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37th PARLIAMENT, 1st SESSION
Standing Committee on Justice and Human Rights
EVIDENCE
CONTENTS
Tuesday, March 12, 2002
| ¿ | 0940 |
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The Chair (Mr. Andy Scott (Fredericton, Lib.)) |
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Dr. John Bradford (Clinical Director, Forensic Program; Head, Division of Forensic Psychiatry, Ottawa University) |
| ¿ | 0945 |
| ¿ | 0950 |
| ¿ | 0955 |
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The Chair |
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M. Lanctôt |
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Dr. John Bradford |
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Mr. Lanctôt |
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Dr. John Bradford |
| À | 1000 |
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The Chair |
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Mr. John McKay (Scarborough East, Lib.) |
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Dr. John Bradford |
| À | 1005 |
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Mr. John McKay |
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Dr. John Bradford |
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Mr. John McKay |
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Dr. John Bradford |
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Mr. John McKay |
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Dr. John Bradford |
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Mr. John McKay |
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Dr. John Bradford |
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Mr. John McKay |
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Dr. John Bradford |
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Mr. John McKay |
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Dr. John Bradford |
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Mr. McKay |
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Dr. John Bradford |
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Mr. McKay |
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The Chair |
| À | 1010 |
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Mr. Lanctôt |
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Dr. John Bradford |
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Mr. Lanctôt |
| À | 1015 |
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Dr. John Bradford |
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The Chair |
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Mr. John McKay |
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Dr. John Bradford |
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Mr. John McKay |
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Dr. John Bradford |
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Mr. John McKay |
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Dr. John Bradford |
| À | 1020 |
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Mr. John McKay |
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Dr. John Bradford |
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Mr. John McKay |
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Dr. John Bradford |
| À | 1025 |
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Mr. John McKay |
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Dr. John Bradford |
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The Chair |
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Mr. Paul Macklin (Northumberland, Lib.) |
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Dr. John Bradford |
| À | 1030 |
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Mr. Macklin |
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Dr. John Bradford |
| À | 1035 |
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The Chair |
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Mr. Ivan Grose (Oshawa, Lib.) |
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Dr. John Bradford |
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Mr. Ivan Grose |
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Dr. John Bradford |
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Mr. Ivan Grose |
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Dr. John Bradford |
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Mr. Ivan Grose |
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Dr. John Bradford |
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Mr. Ivan Grose |
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Dr. John Bradford |
| À | 1040 |
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Mr. Ivan Grose |
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Dr. John Bradford |
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Mr. Grose |
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Dr. John Bradford |
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Mr. Ivan Grose |
| À | 1045 |
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Dr. John Bradford |
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Mr. Grose |
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The Chair |
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Dr. John Bradford |
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The Chair |
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Dr. John Bradford |
| À | 1050 |
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The Chair |
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Mr. John McKay |
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Dr. John Bradford |
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Mr. John McKay |
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The Chair |
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Mr. Macklin |
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Dr. John Bradford |
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Mr. Macklin |
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The Chair |
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Dr. John Bradford |
| À | 1055 |
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The Chair |
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Dr. John Bradford |
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The Chair |
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Mr. John McKay |
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Dr. John Bradford |
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Mr. John McKay |
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Dr. John Bradford |
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Mr. John McKay |
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Dr. John Bradford |
| Á | 1100 |
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Mr. John McKay |
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Dr. John Bradford |
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Mr. John McKay |
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The Chair |
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Mr. Lanctôt |
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Dr. John Bradford |
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The Chair |
| Á | 1105 |
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Dr. John Bradford |
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The Chair |
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Mr. Philip Rosen |
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Dr. John Bradford |
| Á | 1110 |
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The Chair |
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Dr. John Bradford |
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The Chair |
CANADA
Standing Committee on Justice and Human Rights |
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l |
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l |
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EVIDENCE
Tuesday, March 12, 2002
[Recorded by Electronic Apparatus]
¿ 
(0940)
[English]
The Chair (Mr. Andy Scott (Fredericton, Lib.)): Bonjour. Bienvenue à tout le monde. Welcome.
I call to order the 68th meeting of the parliamentary committee on justice and human rights. Today we continue our deliberations on the mental disorder provisions of the Criminal Code, pursuant to Standing Order 108(2). This is part of a statutory review commenced by hearing officials from the Department of Justice.
This morning, to really set this review up, if that's the best way to put this, over the course of the next five or six weeks, we have Dr. John Bradford, the clinical director of the forensic program and head of the division of forensic psychiatry at Ottawa University. I want to thank you, Dr. Bradford, for giving of your time, talent, and expertise to help us in, I think, a very important review the committee has decided to undertake. We did hear from the Department of Justice, but it was late last fall, so we're probably needing a bit of revision in any case.
Generally, we ask for presentations to try to stay within around 10 minutes, but we don't have a big crowd here this morning, and I'll exercise some latitude on that front.
With that, Dr. Bradford, please begin.
Dr. John Bradford (Clinical Director, Forensic Program; Head, Division of Forensic Psychiatry, Ottawa University): Good morning. Thank you very much for allowing me to address you. It's a privilege to be here.
I was part of the mental disorders project that was the initial work leading to the Criminal Code amendments after the Swain decision. So my experience with it has been significant.
I was asked to do a couple of things, concentrate a little on psychiatric illness and give you some background as to how it might apply to the Criminal Code amendments, and also address some of the issues that relate to mental disorder and violence. I'm not going to necessarily address specific issues within the mental disorder sections. I have a written document that will address some of the practical issues that may apply, and I will hand that over to Mr. Pagé in the next little while.
First, as you're probably aware, mental disorder is really a wide variety of conditions. The major mental illnesses are the ones that mostly bring people into conflict with the law in relation to violence. These would be illnesses such as schizophrenia and other psychotic conditions. The importance is that the mental disorder sections also act as a filter, so that people with a major mental illness, such as schizophrenia, in conflict with the law would end up attending the courts where they would be assessed as to their fitness to stand trial. Again, the individuals who are most likely to be found unfit are the individuals who have psychotic illnesses or major psychiatric illnesses. At the same time, the individuals who are most likely to be found not criminally responsible are going to have a mental disorder, and it's most likely going to be psychosis.
In the past the provisions were quite severe. As a result, if there was not a serious criminal charge, most lawyers did not run the accused through the mental disorder sections, because they would be detained indefinitely. So if you had a person charged with shoplifting, you would have some difficulty, as a lawyer, even though a not criminally responsible verdict might apply, to run them through the provisions of the mental disorder sections. That changed when they were reviewed. The importance about that is that there had been a process where the mentally ill were being criminalized. They were then being criminalized, ending up with probation with conditions of treatment or serving sentences, because of the reluctance to proceed. This meant that the seriously mentally ill were ending up in correctional facilities, both at a provincial and a federal level, where, quite frankly, the standards of psychiatric care are not the same as you would receive in the health care system in any province of this country.
One of the important issues, and one of the very positive things, at least as far as major mental illness is concerned, is that the process of criminalization has been reversed. That is a very positive issue with regard to the mental disorder sections. One of the concerns, of course, is related to mental disorder and violence. I'm going to give you a brief background in the remaining minutes to give you a sense of what that's about.
Clearly, most of the people who are coming into conflict with the law from a mental illness point of view are not violent. I think that needs to be spelled out quite clearly. However, there is an association between mental illness and violence. I think that that's an important issue to consider in your deliberations.
First, when you look at dangerousness, this is a complex issue from either a Canadian or an American perspective. The legal system is constantly looking at that. Somebody like myself, as a forensic psychiatrist, is constantly evaluating that, constantly testifying in relation to that in various levels of courts.
