen

The Chair

Mr. Kevin Sorenson

Ms. Diane Nielsen

Mr. Kevin Sorenson

Ms. Barbara Fisher

The Chair

Mr. Robert Lanctôt (Châteauguay, BQ)

1020

Mr. Edwin A. Tollefson

1025

The Chair

Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC)

Ms. Diane Nielsen

Mr. Peter MacKay

1030

The Chair

Ms. Diane Nielsen

Mr. Peter MacKay

Ms. Diane Nielsen

The Chair

Dr. Mark Riley

Mr. Peter MacKay

Dr. Mark Riley

1035

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

Mr. Edwin A. Tollefson

Dr. Mark Riley

Ms. Diane Nielsen

The Chair

Mr. Paul Harold Macklin

1040

Dr. Mark Riley

Ms. Diane Nielsen

Mr. Edwin A. Tollefson

The Chair

Mr. Kevin Sorenson

Mr. Edwin A. Tollefson

1045

Dr. Mark Riley

Mr. Kevin Sorenson

Dr. Mark Riley

The Chair

Mr. Edwin A. Tollefson

The Chair

Mr. John McKay (Scarborough East, Lib.)

Dr. Mark Riley

1050

The Chair

Mr. Robert Lanctôt

Mr. Corey Bow

1055

The Chair

Mr. Paul Harold Macklin

Ms. Diane Nielsen

Dr. Mark Riley

Mr. Paul Harold Macklin

Mr. Edwin A. Tollefson

1100

The Chair

Mr. Peter MacKay

The Chair

Mr. MacKay

Mr. Edwin A. Tollefson

Mr. Peter MacKay

The Chair

Mr. Edwin A. Tollefson

The Chair

Ms. Diane Nielsen

1105

The Chair

Mr. John McKay

The Chair

Dr. Mark Riley

The Chair

Mr. John McKay

Ms. Diane Nielsen

Mr. Corey Bow

1110

The Chair

Mr. Paul Harold Macklin

Mr. Corey Bow

Mr. Paul Harold Macklin

Mr. Corey Bow

Mr. Macklin

Mr. Edwin A. Tollefson

The Chair

Ms. Barbara Fisher

1115

The Chair

Mr. Peter MacKay

Ms. Diane Nielsen

Mr. Peter MacKay

Ms. Diane Nielsen

The Chair

Mr. Edwin A. Tollefson

1120

The Chair

Dr. Mark Riley

The Chair

Mr. Peter MacKay

The Chair

Mr. Peter MacKay

The Chair

Mr. Peter MacKay

The Chair

Mr. Peter MacKay

1125

The Chair

Mr. Peter MacKay

The Chair

Mr. MacKay

The Chair

Mr. Peter MacKay

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 073

1st SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, April 9, 2002

[Recorded by Electronic Apparatus]

¿ (0935)

[English]

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

[Translation]

Welcome to all of you.

[English]

I'd like to call the seventy-third meeting of the Standing Committee on Justice and Human Rights to order. Today, pursuant to the order of reference of the House of February 26, 2002, we are engaged in a statutory review of the mental disorder provisions of the Criminal Code.

As I think members have been advised, the committee will only sit until 11:30 a.m. as a result of the resolution that was passed yesterday. What we've done--and I appreciate very much the patience of the panel--is combine the 9:30 a.m. and 11 a.m. panels into one, with the exception of the Canadian Police Association, who aren't here, and the Schizophrenia Society of Canada.

So we will be hearing today from the B.C. Forensic Psychiatric Services Commission, represented by Barbara Fisher, legal counsel, and Dr. Mark Riley, psychiatrist.

As an individual, we have Edwin Tollefson.

From the Community Legal Assistance Society, we have Diane Nielsen, lawyer, and Corey Bow, lawyer from the mental health law program.

Since time is at a premium, I'll say no more. I think everyone understands. I'll call on Mr. Tollefson first, as an individual; then I'll go to the B.C. Forensic Psychiatric Services Commission, and then to the Community Legal Assistance Society.

I want to bring notice when we get close to ten minutes, and please understand we'll have lots of question-and-answer opportunities.

Please proceed.

Mr. Edwin A. Tollefson (Individual Presentation): Thank you, Mr. Chairman and honourable members of the committee.

I don't plan to make any formal presentation. I don't come here with any particular brief or any particular position I'm supporting. I made myself available to the committee because I've had involvement in the mental disorder project since its inception--indeed, its conception. I was involved in the consultation process and in the drafting of the first report of the mental disorder project and, finally, involved as the person who gave the instructions to the draftsmen in both French and English for the legislation you have before you today.

Since I retired from the Department of Justice I've maintained contact with the area. My colleague Bernard Starkman and I wrote a book on the subject called Mental Disorder in Criminal Proceedings. I've also been a participant in the B.C. Review Board, as a member and later as an alternate chair. I've participated in, I guess, something like 500 hearings, so I feel I've seen the baby from the time of its birth right through to its adolescence. I hope I'm able to provide some assistance to you.

Thank you.

¿ (0940)

The Chair: Thank you very much.

Now to Dr. Riley and Ms. Fisher.

Ms. Barbara Fisher (Legal Counsel, B.C. Forensic Psychiatric Services Commission): Thank you, Mr. Chairman and honourable members of the committee.

Dr. Riley and I propose to use our time by just highlighting some of the subject areas we'd like to touch on in this presentation. I'll be providing a legal perspective, and Dr. Riley will, of course, be providing the clinical perspective on these subjects.

What we propose to do is essentially cover what we think actually works very well--we are happy to say we think the provisions generally are working well--what changes the committee might want to consider, and several changes we do not recommend be made. With the limited time period, we are prepared to have a dialogue with the committee in terms of questions and answers.

The first thing is that the process under the mental disorder provisions as provided now, when compared with the provisions under the old lieutenant governor's warrant system, are eminently more fair. The hearings themselves are fair; they are conducted fairly. The review boards have good expertise, with a combination of legal, psychiatric, and social work backgrounds. The hearings focus on the main party this is about, which is the accused person or the patient. The accused person, under the mental disorder provisions in this system, actually gets treatment and is reintegrated into the community in a relatively quick time, usually. The thrust of the work that's done in the forensic system in British Columbia is based on a treatment model.

With that, I'll ask Dr. Riley to comment.

Dr. Mark Riley (Psychiatrist, B.C. Forensic Psychiatric Services Commission): Thank you.

I'd like to add to that and again emphasize that the mental disorder provisions as currently laid out do permit me to do what I'm trained to do. My area of expertise is in assessing and treating accused patients in a way that minimizes risks to others. The expectations and demands this places on me are reasonable as the system is currently organized.

There are some resource allocation issues that impact on this, but we do not believe this should be addressed through an amendment to the Criminal Code.

Ms. Barbara Fisher: The committee did pose some questions, and we'll highlight some of them.

You have our written brief, which outlines in general our positions. I won't be repeating that.

You did ask about section 16 and the NCR-MD defence. While the legal definition in the Criminal Code is somewhat broader than a clinical definition, it's a well-known test and it generally works well. From a general perspective, it catches most of the people who should be caught within the NCR-MD type of defence. Sometimes it doesn't catch everyone, and sometimes it catches some who may not need to be in there. But we say that by and large it works quite well.

You asked about automatism. I'll ask Dr. Riley to comment on that, because there are non-insane and insane automatism defences. You also asked about codification. I'll turn it over to Dr. Riley.

Dr. Mark Riley: Our view is that although the legal definition of mental disorder is obviously different from the clinical definition, that doesn't actually pose any major problems to us in terms of how it's interpreted through section 16.

The only area in which we feel there is a major conflict between the legal and clinical definition of mental disorder is when we look at the issue of automatism. From a clinical point of view, I think it's important to emphasize that there is no diagnostic equivalent to this legal concept and its scientific validity is questionable. We also take the view, both as a service and I think I can speak on behalf of the psychiatric profession, that there's no logical clinical basis for dividing the concept of automatism into insane and non-insane. If there are sound legal reasons for retaining the defence of automatism, we would encourage that there just be a single defence of automatism, rather than it being divided into these two subcategories.

Ms. Barbara Fisher: I have just one point on section 16 to conclude. There are issues between the legal definition and the clinical definition of what's treatable and manageable and what's not treatable. There certainly are people caught within the NCR-MD defence who have disorders that are not treatable, and those are the ones where it gets problematic as to what kind of treatment can be provided for them in a hospital or community setting.

