JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, December 13, 2001

• 0934

[English]

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

[Translation]

Good morning, everyone.

[English]

I call to order the fifty-eighth meeting of the Standing Committee on Justice and Human Rights.

This morning we will begin, pursuant to Standing Order 108(2), a statutory review of the mental disorder provisions of the Criminal Code.

• 0935

I hope over the course of the morning we'll be able to acquaint ourselves with the issues here so that we can undertake this review in the spirit in which it was intended—too long ago. Certainly, if anything impacted this committee in the deliberations around Bill C-36, it would be the seriousness with which review processes are inserted in legislation. I think this committee has an obligation to the seriousness with which a review is inserted in the Criminal Code around mental disorders, which is what causes us to begin this process.

I appreciate all of the members who've been able to find their way here and the resilience, in particular of the government members, whom I saw last evening and thought I probably wouldn't see this morning.

On that note, I call on Ms. Kane, who will lead the proceedings for the government. You can perhaps introduce your colleagues.

Ms. Catherine Kane (Senior Counsel, Policy Centre for Victims, Department of Justice): Good morning, Mr. Scott and committee members.

I'm here today with my colleagues, Greg Yost and Doug Hoover, both counsels in the criminal law policy section of the Department of Justice. I'm Catherine Kane and I'm senior counsel in that same section.

I've had responsibility for the mental disorder files for about the last seven years, and as we go into the review, some of that responsibility is going to devolve to my colleagues, Mr. Yost and Mr. Hoover. That's why they're here today, so we will all be able to follow the committee's proceedings and provide you with additional information as you hear from witnesses in the course of your review.

This morning, I want to provide you with an overview of part XX.1 of the Criminal Code, which is the mental disorder provision. I'm trying to keep it without a lot of detail, because it is a rather complex part of the Criminal Code. It's a complete code of procedure governing persons not criminally responsible, unfit. If you find I am providing too much detail and it's tedious, give me a sign and I will move on. As I say, we can always come back with more detail after you've heard from witnesses if you need specific information on specific issues.

The Chair: I'll remind members of the committee that I'm responsible for giving the sign.

Ms. Catherine Kane: And I can see you.

As I said, I propose to provide a little bit of background and history on how these provisions came to be, an overview of part XX.1 of the code, a bit of reference to who it applies to, how people are found unfit, how people are found not criminally responsible, some of the safeguards for the accused in those provisions, and some of the safeguards for public safety.

There are a couple of unproclaimed provisions in that regime—capping, dangerous mentally disordered accused provisions, and hospital orders. First I will explain what they are, and then provide the reason they haven't been proclaimed. Then there are a few recent cases that have shed light on how this part should be interpreted and provide a great deal of guidance to courts and review boards. I'll mention those and then flag a few issues that might be raised by witnesses we've heard from over the years in our consultations with our provincial and territorial colleagues and review board chairmen, hospital administrators, and so on.

The act to amend the Criminal Code mental disorder was proclaimed in force in February 1992. While at the time it seemed it was on a fast track through the House, that was due to the decision of the Supreme Court of Canada in Swain the previous summer. Swain struck down the old regime that governed those persons found not guilty by reason of insanity. However, there had been a great deal of work under way for the previous 10 years to look at a new regime to govern mentally disordered persons.

The Law Reform Commission tabled a report in 1976 with 42 recommendations. There was a mental disorder project in the Department of Justice, and in 1986 a draft Criminal Code amendments bill was released that signalled the changes in the regime and provided an opportunity for public feedback on those provisions.

• 0940

So when the Supreme Court of Canada struck down the previous regime, it didn't leave the government or Parliament scrambling to develop new provisions. They were well in hand and the legislation was tabled quite promptly. However, the committee proceeding was probably curtailed a bit, and that caused some concern for some of the witnesses who would otherwise appear. That probably still causes some concern to them today, because they feel some of the issues they would have raised 10 years ago weren't heard. So I expect you may hear some of the same issues again, for example, about powers of review boards.

In the decision in Swain, the court found the scheme that sent a person automatically into detention at the pleasure of the Lieutenant Governor, following a finding of not guilty by reason of insanity, violated the accused's charter rights. There was no opportunity for any hearing at that time to decide what should be done with that person, whether they posed a threat to the public or whether they required treatment. It was automatic, and at the pleasure of the Lieutenant Governor, which sometimes meant fairly lengthy detention, although there were reviews provided for.

The other provision that was at fault was the notion that the crown could raise the issue of the accused's insanity, even though the accused had not put that into issue. The court said that violated the accused's right to conduct his own defence. So the new common law rule stated by the court was that only where the accused had put his mental condition in issue could the crown raise evidence of that. However, at the end of the crown's case, if the crown had established that the accused had committed the offence, then the crown could raise the issue of the accused's mental condition in the event that a special verdict was in order. So the new regime captured those two key features in addition to many others.

The new regime governs both those persons found unfit to stand trial and those found “not criminally responsible on account of mental disorder”, that being the new terminology rather than “not guilty by reason of insanity”. That terminology reflects the fact that persons aren't to be held criminally responsible for acts committed while they're suffering from a mental disorder, when they don't appreciate the nature and consequences of their act or know that it is wrong. This is a long-standing principle of our criminal law derived from the McNaughten rules dating from 1843. There's been no change to the actual test; however, the terminology has been modernized.

A mental disorder is defined as “a disease of the mind”. That is a legal determination the judge will make based on medical evidence. It requires more than a mere assertion that you're suffering from a disease of the mind. There will be a substantial amount of medical evidence.

The regime also covers those persons who are found unfit to stand trial. The determination of unfitness is unfitness at the time of the proceeding, where the determination of not criminally responsible is at the time the offence was committed. A person is unfit if they are unable, on account of mental disorder, to understand the nature or object of the proceedings, understand the consequences of the proceedings, or to communicate with counsel so as to conduct their defence.

A fitness issue can be raised at any time. It doesn't have to be at the outset of the trial; it could be as the trial proceeds. When it is raised, a mini-jury is struck to determine the issue of fitness. If the person is found to be unfit, then the trial does not proceed and any pleading is set aside. This person becomes subject to a disposition to be made by the court or the review board, the same disposition provided for persons who are not criminally responsible.

The other feature of the unfit provisions is that the court may make a treatment order. If they have evidence to establish that some treatment will likely make this person fit, they can order them into treatment for a period of up to 60 days for the purposes of making them fit. Then they are returned to court to determine if they are fit.

If they're not, the disposition is rendered, and every two years the crown must bring their case back to court to establish they still have the evidence on which to proceed to establish their case against the accused while he is unfit. If the crown does not make that case, the judge can acquit the unfit person. However, there's no statutory power for the court or the review board to discharge an unfit person.