¿ (0945)
Briefly, I think it's important to understand that when we look at dangerousness, we look at risk factors, which are the variables that predict violence, the harm, which is the amount of violence that is predicted, and the risk level, which is the probability that it would occur. The science of that has improved considerably, and in the short term and, to a certain extent, in the long term we can predict violence, particularly imminent dangerousness. I would say, however, that if you look at issues such as homicide, which occurs very infrequently, it's almost, at a statistical level, impossible to predict. You would be wrong many more times than right. So at that extreme level, it's not possible to predict.
There have been some assumptions in the past--and psychiatrists have contributed to that--that the mentally ill are not more violent than the general population. Part of that issue was that we were very concerned not to stigmatize the mentally ill. However, it was also based on a scientific study coming out of the Federal Republic of Germany in 1973 that looked at the risk of violence--and I'm using violence to mean physical violence in schizophrenia and mood disorder, again, both major psychiatric illnesses. That study showed that the levels of violence in those major psychiatric conditions really mirrored the levels of violence in the general population.
The question as to whether there is a relationship between mental disorder and violence is really based on two approaches. One is the study of criminal populations, people who have been convicted of a criminal offence and who have been violent, to see what mental disorders they may have. The second approach is the study of psychiatric populations who have been violent to see what mental disorders they have.
Broadly--and I'm trying to keep it really simple, so it's easy to absorb--if you look at criminal populations, the mental disorders that lead to violence in those populations relate to substance abuse and personality disorder. If you look at psychiatric populations, violence is related to psychosis or major mental illness.
The measures of violence depend on the definitions of psychosis and violence. Probably the most important study was conducted by the Americans when they were developing DSM4, the diagnostic and statistical manual, fourth edition, which is the diagnostic bible for psychiatry. They did extensive studies around the world. They did a large epidemiological study of more than 17,000 people, looking at the relationship between people who had never had a mental disorder, the population at large, and different types of mental disorder. They looked at the probability in the next year and the prevalence in the past year.
If you look at the level of violence in the general population, as you would expect, age and sex are factors that come into it. Males are generally more violent than females. What became important is that as you moved from no mental disorder across the spectrum, through minor psychiatric illnesses, such as anxiety, and you got into the more serious illnesses, such as schizophrenia, the level of violence increased. A person who suffered a schizophrenic illness was six times more likely than the general population to be violent in the 12 months ahead, or in the past year by retrospective measure. With alcohol and substance abuse, the levels jumped up to twelve times and seventeen times. But the important issue is that if you have a person who is mentally ill and violent also abusing alcohol and substances, those rates accumulate. So, for example, for those abusing alcohol and suffering from schizophrenia, the rate would probably be in the 12 to 15 times range, and if they're abusing other substances, such as cocaine, it would jump up to maybe 35 times the rate in the general population.
So it's quite clear that major mental illness is associated with increased risk of violence, and the strength of that association grows when you look at stricter definitions of violence and stricter diagnostic definitions. But most importantly, major mental illness and substance abuse together, a dual diagnosis, if you like, were associated with the highest risk of violence. Also, I think it's quite important that the victims of the violence flowing out of mental illness are family members.
¿ (0950)
There was an interesting study done by Link et al. in 1992 in New York City. They looked at those who had never been psychiatric patients and compared them with psychiatric patients from the same community. They found that the individuals with a psychiatric illness were higher on all measures of violence than the general population. But if you controlled for all the factors that are normally associated with violence, age, sex, and to a certain extent, socioeconomic class, if you factored them all out, the only factor left that related to violence was psychosis, in other words, major mental illness. This is a reinforcement of what I was talking about earlier.
Very briefly, there are some psychiatric conditions that involve sexual deviation. Those conditions are treatable, and we know a lot about the risks associated with them and the recidivism. Generally speaking, those individuals who suffer from sexual deviation, such as pedophilia, are not filtered through the mental disorder sections. They do not fit those sections. So at the moment they end up in correctional facilities and receive treatment in that area. Whether that's good or bad, I think, is really a debate, but I can tell you that at a federal level, the Correctional Service of Canada has excellent programs for people suffering from pedophilia and sexual deviation. It varies at a provincial level, but most of the provinces have programs and are dealing with that particular problem.
What I would add is that if you look at the most serious sexual violence--and this would be sexually sadistic acts--individuals who commit those acts are far more likely to be alcoholic than other individuals. So again, you have this association with substance abuse leading to the more severe types of sexual violence.
I think my 10 minutes are up, so I'll sum up at this point. The mental disorder sections of the Criminal Code, where the definition of mental disorder is very broad, are fine, although the individuals who mostly filter through the section are individuals with major mental illness, and they're mostly individuals with major mental illness who have been violent to some degree. What's positive about it is, as I've said, that the association between violence and major mental illness is clear, but those illnesses are treatable, which means that as long as you remove the psychosis, which we can do with pharmacological treatments, the risk of violence decreases. If you look at the follow-up, for example, in Ontario for people who have been found not criminally responsible on the basis of mental disorder, you see the risk of future violence is very low. Recidivism is low, less than 2%, as I understand it. What that means is that the process whereby an individual, once they're found not criminally responsible on the basis of mental disorder, ends up before the review board of the province, where there are very strict requirements of monitoring and treatment, either in hospital or in the community, is working very well.
One of the issues, however, that does need to be considered is that there are a number of individuals who do not go through that filter who do have major mental illness, and they end up in correctional facilities. In general, if you're a person who suffers from a mental illness, at least as far as I'm concerned, you require the same standard of treatment as anybody else in the province or the country, the same standard of medical care. Unfortunately, that doesn't always happen. Correctional facilities are not hospitals, they're not able to deliver that care. I don't think the mental disorder sections are necessarily at fault there. I think that's more a matter of an educational process and maybe some changes in the correctional facilities in the various provinces, and perhaps at a federal level.
¿ (0955)
Let me stop at that point and take questions. Thank you for your patience.
The Chair: Thank you very much.
Monsieur Lanctôt.
[Translation]
M. Robert Lanctôt (Châteauguay, BQ): Thank you for your testimony, and especially your last comment. If the problem is not with evaluating mental disorders or other similar problems relating to the Criminal code, but rather with applying what is under provincial jurisdiction...This is part of the problem you have raised. I don't think that we have the appropriate forum here to study the problems of applying provincial legislation. What I would like to hear about is what we can evaluate here, within a federal committee. I don't intend to look at the problems that are involved in applying the legislation in Quebec or in the other provinces. I don't know what you would have to say on this matter.
[English]
Dr. John Bradford: At the present time, when there are hearings before the Quebec review board or the Ontario review board, the legislation doesn't particularly define who are the parties before the board. Traditionally, they are the accused and the hospital, but there's never been a role defined for the crown attorney. I think that is a significant error in this legislation. I think the role of the crown attorney to protect the public is critical in this area, and the provisions are silent on that. For example, in Ontario crown attorneys go through a course, and some of them have become experts in mental disorder. I think that's a critical issue, which would also go to alleviating some of the problems that do occur.
Again, I don't think the legislation is necessarily at fault in other areas because of the criminalization that still occurs. I agree with you, that's really a provincial problem. I think that's being dealt with, however, at the various levels in the different provnces by various diversion programs.
So specifically, one very important recommendation I would have relates to the role of the crown attorney at the hearings. When a person has been found not criminally responsible, it's critical that the crown attorney should be a party to those hearings.