But those are service issues, and we don't think that predominantly they're issues that require the defence itself to be changed. They're service issues in terms of where is the appropriate community placement for people such as those with developmental disabilities. We can probably touch on that a bit more later on.

With regard to fitness, the test is sufficiently narrow and probably gives the right balance. We don't recommend that there be any changes there or that it should be broadened. There certainly are issues about treatment that go along with assessment.

¿ (0945)

Dr. Mark Riley: In B.C. the role of our service is to provide both assessment and treatment, and that begins at the start of the process when somebody is remanded to our facility for a fitness assessment.

As a clinician, I can't abandon my ethical and professional obligations to provide treatment when it's needed. This involves certification of the remanded person on admission to hospital. Approximately 50% of the people remanded for an in-patient assessment end up being certified under the provincial Mental Health Act. The outcome of this is that often when the person comes in at the beginning of their assessment, legally they're probably unfit, but when treatment has been initiated, a by-product of that is that they're usually fit on return to court. So our view is that although some parties have expressed some criticism of that, we feel it actually works in the best interests of the person remanded for the assessment.

Ms. Barbara Fisher: You asked about capping. Initially when these provisions were drafted--and I'm sure Dr. Tollefson has a lot of information about this--some sort of capping was contemplated, a kind of correlation between how long someone spends in detention or under review board jurisdiction, and a sentence. At this stage, particularly ten years later and particularly after the Supreme Court of Canada decision in Winko, which has basically confirmed that the current system, which is in fact implemented on a treatment model, does not offend the charter and is legally appropriate, we say that capping is no longer.... Whether it was necessary before is beside the point, but at this stage it's the recommendation of the commission that capping is not required. With the treatment model being predominant, the risks are adequately managed under the criteria in section 672.54.

Really, cap dates are somewhat arbitrary when you think about it and are looking at risk to the community. The Winko model provides a balance between protection of the public and the needs of the accused. Without this, if we had a cap and we had to rely on the dangerous mental disorder offender section that's still unproclaimed as well, or the provincial Mental Health Act provisions.... The provincial Mental Health Act focuses on treatment for illness, so it deals in some respects with public safety, but it's predominately based on illness.

Dangerousness is the predominate DMDA provision. Dr. Riley can give you a more personal perspective on how many people might fall between those categories, because there will be some who would fall between those categories. And by capping you lose the fine balance that's been supported in the Supreme Court in Winko. You lose the ability to look at the risk of harm to the public and the needs of the accused--those types of things. Again, it boils down to a public policy decision on the part of Parliament as to whether you want to continue to have that kind of public protection and treatment model, which in our submission works very well.

Essentially, there's no legal reason to cap post-Winko. When she talks about the equality provisions of the charter in section 15, Madam Justice McLachlin confirms that any restrictions on the liberty of the NCR accused are imposed to protect society and to allow the NCR accused to seek treatment, not for penal purposes. This is in fact the system we use; it's not penal.

One of our concerns with superimposing a cap on this system is that we may be imposing a legal construct of the penal system on a treatment system. This could have detrimental effects on the treatment.

¿ (0950)

Dr. Mark Riley: I don't think there's much more for me to add to this, except to emphasize that it could, with a more penal custodial atmosphere, undermine not just treatment with individuals but also the therapeutic treatment atmosphere of the facility. For individuals, their compliance with treatment might be more coloured by an attitude of just serving their time, which could impact negatively on them. A shift to a more custodial model within the therapeutic treatment facility could have detrimental effects for everyone in that facility, not just the individuals affected by capping.

Ms. Barbara Fisher: We don't have a lot of statistics available right now, but the capping provision would not affect a majority of people. The problem with people staying in hospital perhaps longer than they should is not because of capping. The essential problem is that there are no other community resources to which to send people. It's not the capping that's causing people to stay in hospital longer than they should.

The forensic teams, when they come to review board hearings, essentially often have recommendations for discharge planning that require a certain type of supervision in the community, but there are no resources available to that person because there is no resource or because there's no funding. That's another issue that I know Ms. Nielsen is going to be dealing with a little more.

The last part deals with what we say works well. In the system right now there's a good balance between the role of the review boards, in which they have to make the risk assessments, determinations and dispositions, and the role of the clinical and treatment teams, who have the discretion to make clinical and supervisory treatment decisions for these people. It's a fine line and a bit of a tension, but it works well.

Some of the submissions that have been made by others, including the chairs of the boards, have been recommending more powers for the review boards to make orders against parties. We oppose that because, in our submission, it will interfere with that balance. If the review board has the authority to make an order against the director of the hospital or the out-patient clinic that has some bearing on treatment, that will upset that balance. If the review boards have more authority to micro-manage conditions, if the conditions have to be based upon least restrictive within a disposition, it takes away from the flexibility that's required to actually craft conditions that are going to adequately manage somebody's risk in the community if it's a conditional discharge, or are going to actually assist that person under that treatment model.

From that perspective, we submit the committee ought not to make any changes to the Criminal Code provisions that might upset that fine balance.

Dr. Riley can comment further on the treatment models.

Dr. Mark Riley: Only one comment, really. It really does talk to the consequences of the review board having the ability to specify what specific interventions will be provided, and it's actually the professional and ethical consequences of working for physicians and other professionals, working in an environment where clinical decisions are being made, or could be made, by a non-clinical entity. That would make it very difficult to sustain, as Ms. Fisher says, this correct balance. I think it would also impact on the recruitment and retaining of staff.

Ms. Barbara Fisher: Did you say my time is up?

The Chair: No, I said one minute.

Ms. Barbara Fisher: One minute, okay.

The only thing about that is that there are checks and balances in the system to counter any possible problems or perceived abuses. There are restriction of liberties clauses that come in, there are mandatory hearings, and there are annual reviews. So within the system there's a significant amount of checks and balances before the review board that is simply not required.

With respect to changes to consider, these are actually not major points. I'll simply touch on the topics. If you have any questions about them, I'll be pleased to answer them.

One is the source of delegated authority. The supervisory authority of the director to manage and treat the patient is provided for in dispositions that the review board makes. But there's nothing in the Criminal Code, with one exception--the restriction of liberties section--that actually mandates or authorizes that. There may be something to consider in terms of making that in the legislation, because there's nothing in there.

Interprovincial transfers have been an issue in the sense that there's not uniform practice across the country. The sections in the code are worded such that it appears that people can only be transferred if they're in custody. However, I don't believe that was the intention of the section. It's difficult to transfer people who are on conditional discharge from province to province. We have had problems in British Columbia transferring people into Alberta.

There are a few gaps in the way some of the dispositions work and the effectiveness. Those are fairly technical points, but the gaps in the effectiveness of orders can create problems for the authority of the director to maintain detention of somebody. Those are problems that could be easily fixed in the legislation.

There is some consideration on the annual reviews. Some of the patients find it difficult to go to the annual hearings. While they provide checks and balances, there could be options for waiver. There are Immigration Act issues and there are dual-status offender issues that we can discuss later.

I think we have covered pretty well everything.

¿ (0955)

The Chair: Thank you very much. You've done very well.

Now to the Community Legal Assistance Society.

Mr. Corey Bow (Lawyer, Mental Health Law Program, Community Legal Assistance Society): Thank you, Mr. Chair and honourable members of the committee.

My name is Corey Bow. I'm a lawyer with the Community Legal Assistance Society's mental health law program. What I intend to do is speak for about five minutes and be followed by my colleague Diane Nielsen, who will speak for five minutes, and then we'll both be available for questions.

Our written submissions that you have answer all the questions that were raised by the committee. We also raise 14 other issues. Due to our time limitations here today, we'll deal only briefly with a couple of the issues that have been raised by the committee, as well as our issues.

What I'd like to do is first give a brief background of the mental health law program and then speak on three issues: capping, the legislative gap regarding accused people who are found fit to stand trial by the review board, and some suggestions for improvements in the practice in front of the review board.

With respect to the background of our organization, the Community Legal Assistance Society was formed in 1971 as a legal aid society in providing legal aid for impoverished groups. The mental health law program became a program of the Community Legal Assistance Society in 1977, and at that time there was one lawyer and one part-time secretary who were doing all the legal work for mentally ill people.

