Skip to main content Start of content

JUST Committee Meeting

Notices of Meeting include information about the subject matter to be examined by the committee and date, time and place of the meeting, as well as a list of any witnesses scheduled to appear. The Evidence is the edited and revised transcript of what is said before a committee. The Minutes of Proceedings are the official record of the business conducted by the committee at a sitting.

For an advanced search, use Publication Search tool.

If you have any questions or comments regarding the accessibility of this publication, please contact us at accessible@parl.gc.ca.

Previous day publication Next day publication

37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights


EVIDENCE

CONTENTS

Tuesday, March 19, 2002




Á 1105
V         The Chair (Mr. Andy Scott (Fredericton, Lib.))
V         Mr. Jim Mahaffy (CACL Board Representative of NAACJ, Canadian Association for Community Living)
V         Mr. Orville Endicott (Legal Consultant, Disability Rights Issues, Canadian Association for Community Living)

Á 1110

Á 1115
V         The Chair
V         Mr. Vic Toews (Provencher, Canadian Alliance)

Á 1120
V         The Chair
V         Mr. Orville Endicott

Á 1125
V         Mr. Vic Toews
V         Mr. Orville Endicott
V         The Chair
V         Mr. Vic Toews
V         Mr. Orville Endicott
V         Mr. Jim Mahaffy
V         The Chair
V         Mr. Lanctôt

Á 1130
V         Mr. Orville Endicott

Á 1135
V         The Chair
V         Mr. Jim Mahaffy
V         Mr. Lanctôt
V         The Chair
V         Mr. Bill Blaikie (Winnipeg--Transcona, NDP)
V         Mr. Orville Endicott

Á 1140
V         Mr. Bill Blaikie
V         Mr. Jim Mahaffy
V         Mr. Bill Blaikie

Á 1145
V         Mr. Orville Endicott
V         The Chair
V         Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC/DR)

Á 1150
V         Mr. Orville Endicott
V         Mr. Peter MacKay

Á 1155
V         Mr. Orville Endicott
V         Mr. MacKay
V         The Chair
V         Mr. Orville Endicott
V         The Chair
V         Mr. Paul Harold Macklin (Northumberland, Lib.)
V         Mr. Jim Mahaffy

 1200
V         Mr. Orville Endicott
V         Mr. Paul Macklin
V         Mr. Orville Endicott
V         The Chair
V         Mr. Chuck Cadman (Surrey North, Canadian Alliance)
V         Mr. Jim Mahaffy

 1205
V         Mr. Chuck Cadman
V         Mr. Orville Endicott
V         The Chair
V         Mr. John McKay (Scarborough East, Lib.)

 1210
V         Mr. Orville Endicott
V         Mr. John McKay
V         Mr. Orville Endicott
V         Mr. Jim Mahaffy
V         The Vice-Chair (Mr. Chuck Cadman)
V         Mr. Lanctôt

 1215
V         Mr. Orville Endicott
V         Mr. Jim Mahaffy
V         The Chair
V         Mr. John McKay
V         Mr. Orville Endicott
V         Mr. Jim Mahaffy

 1220
V         The Chair
V         Mr. Orville Endicott
V         The Chair
V         Mr. Peter MacKay

 1225
V         Mr. Orville Endicott
V         The Chair
V         Mr. Orville Endicott

 1230
V         The Chair
V         Mr. Brian Fitzpatrick (Prince Albert, Canadian Alliance)
V         The Chair
V         Mr. Peter MacKay
V         Mr. Jim Mahaffy
V         Mr. Peter MacKay

 1235
V         Mr. Orville Endicott
V         The Chair
V         Mr. Peter MacKay
V         The Chair










CANADA

Standing Committee on Justice and Human Rights


NUMBER 070 
l
1st SESSION 
l
37th PARLIAMENT 

EVIDENCE

Tuesday, March 19, 2002

[Recorded by Electronic Apparatus]

Á  +(1105)  

[English]

+

    The Chair (Mr. Andy Scott (Fredericton, Lib.)): Good morning. Bienvenue, tout le monde.