[Translation]
Mr. Robert Lanctôt: This is the committee's main role, that is, to look into the problem with the crown attorney. However, do we have sufficient information to establish has been working and what has not, ever since certain changes were made following the last reform? Is there anything that is not yet in effect and that we could look at? In other words, have we collected enough information since this reform to look into the issue of knowing if we can put certain things into effect or whether we can change anything that has been implemented? Could you comment on that possibility?
[English]
Dr. John Bradford: I think part of the difficulty in responding to that is that the actual practices in the different provinces vary. The composition of the board is defined legally, but the actual way it works differs in the provinces, and some of the interpretations of the administration of the boards are different. I've been a member of the board in Ontario for probably 20 years, and Ontario has gone to great lengths to collect statistics, to monitor what's going on. For example, the decision by the Supreme Court of Canada in Winko, which really defined when a person should be absolutely discharged, has certainly made some differences. It's also had an impact on some interpretations, for example, the issue of what is a significant threat, because that's what keeps the person within the system, as opposed to their being discharged. Personally, I think Winko and LePage and that whole Supreme Court of Canada judgment was a very positive one, and I think it has been helpful, because it's made the provinces come into alignment.
I'm not certain whether British Columbia, New Brunswick, or Quebec have statistics all at the same level. I know Ontario does, because the government has put in place a lot of work to collect those statistics. What we do know is that after Winko--and some research studies have been done on it--the rate of discharge out of the system has increased. Before this the number of people who were detained under the not criminally responsible sections was increasing. In other words, there has been a change because of the Supreme Court of Canada decision in Winko.
The impact of that on risk to the public or recidivism is not clear at the moment. The early observations are that it hasn't been a problem, in the sense that individuals who have been discharged have continued, even though there was not a legal requirement for them to do it. I think the jury is still out on that. We still need to look at that. They need a longer term to look at it.
À (1000)
The Chair: Merci.
Mr. McKay.
Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chair.
Thank you, Dr. Bradford, for your presentation.
My community has recently experienced the joy of having a convicted pedophile released into it, and I'm hearing contradictory things. I don't know, frankly, how to respond to what is, in my view, a mix of legitimate and illegitimate concerns. How should one deal with someone who has that condition? We've got a Criminal Code conviction, we've got time in jail, we've got release into the community. All the evidence points to the fact that a person of this nature does not get over this kind of condition--I stand to be corrected on that. Is what we would call a disease of the mind now a mental disorder?
Dr. John Bradford: There are a number of components to that, so let me try to pick it up.
First, pedophilia is clearly a mental disorder. It's a mental disorder that is treatable. If you look at the long-term recidivism rate, which means a risk of any sexual offence, so it may not involve a hands-on sexual offence, in the 8- to 12-year range, it would be around 13%. All the studies, and there have been many of them, that have looked at it show that when you consider treatment against non-treatment, the recidivism rate is reduced substantially.
In the past pedophiles, some of them at least, would go through the mental disorder section and end up in hospitals. That doesn't happen any more, so they end up in correctional facilities. They simply don't fit into the Criminal Code sections that look at whether they are not criminally responsible on the basis of mental disorder. I personally don't have a problem with that. There are some people who disagree with me.
I think the issue, though, is that the mental disorder system tends to have longer periods of follow-up than does the Criminal Code. If somebody's finished their sentence, they may have probation for a brief period of time, and that's it, whereas, for example, in one of the clinics I run we've got people who've been in treatment for 20 years, and they've never reoffended.
That's been offset to a certain extent by the changes in the dangerous offender sections of the Criminal Code. The most important development there was the long-term offender provision. I was with a different committee dealing with that, and I was very supportive of it. That's important because a person who, for example, is a pedophile, who meets the criteria for long-term offender at time of release, would then be in the community, but for 10 years of supervision, which includes treatment. It depends whether the person fits into that. What we do know is that when you have a person in the community, it doesn't matter what mental disorder they have, if you've got a structure for monitoring and a structure for treatment, it reduces risk.
So that long-term offender provision, I think, is excellent and was a major step forward. Of course, the person has to fit that section to get in there. But the principle is there of having a long-term follow up, and in that instance there are also significant criminal sanctions if they don't comply--I think it's imprisonment for up to 10 years. But those are individuals who are not going to be streamed through the mental disorder sections, and that's an issue for debate.
À (1005)
Mr. John McKay: Do you think the bar is too high for designation as a long-term offender?
Dr. John Bradford: Yes. One of the solutions would be probation up to three years for offenders, where they wouldn't fit the long-term offender provisions. Ordinary probation could be extended for sexual offenders, say, for five or 10 years, even if they don't fit.
Mr. John McKay: So probation after expiration of sentence.
Dr. John Bradford: Exactly. Then you're going to have a long-term monitoring and supervision, which includes treatment as a condition. That's going to make a major difference.
Mr. John McKay: Let me see if I understand you correctly. Instead of the crown attorney seeking a designation as long-term offender under that section, the crown attorney would, in effect, say, I'll either prove you're a long-term offender, and you'll get toe-tagged for ten years after your sentence, or, we'll offer you this probation program, in which case we'll be a little more lenient with you.
Dr. John Bradford: Right. You've got different levels of severity. Normally, if you're not a long-term offender, it's three years of probation, and it's over. And what we know is that most of the recidivism with sexual offenders occurs in the first five years.
Mr. John McKay: Can I pick up on that? You said there was a 13% risk of recidivism.
Dr. John Bradford: With pedophiles.
Mr. John McKay: Yes,. I don't quite know what that means. How does that compare with other categories of criminality? Is this on the high end, on the low end?
Dr. John Bradford: It depends on what you look at. In property offences, for example, it would be much higher. In a number of violent offences, from physical assault onwards, it would also be higher.
Mr. John McKay: So if I'm convicted of property offences, my recidivism rate is actually higher than that with pedophilia?
Dr. John Bradford: Right, but of course, the consequences of your recidivism are not as significant.
Mr. John McKay: Exactly. I understand that.
How do you count recidivism? What is recidivism? Is it a conviction or a charge?
Dr. John Bradford: That's an excellent question, because that's part of the difficulty of the science. Ideally, recidivism should include self-report, but that's very difficult to get. If you include convictions, it's not a true reflection, because some people are acquitted who actually... So in the research we do we include charges, where the person is charged with another sexual offence. That's where that rate of 13% comes from.
Having said that, I think the risk is probably higher, if you look at self-reports and things that come to the attention. But generally speaking, individuals who sexually assault children are more treatable and have a better prognosis than individuals who commit sexual assaults against females. The latter tend to be more criminal in their personality, more antisocial, they have significant problems of antisocial personality disorder. Again, in general, the research would show that their risk is substantially higher. If you compared them, it would be 13% to probably 19% or more.
The important question is, how do you measure the reoffence? As I've said, it's any charge for any sexual offence. So it's not necessarily a hands-on offence, it could be indecent exposure. All of these things balance out. Those figures are probably accurate, because certain areas are inflated and other areas aren't, and they balance each other.
Mr. John McKay: Thank you.
The Chair: Okay.
Mr. Lanctôt, do you have anything else?
À (1010)
[Translation]
Mr. Robert Lanctôt: Yes, I would like to know if the review boards would be ready and willing to provide unconditional discharges. Do they have the power to do so? Would that be a good idea?
[English]
Dr. John Bradford: If you look at the review boards, they have three types of dispositions. One is detention in hospital, another is a conditional discharge, and the third is an absolute discharge, which means the person is now finished with the system. The threshold between an absolute discharge and the other two dispositions is whether the person is a significant threat, and that's defined under Winko, the Supreme Court of Canada: it has to be a real threat of physical violence etc.