In B.C. in 1991 our program expanded, and today there are two lawyers who appear at the mental health law program, as well as six paralegals and four secretaries doing work under the Criminal Code mental disorder provisions as well as representing patients who are detained involuntarily under the Mental Health Act. We're funded by the Law Foundation of British Columbia as well as the B.C. Legal Services Society.

While we do make some recommendations for changes to the mental disorder provisions of the Criminal Code, by and large we are quite happy with the way the amendments have been working since 1991. We submit that they do provide a more fair and consistent process for mentally disordered accused people at the review board hearings.

We do again thank you, as we do in our submissions, for allowing us to make a presentation here today.

With respect to the first issue that I said I would talk about, capping, we would recommend the capping provisions do get included in your new amendments to the Criminal Code for a number of reasons. First, there is the fairness issue to the mentally disordered accused. When you compare a person who is detained in a forensic hospital to somebody who is serving time in a prison, the person who is serving time in a prison does have a determined time for which they will serve their sentence. The mentally disordered accused does not, and in fact, for minor offences, could potentially have an undetermined detention time or undetermined time under the review board system.

Our main thrust in this area is that this creates an unfairness. While we recognize the hospital is there to treat mentally disordered persons, for many cases, the institution is a locked facility that is in effect detaining these people. One of the things the Supreme Court of Canada said in Winko is to look very closely at the liberty interests of the accused person.

With respect to the second issue, the legislative gap for fit accused, in our experience when we appear in front of the review board for people who are found unfit to stand trial, the Criminal Code deals quite effectively with people who are found unfit, and they go on to the disposition stage of the hearing. The Criminal Code also deals with people who are found fit to stand trial at the review board if the review board feels they are in jeopardy of becoming unfit.

À (1000)

Where the Criminal Code is somewhat vague is where they're found fit and sent back to court and what happens in the intervening time. If somebody is found fit, the Criminal Code just recommends that they be sent back to court, and there could be up to a two- or three-week period whereby it's unclear who has the jurisdiction over the accused. Is it the court because of lack of bail, or is it the review board that is available to make a discharge?

At this point I think I'll turn it over to Ms. Nielsen.

Ms. Diane Nielsen (Lawyer, Community Legal Assistance Society): We've also brought statistics of the number of hearings that we've done for one year and the results of those hearings.

I feel somewhat as if I'm at a review board hearing today, especially with Dr. Tollefson in the middle.

The Forensic Psychiatric Services Commission and our organization may disagree on different issues and on the process; however, we do not disagree on the results sought. The real problem we're finding in British Columbia is the lack of resources that our clients need for rehabilitation and reintegration into the community.

What I am proposing to do is focus on three suggestions to address that problem, if we can, through amendments to the Criminal Code. I'm going to discuss section 16, the definition section of the Criminal Code, the definition of fitness to stand trial, and the review board's power to make orders and have them effective, and the government's duty to provide resources, which is one of our extra issues.

With respect to section 16, the problem is we have people within the system, in our experience, who get in and they can't get out. They get in many times because the community is frustrated with dealing with them. They might be going through the revolving door of the criminal justice system. They may not have the resources they need. The care homes they're in get tired of managing their behaviour. They end up being charged. Quite often the charges are not that serious--the circumstances are not that serious--and then they end up in the system. These people would include people with developmental disabilities, organic brain injuries, which would include also the people who have dementia, people with fetal alcohol syndrome, and people with personality disorders. They're most likely to go through the revolving door of the criminal justice system.

It's very frustrating for these people to be in the forensic psychiatric system, because that system is geared to treat people with manageable psychiatric disorders. These people aren't going to get any better in the forensic psychiatric system, even though they do get good care. They're not going to get any better. The real issue in that case is the lack of resources at the front end and the lack of resources at the back end. They can't get out because there are no resources, just like there weren't any resources when they got in.

What we are proposing is that section 16 be narrowed to keep those people out of the system or even develop a separate track for those people. In our recommendations we suggest a separate or a divergent system. In that system, it would be very important that these people do not get the criminal charges attached to them, that they get the treatment. After a certain length of time, those charges would be stayed. Because what we've also found is that once a person gets labelled, having been charged or having been found NCR-MD, it's much more difficult to get those services in the community.

That's all I'm going to say on that point because of my time.

Similar circumstances arise for people who are chronically unfit, and that's why we're suggesting either a separate stream for those people or making the definition such that the people could be more easily found fit. They could stand trial and have their charges dealt with, rather than being unfit indefinitely. It's not fair to restrain people or restrict their liberties indefinitely without a trial. Some of these people will never be fit to stand trial, so they'll be under the review board's system for the rest of their lives until the crown stays the charges or until there's a judicial stay. We think that could be addressed more simply through Criminal Code amendments. We've made those suggestions and other suggestions in our submission.

À (1005)

Finally, the last issue that I would like to discuss is the power of the review board to make orders of all parties. What I have set out in recommendation 10, on page 13 to 15 of our submissions, is the governmental duty to provide funding for services that are needed to implement the review board decisions.

I think those two go hand in hand. For the orders to be effective, there has to be some services attached to those orders. The review board has a duty to make the least restrictive order, but they have to have the power to direct the services to effect that order. It's an empty power and an empty right if the review board can make a conditional discharge for a person to live in the community but there are no resources for that person in the community. That's an empty right, and we have a number of clients who are in that particular situation.

In our recommendation on page 15, we said simply that the mental disorder provision should be amended to ensure that there is a governmental duty to provide the funding for services. But what I would suggest is that perhaps the funding from the federal government to the provincial government could be linked to transfer payments for criminal justice and health. There could be a provision similar to subsection 672.5(8.1) that states that if legal aid is not granted to the accused, the review board may assign counsel in the interest of justice, and that counsel would be paid for by the Attorney General. So I would suggest maybe a parallel section that indicates the province will pay for services required to fulfill the disposition conditions of the review board, and I would link transfer payments to that.

The last thing I have been asked to mention by our organization is that legal aid funding in B.C. is at a crisis right now. Our clients have been represented by us for many years, but the legal aid system in B.C. now is going to be cut back 40%. What that means is the rights of our clients might be further eroded, because we are not sure how they are going to be represented at review board hearings. They can be assigned counsel and the Attorney General should pay, but that adds an extra level of bureaucracy to the whole process for people who don't have the capacity, really, to look after their best interests. So what we are proposing is that there be a link to federal funding, to directly fund legal aid in the provinces.

Those are my submissions, and I thank you very much.

À (1010)

The Chair: Thank you very much.

Everyone has done a very good job of adjusting to the new circumstances. For those who arrived late, your agendas will show that we had two panels. We're only really doing one today because, as members know, there was a resolution passed yesterday, and we'll only meet until 11:30 a.m.

So thanks, everyone, for your patience. I will go now to Mr. Sorenson.

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Thank you for coming.

This is one area where unfortunately my level of expertise is limited. I do know that in the early nineties there were changes to the Criminal Code that are now being reassessed. We're questioning whether the amendments and the things that were changed at that time have been a positive or a negative. We're always looking for ways to improve the situation, and maybe new amendments need to be given to the area of the Criminal Code dealing with those people who are not criminally responsible, or who are criminally responsible.

I think some of the questions that I have in regard to this have already, to a certain degree, been answered. But I would still pose this question to one of the first two who have brought witness, or testimony, of their area of expertise. When we come to court, and I'm not a lawyer and I haven't spent much time in court, always the question seems to be were they of the understanding, was there a will by the individual to commit a criminal act, or was it because of mental disorder and so perhaps he's unfit to stand trial?

This committee has been told that we need to have a clear definition of mental disorder, and also that some of this criminal law should be amended specifically to include circumstances where the individual had been involved in substance abuse, or had voluntarily been involved in the over-consumption of alcohol or drugs, and it altered his state of mind. We've been told we should take that into more consideration when we bring them before the court. That would be one of my questions. Do you agree with that recommendation? Why, or why not?

Also, one question that was posed, and I think was answered in the brief you brought, is this. It has been argued that a standard for fitness to stand trial should be legislated to include that the accused must have some degree of awareness of the consequences of decisions they made. Do you agree with that? Why, or why not?

I'll leave it at that.

Dr. Mark Riley: If I could answer the second question first, actually, that is the consequences of their decisions in instructing counsel in terms of the definition of fitness.

Mr. Kevin Sorenson: Yes.