    I call to order the 70th meeting of the Standing Committee on Justice and Human Rights.

    Today we're continuing our deliberations around the review of the mental disorder provisions of the Criminal Code, pursuant to Standing Order 36(1).

    Today we have as witnesses, from the Canadian Association for Community Living, Orville Endicott and Jim Mahaffy.

    Jim, as I mentioned to Mr. Endicott before you got here, usually when one organization is represented we would limit you to about 10 minutes, but given the fact that you're our only witness this morning, perhaps we could go to 15 minutes. I'll let you know when we get close to that time.

    Please proceed.

+-

    Mr. Jim Mahaffy (CACL Board Representative of NAACJ, Canadian Association for Community Living): Thanks for the introduction, Andy.

    We represent the Canadian Association for Community Living. Just to let you know some of our history, we are a national association with about 40,000 members. We advocate for people with intellectual disabilities in all parts of Canada.

    We're here this morning to talk about the experience of people with an intellectual disability when they enter the criminal justice system. It is our experience that people who have an intellectual disability come into contact with the criminal justice system in numbers greater than the general population, both as victims and accused perpetrators of crime.

    The high proportion of people with intellectual disabilities in the criminal justice system can be explained to a large extent by the vulnerability and marginalization that people experience. For example, each year more than 3,000 children with disabilities end up in the child welfare system. Children with disabilities such as FAS and FAE are often removed from their regular classes and schools. At home their families receive little outside support.

    Most adults who have a disability do not have a job and live in poverty. People who have an intellectual disability are isolated and often dependent on caregivers or support workers. If it's a good support worker, that's fine. If it's not, then it's not. Many have difficulty with communication.

    Many receive inappropriate treatment through the community and legal system they encounter. Throughout their entire experience of the justice system, people with intellectual disabilities are faced with systemic barriers to access their right to fair and equitable treatment.

    In the early stages of people's lives, there are very few resources going into prevention, including early intervention, and reading the signs of impending conflict with an entry into the justice system. When people are in contact with police and courts, the system lacks the needed numbers of trained professionals dedicated to the accused with disabilities. Individuals with intellectual disabilities have unique needs that require specialized and continuous approach and response across the whole criminal justice system: police, alternative measures, court, prison, parole, and probation.

    When it comes time to consider the outcomes for people with disabilities in the court system, there's often the false perception, reinforced by a lack of community options, that people will get treatment in an institution, and people are being sentenced with the idea that they will get the needed services there.

    When people with disabilities find themselves in correctional institutions, they are put into an environment of extreme isolation and segregation. This can include chemical and physical restraints, which they may have little ability to comprehend. As well, individuals with intellectual disabilities are staying in jails and psychiatric institutions longer than others in the criminal justice system. As with many marginalized people, people with disabilities end up being identified as risks when adequate resources are not available to support them in the community, resulting in extended incarceration.

    Upon release, people with intellectual disabilities find themselves without the personal or social skills necessary to make the difficult transition from a rigid institutional life back into a complex and varying community life. Community supports and programs, on the other hand, need much further development than they have today to provide adequate support and rehabilitation for people when they are released or diverted from the criminal justice system.

    Finally, more people with disabilities are finding out that the criminal justice system is the only system left to them when other supports aren't there. It is the only system that can't say no, especially in times of restraint. The justice system today is being faced with challenges it has not seen before, and it needs to find adequate responses for people who have no other place to go.

+-

    Mr. Orville Endicott (Legal Consultant, Disability Rights Issues, Canadian Association for Community Living): Thank you, Jim.

    I'm Orville Endicott, and I'm happy to appear before you this morning.

    When we're considering these amendments that were brought in about ten years ago, I think we should put them in the context of a society that not very long before that had stated its values and beliefs in the enactment of the Canadian Charter of Rights and Freedoms, in particular the provision in section 15 that people with mental and physical disabilities are entitled to equality in our society.