What also happens, which people often don't understand, is that “detained in hospital” doesn't mean the person is necessarily locked-up. It may be so, if their condition requires it, but the board can have a person detained in hospital with permission to leave the hospital on a pass at the weekend, to go overnight, or even to live in the community, but still be detained in the hospital. That becomes important, because with those persons who are detained in the hospital, but live in the community--we have here in the city of Ottawa probably about 150 people where that would apply--if a problem arises, all we have to do is notify the local police, they will pick them up immediately, and they will then bring them back to the hospital, a system that works well. Once the person is on a conditional discharge, we don't have those powers any more. We then have to use the Mental Health Act provisions. Mental health acts in the various provinces differ, but to bring somebody back under the Mental Health Act, say, in Quebec or Ontario is much more difficult, and it is much more difficult to hold them in hospital, even though they may be on a conditional discharge.
I think your question is an excellent one. One of the questions is, do we really need the conditional discharge provisions? I'm not sure we do. Perhaps the disposition should be detention in hospital with whatever conditions, including allowing the person to live in the community and an absolute discharge. In practical terms, the conditional discharge seems to be avoided. The boards don't like it, because they're worried about being able to bring back somebody if necessary.
There are interpretations concerning conditional discharges in the provinces that may differ from the Ontario version. For example, in British Columbia--I can't speak with authority of British Columbia, but I know a little bit about it--they would regard the conditional discharge as the indication that the person is able to leave the hospital, whereas we would go with the detention order more frequently and with provisions to allow them to live in their community. That could be supervised, not supervised. It has a requirement that they be seen by a doctor once a week. It has a requirement that they submit to urine testing for alcohol and other drugs, because of the association with violence. It's a system, as I say, that works well, and the recidivism rates are extremely low.
So there is a question about conditional discharge as a disposition, and my recommendation would be to think about that. Whether it's a practical issue or not I'm not sure. It's not being used in the way I think it probably was intended. I wonder, after Winko, whether it's even necessary to actually have that in there. There may be legal issues, obviously, but I'm looking at it from a medical, psychiatric, treatment, monitoring, supervision point of view.
[Translation]
Mr. Robert Lanctôt: Thank you, Mr. Chairman.
However, the problem in Quebec, and probably with the other provinces, is the transfer payments for health services, and the lack of resources for persons suffering from mental illnesses who are already patients in institutions and hospitals. Perhaps this is quite good. Perhaps the rate of recidivism is also quite good. But the problem we have here is that if we resort to hospitalization when we are already short of resources, are we not aggravating the situation, when there is not any room or money?
À (1015)
[English]
Dr. John Bradford: The easy answer to that is, yes, it has that potential. Again, the more people go through the filter to become not criminally responsible on the basis of mental disorder, the more it's going to affect hospitals. I travel around North America quite a lot, and I can tell you, for example, if you look at the state hospital system in California, which is the equivalent of the provincial hospital system here, it varies, but somewhere between 60% and 70% of the beds are occupied by forensic patients, people who have gone through that filter. As a result, there are more people on the streets with mental disorder not able to secure those beds. So there is a practical problem there.
In Ontario and some of the other provinces there are programs in place that divert people away from the system back into the general mental health system to stop the forensic system growing indefinitely. There's a joke about it. If you're a forensic patient, you've got a platinum health card. Because of the legal things, you're guaranteed treatment at any time. If you go to emergency, you're taken seriously. And it's probably correct, because these are mostly people who have been violent and mentally ill.
You're right, one of the concerns is that as you change the system or change the legislation, it's going to have some impact on resources. There's no question about it.
The Chair: Mr. McKay.
Mr. John McKay: I just want to go back to this divide between the hospitalization stream and the criminalization stream and get it to the down and dirty, if you will, from your perspective as a person who is primarily interested in treatment. I suppose, from a criminal law standpoint, we're always ultimately interested in making society as safe as possible. So march me through the pros and the cons here in a simplified way.
Dr. John Bradford: Okay.
As a forensic psychiatrist, I am a psychiatrist, but I specialize in treating and rehabilitating dangerous mentally ill people. That's what my expertise is. The legal system that's in place here generally filters those people towards us. I think that's positive. There are people also with major mental illness who require treatment, but don't get into that system. Some of them become the future forensic patients. Their treatment fails, their rehabilitation fails. As the illness progresses and gets worse and they abuse substances, they become violent at a later stage, and then they become forensic patients. So there are some concerns in relation to whether we should have more individuals going through the filter to be found not criminally responsible on the basis of mental disorder. Where do you draw that line or threshold? The forensic system is a more expensive system than the general mental health system, so again it has implications for the provinces in respect of resources. At the moment, at least, in Ontario and elsewhere it's working in balance.
The criminalization component occurs when people don't go through these sections, because you've got to fit the legal definition. It's really quite sad. There have been various snapshot surveys of detention centres in Ontario, and of people with serious mental illness, psychosis, on a given day, maybe 22% stay in a detention centre in Toronto. If you look at the people provincially who are suffering from major mental illness on a given day, it's 69% of the correctional population of Ontario, which may be in the range--I'm not sure of the exact numbers--of 500 to 750 people.
Mr. John McKay: Go over that with me again. Twenty-two per cent of the people--
Dr. John Bradford: Pre-trial.
Mr. John McKay: ...in jail have a serious mental illness, and 6% of those are convicted.
Dr. John Bradford: Yes. What happens, obviously, is that after detention some of them are acquitted, some of them end up on probation, some of them may not end up doing prison time, because there may be factors that mitigate their sentence. But of the individuals who then go through to serve a provincial sentence, you have somewhere in the 69% range who have major mental illness.
À (1020)
Mr. John McKay: That's quite a gap, 16%.
Dr. John Bradford: Right. The individuals who would leave would end up with probation, with condition of treatment most commonly. They would be required to go to a hospital, to go to drug rehab and to substance abuse programs. Generally, that would work quite well. Again using Ontario as an example, the hospital I work in has a contract with the provincial correctional services, where we work closely with probation officers to supervise those individuals. We provide the psychiatric treatments that are necessary, they provide the supervision. The system works okay.
The individuals who don't go that route, who end up serving a provincial sentence, are a problem. They do have major mental illness, but they're caught up in a correctional facility where, generally speaking, the standards of care are not those they really need. I'm working with the province of Ontario. I'm very privileged to work with people like Bob Runciman and Minister Sampson to work out a solution to their problem, which I think may be a model for the country at a provincial level.
Mr. John McKay: There has been a general feeling in the public that with the closing of psychiatric institutions and de-institutionalization of people, there is a greater percentage of people on the street who have serious psychiatric problems, possibly mental disorders. That has, in effect, created a newer class of criminally inclined persons. They go off their medications, they end up in criminal situations, which they wouldn't do if they were institutionalized, even in an open setting, and on their medication. Somebody was making sure they were taking their medication, so that you wouldn't have this little blip in the criminal population. That, for us, has led to people being put in our family shelter system, which is no place to have people with mental disorders. That in turn, in one instance, led to a very serious issue of criminality, where one of the people murdered a police officer.
This process has been going on for something like five years, possibly more--you would know better than I. Have you made any observation in that respect? Are we, in effect, creating our own subset of criminality by de-institutionalizing a number of these folks?
Dr. John Bradford: Generally, you're accurate. De-institutionalization has occurred over many years. As we developed medications that were able to treat illnesses such as schizophrenia, we've closed thousands and thousands of hospital beds in Canada and the United States. It depends who you speak to. Some people would say this is a major public health success, in the sense that people who were required to live their lives in institutions previously are now, because of enhanced treatments, able to live in the community. That's accurate, and I generally would support that.