• 0945

The crown must have an opportunity to establish their case and to have a determination of innocence, guilt, or perhaps not criminally responsible. There's no presumption that just because a person is unfit, they will be found not criminally responsible. They're two separate determinations.

As I mentioned earlier, the verdict of not criminally responsible on account of mental disorder follows the old test of not being able, by reason of mental disorder, which is a disease of the mind, to appreciate the nature and consequences of one's acts, or know that they are wrong. When this verdict is rendered, all the provisions of part XX.1 of the Criminal Code come into effect. It's considered to be a special verdict. It's not a conviction, nor is it an acquittal, and the Criminal Code sets out how that verdict is treated.

For example, for the purposes of parole hearings, in the event that someone is convicted later of another offence and they are eligible for parole, the fact that they were not criminally responsible for another offence can be taken into consideration, but not in the same way as a past conviction, only to the extent of determining their risk.

Once the verdict of not criminally responsible or unfit is rendered, the court or the review board will make a disposition. A review board has been established in each province and in each territory to make these determinations. The board is composed of a multidisciplinary team. The chairperson is either a judge or someone who is eligible to be a judge. The board must consist of a psychiatrist, other people who are experts in the mental health field, and some lay persons in other disciplines. A quorum of the review board is three people. The board must be at least five people. In any quorum, you should have the psychiatrist or medical practitioner and the legally trained member.

Where the court doesn't make the disposition—this is right after making the verdict, just as sometimes they don't go on to sentence a convicted person—they may defer the disposition to the review board, often where they feel other evidence has to be gathered in order for them to make the right decision. So where the court doesn't make the disposition, the review board must make their disposition within 45 days.

Even in cases where the court does make a disposition, if they feel they have enough information before them—for example, if they make a disposition of custody in a hospital—then within 90 days the review board must still review that disposition, look at all the information before it, and make a determination of whether anything should be changed.

As I mentioned, the scheme has a number of safeguards for both the accused and the public. It is the complete code of procedure of governing those two categories of persons. So it covers the procedure at review board hearings, the notice provisions, the information that the board can consider, who is a party, etc. There are appeal provisions in the regime. There are transfer provisions and there are warrant provisions. Basically everything we have in the Criminal Code to deal with persons who are convicted has been addressed with the necessary modifications for not criminally responsible and unfit.

There are some differences from the old regime to this regime. We now include summary conviction offences, so a person can be charged with a summary conviction offence and be found not criminally responsible. This has accounted for a great deal more accused persons coming under the supervision of review boards.

The court is authorized to order psychiatric assessment to determine either the issue of fitness, the issue of criminal responsibility, or the disposition that can be made.

In terms of the accused, there are regular reviews of his or her disposition. Unless there's an absolute discharge made at the outset, the accused will have their status reviewed at least every 12 months, or on request of either the accused or the hospital administrator, or whoever is supervising that accused. If they see any change in their mental condition, be it a deterioration or an improvement, the review board will reconvene and review that person's disposition.

• 0950

So there's always an opportunity to either loosen the strings on that person or impose other restraints on their liberty, if that's necessary, always based on the same criteria that are set out in the code to govern the disposition. I will refer to that in a moment.

As I mentioned, review boards have been created in each province. They are basically appointed by the Lieutenant Governor of the province and they all have the same powers as a board of inquiry would under provincial legislation.

The disposition-making power of the review board or the court is set out at section 672.54, and it's worded in two ways. There's sort of an overview of what the court or review board should consider, and then there are specific criteria that have to be factored in. The court or the review board must consider the need to protect the public from dangerous persons, the mental condition of the accused at the present time, the reintegration of the accused into society, and any other needs of the accused. They must then make the disposition that is the least restrictive and least onerous to the accused.

After taking into account those factors, they have three dispositions available to them. The first is an absolute discharge for persons who are found not criminally responsible on account of mental disorder. They can't make an absolute discharge for an unfit person. They can only order an absolute discharge if the person is not a significant threat to the safety of the public. The recent case law has provided a great deal of guidance on how that provision is to be interpreted.

They can make a discharge subject to conditions. A person can be ordered to report weekly to a psychiatric hospital or to live in some sort of a halfway home, or they can even be ordered to live at a psychiatric hospital with some opportunities to come and go under supervision or whatever.

They can also order the accused into detention in the custody of a hospital. Those would be forensic hospitals. For example, Penetanguishene and Oak Ridge in Ontario come to mind. There are designated psychiatric facilities in each province for the secure detention of persons who are ordered to be detained in the custody of a hospital.

There are, as I mentioned, three provisions that have not been proclaimed that were included in the original Bill C-30. Those three provisions are hospital orders, capping, and the dangerous mentally disordered accused provisions.

With respect to hospital orders, that was meant for people who were convicted, not people who were found not criminally responsible. It was included in this scheme because it provided a mechanism for a person who was convicted and who was found to be suffering from a mental disorder at the time of sentencing. So they would have been criminally responsible for their act, but they're now in a deteriorating mental condition. For that person, rather than be jailed, they would be sent to a psychiatric facility for a period of up to 60 days.

Those provisions were fairly narrowly worded and they didn't apply to all offenders. For example, they wouldn't be applicable to a person who was convicted of murder, nor would they be applicable to a person who had a sentence of less than 60 days. So you had to have a sentence of more than 60 days and it couldn't be murder. There also had to be evidence that by heading off to the psychiatric facility for 60 days, the person's condition would improve, and that they were already in an acute phase of the mental disorder.

So they were fairly limited, and at the time of the act, there were to be some pilot programs in the provinces. These didn't come to pass because, over time, provinces realized they could do this anyway through understandings with Correctional Service Canada or their own provincial facilities. These transfers of accused persons to psychiatric facilities were being done on an informal basis, as part of their sentence. So these provisions were not proclaimed, and there has never been any pressure advocacy to proclaim them.

The other two provisions are capping and the dangerous mentally disordered accused provisions, and those two provisions are interdependent. One cannot be proclaimed without the other.

• 0955

The notion of capping was originally to try to have some equivalence in the Criminal Code, with respect to the deprivation of liberty, between the way convicted persons were dealt with and the way not criminally responsible persons were dealt with. Caps were placed on the detention so that the maximum period of detention would be capped.

For example, for a person found not criminally responsible of aggravated sexual assault, the maximum period of detention, if the person were convicted, would be 10 years and the cap that would apply would be 10 years also. At the expiration of 10 years, regardless of the person's current mental condition or potential significant threat to the safety of the public, there would be no option but to release that person from the supervision of the review board. The thinking at the time was that in those cases where persons were capped, the provincial mental health legislation would step in to govern those still suffering from some mental disorder and potentially causing a risk to themselves or to others.