Dr. Mark Riley: I think that it seems that the Taylor decision removed that from consideration. Our view, and certainly my view all along, has been that this was actually a positive change. Initially when that came in there was some reluctance among my colleagues that this narrowed the definition of “unfitness” to be too small a group. On balance it would appear that it is actually a fair balance that has been achieved. It is certainly the consensus among me and my colleagues in B.C. that the narrowness of the unfit category as defined under Taylor is actually much better than it was before. We are certainly not suggesting that it be widened to include considerations about the wisdom of the instructions they are giving. Oftentimes if somebody has a mental illness, they are often giving rather strange instructions to counsel even though they do understand the general issues related to why they're in court.

À (1015)

The Chair: Does anyone else on the panel want to speak to this?

Ms. Diane Nielsen: We would like to see it easier to be found fit to stand trial so the person can get on with the trial and get on with reintegration. To include some awareness of the consequences, it would depend on how that is framed. If it means, as we have put in our submissions, that they have some awareness that what they did is wrong, then that would be acceptable. But if it means they have to understand that they could go to jail, or be released, or be found mentally disordered, that is the complexity of the whole system. If it means understanding the complexity of the system, we wouldn't be in support of that.

The Chair: Mr. Sorenson.

Mr. Kevin Sorenson: Could you also expand, Ms. Nielsen, on...? You talked about the source of delegated authority. When you refer to that, in a case where someone is unfit, are you referring to its being the state, or are you referring to someone removed from the state, who is assigned to being a delegated authority for that individual? Did I misunderstand?

Ms. Diane Nielsen: I think that's probably the B.C. Forensic Psychiatric Services Commission's submission, not our submission. We didn't refer to delegated authority in our submission.

Mr. Kevin Sorenson: Can you expand a little bit on that? I may have missed part of it.

Ms. Barbara Fisher: I was speaking rather quickly, actually.

What happens when the review board makes a disposition is this. In practically all dispositions, one of the first orders is that the accused be subject to the supervision and direction of the director of the Forensic Psychiatric Services Commission. That particular clause comes just from the review board granting it in a disposition. It's the main clause that gives the director and his or her delegates the clinical authority in the treatment and the supervisory discretion to treat the patient. Then there are other conditions that may apply to that person.

That particular authority is not found anywhere in the Criminal Code in terms of the way it comes about. There have on occasion been tensions between the review board and the hospital as to what should happen with a particular person. For example, when they're going to release someone on a conditional discharge, it will often say “to be living in a residence approved by the director”. The person needs to be discharge-planned to a place the treatment team feels is going to be a good place for him or her to be. That will not be near someone he or she had threatened before, or things like that.

Sometimes there have been cases where there has been some tension, where the treatment team feel very strongly that a person shouldn't live here and that they need to work on getting him or her into a different kind of place, and the review board doesn't agree, so they take out the discretion.

That may or may not be a problem. All I was pointing out is, for the actual way things function where the discretion is delegated, there is nowhere in the Criminal Code that basically says the review boards are to delegate that authority, except in section 672.56, which says they may delegate the authority for the director to restrict liberties, and in those circumstances there is a seven-day clause and a mandatory hearing.

The Chair: Thank you very much.

Mr. Lanctôt, you have seven minutes.

[Translation]

Mr. Robert Lanctôt (Châteauguay, BQ): Thank you Mr. Chairman.

I want to thank the witnesses for appearing today.

I am a little bit disappointed however that a person who has as much experience as Mr. Tollefson did not tell us about his experience and what could help the Committee members to review the issues or to know whether there are problems or not. I know that you have a lot of experience and I would like to hear you on what should be and should not be modified, based on your knowledge. I think it would be very useful for all the Committee members to be able to draw from your experience.

Mr. Bow and Mrs. Nielsen, I am always surprised to see that ever since the beginning of these Committee's hearings, we have been hearing comments on the capping provisions. I would tend to say that for these people, whether their crimes are minor or a little more serious, the biggest problem is the lack of resources.

Unfortunately for them, they committed or are accused of committing a criminal act and they can have access to treatment, whereas others are denied treatment because of insufficient resources. Why should we put them back in the street as others when they could use an existing system? We can say that they are luckier than others because they can benefit from these treatments and this care. So I am somewhat surprised to hear you say that.

I would like to hear your comments on this.

À (1020)

Mr. Edwin A. Tollefson: I certainly have a few ideas regarding the operation of the 1991 amendments. I am very happy to answer a specific question from the Committee.

I am under the impression that as a member of the review commission, it is better for me to keep a certain independence and that I should not adopt a rigid position. I have to answer as a judge in a tribunal and I cannot act as a party.

[English]

There are a number of things that I would like to comment on. First of all, perhaps I could respond to Mr. Sorenson's question about the definition of “mental disorder” and why there isn't something a little more precise in the code.

I can tell you that it's very difficult to come up with a definition. When we were in the Department of Justice, trying to arrive at a definition that we could put into the code, there was a lot of resistance to almost every definition that we proposed. Eventually what arose was a consensus that, well, the definition that exists in section 16 isn't too bad, and the Supreme Court of Canada has already given a definition of “disease of the mind”. That is found in the case of Cooper. And what we should do really is accept that definition by reference within the code.

So we said “mental disorder” means disease of the mind.

Then you refer to Cooper, where Mr. Justice Dickson of the Supreme Court of Canada set out very precisely what it means. It said in that case that:

...in a legal sense “disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitional mental states such as hysteria or concussion.

In order to support a defence of insanity the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong.

So that has been the definition that I think everybody has been using. It doesn't appear in the code itself, but it's there by reference.

In terms of the fitness issue that you raised, there are certainly problems in the sense that the legislation and the Taylor case, which is the primary case interpreting it, are not really all that helpful to those who are reading it unless they know the case law, and most of the psychiatrists don't. As a result, they have difficulty in knowing whether or not this person is in fact unfit.

What quite frequently happens is that instead of applying the test of capacity--has the person the capacity to understand the nature and consequences of the proceedings, does he have the capacity to instruct counsel--there's a series of what I call civics questions that are traditionally asked. What does a judge do? What does a defence counsel do? What pleas are available? If the person can answer those, they're considered fit. If they can't, they're often considered unfit.

Most people aren't born with that knowledge. It's something you learn. What our board, at any rate, has been saying to the psychiatrist and the treatment teams is this. Have you attempted to teach these people how a court operates so that when they go before the court or before our board, they'll be able to say, yes, I know what the consequences are, I know what the pleas are?

À (1025)

The Chair: Thank you very much, Mr. Tollefson.

Mr. MacKay, you have seven minutes.

Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC): Thank you, Mr. Chair. Thank you to all the witnesses for bringing your expertise. This is clearly one of the issues in the Criminal Code where the lines between criminal justice and health intersect in a very substantial way.

I was very interested, Ms. Nielsen, in particular, with the suggestion that there might be an alternative stream when it comes to the types of mental illnesses. I note, within the paper that has been presented, there are references on page three to developmental disabilities, organic brain injuries, fetal alcohol syndrome, and personality disorders. I'm assuming it would include things like bipolar personality disorders.

Ms. Diane Nielsen: It does not include bipolar disorders. A bipolar disorder would be an access one diagnosis. I'm not the expert. I think Dr. Riley could confirm it would be an access one diagnosis. A personality disorder is an access two diagnosis.

Mr. Peter MacKay: The other one I was curious about was Tourette's syndrome. I once encountered a case involving Tourette's syndrome, where there was again a disassociation. As a result of the state the person found herself in, it resulted in at least a plea of not criminally responsible. I'm curious as to how this alternate stream, if you will, would work. Would it be based, presumably, purely on the medical evidence and the determination that was made?

I guess it flows into your comment about resources. Do you feel there is currently a strain on the system to such an extent that proper assessment is at risk due to the caseload?

As in the legal aid example, it seems to me there is a real danger in making an improper finding at the front end, let alone a determination as to whether the person should be detained almost indefinitely when found in the dilemma of not being fit. It goes into a different area, of course, of whether they should be in suspended animation indefinitely.

At the front end, are all of you concerned that, due to a lack of resources, an improper diagnosis can potentially do incredible harm? How would this mesh with the current system if we created another designation for mental illnesses that don't necessarily need psychiatric treatment but need more judicially enforced medical supervision?