Part of the difficulty is with the dichotomy between the right to refuse treatment and the right to treatment. Those are very important issues, as mentally ill persons often have illnesses that do not give them the mental capacity to know they require treatment or to remain in treatment. That's part of what has created the problem. It's not necessarily the de-institutionalization, but the structure to keep them in treatment that has been the problem.
With respect to Charter of Rights issues, right to treatment, right to refuse treatment, as you know, Ontario has community treatment orders, so does Saskatchewan, and some other provinces, I think, are looking at them. With a community treatment order, family members can act in unison with people in authority, the physician, where the person would be required, even when in the community, to engage in treatment. It is--and I'm trying to give you a general point of view--out-patient certification. In other words, a person who's in a community, but seriously mentally ill, without the capacity to consent to treatment, could then be part of a community treatment order. This is new in Ontario, and it's not fully implemented.
À (1025)
Mr. John McKay: Is that better handled under the mental health provisions of the Province of Ontario, or any province for that matter, or is there an argument to be made that certain conditions could be set up in the Criminal Code, in effect forcing people to...
Dr. John Bradford: My opinion is that to criminalize the mentally ill is wrong, but at the same time, there needs to be a system to make sure they get the treatment. So that would be the general principle. Studies on community treatment orders have shown that rehospitalization and relapse are substantially reduced. There are tools available, not fully implemented, which I think will deal with the problem.
I would say you're correct, though. I could give you many examples, but one comes to mind. As you know, in cities that have metros and subways, unfortunately, from time to time people get pushed in front of the subways. Studies of subway-pushers--and there's one particular study I'm referring to--show that 90% of individuals involved in that indiscriminate act suffer from schizophrenia. That's scary. It's scary because they're in the community; most of them are psychotic and untreated. I think that's wrong. As part of the orientation in a mental health act provision, maybe the right to treatment needs to be considered, as opposed to simply the right to refuse treatment, because it's often the right to refuse treatment that allows people to be psychotic on the street. So that balance, with respect to charter issues and all the rest of it, is something I think needs to be looked at.
The Chair: Thank you, Mr. McKay.
Mr. Macklin.
Mr. Paul Macklin (Northumberland, Lib.): Thank you, Mr. Chairman.
Doctor, part of this process is to look at all the areas that are affected in the criminal process by mental disorder. We do have on the books at the moment certain amendments that have not been proclaimed, and I presume you're familiar with those. I would like to get your opinion on whether or not we should be making any amendments of that sort. Let's start with capping, the concept of keeping someone incarcerated for a period of time not based on their mental illness, but based on the sentence they might have received had they been convicted.
Dr. John Bradford: As I said, I was part of the mental disorders project that really led to the Criminal Code provisions, and capping was extensively discussed in that project. On a personal level, I have problems with capping. I have problems in respect of its implications. What it means is that anybody who would face a Criminal Code sentence that would not be the equivalent of a life sentence would be capped at ten years. The problem with that in a practical way--and I'm being very specific on the need to protect the public here, because this is my concern--is that you would have a person found not criminally responsible on the basis of a mental disorder where the original charge he faced was manslaughter, as opposed to murder. So he still killed somebody, but the actual charge he faced was that. At ten years he could be just as dangerous as on day one, but then there's a cap and he walks, and there's no provision for follow-up. The only provision would be the mental health act of the province. That is scary for me.
The capping provision was introduced basically to meet some charter concerns, and I think, as a practical issue, that's where the concern would lie. If you want a very dangerous person walking out of an institution simply because they're capped, relying on the Mental Health Act of Alberta or Ontario to then protect the public, I don't think it's going to work. That would be my concern, because that's the only alternative. If capping were introduced--again, this is just me talking--you'd almost have to have a uniform mental health act for the country that would look at past dangerousness as a criterion for detaining a person in a hospital after capping. Otherwise, you're going to have a problem.There have been some attempts to look at a uniform mental health act, but it's never flown, because different provinces have different orientations. So I see that as a big problem.
Also--and I'm not a lawyer, but obviously, I work with lawyers all the time--if I were a lawyer and I had a client who was facing a first degree murder charge, but I knew there was a not criminally responsible on the basis of mental disorder possibility, what I would do is probably negotiate with the crown. I would try to get the first degree murder charge reduced to manslaughter, because probably, on the mental disorder component, there's going to be diminished criminal responsibility. But what I've then done is take my client away from a system that could detain him indefinitely to where he's going to be capped at ten years. I think you'd see a lot of legal manoeuvring around that to make sure that's a potential outcome.
So I have some very serious concerns about capping, unless the mental health acts of the provinces are beefed up substantially to take past dangerousness into consideration, or--and I guess it's a wish list--unless we have a uniform mental health act, which I don't think we're going to get, as I just don't think it's practical, even though there've been attempts. It would have to be a strong act, and it would have to include provisions for dangerous mentally disordered accused.
To go on, because I'm familiar with all of them, as you know, one of the other sections is dangerous mentally disordered accused, which is the dangerous offender equivalent for these provisions under the mental disorder sections. I am in favour of that. If you had capping and you proclaimed that as well, they could well balance each other, but with capping on it's own, I think we're in trouble. Maybe if both of those came through and both were proclaimed--and that, actually, when we discussed it, was the original balancing act--I would have a degree of comfort that I don't have if capping occurs on its own.
One of the other sections was the hospital order section. For people who are not familiar with that, it deals with an accused who gets to a sentence, where they have a major mental illness, where they need treatment, but they do not fulfil the section 16 requirements of the Criminal Code, so they would not fill the legal requirements for a finding of not criminally responsible on the basis of mental disorder. That's a significant number of people. What that section provides is that the judge, at sentencing, can create a hospital order, whereby that person would serve the first six months of their sentence in a hospital, which would then bring about, hopefully, the remission of the major mental illness. Then they would, according to that provision, go and serve the rest of their sentence.
À (1030)
I think that's very positive. I could see judges using that quite frequently, because the filter for not criminally responsible, section 16, is a fairly narrow filter. I could see it having provincial implications for resources. Do I support it? Absolutely. I could also say that hospital orders, in various forms, in other parts of the world, Europe and Britain, for example, are in place, and they work well. So I think that probably should be thought about seriously, but again there are implications for resources in the provinces.
Mr. Paul Harold Macklin: Another area that never was given any statutory basis was automatism. Have there been advances in that area of study that might be helpful for us in understanding whether automatism should be reinvestigated with regard to having some type of statutory basis for defence?
Dr. John Bradford: I just got back from the Canadian Academy of Psychiatry and the Law meeting, and one of the issues we debated was psychological blow automatism. Psychological blow automatism, if it's successful, brings a complete acquittal, as you probably know, and it's going to be raised in murder. In fact, I was testifying yesterday in a case where that was one of the issues
Essentially, the way it works is that a person suffers a significant psychological blow. It's usually precipitated by the victim, and often the victim is a woman and it's a man who's the perpetrator. For example, a woman may make a remark about the person's sexual prowess or something else, and it should be a significant psychological blow. In theory, that then causes a blow that is similar to a blow in the head, the person's ability to act in a voluntary way is suspended, and they then commit the act of murder, let's say, or attempted murder. If that is successful, meaning that it's not on the basis of a mental disorder, that person is acquitted completely. The problem is that recently, as you know, in the Supreme Court of Canada under Stone, they've narrowed the application of it. I think that's positive, generally. Otherwise, I think what happens is that in a lot of cases where a homicide occurs there's some provocation. There are provocation defences that can reduce murder to manslaughter.