The dangerous mentally disordered accused provisions were a complement to the capping provisions and they provided an opportunity for those automatic caps to be extended where a person was shown to be a dangerous mentally disordered accused. Those provisions paralleled the dangerous offender provisions of the Criminal Code, so that at the verdict the crown knew that a cap would apply and, using the aggravated sexual assault as the example, after 10 years this person would have to be released if he or she hadn't already been released at their annual reviews. At 10 years, the person would be released, regardless. If the crown could make the case that the person was a dangerous mentally disordered accused, then the crown could seek to extend the cap.

However, it was a discretionary provision so there was no guarantee that the cap would be extended and the burden on the crown to make the case that the person was a dangerous mentally disordered accused was quite high. The crown would have to show that the accused constitutes a threat to life, safety, physical or mental well-being of others on the basis of evidence establishing a pattern of repetitive behaviour, a pattern of persistent aggressive behaviour, or behaviour of a brutal nature, or has shown a failure to control sexual impulses and as a result is likely to cause injury, pain or harm.

The crown had to bring that application right at the time of the verdict; it couldn't be brought later based on evolving information about the accused's mental condition over a period of time.

At the time of Bill C-30's passage and proclamation, without the capping or DMDA provisions, the Minister of Justice noted that these provisions would be proclaimed at a later date.

There were two reasons for the deferral of proclamation, the first being that because the new regime applied to all those persons already in the system who had been found not guilty by reason of insanity, there needed to be some mechanism to go back and take a look at those people to see if any of those accused should have the dangerous mentally disordered accused designation. Otherwise, with the proclamation of capping, some of those people would have been automatically released because it applied retroactively, and somebody who had been in at the pleasure of the Lieutenant Governor for 15 years might find that his cap kicked in and he would be released without there being any opportunity to look at the threat he might continue to pose.

A commissioner was to have been established to review all of those cases in the system. In 1992 a rough estimate suggested that there were 60 people who should be reviewed. That regime, however, applied only to the people who were in the system before proclamation. Since 1992 we've had 10 years of people coming into the system, many of whom have been discharged and some of whom continue to be under the supervision of review boards. All of those people would also need to have some sort of review if a decision were made to proclaim capping now, to make sure that they wouldn't be automatically released because of the application of a cap and to make sure that a dangerous mentally disordered accused hearing could be held if that were appropriate.

• 1000

A number of concerns have been expressed about the potential proclamation of capping. I anticipate that some witnesses who appear before you will articulate them far better than I will, but basically the concern is one of public safety. The notion that somebody could be automatically released and still might pose a threat causes some concern.

The other reason capping wasn't proclaimed at the time was to permit provinces to make any necessary amendments to their mental health legislation. As we consulted with the provinces following the proclamation of the other parts of Bill C-30, it became clear that provincial mental health legislation may not have the capacity to do that, because its goal is to make people well, to treat them, hopefully on a short-term basis, and to reintegrate them into the community. It is not designed to protect the public in the same way as the regime in the Criminal Code, which is a blending of protecting the public and providing appropriate treatment for mentally disordered persons. There has been a concern that what we had thought might be the seamless provisions blending federal legislation and provincial would not in fact happen.

There have also been several coroners' inquests over the years that have focused not so much on not criminally responsible persons but on persons who have been convicted who also seem to have some mental disorder. The capping provisions have been raised in those inquests, Kerr and Stephenson being two significant inquests, both in the province of Ontario.

As I mentioned, there has been some significant case law recently that has interpreted the regime, and those cases are Lepage, Winko, Orlowski, and Besse, all of which were decided together by the Supreme Court of Canada. The decision was rendered in June 1999. While they dealt with different fact situations, there were several common issues. One of those issues was the potential indeterminate detention of mentally disordered persons because capping hadn't been proclaimed. The other was basically the whole regime and whether it provided enough clarity for the courts to make appropriate dispositions.

Winko was the key judgment and the other three cases followed the Winko judgment. Basically in that case the court was looking at the regime that is now in force, that is, the regime without capping, without DMDA and without hospital orders. In particular, the court was looking at the disposition making power.

With respect to the assertions by some of the appellants that we needed to have an equivalence between the way people who are convicted are treated and the way not criminally responsible persons are treated, the court said that such a comparison is inappropriate because the aims are completely different.

Persons who are found not criminally responsible are not punished. The scheme provides for treatment coupled with an individual assessment to see what's best for that person and what's best for the protection of society, whereas people who are convicted are punished, if that's appropriate. Comparing the deprivation of liberty for those who are convicted of offences and for those who are not criminally responsible is not the right comparison.

That strongly suggests that the regime in the absence of capping is an appropriate regime because there are opportunities for the accused persons to be reviewed annually, to be discharged if they should be discharged. In addition to making that statement, the court went on to offer an interpretation of the disposition making power of the courts and review boards to make it clear that in order to detain a person, the court must be satisfied that the person poses a significant threat to the safety of the public and if the court can't make this positive finding that the accused poses a significant threat to the safety of the public, it must absolutely discharge them.

The court went on to define significant threat to the safety of the public as meaning a real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond merely trivial or annoying, and the conduct giving rise to this harm must be criminal in nature. So it's a fairly high standard for ongoing detention of a not criminally responsible person.

• 1005

The court also clarified that there is no presumption of dangerousness on the accused person and there's no burden on the accused to establish that they're not a significant threat. It would be the crown that would have to establish that they're not a significant threat.

So based on the interpretation in Winko, some review boards have expressed some concern that they now feel they need a great deal more evidence so that they can make the appropriate disposition. Review boards do not have a power to order assessments. They have suggested that this is a power they need because they have to be satisfied that they have full and complete evidence in order to make the positive finding that a person is a significant threat, if in fact that is the case.

The court in Winko also said that the board or the court should have access to the broadest range of evidence possible, so this would include medical and psychiatric evidence, evidence of the resources that are available in the community should there be an opportunity to release that person into the community, other support services, and basically anything they feel necessary to make their disposition.

Since the time the bill has been proclaimed, we have had an ongoing discussion with our provincial and territorial colleagues with respect to implementation, and that group meets, generally, every six months or so. And several issues were identified, housekeeping-type amendments that they felt were necessary for smoother implementation.

So in Bill C-17, in 1997, several such amendments were made. There were minor amendments also made in Bill C-79, which was the victims' bill. And in Bill C-15A, which recently passed in the House of Commons, there was a minor amendment to fill a gap with respect to the warrant provisions. Otherwise, submissions that we've had about the need for other amendments, we have suggested, would be better addressed in this committee's review. Therefore, I imagine you will hear a mix of both housekeeping-type amendments and perhaps more significant concerns from review board chairpersons, psychiatrists, hospital administrators, and so on.