I have a final question. I'm sorry to be throwing this at you all at once. I've also encountered, and I suggest you in the legal aid system may have as well, cases where the accused.... It's much like the situation you described, Ms. Nielsen, where people were coming back time and time again. My experience was that in some of the cases they refused to take medication.

The bipolar case, in particular, stands out in my mind. The woman simply said the side effects that came as a result of taking medication caused her such distress and physical symptoms that she didn't want to deal with it. She would rather find herself in the criminal justice system than be subjected to horrible mind-altering drugs, even though they were the ones that appear to have been prescribed.

À (1030)

The Chair: Ms. Nielsen.

Ms. Diane Nielsen: Thank you.

The system we were suggesting would have to be a voluntary system. It would have to involve defence counsel, crown counsel, and a sympathetic judge who felt a certain case, because of the circumstances, would do better going through a diverted system when the main object was treatment or compliance to treatment. It would still have to be voluntary. The mentally disordered accused would have to agree to follow the conditions.

Mr. Peter MacKay: As in a medical diversion, it could be a designation that was made, if there was a joint recommendation and the person was willing to go into this third category, if you will.

Ms. Diane Nielsen: There are examples. Toronto has a mental health court, Seattle does as well, and there are similar types of systems in other countries. We haven't done a study of it, but we are discussing the issue in British Columbia with a number of people--lawyers as well as health care workers. So it's a system that is interesting to us in British Columbia, but we're just at the very beginning stage of it.

The main concern is that somebody doesn't get coerced into this area, that it is voluntary, and we hope that if it is voluntary they'll be more likely to continue with their treatment. It wouldn't work for every case, but it would work for what we would call the revolving-door cases or the cases of developmentally challenged, organic brain injuries, or fetal alcohol syndrome. It could also be for people with other mental disorders like bipolar mood disorder.

The Chair: Mr. Riley, did you want to add something?

Dr. Mark Riley: Yes, I have a few comments. I think there are some links to some of Mr. Sorenson's earlier questions as well.

I'd like to go back to the definition of mental disorder. As we said in our position, we don't actually think there's a problem with the definition of that, and actually if there are problems, they're more in its application. That's where the problems arise in many of these cases we could describe. I think often the well-intentioned mistakes that are made in the application criteria usually occur because the court is focusing on the disposition of this person. So it's what happens afterward that impacts on the decision.

Really, what I think we would stress, what we try to do in terms of our approach to assessment, is a focus on the issue of responsibility, the mental state at the time of the charges, and we try to do that as a separate issue without being influenced about what the outcome is for that person. It starts to muddy and cloud the assessment if we allow our opinion to be influenced too much by the disposition.

Obviously this sometimes means that we perhaps miss people who would benefit from coming into the system, but I think we also avoid many cases where there are cases that come in by mistake, or cases that we feel are a mistake in terms of the treatment consequences. We do actually avoid many more.

So I think the way it is currently defined.... Mr. Tollefson referred to the Cooper case, and that is the best case in my view as well in terms of defining what the legal concept of mental disorder should be. As long as the courts consistently applied those criteria, I think we would have far fewer problems.

Mr. Peter MacKay: I'm surprised when you say that, quite frankly, because as much as I understand it, the disposition of the judge is extremely important. But I would think in your role, the treatment side of it, the emphasis would be on when this person would be ready to be safely back and be integrated, and when they would no longer pose a risk to society.

Dr. Mark Riley: That's very much part of what we do, but the assessment of the issue of criminal responsibility is done separately from that. Most of the work I do is more toward the planning and delivery of treatment, while also continuously assessing the level of risk to that person. The assessment phase of what we do is very much a smaller part of what we practise, but I think it's important to keep them separate.

À (1035)

The Chair: Thank you very much.

Mr. Macklin, for seven minutes.

Mr. Paul Harold Macklin (Northumberland, Lib.): Thank you, and thank you for appearing today.

I'd like to initially address the question to Mr. Tollefson because of his historical expertise, but I would appreciate hearing from everyone in this matter, and that is with respect to victims. We haven't emphasized victims' rights and interests as much as we are trying to do today.

In that regard, the question has been raised as to whether or not we should have victims appearing in person at review board hearings to give their impact statements to the board. I would like to get your collective comments, but maybe you could start off, Mr. Tollefson, about where you believe we should be going with victims' interests within this process of criminal justice.

Mr. Edwin A. Tollefson: In most hearings nowadays, where there is a victim's impact statement that has been taken by the police, that will appear in the disposition materials that are before the board for its consideration. Oftentimes, the comments of the victim will not be terribly helpful in terms of what is the appropriate disposition to make. Where it may be of some advantage is where the victim has indicated that they'd be terrified if this individual were to come back into the community again. That alerts the board to the necessity to tailor its disposition plans in such a way as to take into account the concerns of the victim.

As for whether or not it would be an advantage for the victim to actually be present in the review hearing, certainly they're entitled to be there, as any other member of the public is entitled to be there. Very occasionally, you will have a victim sitting in the back of the hearing room. I think Diane Nielsen or Corey Bow might be able to comment further on that.

I'm not sure that it's a good therapeutic exercise for them or for the accused. Maybe Dr. Riley can comment on that. If they're there, that's fine. If they're not, that's their choice.

Dr. Mark Riley: Just to add to that, yes, they obviously have a perfect right to appear at the hearings. But with the criteria for the governing disposition, it's hard to see which of those criteria, the victim impact statements, have an influence on the decisions the board has to make in terms of the level of risk the accused patient represents, their treatment needs, and their other needs. So the legislation at the moment doesn't really encompass the victim impact aspect.

Ms. Diane Nielsen: The victims are present at a number of hearings, and it is generally very respectful. Everybody is very respectful of the victims, including our clients.

I think it is helpful for the victims in some ways because they get to hear how the person is doing currently. But in other cases, I think it's very hard. It brings back the memories of the offence. As it affects our clients, it doesn't matter one way or the other whether the victims are there. They are concerned about the victims and what happened to them, but they generally don't object to their being in the audience.

The Chair: Mr. Macklin.

Mr. Paul Harold Macklin: With respect to automatism, there seems to be a significant variation of opinion in this panel. I wonder if you could collectively try to give us a sense of whether you can come together. Can you coalesce around a definition of automatism and where it should fit within this process of criminal justice? Are we asking for an hour's answer or days of answers?

À (1040)

Dr. Mark Riley: It's almost impossible to get a consensus on the issue. It's just so controversial. I think it's largely because there's so little science that can be applied to the issue, so a lot of what you hear is just based on personal opinion. If I were to continue to talk for five or ten minutes, I think I'd have to qualify anything I have to say on that basis. There are a lot of strong feelings aroused about the whole issue, not just in the man on the street but within the profession. A lot of psychiatrists have great difficulty even accepting that such a condition exists, whereas obviously there are psychiatrists who feel very strongly that it is a recognized entity and should remain as a defence to people in court.

Ms. Diane Nielsen: I think what we can agree on is that it's artificial to have insane and non-insane automatism. I think we can agree on that. To us, automatism is automatism. It's an involuntary act, and it's generally a singular involuntary act. So we agree with the hospital on the point that it's artificial to have the two separate definitions.

Mr. Edwin A. Tollefson: Let me just add something to that. Back in 1993, I think it was, there was a bill prepared on the general part of the Criminal Code. It included provisions in relation to automatism. I don't know if you're acquainted with this bill or not. At that time, a committee of the Department of Justice worked on arriving at a, shall we say, sensible interpretation of the case law, and thinking of how you can protect society against these people who say they were acting as an automaton because of sleepwalking or a blow on the head, or whatever it might be.

These people are not obviously suffering from one of the regular mental disorders. But you wouldn't want this to recur, and that's one of the things you have to be concerned about. The proposal made by the department at that time was that there be a similar sort of follow-up to them as in relation to people who were found to have acted in an automatistic state due to mental disorder. I would recommend to the committee that you perhaps look at that legislation once again.

The Chair: Thank you very much, Mr. Macklin and Mr. Tollefson.

Mr. Sorenson, you have three minutes.

Mr. Kevin Sorenson: When you look at the review boards--and I'm just learning as we go here--there is a lot of authority given to them. When some of them recommend they should have the ability to absolutely discharge someone who's unfit, you really realize there's a lot of credence given to what the review boards say.

I'm trying to go back to the last question that was asked by, I think, Mr. MacKay here. When they appear before the review boards, the victim can appear and the defence can appear. Is there ever a case where the crown prosecutor comes in and appears before the review board? What role do they play in this?