At a personal level, I question whether psychological blow automatism is a real entity in psychiatric terms, because it's a legal issue, not a medical one. But if it is, I think it should be very carefully applied. The science of it, from a medical standpoint, is quite weak, it's hard to support from a medical scientific point of view, and I wonder why we need it at all, because we already have, as I say, lack of specific intent, diminished criminal responsibility, from murder to manslaughter. I wonder why we need this at all. If it leads to a complete acquittal, I have some problems with it.
I'm giving you a conservative forensic psychiatric review. Not everybody would agree with that. But I helped to draft the brief for the Canadian Psychiatric Association, which I think was before a justice committee. We narrowed it to say, if it has to apply, then the person has to have brain damage. We added a whole lot of other medical requirements to limit it even more. So from a forensic psychiatry point of view, we're skeptical about it, concerned about it, and I guess my question is, do we really need it?
À (1035)
The Chair: Thank you very much.
Mr. Grose.
Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chairman.
Doctor, I'm a little confused. Maybe this is a bad place to say that.
Dr. John Bradford: I'm sorry. I hope I didn't confuse you, sir.
Mr. Ivan Grose: I'm going to focus on one item here, because it usually gets lost in the shuffle. You say that pedophilia is treatable
Dr. John Bradford: Yes.
Mr. Ivan Grose: I've heard supposedly expert testimony to the opposite. That doesn't surprise you?
Dr. John Bradford: Well, it depends who the expert is.
Mr. Ivan Grose: Naturally, but obviously, there is another opinion. The figure of 13% on reoffenders, I have misgivings about that. I'd like to know how it was calculated, but we'll put that aside.
Dr. John Bradford: I could tell you exactly. It was a study conducted by the Solicitor General of Canada. There were 28,000 sex offenders involved in it. It's regarded as a landmark study in this area and that's the number. So the science of it's good. The three studies we've done used longer periods of follow-up. Their period of follow-up was only four years. Our period of follow-up was twelve years, with an average of eight years or so, and the number for pedophilia was exactly the same. So the science of it's pretty consistent. That's for untreated people.
Mr. Ivan Grose: I'll accept that, but the truth of the matter is that we, as representatives of the citizens out there, can't live with 13%, or 6.5%, or 1%. So the obvious answer to me, though you may have another, would be that on first conviction a pedophile would be sentenced to life without parole.
Dr. John Bradford: Is that a question?
À (1040)
Mr. Ivan Grose: No, I said that would be the obvious answer to me, unless you have a better one--I don't see how you could. I hope you understand what I mean by saying we can't live with 13%.
Dr. John Bradford: Again, it's a highly emotional issue. I have children, and we're very sensitive to the issues of protecting our children. These are the most precious part of Canadian society, as far as I'm concerned.
But there are a couple of things. First, it's very easy to vilify a pedophile, it's very easy to do, and one of the areas is the precise extent of their sexual assault, if I can put it that way. If you look at the majority of them, it would involve touching and not more intrusive sexual activity. If you're going to lock up somebody who's involved in touching for the rest of their life, maybe you could do it, but if all they're going to do again is touching, as opposed to something more intrusive, you look at the impact on victims. It's when things are more intrusive that the psychological trauma and problems for the victims occur. It's easy to vilify, but I think you also have to balance what they're actually doing, how intrusive, how serious it is, and what the impact is on the victim. In all free societies, even though it's easy to regard certain behaviour as abhorrent, I think you've got to put it in that perspective. A person who drives drunk and kills people in a car bothers me immensely, if not more than a person who exposes himself to children. It's easy to vilify that person, but we seem to have significant problems on the other end of the scale with people who are driving drunk, with a significant weapon in their hands that can cause all kinds of problems.
I'm not a parliamentarian, I'm involved in treatment rehabilitation and managing dangerous people, so I can probably see it more clearly than you. I think pedophilia is a whole different problem. If you want a balanced view of that, I can tell you that Canada, for reasons I'm not sure about, has some of the best experts in the world in treatment, rehabilitation, and assessment of risk in pedophilia. So you have within this country significant expertise in this area, if you ever want to look at the science of it.
Mr. Ivan Grose: You see, at the moment we've got pedophiles who we sentence to life imprisonment on the installment plan. The problem is that they harm some child with each installment. And we know they do not have to take treatment, they can refuse it.
Dr. John Bradford: That's part of the problem. However, if you have somebody in the community with a condition to go for treatment, to live in a certain place, to never use drugs and alcohol--and it's more likely that another act of pedophilia is going to occur if they are abusing substances, including alcohol--and if there's a sanction if they breach those conditions, it's a stick and carrot approach that works. Consistently, the studies that have looked at treatment versus no treatment show the results are better.
Again, that's an approach I think needs to be taken. As you are probably aware, Canada looked at sexually violent predator legislation, which did not fly, for various reasons, as a result of the Christopher Stephenson inquest. I was one of the major witnesses there. What we did do was make dangerous offender applications easier to put in place. The long-term offender provisions were there. There were section 810 orders, which have been upheld legally, about monitoring pedophiles, or whatever it is. Personally, I think you need the whole spectrum of things to deal with pedophiles in terms of their levels of dangerousness, because some are more dangerous than others. I think we have a fairly balanced approach. Again, I appreciate your sentiment, because I hear it all the time. I guess I look at it from an objective, scientific point of view, with regard to risk and dangerousness. I think it is different. Not all pedophiles are the same, for sure.
Mr. Ivan Grose: You mentioned levels of danger--that was your last sentence. Would you be willing to become involved in a dialogue with us to help us separate the dangerous from the not so dangerous? With the dangerous, possibly we could look at life without parole, and with the not so dangerous, we'll try to treat them.
À (1045)
Dr. John Bradford: The answer to that is, yes. I have testified many times in dangerous offender hearings, and the majority of the subjects of those hearings are pedophiles. Every day in this country there's a hearing going on as to whether the person is a dangerous offender, a long-term offender, whatever. There are some problems with those hearings, but generally, the long-term offender provision is a very positive bit of legislation. My feeling is that we need longer terms of probation. For individuals who are maybe not that dangerous, who can reside in the community, provided they are compliant with treatment, three years is not enough. As I've said already, the significant risk is in the first five years. We have to stop at three years with conditions, and it makes no sense. So one of the things we could be looking at with provincial probation would be to extend it to ten years, with a sanction if you're non-compliant, and it should be broad enough that there are all kinds of conditions that would apply. I think that would be very helpful.
Mr. Ivan Grose: Thank you.
The Chair: Thank you very much.
I want to ask a question, if there is no objection. We also have more people on the list, and we'll come back.
Dr. Bradford, I appreciate the fact that as a forensic psychiatrist, you're dealing with issues beyond the scope of the mental disorder provisions of the Criminal Code. We're spending a lot of time discussing those right now. I want to make sure the point is made, as you mentioned at the beginning, that pedophilia at this moment is not necessarily covered under the mental disorder provisions of the Criminal Code, generally speaking.
Dr. John Bradford: It's not. In order to become not criminally responsible on the basis of a mental disorder, you need a mental disorder, and pedophilia is that, but you've got to be able to appreciate the nature and the consequences of your behaviour, as they generally do, and you've got to be able to know whether what you're doing is right or wrong, and generally they do. We don't have a volitional test in Canada, so it doesn't apply. Pedophilia doesn't get through that filter.
The Chair: It's a legitimate inquiry to consider what isn't included that might be. I want to make the very clear distinction between pedophilia and mental disorder under the Criminal Code. At this point we are almost discussing this, as if there were some.... I accept the fact that our witness deals with a broader range of subjects than what has brought him here today. I just want to make sure there's no confusion about what we're studying.