    Equality for people with disabilities, as is fairly obvious and has been since certainly before the charter, does not mean that they should be treated the same way as everybody else. That's what these provisions are about. They're designed to accommodate the special circumstances and special needs of certain people who are identified as having a mental disability. This morning we are addressing our minds particularly to issues involving people with intellectual disability.

    I would like to raise an issue that's not in the issues paper that was circulated, but I would like you to think about it. I'm not even sure that what I'm going to suggest is within your mandate for your recommendations to Parliament. I find that the terminology and the practice with regard to people with intellectual disabilities is excessively medical. I have problems with the language even of “mental disorder”, because it bespeaks a mind that is given to unpredictable and uncontrolled action.

    I'm not sure whether very many people realize this, but the term “mental disorder” is defined in section 2 of the Criminal Code as “a disease of the mind”. I'm not sure how helpful that is in understanding what's meant by a mental disorder. I think that language such as “a disease of the mind” is bound to cause people to think in terms of sickness that has to be cured in some way by medical interventions, or else if it can't be cured then the person is hopeless.

    Intellectual disability is not a medical condition. My preference would be that the Criminal Code use the language of the charter itself and speak in terms of “mental disability”. That I think is particularly important in the context of intellectual disability. I don't see why it would create problems in the areas of emotional and behavioural disability as well. But I would dearly love to see the notion of “disease of the mind” expunged from the Criminal Code.

    The medicalization of these provisions is expressed very directly in the composition of the provincial review boards. They have to have a psychiatrist. That's okay. If they have two psychiatrists, then that satisfies the provision. If they only have one psychiatrist, they have to have somebody else who is professionally qualified in some aspect of mental health. Again, it's a review board that is focused in its membership on the medical community.

    The brief from the Canadian Association for Community Living says that the section regarding the composition of the review board should be expanded to ensure that in every province there is someone, a member of the review board, who has professional qualifications in terms of community services and supports for people with intellectual disabilities. We strongly recommend that you consider proposing an amendment of that nature.

Á  +-(1110)  

    Finally, we come to capping, putting an upper limit on the time a person must spend locked away after being found not guilty by reason of mental disorder--I will continue to use the official language of the code--or as unfit to stand trial.

    I spoke at the beginning about equality in the area of disability sometimes requiring that people be treated differently because of their special needs. Now I'm going to backtrack a bit on that, because I think that if we have a system where someone who is found unfit to stand trial or not guilty because of mental disorder, it is grossly unequal that such people are required to spend an indefinite amount of time behind bars, a time that can be many times longer than the individual would spend or other individuals do spend when convicted of the same offence. That in itself is inequality.

    The issues paper you circulated does say that this capping provision is controversial. I would like to engage in some discussion about that controversy, because I'm not quite sure what's behind it. I have a feeling that it may have something to do with cross-jurisdictional issues where criminal law is within the jurisdiction of the Parliament of Canada and mental health legislation is provincial and territorial. I fail to see, particularly where the review boards are creatures of the province, why there cannot be a way in which a smooth transition can be made where necessary, where a person who has served the time the Criminal Code would ordinarily require him or her to serve could then pass from that jurisdiction to the ordinary mental health legislation.

    I would like to just apply the same principle to the other controversial issue, and that is the provisions for finding people to be “dangerously mentally disordered accused”. We're talking here about people who have never been convicted of a crime, yet to be labelled “dangerously mentally disordered accused” is, I think, wrong. It attempts to deal with a problem that could just as easily and more appropriately be dealt with under provincial mental health legislation.

    Those are my remarks. Just before we begin to have some dialogue, Mr. Chairman, I wanted to say that I have provided for the members of the committee in both English and French--and I think there are enough copies for the people who are here today--an executive summary of a paper I prepared in the early 1990s for the Correctional Service of Canada. It deals with the issues involving people who have been convicted and sentenced, persons who have an intellectual disability. I recommend it to you even though your focus is on people who cannot be convicted. Nevertheless, I think there is some material there that might be worthy of your consideration as well as of benefit to the audience for which it was originally prepared. The website address is on the cover of that material.

    Thank you, Mr. Chairman.