Mr. Edwin A. Tollefson: The crown representative of the Attorney General has the right to appear in any case before our board. They're not compelled to appear. The reason the legislation made it a discretionary thing to the Attorney General was that there are a number of minor cases where it is really not necessary to have the representative of the Attorney General there. From time to time Mr. Hillaby, who is the counsel for the Attorney General who deals with these cases in British Columbia, will write to the board saying he's not going to be attending the following cases on April 15, or whatever the date might be, but he's not asking for an adjournment.

The role of the Attorney General is basically to look out for the interests of the public, just as the role of the defence counsel is to represent the interests of their client. But as you know, the crown prosecutor is not obliged only to bring forward evidence favourable to a conviction or favourable to detention in a hospital. If Mr. Hillaby, for example, were to have evidence intended to show that this person really is not much of a danger, he'll make it clear to us he doesn't think this person really needs to be in a hospital. The crown's position is to be an honest broker, so to speak, but primarily thinking of the interests of protecting the public.

À (1045)

Dr. Mark Riley: Can I just...? Sorry.

Mr. Kevin Sorenson: Can I just quickly ask one question that you can incorporate, then, into it?

If you do get the ability to absolutely discharge someone who is found unfit in their accusation, do you then foresee an increased role, with crown prosecutors being at those review boards?

Dr. Mark Riley: They're involved in the majority of hearings, at least in B.C. It's only the exception where they're not represented.

We actually favour their being there. When they're not present, the position of the public interest moves, by default, more onto the hospital. But we can't take the middle path. While there's always patient's counsel, we always prefer.... It's not an adversarial atmosphere, despite the respective parties that are present. It's better for us in terms of taking on the role of the treatment team primarily and not having to take this position of what's seen as being more in the public interest. It works better from our point of view when crown counsel is actually present.

On the issue of absolute discharge, I don't think they would be any more involved. I have no idea what the crown position is on applying absolute discharge to unfits. We didn't actually take a position on that issue. Whether it's permitted or not will not really have a major impact from our side of things.

The Chair: Mr. Tollefson.

Mr. Edwin A. Tollefson: I have just a brief comment on the issue of the possibility of the board making absolute discharges. I would not favour that.

It seems to me the decision is one for the court to make. We could make a recommendation to the court that we think this person is not a significant threat to the safety of the public, and given the nature of the circumstances and so forth, the court should consider granting a stay, or something of that nature. I know the Ontario board disagrees with me, but I personally would not be in favour of the board being granted the power to give an absolute discharge.

The Chair: John McKay is next for three minutes.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chair.

Thank you for being here this morning.

I want to circle back to the section 16 issue. The legal aid folks seem to think certain diagnoses should fit within the section 16 definition, yet the forensic psychiatric folks seem to think things are working perfectly well. I don't know whether this is a conflict or an appearance of a conflict.

I would be interested, Dr. Riley, in whether you think this notion of a diversionary stream of people with things like FAS and organic brain injuries, etc., is an idea that has merit. I'll leave it at that.

Dr. Mark Riley: As you heard earlier, various diversion schemes have been set up, and they're in the process of being planned in B.C. as well. We're involved in developing those plans, but I don't think it's something that needs to fall within the context of the Criminal Code. It's diversion, so it would really come in before the pre-trial stage of the process. That's the way it's placed elsewhere.

I'd also like to say a little bit more about mental disorder and the definition of mental disorder. I don't want to give the impression we feel it works perfectly, but I think it works well enough. The problem really in trying to change it is that if you think it's difficult to get a consensus on a legal definition of mental disorder, consider how difficult it is to get psychiatric consensus. It's impossible.

We would agree as a profession that mental illness as it's typically diagnosed would easily fall within that construct. But there's a wide variety of opinions within the profession as to what extent some of these other disorders should or should not be included. It would be very difficult to achieve a consensus on those, particularly with respect to personality disorders, with permanent disturbances of behaviour and thinking. Some people feel that should be included, and others don't.

I would prefer we didn't try to stipulate whether that should or should not be included in the legal definition, largely because the definition of personality disorder, over time, is proving to be somewhat arbitrary. Some conditions that 20 years ago were considered to be personality disorders are now, with more recent research, considered to be more connected in terms of their etiology and treatment and should be more likely considered to be forms of mental illness. To try to get some compatibility between that and the legal definition is going to be very difficult.

À (1050)

The Chair: Monsieur Lanctôt.

[Translation]

Mr. Robert Lanctôt: I do not want to lose too much time in asking the question because it has already been raised during the first round. I would like to hear the answer.

[English]

Mr. Corey Bow: Your question was about capping. In our experience there's basically a small amount of people who would be caught by the capping provisions. In our experience most people who go through the system typically will be put in custody initially, then go through a conditional discharge, and then eventually get an absolute discharge long before the cap would take effect. So we're only dealing with a small amount of people.

With respect to resources, people who are chronically ill may be subject to the cap, such as people with psychiatric disorders who simply are not getting better. In our submission, those people would be better directed to the civil mental health resources to be treated under the Mental Health Act. The Mental Health Act in British Columbia at least would capture people who have a mental disorder and are needing custody and hospital due to dangerousness to themselves or others. The chronically mentally ill person who is being detained under the criminal system would be caught or captured, in our opinion, under the civil mental health system.

People who are chronically unfit--and this is before it has been proven that they actually did what they're charged with--would be caught, in our submission, under the capping. Therefore, those people who are chronically unfit for a very long time, before they've even had a trial, would be caught by the capping. And people who are mentally handicapped who have no chance of their condition being improved would be caught by the capping, in our opinion.

What we find these days in some of the hearings is that the ministry in British Columbia that's responsible for people who have developmental disabilities and mental handicaps is quite happy to let the forensic ministry continue to look after the people who get caught up into the forensic system. They're in an inappropriate placement. While they remain in custody, the ministry that should be responsible and should be paying for community services for them are just saying, well, we'll leave it to the forensic ministry until they get out. The review board says, well, without the services we're never going to let them out. The capping would in a sense force the appropriate ministry to look after those people.

A lot of people believe that going through the mental disorder aspect of the Criminal Code is like a free ride--a ticket to freedom--and it's as if they're getting off. But you'll find, I would suspect, a lot of defence counsel when they're dealing with people, especially with minor offences, would be advising their clients to take the criminal route and would say, “Well, why don't you plead guilty to this and just take your five days in jail or your fine or whatever as opposed to being locked up in a forensic hospital for an undetermined amount of time?” However, if the capping were in place, perhaps the people would choose the treatment option, knowing that at some point at least their sentence or their time under the system would be over. They might be more likely to choose the treatment option as opposed to remaining untreated in the criminal justice system.

Those are our submissions about the capping.

À (1055)

The Chair: Thank you very much.

Mr. Macklin.

Mr. Paul Harold Macklin: Another witness made the suggestion that when some of these people who fall into the category we were just speaking of come before the court system, maybe we ought to consider having an assessment process that assesses their level of need. Have you ever contemplated something of this sort that might be appropriate as a means of ultimately determining whether there should be a diversion process or some alternative process? And should we legislatively be looking at something like that?

Ms. Diane Nielsen: This is a good idea to follow up on. It would fall into the diversion or mental health court concept, where, under certain circumstances, those people who might qualify for diversion would get that assessment for need. But it would have to happen before the actual trial.

Dr. Mark Riley: I can only speak about what occurs in B.C., but as I said in our presentation, we're conducting assessments in a treatment setting.

Our reports to the court aren't confined to comments on how mental disorder impacts on fitness or criminal responsibility. They also give an assessment with respect to a person's diagnosis treatment needs, and in the time available, they also offer recommendations from us about further treatment needed.

That's actually current practice. Again, it's one of those things that does fall into the category of decisions on service provision. I'm not sure how it could be crafted into any particular terms of the Criminal Code amendments.

Mr. Paul Harold Macklin: Mr. Tollefson.

Mr. Edwin A. Tollefson: I'm not sure I can add very much to what my confreres from B.C. have already said.

Part of this may very well be within provincial jurisdiction, if you're talking about assessments pre-trial and so forth. Do you want to keep it out of the criminal justice system altogether, as I gather Diane Nielsen is suggesting? Are we talking here about a federal piece of legislation, or is it more properly a provincial matter?