I would be curious, though, having made that distinction, as to how the issues intersect. I'll go back to Mr. McKay's first intervention. I think it will inform us as to where the mental disorder provisions kick in and where they don't. Perhaps you could talk a little about the intersection as a way of clearing up that distinction for us here. I think it will be helpful to us to know where the mental disorder provisions do kick in.
Dr. John Bradford: The mental disorder provisions kick in with major mental illness. Even though the definition of mental disorder is broader in the Criminal Code, in order to meet the other components of section 16, being unable to appreciate the nature and quality of your action or to know it was wrong--and that's a moral wrong, as opposed to a legal wrong--for a person to reach those thresholds, it's schizophrenia, bipolar disorder, the psychotic conditions. So it's the high end of the serious mental disorders. That's why pedophilia doesn't qualify, that's why anxiety disorder and personality order don't qualify. Do I think that's appropriate? Absolutely. I'm just going to be technical for a moment. The psychiatric syndromes are divided into personality disorders and what we call axis one conditions. Personality disorders are problems from the point of view of criminality. Antisocial, personality disorder is the commonest diagnosis in any of our penitentiaries. Is it a treatable condition? Not really. There's very little treatment. So they're much better streamed into the correctional facilities and whatever monitoring, limitation, and other things are there.
The advantage about the mental disorder sections is that they're concerned with major mental illness for which there is also effective treatment, where violence is related to the presence of psychosis. If that's taken away, the violence goes away. So from that point of view, the threshold is very clear.
À (1050)
The Chair: Thank you.
Now, in keeping with my list, I have Mr. McKay.
Mr. John McKay: As a a point of clarification, while I appreciate that mental disorder conditions are the high end of psychiatric disorders, there's nothing to exclude pedophilia as being a mental disorder as such.
Dr. John Bradford: It is a mental disorder. If you look at the diagnostic classification, it's an axis one disorder. There's no doubt about that, it just doesn't fit the legal provisions to be found not criminally responsible, and I think that's fine.
Mr. John McKay: I appreciate that. Thank you.
The Chair: Mr. Macklin.
Mr. Paul Harold Macklin: I just wanted to get one clarification on the area we were pursuing, pedophilia. You made a comment that is of interest. If the person is only a person who touches, maybe we don't have the same degree of fear. Are you suggesting that with pedophilia, individuals actually meet a threshold and do not go progressively beyond that threshold?
Dr. John Bradford: It's an excellent question. There are some people where that applies. They may only be a person who exposes themselves to children, and they may never touch children. There is evidence of people who engage in child pornography, but never touch children. It's like all human behaviour, it differs in degree. It's the same kind of behaviour, but differs in degree. At the high end of the scale there are individuals who not only are sexually attracted to children, but also have eroticized behaviour of violence to children. They would be individuals who, for example, end up as serial killers of children. We have ways of identifying them and defining them. But there is this whole spectrum, and the key element is to understand which category somebody is in.
Your specific question is, can you get an escalation from the mild level to the more serious ones? My answer to that is, yes. Do we have good ways of identifying? They're not perfect ways, but there are ways of quantifying that risk. That is a concern, the potential escalation. It's doesn't occur naturally or 100% of the time, but it does occur.
Mr. Paul Harold Macklin: Thank you.
The Chair: As I don't see anyone else, I do have a few more specific questions.
Because you are introducing us, or re-introducing us, to this discussion and we're going to be very busy with it over the next five to six weeks, if you were us, if you had the power to write our report, what you would you like to see changed, very specifically? What would you want to see protected in the revisions you were part of, applying not only your expertise on the content, but also your expertise on the public commentary, if you follow the difference, in the context of the fact that we'll be under some pressure, if pressure is the right word, from the broader community to do things? You would be aware of what is coming, and I suspect there are some things you would find quite important to warn us against, perhaps succumbing to that pressure.
Finally, are there other elements to change or not to change? What other possibilities of inclusion are there that are not there now, things outside the scope of the disorder provisions?
Dr. John Bradford: I think I can be very clear on that, and there are things that could be done to protect the public. I think there are some parts of it that are not as good as they should be.
I believe the section should include a provision where the crown attorney is a party to the disposition hearing. At the moment it is not required. I think that is an enormous deficiency, specifically because the role of the crown attorneys in the various provinces to protect the public is critical, and holding these hearings without a crown attorney present I think is a serious problem. In Ontario it's done anyway, and it works exceptionally well, but it's not part of the legislation. So that should be included.
I believe the hospital order section should be looked at, even though it may be a resource issue for the provinces, because, again in respect of protecting the public, these are people who have serious mental illness, but didn't pass through section 16, because they simply didn't meet the legal requirement. Their treatment needs are still significant. They're going to be released at some stage in the future, and if they continue to be seriously mentally ill, abusing substances, there's a risk to the public. Overseas, in Britain and elsewhere, that works well, although it's not limited to six months, it's a little longer, it may be 12 months. I personally don't have a problem with six months, but you may get some debate about the time.
If capping is going to be introduced, I think you have to be very careful and very seriously concerned on the public safety issue. I understand why capping was put in . It really related to charter issues. With somebody who was not facing a Criminal Code section where life imprisonment would be the alternative to the not criminally responsible by reason of mental disorder finding, the argument was that it would be unconstitutional, against the charter, that they should be detained indefinitely. I'm not a lawyer. I can't argue that issue. However, if that issue is going to be in there, I have serious concerns about how it might be applied. If that's going to be added--and I think you are going to have pressure to bring that into law--you have to look at the dangerous mentally disordered accused to offset that. Otherwise, you're going to run into this problem where a person's going to be capped at seven years, eight years, or whatever, and seven years is going to come up, or six years, one day less than six years, and you have a person who's as dangerous at that point as they were on day one walking out of the institution's door, and there's very little we're going to be able to do about it. I think that is a frightening prospect.
À (1055)
The Chair: Let me be very clear here. Are you suggesting that if you had the balance of the two provisions you just mentioned, that would be an improvement, or are you saying we shouldn't entertain capping at all, and therefore the balance of the two would not be better than the status quo?
Dr. John Bradford: I don't like the whole concept of capping. I'd prefer that it wasn't there at all. Having been part of this process from when it occurred, I know there's significant support, for the reasons I mentioned, for capping to apply. There are concerns, particularly among the legal community, that it's not in place. My response is that with the likelihood that it may be put into place, both of those have to go forward, not one. If you don't have it, we have a problem, and I don't believe, as optimistic as I am, that the mental health acts of the provinces are going to protect the public adequately if capping is in place. I'm very clear on that one.
The Chair: Have you, to your satisfaction, spoken to those things you would change, things you would warn us against? Have you any other comments?
If not, I see a couple of people looking for another question.
Mr. McKay.
Mr. John McKay: Going back to your final point. I understand you're dead set against capping--if not dead set, your fallback position is that if you're going to go to capping, you need to beef up dangerous offender.
Dr. John Bradford: No. It's actually the mentally disordered equivalent of dangerous offender. The mental disorder section we're talking about has the equivalent of a dangerous offender in it, but it's called dangerous mentally disordered accused. There are certain individuals who, regardless of what their original offence is, could be found to be dangerous mentally disordered accused and could be detained indefinitely on the basis of their level of dangerousness. So it's the equivalent of the dangerous offender Criminal Code sections outside this section.
Mr. John McKay: I'm not so familiar with the dangerous offenders section. Is that in the dangerous offenders section?
Dr. John Bradford: No, it's under this section.
Mr. John McKay: Under this section.