Á  +-(1115)  

+-

    The Chair: Thank you very much, Mr. Endicott and Mr. Mahaffy.

    I'll go first to Mr. Toews for seven minutes, and welcome back.

+-

    Mr. Vic Toews (Provencher, Canadian Alliance): Thank you very much. I have certainly missed this committee and your wise direction of the committee, Mr. Chair, and I'm certainly pleased to be here and hear the evidence that was presented today.

    I think what we have seen is a trend in the law related to mental health, both civil and criminal, an emphasis that there is a trend from custodial sentences to non-custodial. I think we've seen that in our mental health acts provincially and in the provisions here in the Criminal Code.

    I think it has been seen as a good thing that we put people in less-structured environments, that somehow these are better for them than the more structured environments. Again, we've seen that with provincial institutions outside of the context of these criminally related proceedings.

    What we've also seen, however, is a real failure of our mental health system to deal with individuals once they're out on the street. It's a combination of many things. Not only is it a combination of sometimes a lack of resources or appropriate resources, or identifying resources, but also the conflict with the charter of rights that demands individual freedoms over the control of the individual by the state.

    The issue of capping is a very significant one, and I don't think there's a simple answer to it. Those who favour capping say it's unfair because the person is serving more time, so to speak, than someone who would have been found guilty of a crime. Yet if as a society we have a responsibility to those who are mentally ill, mentally disordered, or whatever term we want to use...I want to be careful; I don't want to use those in a pejorative sense. The controversy about capping is that it somehow suggests that the time that these individuals serve in a custodial context is the time they serve, and that it's somehow punishment. I don't think we can look at this as punishment. This is in fact the power of the state directed for a good thing, in order to assist these people.

    I'm having trouble understanding why, if there is no cap, that is a bad thing. If resources are being brought to bear to assist these individuals, whether it's in a custodial or non-custodial setting, to me, that issue is irrelevant. The thing we need to focus on is the assistance that needs to be given to these individuals. I don't want to come to a point where a sentence or a disposition automatically terminates and the person is still in need of help. We can't just turn these people out into the streets. We see it every day in Toronto, Winnipeg, and Vancouver. So I think there's a real danger to capping, because it somehow limits the state's ability to intervene in the lives of these individuals.

    The provincial statutes don't have the capacity to intervene once that criminal-related proceeding is over. I wonder if you would like to comment further on that.

Á  +-(1120)  

+-

    The Chair: Mr. Endicott.

+-

    Mr. Orville Endicott: Well, we do live in a federal system, where powers have been carefully divided between the central legislature and the provincial ones. And as I said in my remarks, I can't see any good reason--you've provided essentially some bad reasons--that provincial mental health services may be inadequate. They may be inadequately funded, and I'm sure that the provinces are probably saying--not in my hearing, but maybe in yours--that if you're going to cap, then give us the money that you would otherwise be spending on the custody of this person, so that we can provide better mental health services under our own generic mental health laws.

    You spoke of custody as though it were not punishment. I think being deprived of freedom is punishment, particularly where it is tied to proof at least of the fact that a crime was committed, whether the person is guilty of it or not. One of the good things about the mental disorder provisions is that the crown now has to prove that a crime was committed before the court considers whether the person is fit to stand trial.

    When I first started my work for the Association for Community Living nearly a quarter of a century ago, the first case that came to my attention was of a man in New Brunswick who had been caught attempting to snatch a woman's purse. When he was charged, he pleaded guilty. If his guilty plea had been accepted, he probably would have spent a matter of a few months in jail. But the crown or someone said they didn't think he could plead guilty because of his mental condition. So his guilty plea was rejected and he was sent to Campbellton, and when I first heard about him, he had been there 17 years. You may say that wasn't punitive. Well, it was not only punitive, it was downright damaging. He came out of that situation hardly able to participate in the community again.

Á  +-(1125)  

+-

    Mr. Vic Toews: What I was trying to talk about is would you agree that now, with these additional reviews and annual review periods, that type of thing shouldn't happen? It may happen, and I don't think it's the right thing, and maybe more safeguards have to be built in, but is the answer then to throw a person out into the street who might need help?