As I mentioned, some of the issues that have been raised have related to the powers of review boards to order assessments. The other issue that is causing some discussion is what to do with an unfit person. There is a growing concern that persons who are found unfit, who may never be fit because of an organic brain injury or some long-term chronic unfitness, will remain in the system for too long; that, in some cases, the obligation on the crown to bring the prima facie case every two years is too onerous; and that the review boards perhaps should have some increased powers to make recommendations back to the court about the disposition of unfit persons.

A number of other issues have been raised about problems with transfer proceedings and what to do about a person who's in breach of their disposition because you don't want to convict them of a criminal offence, as that puts them into the criminal system rather than keeping them under the supervision of the review board. But I don't want to anticipate all the issues that might arise. Again, I'd reiterate that we will be following the committee's review and if issues arise that we can provide more information on, we're happy to do so.

So I'll end the overview. I'd be happy to answer any questions to the extent I'm able.

The Chair: Thank you, Ms. Kane.

Mr. Toews, seven minutes.

Mr. Vic Toews (Provencher, Canadian Alliance): Thank you.

One issue that you didn't touch on, and I don't know if it's particularly relevant to this discussion, is whether an accused knows that an act is not only legally wrong, but morally wrong. There was a decision of the Supreme Court of Canada that extended the traditional test to include this. I don't know if I've summarized it correctly, but it's that the accused understand it's morally wrong. What complications have resulted as a result of that decision, if any?

Ms. Catherine Kane: To our information, it hasn't resulted in any complications. The decision in Chaulk, in 1990, suggested that the test shouldn't be that of knowing something is legally wrong, but rather morally wrong. Most practitioners say that usually the two coincide, that what is legally wrong is also morally wrong, but that it would be too narrow to restrict it to an accused person saying they didn't know it was legally wrong, because under their own moral code they might think that's okay.

It's a difficult concept to explain, and I'm probably not doing it very well, but it doesn't seem to have caused any problems for the courts to make that interpretation of knowing something is morally wrong. And it's morally wrong according to the standards of society, not—

• 1010

Mr. Vic Toews: The individual knew it was morally wrong according to the ordinary standards of society.

Ms. Catherine Kane: Well, the interpretation of what is morally wrong is based on what the standards of society are, not on what this accused person's own moral code might be.

Mr. Vic Toews: Would that then also still require, of course, some kind of disease of mind as well?

Ms. Catherine Kane: Absolutely.

Mr. Vic Toews: So it's not just the belief, but it's coupled with the disease of mind aspect?

Ms. Catherine Kane: Yes, suffering from a disease of the mind, or suffering from a mental disorder, which is defined as a disease of the mind, is the precondition to those other factors. So that's the reason the person doesn't know the nature and consequences of their act, or that their act is wrong.

Mr. Vic Toews: So if you had a disease of the mind, but still understood that it was both legally and morally wrong, you could still be convicted as opposed to discharged under this provision?

Ms. Catherine Kane: Yes, that would be a determination to be made in each case, but that would be possible because the crown would be unable to make that case, or the judge would be unable to make that determination because the evidence wasn't there that you knew the act was wrong.

Mr. Vic Toews: Finally, you made a statement that the onus was on the crown to demonstrate that these individuals are not a significant threat?

Ms. Catherine Kane: No, the court in Winko made it clear that there's no burden on the accused to show that he or she is not a significant threat to the safety of the public. So the proceedings aren't adversarial. They're more a blend of an inquisitorial and an adversarial model. But to establish that the person is a significant threat to the safety of the public it may be the crown that's leading this evidence, or it may be obvious on the face of the information before the court or the review board, the medical evidence and the other evidence, about the conduct of that person either in the community or wherever they've already been detained.

Mr. Vic Toews: I see.

The Vice-Chair (Mr. Chuck Cadman (Surrey North, Canadian Alliance)): You still have four minutes, Mr. Toews.

Mr. Vic Toews: I do have one other question relating to costs. It always strikes me as unusual that here we sit in the federal Parliament, pass laws, and pass on responsibilities to a provincial legislature, which will then incur costs. It strikes me as completely contrary to the principles of our federal system that one level of government can impose legal responsibilities and costs onto another government that is a separate constitutional entity. I'm wondering whether your discussions have involved that issue.

Ms. Catherine Kane: The discussion is similar in many respects when we're passing amendments to the Criminal Code that relate to persons who will be convicted of offences, or to the prosecution of offences in general. The shared power over criminal law means that the provinces are responsible for the administration of justice, and to a great extent, once the verdict is rendered, the ongoing supervision of this person is to a great extent part of the administration of justice in the province.

Mr. Vic Toews: I understood that the reason the provincial government was involved in criminal law and prosecution of criminal law is not as a result of the administration of justice. The Supreme Court of Canada has made that very clear. It's as a result of a delegation by the federal Parliament that the provincial authorities have accepted, and it's got nothing to do with the administration of justice.

Ms. Catherine Kane: Perhaps I don't understand your question. Are you concerned that the ongoing supervision of a person, whose verdict is not criminally responsible, falls to the province?

Mr. Vic Toews: No, it seems to me that we can't.... I know this is a little beyond the evidence you've been giving, but essentially, all I want is to know is, have you been having this discussion with the provinces as to whether or not they could be legally or constitutionally responsible for any of the costs associated with administering this program?

Ms. Catherine Kane: They administer this regime in the same way they administer all other aspects of the Criminal Code for which they're responsible.

Mr. Vic Toews: Right.

• 1015

Ms. Catherine Kane: There have been some concerns about the perception that an increasing number of people suffering from mental illness go from the provincial mental health system to the criminal system and back again. Concerns have been raised over the years that some people who perhaps could have been treated in the provincial mental health system haven't been dealt with. They commit a crime and once the crime has been committed, all the resources to assist them are brought to bear. Discussions have taken place within jurisdictions about what can be said to be a transfer back and forth between the provincial mental health system and the criminal system.

There are, of course, concerns about the cost of psychiatric beds in secure institutions if they don't have the facilities available. But there haven't been any specific issues raised about the cost of implementing this regime that are different from concerns the provinces raise about Criminal Code amendments in general, which impose costs on them in terms of training, implementation, services, and so on.

Mr. Vic Toews: Thank you.

The Chair: Thank you.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Thank you. Good morning.

I think you have given a good review of the issue with this first presentation, and it is not an easy subject. It is not easy to talk about mental disturbances. I think you have clearly shown this. I know that there are ongoing discussions of various subjects with the territories and the provinces. I imagine that you have discussed this subject directly. Can you tell us today what is problematic for the provinces and territories regarding application in this area?

Can you tell us today that, yes, indeed, some provinces or some territories would like us to amend such and such a section, or such and such a way of doing things in order to ensure greater justice in this area? That is my first question. It concerns the provinces.