Dr. John Bradford: My point, though, is that if you don't have that, you're going to get people who are extremely dangerous coming through and being capped at five, six, seven years, where the doors of the institution are going to open and they're going to walk out. I believe the public is going to be at risk. If that's the case, the only way you can offset it, I believe, is to have the dangerous mentally disordered accused section move forward at the same time. I think if you move forward with capping alone, we've got a problem, and I would advise against that on its own.
Á (1100)
Mr. John McKay: What would trigger that? Would the arrival at the end of sentence trigger that, or would it be done by the crown at the time of sentencing in the initial instance?
Dr. John Bradford: You'd have to look at the section, but to make it simple, if the initial crime was one where the sentence could involve life imprisonment, capping doesn't apply. The problem is, you can have extreme acts of violence committed by very dangerous people that are short of that. Those are the people I'm worried about. They have a mental illness, they're extremely violent, they've avoided the homicide provision. They may have killed somebody, but they've avoided the murder sections of the Criminal Code. They are going to be found not criminally responsible on the basis of metal disorder, and they could be capped at seven years. Regardless of whether they refuse treatment, regardless of any progress in their rehabilitation, the clock is going to tick, and at seven years they're going to walk out the door. That's a scary prospect, but that's what capping potentially means, and the only way you can balance that would be the mental health acts, and the mental health acts are generally weak. We can detain somebody for 72 hours, and then a week, and whatever.
So that to me is a problem. Again, I'm not a lawyer, but I work in the system at a very practical day-to-day level, and the only way I can see offsetting that would be to have the dangerous mentally disordered accused section. So you could have somebody who is facing manslaughter found not criminally responsible on the basis of mental disorder, and then they would have a separate hearing, like the dangerous offender hearing. They could be found a dangerous mentally disordered accused, and then they would be detained indefinitely, until they're no longer dangerous. So I think that's the way you have to deal with it.
Mr. John McKay: Presently, is it--
The Chair: Mr. McKay, we are now at 11. We may go beyond. I don't know whether arrangements have been made with Dr. Bradford. Mr. Lanctôt has a question, and I'll find out while he's putting his question.
[Translation]
Mr. Robert Lanctôt: Thank you, Mr. Chairman
You have raised a problem that has frustrated me somewhat. You tell us that you are not a lawyer, a constitutional expert, or a Member of Parliament. You also refer to a standardized health law. So this is a problem of jurisdiction. You should know that in Quebec, health is under Quebec's jurisdiction. We cannot start looking into this type of problem, especially when it leads to other problems.
You believe, as I do, that fundamentally, it is better to maintain the status quo than to start making minor changes. This would be worse than the status quo and, also, we would have the constitutional problem regarding jurisdiction. Why should we look for a solution that would be worse than what we have now? This is what I conclude from your comments to this committee. Am I correct?
[English]
Dr. John Bradford: The status quo works well. It's not perfect, as I've said. I agree with you on the constitutional issue and the mental health acts. That's why I said I don't think there would be ever be a uniform mental health act; that's clearly provincial jurisdiction. Even the way the different boards sit and work is geared to the way the different provinces work, because they're appointed by the province, and I think that all has to be respected.
I think the mental disorder sections broadly are working well. I don't think you have to subtract things. I think you've got to look at some of these sections that weren't promulgated originally. Is there going to be a pressure to bring them in as part of the section? If so, that's fine, but I think you've got a balancing act. The crown attorney issue has clearly never been there, clearly needs to be there, but other than that, I think it works fairly well.
The Chair: I understand the motivation of those who would want to make sure that nobody was doing more time because of a mental disorder than they would otherwise do. We'll have other witnesses, I'm sure, who will speak to this in practical terms, who can give evidence as to whether, in fact, this is a theoretical or a practical concern. Would you be aware of instances where it is happening or has happened? I understand that where the review was done in the first place was probably in response.... I remember, growing up in New Brunswick, Lieutenant-Governors' warrants, and I remember very high-profile cases. Is this a real problem that capping would be designed to respond to, or is it a theoretical problem?
Á (1105)
Dr. John Bradford: I think it's a real problem. I'm going to use an example, which I think is a parallel example.
As you know, there are some mentally ill individuals who come to the end of a federal sentence, they've been held to warrant expiry, so that they have had their last day, and they walk out of the door. Some of these people have very serious problems. When that happens, all you have to fall back on is the mental health act of the province. I can give you a frightening example of what happened to me. I had a phone call--and I'm not going to say which institution--from a certain federal institution that person X was being released the next day. The person who phoned me was a minister, and he felt I should know, because this person was coming to the city of Ottawa and needed psychiatric help. I said that was fine; I'm not sure why a doctor is not phoning me, but let's listen. This person was schizophrenic, actively psychotic, and poorly controlled in his treatment, he was HIV-positive, and he was a pedophile. He was walking out of the institution, and he was going to walk into the hospital I work at. Unless I could bring the Mental Health Act into play, there was nothing I could do. Potentially, capping would have the same outcome. It's occurring at the present time with people who have missed the Criminal Code sections for mental disorder and have ended up in federal institutions. I know there are hundreds of people who are held to warrant expiry, for different reasons, but it is a problem.
The Chair: I don't know if I'm breaking new ground here or not--I'm not averse to that, in any case--but I want to ask the research staff if they have any questions they would like to put to help us in our work.
Mr. Philip Rosen: Thank you, Chair.
One of the issues the committee may have to grapple with, Dr. Bradford, is the definition and treatment, if any, of sociopaths. Perhaps you could tell us in general terms what sociopathy is, whether it's treatable or not, and whether the mental disorder provisions of the Criminal Code are adequate to deal with the issue of sociopaths, some of whom commit fairly serious criminal offences?
Dr. John Bradford: We don't use the word sociopath any more, we use the term antisocial personality disorder, the diagnostic definition. For all practical purposes, it's the same issue. So I'll use antisocial personality disorder, as opposed to sociopathy.
The issue with antisocial personality disorder--and again I'm generalizing for the purpose of being brief--is that there really is no effective treatment. For example, to put somebody in a hospital bed for whom there's no effective treatment would not be a very good use of resources. That said, as medical science has progressed, we do know more about antisocial personality disorder now than we did, say, 15 or 20 years ago, and we do know there are some issues with regard to brain chemistry, particularly in respect of serotonin in the brain, that may respond to pharmacological treatments. However, I'll simplify it by saying those treatments and interventions would simply control some of the symptoms, but wouldn't actually stop the condition. So the extent of treatment is very limited.
Should they be part of the mental disorder section of the Criminal Code? No, I don't think they should, for the reasons I've just mentioned. In general, they're excluded because of the way the sections work right now, and they end up in correctional facilities. I believe that's appropriate.
From a research point of view, if you look elsewhere, Britain 20 years or so ago had an extensive network of prison hospitals, where they had extensive treatment programs for antisocial personality disorder, and that's in the literature. You would see the results, despite very intensive treatment, very expensive treatment. For example, at a prison just outside London where I used to go during my training there was some evidence of a minor reduction in violent recidivism, but recidivism overall remained the same. I think, from a science point of view, it was weak.
Unfortunately, they really are not treatable and should be dealt with in the correctional system, as opposed to the mental health system.
Á (1110)
The Chair: Thank you very much.
Unfortunately, I can't entertain any more questions, as we've lost our quorum, but I want to thank you very much, Dr. Bradford, for being here and assisting us as we begin what is going to be a very complicated, but I think very interesting inquiry.
Thank you.
Dr. John Bradford: Thank you.
I'll just mention to Mr. Pagé that I was working on a written document as well. Unfortunately, I had a problem, I dislocated my pelvis, and I'll get it to the research people in the next while.
The Chair: Thank you.
The meeting is adjourned.