+-

    Mr. Orville Endicott: No, obviously not. If you interpret the recommendations that I've been making in that way, then I haven't expressed them very well. I think obviously there are people who, at the end of whatever period the criminal law says is appropriate to be held in custody after committing a crime...if at the end of that period the individual is not capable of being readmitted to the community, obviously something has to be in place to make sure that there is no risk, no falling in a crack from one jurisdiction to the other.

+-

    The Chair: Thank you, Mr. Toews.

+-

    Mr. Vic Toews: Would that include a custodial setting? That's all I want to leave you with.

+-

    Mr. Orville Endicott: I'm going to let Mr. Mahaffy talk about custodial settings. He's already said something about that.

    The Chair: Mr. Mahaffy.

+-

    Mr. Jim Mahaffy: I think that the difficulty with the system we're talking about here is that the custodial settings do not offer a reintegration or any possibility of reintegration. Unless we aim for that objective as a part of our process, as a part of what we're doing, the person remains in limbo, remains outside, marginalized completely from society. I just don't think that's an acceptable thing that we can tolerate.

+-

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

    Mr. Lanctôt, seven minutes.

[Translation]

+-

    Mr. Robert Lanctôt (Châteauguay, BQ): I see that Mr. Toews had five additional minutes. So I will ask for one minute more.

    I would like to thank the witnesses once again, and my questions will be along the same lines as those asked by Mr. Toews. Since the beginning of our discussions about mental disorders, our concern has been about this ceiling which, we have been told, could even be dangerous to determine. That is the testimony we heard from two psychiatrists, among others, who said that we should be very cautious in setting such a ceiling. This is a very complex issue. We realized this as a result of the example you gave: in the case of theft, the problem that arises involves reintegration into the community and the shortage of resources.

    The shortage of resources is readily apparent, and we talked about this yesterday during an opposition day. The tax imbalance is very clear, and there is a clear lack of resources in this federal system. Since we began removing people from institutions, individuals with mental disorders and disabilities are walking around on the streets. This is a vicious circle. We in fact asked what could be done for individuals arrested for a minor or more serious offence.

    We have to be cautious when it comes to setting a maximum. Whether we use the justice system or the provincial health care system, if individuals are not already receiving treatment or are not yet cured, they will be sent back to the streets, and will continue to commit other crimes. This is a very complex matter, because there is always the whole issue of human rights. If we compare them to others who were imprisoned and are now out... Moreover, their problem is not a mental disorder. If they are criminals and continue to offend, they must definitely have a societal problem, but, in any case, we have a justice system that imprisons these people for certain lengths of time.

    What is the advantage of putting people back on the street if we know that they do not have the resources they need? First of all, they are a danger to the public, and second, nothing good comes of this for the people in question. They might even be hospitalized under an order, because they have been found unfit to stand trial according to the current provisions of the Criminal Code. You're saying that we then take these people out of the justice system and put them into the health care system, which means that they wind up in the same hospital, where there is no room.

    So we really find ourselves caught in a vicious circle because of a lack of resources. I do not know how we can get out of this. As I said last time, we will not solve the problem by amending some provisions of the Criminal Code. Nor will we solve the problem by establishing a maximum. The problem is this: do people with mental disorders become a political issue for both the federal and provincial governments? We have no choice. Is it because we missed the boat by taking these people out of institutions? What should we do? Clearly, we need resources, and we must provide some funding somewhere. We know where the money is at the moment: the federal government has it.

    How would you respond to this?

Á  +-(1130)  

[English]

+-

    Mr. Orville Endicott: I would like to narrow the problem. We heard you when you said that the problem is very complex, and that's true. It's complex because the people whose situation is covered by these provisions of the Criminal Code are very different from one another. They're not some homogeneous segment of the population that is neatly described by the words “mental disorder”, or even if my preference, “mental disability”, is applied to them.