Second, I know that you are a specialist in this area, that you are surrounded by good lawyers too, that you scrutinize the Supreme Court decisions, and that you see how it operates. I imagine that the department itself already has an idea of what sort of amendments we should make, if any amendments are required. And if any amendments are required, could you tell us the direction of the amendments you would like to make so that we can—not check their legality or check what you are saying—but bear it in mind when we receive other witnesses in connection with this issue?

[English]

Ms. Catherine Kane: Those are good questions. Certainly our provincial and territorial colleagues have raised several issues that are of concern to them, but sometimes there's no consensus—what's a concern in one province isn't a concern in another. However, there are a few that relate to the smoother or more efficient implementation of these provisions, and certainly those are amendments that the minister is prepared to make.

• 1020

However, as I mentioned, given that this review has been pending for a few years, the minister wanted the committee to have an opportunity to do the review without her anticipating the issues you might hear and proceeding with some amendments.

I would categorize some of these as housekeeping-type amendments. For example, there might need to be some saving provisions in the legislation where a deadline is missed. We have these very rigid dates whereby a disposition must be reviewed within 12 months, but the code doesn't say what happens if it's not reviewed at 12 months. This has caused concern on the part of some provinces, which feel they may have lost jurisdiction over a person because there isn't a saving provision. It hasn't caused any problems in fact. It's a hypothetical concern at the present time, I should say.

Similarly, the transfer proceedings are cumbersome. This would be where, for example, you have an accused person in the province of Ontario and his family resides in British Columbia and can offer some ongoing support. He's more comfortable in that community and would improve there, and they want to transfer him to the supervision of the B.C. review board. The code provisions are quite complicated, and they could be streamlined. Those are amendments we're prepared to consider.

There are powers of adjournment, for example. Review boards want to be able to adjourn proceedings if they need to gather more information, and they have some concerns that the code doesn't spell out their powers to do that.

The other one, which I'm sure you'll hear about from witnesses, is the potential need for review boards to be able to order assessments by psychiatrists so that they can have the best information available to them when they're reviewing a disposition.

Those are the amendments that come to mind. Obviously, any time we make any amendments, there are consequential amendments and a lot of other things that have to be looked at.

The more controversial provisions, where the minister is completely in the hands of the committee, relate to the issue of the unfit person. We anticipate that you will hear some valuable testimony about the unfit population and similarly on the issues of capping and the dangerous mentally disordered accused provisions. Although the advice we have provided suggests that a proclamation of these provisions is not needed, based on the Supreme Court of Canada's decision in Winko, that is an issue that this committee will probably want to consider in depth.

The minister has indicated no predisposition to any approach. She does want to have the benefit of this committee's review.

[Translation]

The Chair: Thank you, Mr. Bellehumeur.

Ms. Allard, you have seven minutes, please.

Ms. Carole-Marie Allard (Laval East, Lib.): Mr. Chair, I would like to clarify something with Ms. Kane. You mentioned a while ago that in the Swain decision, the Crown could not raise insanity as a defense, that the accused had to be the one to raise it. Is that right? I just wanted to clarify that with you. I found it a bit strange that the Crown itself should raise the insanity issue.

[English]

Ms. Catherine Kane: The crown can raise the issue, but only after they have established their case and shown that the accused person committed the act for which they've been charged. At that point in time they can then bring the issue of what might seem quite obvious, the accused's mental condition, into the court. I'm not explaining this right. They can bring the issue up at that time.

However, if in the course of the trial the accused puts his own mental capacity at issue, the crown can obviously raise other evidence either to support or negate that. This is because an accused person must have control of their own defence. So the crown can't suggest that they're not criminally responsible. The crown's job is to establish the elements of the offence. Once they have done that, they can raise the issue of a potential mental disorder.

• 1025

In most cases it seems that this information is adduced by the accused early on to establish that they aren't criminally responsible, but there have been a few cases where it has to wait until almost the conclusion of the trial.

[Translation]

Ms. Carole-Marie Allard: The review board intervenes to determine whether an accused is fit to stand trial. Does it intervene at other points in the process? For example, can an accused who claims not to be guilty by reason of insanity reappear before the review board?

[English]

Ms. Catherine Kane: Yes.

[Translation]

Ms. Carole-Marie Allard: I did not quite get this, since I was gone for a few minutes.

At what point does the review board intervene in the process? Does the board intervene only to verify whether the accused is fit to stand trial or does it intervene again?

[English]

Ms. Catherine Kane: No, the review board has a great deal of responsibility with respect to both persons who are found unfit and those who are found not criminally responsible. The court will make the determination, will make the verdict of not criminally responsible on account of mental disorder, and in that situation, once that verdict is rendered, the court can either make the disposition to govern the ongoing supervision of that person or defer it to the review board. But even where the court makes that determination, the review board will review the disposition of the accused person very soon after, and then regularly every year until the person is discharged. So the review board will have at least an annual review for each person, or more frequent review if that's necessary.

Similarly for the unfit person, if the court finds that the accused is unfit to stand trial, they will also come under the supervision of the review board, and the disposition of the unfit person will be reviewed at least annually until that person is fit to stand trial.

Ms. Carole-Marie Allard: Okay. And this is a provision that you're questioning: Do we have to go in front of the board each year or every two years?

Ms. Catherine Kane: No. That isn't the same provision I was raising that might be an issue. The annual review is absolutely essential as a safeguard for that accused person so that they aren't detained any longer than absolutely necessary.

Ms. Carole-Marie Allard: Okay.

Ms. Catherine Kane: So there have certainly been no submissions made that this review should change or should be any longer.

The two-year review is what the crown is required to do when a person is found unfit, because the crown hasn't had an opportunity to bring on their case and to try that person. So a person who is found unfit might be in the system for a few years before they're fit to stand trial. Ideally there won't be very many people who are unfit for a great period of time. Usually they can be made fit by medication or other treatment. But if they are unfit and two years elapse, the crown must then go back to court and establish that they still have all the evidence to present to bring the case against that accused person. If they don't still have that evidence, then that person has to be acquitted, because there wouldn't be any opportunity at a later date for them to be tried.

In the case of a murder, for example—and there have been cases where a murder has been committed and the accused has been found unfit—every year their case is reviewed and they're still unfit; every two years the crown still has to go back to court and show that they still have all the evidence on which they could try that person for the offence of murder should that person become fit.

[Translation]

Ms. Carole-Marie Allard: Is there a time limit in such cases?

[English]

Ms. Catherine Kane: No. It's the two-year requirement for the crown to bring the case, but there is no statute of limitations on any criminal....

[Translation]

Ms. Carole-Marie Allard: Could the accused wait 20 years before...? Is their mental health reviewed every year to find out whether they are fit to stand trial?

• 1030

[English]

Ms. Catherine Kane: Again, for the person who's unfit and whose disposition is reviewed annually, the review uses the same criteria that are set out in the Criminal Code. So the review board has to look at all those factors: the mental condition of the accused, his reintegration into society, and the need to protect the public. Then they have to make the least onerous and least restrictive disposition, and they have the three choices available to them—absolute discharge, conditional discharge, or continued detention in a hospital.