We certainly didn't discuss this at the time the mental disorder project went across Canada. I guess it just hadn't been thought of. Our view was that, with capping, people would be moving from the criminal system into the civil system on a fairly regular basis.

I would strongly support what Corey Bow and Diane Nielsen have said about the desirability of having the capping provisions in place. Keeping people in the criminal system stigmatizes them twice. They're not only considered to be mentally disordered, they're also considered to be criminals. This makes it much more difficult for them to get placements in the community.

Also, I am told there are more programs available in the civil mental health system than in the forensic system. We're not doing patients any good necessarily by keeping them in the forensic system on a permanent basis; at least, this is what I have been told by one or more of the doctors at Forensic Psychiatric Hospital.

I would like to point out, too, that cost isn't a factor in this situation. Whether the person is kept in the forensic system or the mental health system, the province pays. It isn't a question of federal versus provincial. In fact, there may be some cost savings if they could be moved from the forensic system to the civil system. That's just another factor legislators may wish to take into account.

Á (1100)

The Chair: Thank you very much.

Mr. Peter MacKay.

Mr. Peter MacKay: Before I ask questions, will we get another round?

The Chair: Yes.

Mr. Peter MacKay: I have two questions that came to mind. One goes back to the victims issue, and that is whether--and I think this is for you, Dr. Riley, in particular--you would find it helpful to have greater access to victim impact statements. And, Mr. Tollefson, at a review board hearing, would it be helpful to have oral victim impact statements, an opportunity to hear directly from victims? Should the review board have that discretion to assess in some instances the level of violence and the lasting impact that it has had on the victim?

Another question with respect to this issue of the accused making the decision to instruct counsel, if they can instruct counsel, to go the route.... And I think it's often the opposite, the counsel saying, as you said, Mr. Bow, “Don't go near the mental health provisions; let's just get this over with rather than giving yourself an indeterminate sentence.” Is part of this that the stigma that exists for somebody who's been in a forensic unit is worse than it is for somebody who's done a short snap of time in a provincial jail? To that end, do you feel that the pardon provisions of the Criminal Code should perhaps be looked at to determine--and it's been a while since I looked at those sections--whether there is sufficient access to applications for pardons to have a person's record of having served a period of time in a psychiatric unit expunged so that isn't there as a permanent detriment to their employment or future integration?

Mr. Edwin A. Tollefson: With respect to the issue of whether it would be advantageous for the board to be able to call the victim as a witness, I suppose there may be some circumstances. But the victim impact statements usually indicate in some detail the nature of the event and how it impacted, if you will, upon the victim and his family, so that you have a pretty good idea. The question that is before the board is really one of the risk to society of this particular individual if he's put into the community. So how the victim will feel about it is not necessarily completely relevant. Obviously we try to fashion any disposition that we make in the community in such a way as to avoid any unpleasantness. That can be harmful to the accused too, you see, because if there's a great community uproar he'll probably be back in the forensic psychiatric institute very quickly.

Mr. Peter MacKay: Are we talking about a gap, just as there is in the normal criminal justice system, between the victim's feelings in close proximity to the trial and the time they wind up before a review board hearing?

The Chair: Thank you, Mr. MacKay.

Mr. Tollefson.

Mr. Edwin A. Tollefson: I think I had answered the question in terms of the victims. I'm not sure that I had anything to say in relation to the other question you had.

The Chair: Is there anyone else? Ms. Nielsen.

Ms. Diane Nielsen: I agree with Dr. Tollefson on the question that the review board has to consider; however, if the offence was threatening or stalking, then the victim's feelings are considered by the review board because they also have to consider psychological harm. So in some sense the victim's feelings are considered in certain circumstances.

Yes, it is true the stigma is worse for our clients once they get the forensic label rather than the criminal label, or civil mental health label. It's much more difficult for them to get service in the community.

With respect to the pardon provisions of the code, it's my understanding that the NCR-MD finding is not quite an acquittal but it's similar to an acquittal. I'm not sure if the pardon provisions would apply. It's not something that would come up on a person's criminal record if the employers did a search. So I'm not sure how that would work.

Á (1105)

The Chair: Let's go to Mr. McKay. I'm going to be watching the time closely because I promised Mr. MacKay I'd be back.

John McKay.

Mr. John McKay: Going back to our section 16 conversation, Dr. Riley, and conceding that there is quite a controversy among the profession on various diagnoses, in an area such as fetal alcohol syndrome--I'm assuming that's a pretty clear diagnosis in most instances--would it be useful to require any kind of amendment to section 16 under which a judge would have to avert his or her mind to that kind of diagnosis and make a decision as to whether that individual should go into a diversion stream such as Ms. Nielsen is considering? That's the first question.

My second question is on a second issue raised by Mr. Bow, and that is, if you will, his therapeutic argument on capping. Essentially he's saying, maybe I'll go for this psychiatric treatment because I know I've got a problem, but at least I'll know at the end of the day I'll be out.

The third question is to Ms. Nielsen. You mentioned there's a legislative gap for fit accused. Essentially they fall between the cracks from the time they're found fit while they're under the jurisdiction of the board, say, but on their way wandering back into the Criminal Code system. There seems to be a legislative gap. Is that a significant problem?

The Chair: Dr. Riley, I think, was first on this list. Please keep it brief.

Dr. Mark Riley: I certainly agree there's nothing really controversial about the diagnosis of fetal alcohol syndrome. Again, in terms of its impact on the criminal process, does that particular individual meet the section 16 criteria? I don't think there really should be any distinction. It's obviously a huge, or can be a huge, public policy problem. In terms of whether it brings somebody within section 16 or not can, I think, still be determined by reference to that definition.

As to the impact it has on diversion, yes, I think that would be an example of where...as long as the offence is not serious, and again, the public interest has to be represented by crown counsel and so on. It wouldn't be the psychiatrist's job to advise on whether it suits the public interest for that to occur, but we would certainly be able to advise on whether it's in the individual's best treatment interests.

The other question you asked about was the impact of capping. I did want to add something to what was raised earlier. Somehow, there's the expectation that if the cap kicked in and somebody left the system, they'd have free access. Unfortunately, that's not going to be the case. I'm not sure it's going to be any better than it was before the person was found not criminally responsible.

Often they're found not criminally responsible because they didn't have access to services. So why, after capping, they would have better access, I do not know. Perhaps it would be even worse, because the stigma doesn't end when a person is discharged from our service. Once a forensic patient, in many people's minds, always a forensic patient, whatever their legal criteria are. That would apply not only to mental health services but also for the developmentally disabled. They have a finite budget. They're quite used to saying no to people when they're requesting services. So I don't think capping will result in any better response than there is currently.

The Chair: I think the second question was to Mr. Bow.

Mr. John McKay: The third question is to Ms. Nielsen. I think I asked two questions, Mr. Riley.

Ms. Diane Nielsen: I will leave the legislative gap to Mr. Bow.

Mr. Corey Bow: I think I'll answer that question. With respect to the legislative gap--and is it a significant problem--what potentially can happen is that we can have a review board hearing for somebody and sometimes the board will say it has no comment; it doesn't know what to do with respect to the disposition. Other times the board will say they'll order a conditional discharge after the person is found fit to stand trial. So there'll be a conditional discharge from the time of that review board to the time the person is appearing for trial on the fitness assessment in court.

If the board orders a conditional discharge and the hospital says bail wasn't dealt with, or there is a detention order and the hospital keeps the person detained, that's a significant liberty problem for the individual because they are expecting to go home and the hospital is interpreting the law to mean it can keep them in the locked ward for two weeks.

In my submission, that is a significant problem for that individual. There aren't all that many fitness hearings taking place in a year. Potentially, I guess, there are about 12 to 20 fitness hearings that occur in British Columbia per year, and whenever somebody has been found fit, which is basically the goal of the hospital.... Oftentimes the accused is desiring to get moving back into the system, so the goal is for the person to be found fit. It's a potentially significant problem in all the fitness cases.

Á (1110)

The Chair: Thank you.

We'll go back to Mr. Macklin.

Mr. Paul Harold Macklin: I was concerned with respect to the conflict between two of our witnesses on capping and the fact that Winko has not been mentioned in your arguments for capping. Mr. Bow, is there a reason you decided not to refer to the Winko case in looking at capping? Do you feel that influence is something we shouldn't be considering?