    Could I speak to you as I am mandated to do today simply on behalf of an individual who has an intellectual disability? Let's further narrow it and say that this is a person who has been found unfit to stand trial because of a cognitive impairment that prevents him or her from instructing counsel in their defence and from understanding why there is this criminal process going on.

    The Criminal Code seems to presuppose that if we keep this person confined long enough, doctors will find a way to fix that so we can bring that person back to court to face the music. Now, the person I've described may very well be a person for whom that is not possible, and it seems to me to be a gross injustice that simply because a year later, two years later, or ten years later that person is still deemed to be incapable or unfit to stand trial because of the disability, he or she should still be housed within the criminal justice system.

    As I say, I've touched on one subset of a diverse population this legislation is meant to address. I think that their cases, the ones I've described, may very well justify--I wouldn't say it's “taking a risk”, because a certain degree of risk may be acceptable, but--taking a risk that others whose mental disability may be one that creates danger in the community, either to the public or to the individual.... I can't believe that in an enlightened country we are not able to say that we know how to handle that risk, at least in terms of making a transition from the criminal jurisdiction to the generic mental health jurisdiction. Why can't we do that?

Á  +-(1135)  

+-

    The Chair: Mr. Mahaffy.

+-

    Mr. Jim Mahaffy: That would be an analogy acknowledging, again, Orville's comment about the diverse nature of the cases we're talking about. I'd like to draw an analogy with the community living movement when it first started the whole process of deinstitutionalizing people into the community. There was a tremendous perception in the public that this was not going to be a very feasible process, that people with an intellectual handicap needed to be in institutions, and that this was the only place they could receive service. I would draw an analogy between that and the situation of people who are in the institutional system of corrections right now, where the whole process of providing supports in the community is still something that is in its infancy and needs to be developed in order for people to see that the potential is there for it to work.

[Translation]

+-

    Mr. Robert Lanctôt: But the problem relates to the lack of resources. I agree with what I have heard. That is precisely the case. If we can reintegrate people, then so much the better. That is what we wanted to do with Young Offenders Act and that is why we wanted it to be left alone.

    Our approach, in Quebec, takes that into account and there is funding for it. But we need to have the resources to do it, and that is what I think you are saying. So I agree with you.

[English]

+-

    The Chair: Merci, Monsieur Lanctôt.

    We'll go now to Mr. Blaikie for seven minutes.

+-

    Mr. Bill Blaikie (Winnipeg--Transcona, NDP): Mr. Chairman, I don't really have a question so much as I want to explore further.

    It seems to me there is a distinction that some of the argument we have before us here raises, and I'd ask the witnesses for more help on this, that part of it hinges on a distinction between a mental disability and a psychiatric contingent condition--that is to say, some kind of condition that can be treated or be the object of therapy--and a disability on the other hand that is permanent. What you seem to be suggesting is that the way the system works now is that it doesn't make a distinction between those two kinds of conditions. There is the contingent condition, which may respond to therapy, and the non-contingent condition. Therefore if you are--I was going to say “sentenced”, but that's inappropriate. But that's what you're suggesting: it's a form of sentencing.

    If you're diverted as if you had a contingent condition that might some day be eliminated, rehabilitated, or treated, but in effect you have the other, then you're just there forever.

    Perhaps you could expand on that problem, because it seems to me that's where a lot of the problem lies. Or have I got it wrong?

+-

    Mr. Orville Endicott: No, I think you're quite right in saying that there are two main subcategories under the heading of mental disability, and certainly charter litigation and everything related to section 15 of the charter and its guarantee of equality based on disability recognizes that reality.

    I'm not adequately answering your question, and I hope you'll still have enough of your seven minutes to come back, but when you talk about people with an intellectual disability--and I know that Jim has something to say about this, because he and I talked about it just yesterday--intellectual disability tends to be social-responsibility-neutral. In other words, it is a disability that does not predispose you either to be better or worse than other people in terms of observing the norms of our society.