They can't make an absolute discharge for the unfit person, but otherwise they are guided by the same criteria, to make the least onerous and least restrictive disposition available.

Ms. Carole-Marie Allard: But there is no limit of time.

Ms. Catherine Kane: No, there is no limit of time.

[Translation]

The Chair: Thank you, Ms. Allard.

[English]

Mr. Fitzpatrick, you have three minutes.

Mr. Brian Fitzpatrick (Prince Albert, Canadian Alliance): Thank you very much. I find your knowledge of this area quite strong and compelling.

I'm going to try to use hypothetical situations and maybe understand this legislation better.

When a person has a mental disorder that isn't sufficient to offer that person a defence against the crime, but the mental disorder is the real cause of the crime—I'm thinking of maybe a pedophile or somebody with a sexual disorder—I know of situations where judges, in sentencing people like that, say they should never be back in society unless they can find an effective treatment for that type of problem. The assessment people in the penitentiary system confirm the judge's assessment. That person completes the sentence and is released out into society, and the police and the authorities, I understand, are not able to let people in the community know that this individual is in their midst. The person even tries to seek from the provincial authorities admission into a facility, because the person understands that he has the problem and it isn't solved, but they won't admit that person because he hasn't done anything.

Does this legislation address that sort of problem?

Ms. Catherine Kane: This part of the Criminal Code deals only with two categories of verdicts that I mentioned, those people who are found not criminally responsible on account of mental disorder, and those people who are found unfit.

Mr. Brian Fitzpatrick: Right.

Ms. Catherine Kane: So the situation you are describing is people who would be convicted of a criminal offence.

Mr. Brian Fitzpatrick: I guess the thing that pops up to me is that maybe this legislation should be addressing that type of situation as well, from a public safety standpoint and from a mental health standpoint.

Ms. Catherine Kane: I imagine the committee will hear from witnesses who may raise the issue that has been raised in the past about committal of persons just for the reason of their dangerousness. That is not what this legislation deals with. This is the treatment and protection of society blend that provides for the individual assessment of persons who are found not criminally responsible.

Mr. Brian Fitzpatrick: I have one other question. I know I'm just about out of time there.

I'm thinking of a dangerous, mentally disordered person, a person who is highly dangerous, whose mental disorder is such that it did offer a defence at trial, and that person fell within the ambit of these provisions. If there hasn't been effective treatment for that person's disorder, from the public safety standpoint, what is there in this legislation that protects the public against somebody like that being released back into society when the fundamental problem with that person has not been dealt with or sorted out?

Ms. Catherine Kane: The fact that a person hasn't availed himself of available treatment is a factor that the review board will consider at the annual or more frequent reviews of that person. So when they're making the determination of whether the person should be absolutely discharged, based on the case that I referred to, Winko, which provides an interpretation of our disposition-making powers, they have to look at whether the person is posing a significant threat to the safety of the public, based on all the information they can gather.

• 1035

So part of that information would be whether the person is still suffering from a mental disorder and has not taken any treatment so their condition is either the same or has deteriorated or whether it's a different mental disorder altogether. There would be, in addition, any information about the danger they posed.

The review boards take this responsibility very seriously, because they appreciate the consequences of releasing a person into the community. They have been quite concerned about how they should implement the Winko decision. As a result, they've indicated that they need a great deal more information in order for them to make a finding about a significant threat to the safety of the public and about detaining a person who is a significant threat. Obviously, if the person isn't, they will be released.

The Chair: Thank you very much.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): Ms. Kane, you made reference to a two-year review, and that the crown must establish that, for instance, there's enough evidence to convict, etc. When the evidence is of a forensic nature, DNA, etc., that can be put in a little file and kept forever. But when the conviction would be determined by witness evidence and those witnesses die or perhaps disappear, what do we do in that situation, say, if a key witness has now passed away? What happens then? Is there any provision there that would safeguard against that individual being released because of that?

Ms. Catherine Kane: Well, of course, the passage of time does make it a bit more difficult for the crown to bring their case. But the Criminal Code does provide that affidavit evidence and transcripts from a preliminary inquiry or maybe transcripts from the trial up to the point where the person was found unfit.... The issue can arise at any stage of the proceedings, so you may have had some evidence already put in before the issue of fitness arises. All that can be relied on in written form. You can get statements from witnesses, because they may move, they may become old or infirm, or whatever, and those affidavits can be used. So there is some scope to use other types of evidence to bring that case.

Mr. John Maloney: You also made reference to the Kerr and Stephenson inquests. Could you just give us a little background, perhaps on what some of the recommendations were in those two cases?

Ms. Catherine Kane: As I recall, the Stephenson inquest dealt with a convicted offender who was on some type of release from correctional services, and he killed a young boy in the Brampton area. The inquest was into the death of the child, Christopher Stephenson. It raised a number of issues about the protection of the public from dangerous persons in general.

In this case the offender had been convicted, but similar issues arose, and the inquest heard information about civil committal proceedings from, for example, Washington state where they have—I'm certainly not an expert on that—a system whereby people can be detained on an ongoing basis because of their dangerousness.

In the course of that inquest, even though the mental disorder provisions were not an issue, there were some references made to the impact of capping. Some people made submissions that they thought, if capping were proclaimed in force, it would put public safety at risk, but it was all hypothetical at the time.

The Kerr case, as I recall, was a person who was in the institute in Brockville, so he had been found not criminally responsible. He was released on some sort of community visit thing with an escort. He went into the community and he committed a murder, I believe.

So that was more a review of the operation of the scheme. It wasn't about the legislation itself, it was about the facts of that situation. But again, the issue did arise that if capping had been proclaimed in force at a certain point, the person who killed Kerr would have had to be released, despite potential ongoing dangerousness.

Mr. John Maloney: But capping continued to be an issue.

Ms. Catherine Kane: Yes.

The Chair: Would it be possible for you to supply the committee with copies of the coroner's reports of both the Stephenson and Kerr cases?

Monsieur Bellehumeur.

• 1040

[Translation]

Mr. Michel Bellehumeur: I would also like to have this document. Would it be possible to have, say, the real picture by province and territory, of the number of annual cases involving insanity, to find out how many cases are currently under treatment in custody because they are deemed to be unfit to stand trial?

What I understand is that that part does not in any way concern the defense raised in cases such as the one we saw very recently where a paterfamilias had beaten up a bus driver and used as a defense the fact that he had momentarily lost his head completely and was not conscious of what he was doing. That was his defense, and as we saw, he was found not guilty, etc.

We understand, do we not, that what we are studying at present does not concern that defense? So I do not want that either in the real p. All right?