Mr. Corey Bow: The Winko case certainly will affect your decision on capping. Obviously the interpretation of the law after Winko makes it a much fairer procedure for the accused. But the original case, the Swain decision, spoke a lot more about the indeterminate sentence.

Mr. Paul Harold Macklin: So from your perspective, in light of Winko, you don't believe we should be changing our position, or at least the current position?

Mr. Corey Bow: In light of Winko, we don't take as strong a position with respect to capping as we would have without Winko. Winko makes it a much fairer procedure and certainly defines when a person is allowed to have an absolute discharge. It takes into account the public protection issue versus the liberty interest of the accused. So our position is a lot less strong after the Winko decision than it would have been before the Winko interpretation of the Criminal Code amendments.

Mr. Paul Harold Macklin: Mr. Tollefson.

Mr. Edwin A. Tollefson: I would just point out that Winko really only dealt with the question under section 15 of the charter. That's not the end of the line. It does seem to me that particularly in view of the decision of the Manitoba Court of Appeal in Hoeppner.... The Hoeppner case said that obviously capping has to be there in order to have a system that is in fact proportional. You can't have one person being treated to a two-year sentence and the other one being treated as if he could be kept for life. That's the proportionality argument there. That is the argument that is used in many European courts, particularly in Holland.

Some courts, some jurisdictions, in fact do have a capping scheme. I'm referring specifically to New Zealand, where they have a capping scheme for the unfits, which I think guarantees that they will not stay in a custodial situation or under the control of a state body for too long.

The Chair: I think Ms. Fisher wanted to respond.

Ms. Barbara Fisher: I was just going to say that in Winko, the court dealt with both section 7 and section 15, as I understand it, and specifically didn't agree with the Hoeppner decision. It specifically said the mental disorder provisions in the code were not overbroad, with that particular interpretation in mind. On that basis, there's really no legal need for capping to happen, as I indicated before.

Á (1115)

The Chair: Thank you very much.

I'm going to go to Peter MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

In the context of the capping provisions--and it's mentioned in the paper presented by the Community Legal Assistance Society--in order for this balance that's always there, this struggle to find the protection of society versus the protection and the preservation of individuals' rights.... Is there merit in our deliberations, in looking at these sections, to bring into force and effect the dangerous mentally disordered accused provisions at the same time? That appears to at least keep in line the concerns that many would have about capping vis-à-vis automatic release, or essentially release that could appear to be somewhat random, rather than based purely on the recommendations of the review board.

Further, there is this anomaly that's been pointed out with respect to the Young Offenders Act and the new Youth Criminal Justice Act, which is going to make it infinitely more complicated, sadly. There's a difference in the way we treat youth individuals who are in custody, in terms of transfers. There appears to be this anomaly that in some instances we transfer youth, when they reach the age of 18, under the fitness provisions but not under the mental disorder provisions, taking them from a youth holding facility into an adult holding facility. It seems only logical that we have to bring some parity to that if we're going to do this review properly.

Ms. Diane Nielsen: I'll just comment briefly. We think the capping provisions and the dangerous mental disorder provisions are companion provisions. We agree that, if you put one into effect, you have to put the other one into effect. With the Young Offenders Act there is a gap. What happens practically in British Columbia is that the review board holds a hearing about the time the young person reaches 18 and then does their own transfer to the adult system, but there's nothing legislated. The review board is trying to fill a gap. I think that the Young Offenders Act should be amended to take care of that gap to make it equal to the other youths who have a proper hearing, so that there are criteria for the hearing and those types of things.

Mr. Peter MacKay: I suspect we're talking about very few cases, not that this makes a difference. I was quite surprised in fact, Mr. Bow, to hear you say that there were only between 12 and 20 cases a year in the whole province of British Columbia. But this anomaly with youth.... It's just on the fitness side.

Ms. Diane Nielsen: For the young offenders there are not that many, but there is a growing number. The problem is they start in the youth system and they continue into the adult system. It seems to be more unfair for them because the capping under the Young Offenders Act is much shorter than even the capping in the adult system. They're more prejudiced by the current system than even the adults.

The Chair: Thank you very much, Mr. MacKay.

We've five minutes left. Is there anything that the panel would want to bring to our attention as a last word?

Mr. Tollefson.

Mr. Edwin A. Tollefson: I'd like to encourage the committee to take another look at the hospital orders area. I think there are cases that fall between two stools. In other words, the person is not unfit to stand trial. He was not found to be not criminally responsible, but at the time of the trial he nevertheless is acutely ill. It seems inhumane to put that person into jail even though that is the appropriate sentence for him. There is no power in the court at the present time to send that person to a hospital, and that's what the hospital order provisions were intended to do.

I know there are provisions that allow, say, the penitentiaries to enter into a contract for the hospital, so that there will be a transfer. But my experience at the time we were drafting the legislation was that these provisions are rarely used. I'm not going to point any fingers at who is to blame for that. But I'm just saying that this is a case where it's inhumane to put a person into a penitentiary or even a provincial jail when he's that sick, and it creates all sorts of disturbances within the institution itself.

Á (1120)

The Chair: Are there any other last words?

Dr. Mark Riley: I have just a fast comment. In B.C. our service is actually responsible not just for people who are sent in for assessment but also for mentally ill people in the remand centres and the provincial jails. It's up to us to respond to that treatment need. Historically I don't think we've necessarily done the best job of doing that. But currently we have a mechanism where we say that if somebody is in need of transfer--and it's under the Mental Health Act that this occurs--we'll take them in within two weeks.

In our jurisdiction that still is going to continue to be the best way of managing that, because the hospital order, if proclaimed, of that acutely ill person is very unlikely to be used because they're not going to agree. Somebody who is acutely psychotic typically needs to have the Mental Health Act legislation used, because they're not in agreement with the treatment that they need.

The Chair: Thank you very much.

And to the B.C. panel, thank you for taking the time out of your schedules to help us in our work.

Mr. MacKay.

Mr. Peter MacKay: I have a quick question. I'm informed, Mr. Chair, that we have a conflict tomorrow in terms of the subcommittee and the full committee meeting.

The Chair: I think it's something I had better take up privately, if that's in order. We had a consultation with your office.

Mr. Peter MacKay: Yes.

The Chair: And it was okay, we were told.

Mr. Peter MacKay: Well, no, it's not okay. Sorry, we don't have any choice. We're told that the conflict is there and it can't be avoided. I appreciate that efforts were made and the minister has given that date as the only date that he can come.

It puts me in a completely untenable situation when you have both committees meeting at the same time. I thought we specifically said we weren't going to do that, because I and Mr. Blaikie are the only members of both of those committees. If they are meeting at the same time, we can't physically be there. Putting it in the same building does not matter.

The Chair: I think we can excuse our panel for this.

I am not certain, Peter. Frankly, it was our impression that the consultation was done. I had asked, and if this wasn't agreeable, we wouldn't do it.

Mr. Peter MacKay: It's clearly not agreeable. We were told that efforts were made and they couldn't be changed, and that was that.

Á (1125)

The Chair: Now I have to find out about the panel that we have for the main committee tomorrow. We have to accommodate Mr. Manley's schedule. That was the problem, I understand. I'll have to find out who the panel is for tomorrow to see what arrangements might be made.

Mr. Peter MacKay: I had one other question with respect to future hearings. I know we're quite far down the continuum in terms of having any new witnesses here. I feel a little uncomfortable that we haven't had much of a regional collection of witnesses. Particularly from our region, I haven't seen many panellists here who represent either the legal community or the forensic science community from the east coast. We don't have any out there. That's it.

The Chair: We have scheduled the Nova Scotia Legal Aid Commission and the Association of Review Boards. They have provincial representatives.

I have made a couple of requests myself in terms of New Brunswick, but we have not been able to get the people whom I had mentioned to come.

Mr. Peter MacKay: I take responsibility for that. I have one name in particular. I'm wondering if it's too late to have that person appear on a panel.

The Chair: It's possible that we could have probably one additional panel and still operate within the deadlines that we had made commitments to with the NDP, in particular, because of the Westray legislation, the subject matter of the private member's bill.

Perhaps, as this meeting is adjourned, we can deal with the details.

Mr. Peter MacKay: I'll get in touch with you and I'll give you the name, and perhaps it would be even possible to include them on a panel.

The Chair: That's what we're suggesting.

Mr. Peter MacKay: Thank you.

The Chair: Thank you, everyone.

The meeting is adjourned.