    What happens to people with an intellectual disability is, as Jim has pointed out, they tend to be treated in such a way as to shift that neutrality quite often, not only in their own behaviour but maybe more significantly in the way in which they are perceived by the community. The marginalization and exclusion from the school system is a very major issue, which I think accounts for a great deal of the problem your committee is addressing: people have been told they do not belong in the mainstream of society because of their disability.

    What happens to people who are told that? They have to adapt to that perception, and sometimes their adaptations are very maladaptive in terms of what's in their best interests and what's in the best interests of the community.

    I think that is something you prompted me to say in your question, but it probably wasn't your question.

Á  +-(1140)  

+-

    Mr. Bill Blaikie: I don't know. Perhaps Mr. Mahaffy would like to comment on it.

+-

    Mr. Jim Mahaffy: Again, I'm not sure whether or not I'm going to directly address your question in its entirety.

    This recalls the conversation Orville and I had yesterday, about cases where a person's disability directly relates to their involvement in the criminal justice system. Then there are instances where it's coincidental, it's not a contributing factor. Yet for a number of people, when it's a coincidental case, their whole support system around them is turned topsy-turvy because of their involvement in the criminal justice system for some reason or other.

    This is something that is not really, truly accounted for in the system when a person with a disability comes into contact with it. There's not a proper assumption or assessment of the further impact of someone with a disability coming into the justice system without their normal, everyday supports and systems that help them to function, systems that have perhaps been very carefully nurtured over a long period of time. That kind of disruption leads to an increase in the actual penalty to the person and a decrease in their ability to enter into any kind of process for rehabilitation or to reintegrate themselves back into society.

+-

    Mr. Bill Blaikie: I don't claim to understand the current system very well at all, but what I thought I heard was that we really have two different things. We have disabilities and we have disorders. Now, a disorder is something that can presumably be set right, a sort of contingent condition, and then a disability is something that's permanent. You were suggesting that the language of “disorder” be replaced with the language of “disability”.

    I wonder if that would help or if what we need is actually to have two different categories rather than...at the moment “disability” is submerged in “disorder”. Would submerging “disorder” in “disability” just create a similar problem in the other direction, or is there a need for two different definitions?

    There was something you said in the answer, when you talked about mental disabilities being social-responsibility-neutral. Yet earlier you talked about FAE and FAS as mental disabilities. I'm just going from memory and without any expertise on the subject, but I've heard people say that people with kids with FAS or FAE have a very weak notion of consequences, which doesn't necessarily jive with the description of them as social-responsibility-neutral. Certainly one of the notions of social responsibility is that you are aware of what the consequences of your actions are. If it's part of their condition to not be as aware of the consequences of their actions, then that would tend to make them less social-responsibility-neutral, wouldn't it?

Á  +-(1145)  

+-

    Mr. Orville Endicott: Yes, I agree. I certainly didn't intend to create the impression that an intellectual disability is always social-responsibility-neutral. There are conditions, both environmental, which fetal alcohol syndrome is related to, and genetic in terms of...I can't begin to talk about X and Y. There are internal dispositions that result from those impairments that are not social-responsibility-neutral, I quite agree.

    I think it's well established, though, Mr. Blaikie, that the term “mental disability” does apply to people who have psychiatric diagnoses as well as intellectual disability and that it is an overall umbrella term that speaks of both the main subsets we're talking about here this morning.

    I'm certainly not, at least without a great deal of thought, going to agree. You didn't seriously propose this, but I don't think we need two entirely separate systems. That would be cumbersome. I can imagine how controversial that would be if some of the legislation that has been on the books for ten years and hasn't been proclaimed is controversial. Let's not go down that road.

+-

    The Chair: Thank you very much.

    Mr. MacKay, seven minutes.

+-

    Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC/DR): Mr. Chair, thank you.

    Mr. Mahaffy and Mr. Endicott, we're grateful for your testimony and grateful for the evidence you have provided us with. It is, suffice to say, a very intellectually challenging issue, to say the least. Our ability to somehow sort through this is greatly aided by your testimony.

    It seems to me that it continually comes back to the purposes of the criminal justice system vis-à-vis the purposes of our mental health system, or our health system generally, to address the problem.