[English]

Ms. Catherine Kane: With respect to the information you're seeking about the number of people, we do have some limited information that has been gathered from the review boards in each jurisdiction on the number of people under their supervision. That indicates the number of new, additional verdicts on people not criminally responsible by year and the number of new verdicts on people found unfit by year.

It's not complete because it is only the data from the review board. It wouldn't include where the court makes that determination and perhaps when it makes an absolute discharge right at the time the verdict is made. But we can provide that to you, and it may lead to some other information we can gather. It doesn't indicate the findings per year, though. You could have somebody who would be found both unfit and not criminally responsible in the same year, and they're only counted once.

We have similar problems when we try to get data on convictions, because not all provinces collect data in the same way. We do have the survey from review boards, and we will arrange to have that translated and provided to you. You will have to understand that it's not perfect, it's not the complete picture, and I think it only goes to 1999 at the present time. We can attempt to get the more recent data.

The second question was about the case you raised of the person who said they lost their head, and weren't conscious. There are situations where people say they are acting as automatons, and perhaps this is what you're referring to. They're not suffering from a mental disorder in the same way, but they're in some state of partial or semi-consciousness.

In the mid-1990s there was a review of the general part of the Criminal Code, and some submissions were placed in a public consultation document and in a white paper. These would have provided for a verdict of not criminally responsible on account of automatism to cover that situation.

The current common law is that where a person is suffering from automatism caused by a mental disorder, they're treated the same way as somebody who's not criminally responsible on account of mental disorder. Where their automatism isn't caused by a mental disorder—they're sane, but they have had a blow on the head or they've taken some medication that has caused them to act in an erratic matter—if they can establish that this is their defence, with not just an assertion but with evidence to establish that this condition was the result of some external cause, they would be acquitted. They would be found not criminally responsible on account of mental disorder.

• 1045

So it would be a complete defence, but it's a fairly high burden to satisfy, and it's fairly rare.

The Chair: Thank you.

[Translation]

Mr. Michel Bellehumeur: Thank you.

The Chair: Ms. Allard.

Ms. Carole-Marie Allard: Thank you, Mr. Chair.

Ms. Kane, can you give us any examples? I do not know whether you have a list. You seem to know a lot about the case law established by the highest court in the land. Regarding the defense of automatism, do you have any cases that could be compared somewhat to the one that occurred in Quebec recently, which my colleague Mr. Bellehumeur mentioned, that is, the case of the paterfamilias who attacked a paedophile bus driver and who indeed was acquitted by a jury? I see that the acquittal verdict was based on the defense of automatism. So I would like to know whether you have any cases you could...? Anyway, I myself would be interested in knowing more about such cases. Could you undertake to provide us with at least the relevant jurisprudence in such cases?

[English]

Ms. Catherine Kane: Certainly we can undertake to do a review of the cases that are reported. There may well be many cases where automatism is raised, but it doesn't factor into the result, and that may not come to light in what is reported. But we can search for the cases and provide those to you.

There are two prominent cases. They aren't very recent, but from the Supreme Court of Canada there was Parks in the early 1990s. That was a situation where a person was sleepwalking. If I recall correctly, in their sleep they travelled to visit their in-laws and stabbed them, and they were acquitted. That was a case of non-insane automatism.

The Stone case is more recent. The same defence was raised there but wasn't successful. That was a situation where a man asserted that he had blacked out completely. He killed his wife, and then he travelled to Mexico, whereupon he had a revelation that he had done something to his wife. He went back home, confessed to what had happened—or to the extent that he could remember it—but claimed that he was suffering from automatism. In that case the defence was not successful, and he was convicted.

In both those cases, when they were in the Supreme Court of Canada, the court stated very clearly the law with respect to automatism, both sane automatism and insane automatism or mental disorder automatism.

But again, we can try to see if we can find some lower court decisions where that defence was asserted in other cases.

The Chair: Thank you very much.

Mr. Cadman.

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

I have just two brief questions, Ms. Kane. The first pertains to the role of victims in the review boards in the review proceedings at all the different levels. Do they have input, or are they essentially just observers the way they used to be in parole hearings?

Second, when they're dealing with automatism, would the claim of a drug-induced psychosis be treated the same way?

Ms. Catherine Kane: With respect to the role of victims at review board hearings, as you may recall, when this committee did the review of the victim's role in the criminal justice system, several victims raised the concern that the verdict is basically beyond their control. Where a verdict of not criminally responsible is rendered, they would still want to have the same input they would otherwise have with respect to a victim impact statement if the offender had been convicted and sentenced.

Amendments were included in Bill C-79 to provide the opportunity for a type of victim impact statement to be provided at the time of the initial disposition to the extent that it related to any concerns they had about public safety or the conditions that should be imposed if a conditional discharge was one of the options for that accused.

Whether the victim attends or gets notice of review board hearings will vary from jurisdiction to jurisdiction. It appears that in most jurisdictions great efforts are being made to keep the victims updated, but that is not something we have legislated in the Criminal Code. That basically falls to the review board practice.

• 1050

For example, in Ontario, victims can indicate that they want to have regular notice of review board hearings, and to the extent the review board can keep the notices coming, they are made aware of when the annual review is. But the victim doesn't have standing at the annual review. They can attend as observers, just as you and I can attend if we have notice of the hearings, because they are generally public hearings.

On the second question, with respect to the drug-induced state of automatism—

Mr. Chuck Cadman: One case comes to mind. Somebody said he had done a bunch of cocaine, blacked out for two minutes, and murdered two women. He used that successfully as a defence to have the charge reduced.

Would that be dealt with the same way as automatism?

Ms. Catherine Kane: I don't believe so. Certainly it wouldn't be a mental disorder situation, because it involved self-induced drugs. It could be dealt with under the intoxication defence, but I don't feel qualified to answer that properly. Perhaps we could undertake to get back to you on that.

Mr. Chuck Cadman: Okay, thank you.

The Chair: Thank you.

Mr. Maloney.

Mr. John Maloney: Ms. Kane, you indicated one of the reasons the capping provisions weren't proclaimed was the difficulty with the blend of the seamlessness of the provincial and federal legislations, and perhaps the provincial legislation was more geared to a therapeutic approach—rehabilitate, get them well, and release them.

Has anything changed? Do we now have a more seamless blend between the two areas of legislation?

Ms. Catherine Kane: It's a difficult question for me to answer. You will probably hear some commentary on that from mental health experts who might appear before you. But at the time capping was developed, the notion was that if a person was released at the expiration of their cap, they'd automatically be dealt with under provincial mental health legislation, if they needed that ongoing supervision or treatment.

When we reviewed the provincial mental health legislation in the early 1990s, most provincial mental health legislation focused on the needs of the person, not the needs of society to be protected. So the goal is to make that person well and reintegrate them into the community. They're concerned about imminent harm that person may cause to themselves, not harm they may cause a month from now, or down the road.

So in the view of the provinces, that is an impediment to relying on the provincial mental health system to look at foreseeable risks, because if it's not imminent, they don't feel they can commit the person and supervise them under the provincial mental health legislation. The goals are different.

Perhaps thinking has evolved since the time the scheme was developed that provincial mental health legislation has focused more on shorter-term care, focusing on the individual rather than protection of society.

Mr. John Maloney: Thank you.

The Chair: Thank you very much.

[Translation]

Mr. Bellehumeur, do you have another question?

Mr. Michel Bellehumeur: No.

[English]

The Chair: Mr. Fitzpatrick.

Mr. Brian Fitzpatrick: Just to clarify a point, again with dangerous mentally disordered people, if the prognosis is slim or none, as far as treatment is concerned—this is a lifelong disorder for which there's no treatment—are these cases still brought up for two-year reviews, and so on?

Ms. Catherine Kane: Yes, they are on annual reviews. Even if that is the case, there's still a requirement that the accused and the review board have an opportunity to look at how the person is doing under that disposition. They can use that opportunity to encourage other treatment, for example, or to vary the conditions slightly, if there are any conditions imposed on them.

It's definitely a safeguard for the accused. Some deterioration in their condition that may have gone unnoticed can be rectified, or there may be some improvement, although subtle. So it's an opportunity for the board to gather all the information available, even if the prognosis does look bleak.

• 1055

Mr. Brian Fitzpatrick: I have another question. My understanding is the crown is required to prove their case, and the issue of fitness and mental disorder, incapacity, then crops up at that stage. I'm thinking of two situations.

The first would be where the accused pleads guilty to the charge, and the second would be where the accused is represented by counsel, and the lawyer representing the person has met with crown counsel and has basically agreed to the facts. There's no dispute as to the facts. It could save the system a lot of time and money to just agree to those facts.

What happens in those situations? How do you deal with them?

Ms. Catherine Kane: First, as a point of clarification on the issue of fitness, the crown doesn't have to bring their case initially. If the fitness of the person is raised, any plea is set aside and the whole issue is deferred. But the crown has to be prepared to bring their case again at least two years later. So the crown doesn't have to bring their case at that very first opportunity.

For example, say you start the trial, the crown is prepared to bring their case—let's say it's an aggravated assault—and it becomes clear the person doesn't have a clue where they are or what's going on. The issue of fitness is immediately tried, and a treatment order is usually made to see if that person could be made fit so that 60 days later you could start the trial.

If you come back 60 days later and the person is still not fit, then the review board will make a disposition for that person, and within two years the crown would have to come back to court ready to bring their case again. So you keep bringing the person back to.... There are two situations—their fitness disposition is reviewed every year, and the crown has to bring their case every two years until the person is tried.

Mr. Brian Fitzpatrick: Do I have time for one short question on that?

The Chair: Just because it's Christmas.

Mr. Brian Fitzpatrick: Okay.

This area is a bit troublesome, because as time goes by, it gets harder and harder to keep your case intact. To keep doing that indefinitely, it seems to me, could create a real problem for the crown.

Ms. Catherine Kane: Yes, it's a difficult situation. The option for the crown is to bring a stay of proceedings, which they might do in a less serious crime if they see this person is going to remain unfit and if they're satisfied they're not posing a risk to anyone or they have some other treatment options available to them. However, it's a concern for the crown to do that where it is a serious offence. They feel they have to have an opportunity to bring their case should the accused become fit. It's a discretion they're exercising, as the years pass and their ability to bring their case wanes a bit.

I imagine this will be an issue that many people will comment on before the committee, because it is a fairly tricky one.

The Chair: Mr. Cadman.

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

Just to follow up on my last question, can you foresee a possibility where an addiction could could be determined to be a mental disorder? For example, an addiction to a drug could be determined to be a mental disorder, and then if some crime, like murder, is committed under the influence of the drug, this defence would be brought up.

Ms. Catherine Kane: I'm certainly not able to answer that question, but I imagine some of the psychiatrists who might appear would have better information on what is considered a mental disorder. It has to be a disease of the mind, and they use a number of tools and—

Mr. Chuck Cadman: I hope I'm not giving any criminal defence lawyers any ideas here.

Mr. Brian Fitzpatrick: They've thought of those a long time ago.

Ms. Catherine Kane: They'd be better able to answer what would constitute a disease of the mind and whether an addiction would.

The Chair: Thank you, Mr. Cadman. I didn't mean to cut you off.

Mr. Chuck Cadman: No, that's fine.

• 1100

The Chair: There are a couple of things I'd like to ask about on behalf of the committee. The way in which other countries and jurisdictions deal with this is probably going to inform our considerations. It occurs to me that one of the things that's going to happen is that we're going to find ourselves at some point in this exercise struggling with issues that are unresolved in science and that probably are not going to get resolved in this place.

For instance, Mr. Fitzpatrick, without drawing specific conclusions, referred to the fact that some mental disorders arguably are not treatable and so on and so forth. Clearly, if one is of that view, then that would affect one's disposition in these issues. I think it's important for us to get a layperson's primer on some of these issues so that we can inform ourselves as much as possible around this.

Finally, given that the two extremes would be the inappropriate, unfair, or unjust limitation of liberty on one end and on the other end the inability of the state to protect society from someone who would do harm, perhaps you could give us a hypothetical scenario in the context of each extreme so that we can perhaps narrow the debate a little bit.

I hope I haven't asked for too much. We've all been wondering how we're going to put in our days apart over the next six weeks or so. We've become very familiar to each other—some of us too familiar to each other. This will give us something to remind us of how soon we'll be back together.

In any case, if it isn't too much to ask, I think it would help all of us in our deliberations when we return.

Ms. Catherine Kane: Okay.

The Chair: Speaking of our return, this brings us to our departure. I want to take this opportunity to thank the members of the committee, first and foremost, for the fact that we've been very busy since we came back in September. Notwithstanding the nature of this place and the need from time to time for us to be critical in our thinking and even sometimes in our speaking, I think the country has been reasonably well served by all the members of all parties here over the course of the fall, at least by virtue of effort, if not by good judgment—just to give some of our members the opportunity to buy into what I'm saying.

Some hon. members: Oh, oh!

The Chair: To the staff and the people who supported us, it is not lost on me, and I'm sure it's not lost on any member of the committee, that we've asked the impossible of the professional staff. I cannot imagine us getting better service and a more professional response from people asked to do the impossible. I would extend that to include our colleagues in the Department of Justice, who have also supported us by virtue of their work.

Colleagues, the season's best to everybody. Celebrate it in the way that is most appropriate to you, everyone, and we'll see you back here, happily, in January.

The meeting is adjourned.