    I remember dealing with cases where there was a specific illness at issue in a trial. One case that I recall vividly was a person with Tourette's syndrome who was charged with repeatedly causing a disturbance by shouting, for example. That led to repeated encounters within the school, and with the police on occasion. This issue of not criminally responsible versus not fit to stand trial is troubling, in that a person found not fit to stand trial might--not often, but might--very well at some point be fit and therefore be able to face the consequences of their action, for lack of a better term.

    The problem, of course, is that they're held in basically suspended animation after that finding of not being fit to stand trial. They can be held indefinitely, which can far exceed any criminal justice sanction, unless it were a murder case that we're talking about. That's where I guess the stakes become very high, when you have individuals with whatever type of disorder that they're diagnosed with, or not diagnosed with. In those cases where murders or sexual assaults have taken place, the public consequences are extremely high. That's where the real dilemma, I think, in terms of the social consequences, begins. Letting somebody out, putting them back on the street, and releasing them of their responsibility can have grave consequences.

    As everyone has stated repeatedly, not only is this not a perfect system, but anything that's dealing with the human condition and trying to predict human behaviour is going to be fraught with difficulties, particularly where some of these afflictions are extremely difficult to not only diagnose, but to treat.

    I have some difficulty with the whole idea of capping. If I understand this correctly, the way the system is currently working, if an individual receives this designation of not fit to stand trial, there is currently no provision for the mental health board to at any point say you are completely released of any sanctions and you're going to be given an absolute or a conditional discharge. There's no ability for that to happen right now.

    Similarly, there's no ability to guarantee that you're going to have the crown prosecutor proceed with the charges years down the road if in fact it's a case that has a charge of murder or an outstanding charge of robbery or sexual assault. The case you referred to of somebody held in custody for 17 years for robbery is atrocious, but at the same time it signals to me that somebody in the system, some psychiatrist or mental health worker, determined that the person was not fit to be back on the street.

    I agree with my friend from the Bloc that we're putting a lot of decision-making power in the hands of boards and mental health workers to decide if somebody is a danger to society, a danger to themself. Isn't that the real focal point of our resource allocation, our attempts to more clearly define what those rules of engagement should be that open up the various options? I guess my question is do you believe in some sort of a discharge ability that should be granted to boards?

    Secondly, when determining if a person is not fit to stand trial, I keep coming back to this idea of capping. I would be very uncomfortable with a cap that said--I'm picking a random number--seven or five years if in fact the charge that a person would face otherwise was murder, where the sentence potentially meted out if it's first degree and proven beyond a reasonable doubt is 25 years incarceration, and yet they're out in five.

Á  +-(1150)  

+-

    Mr. Orville Endicott: That question is easy to answer. The capping provisions that are unproclaimed do have a graduated scale of capping, and indeed the cap where the charge was murder, whether it's first degree or second degree, is life, which is the same essentially as would be the case where a person did not have a mental disorder. We might come back to you in another five years and say now how about giving the possibility of early parole like you do to ordinary murderers, because it's not found in the capping provisions in the code.

    And in terms of the issue you raised of whether review boards should have the authority to grant an absolute discharge, CACL's brief--which I didn't have anything to do with, and I'm not sure whether you did or not, Jim--that was sent to the committee in January does say, without too much rationale, that yes, we think the review board should have that authority. I think a saw-off might be that, yes, the review boards have the authority to make that recommendation to a judge, and maybe it should lie with the courts, particularly where the charges are very serious, to give their seal of approval if there is going to be an absolute discharge.

+-

    Mr. Peter MacKay: Is there a danger in vesting that power with them? I'm not being territorial about the justice system, or the judge's or the court's ability to do that, but in terms of future behaviour, if a person comes back and they have an NCR finding, or a not fit designation, and they've been granted a discharge, isn't it more useful to the mental health authorities to know that somebody has been treated before, to know that they've been--for lack of a better word--afforded this designation in the past and that would help with future treatment and rehabilitation?

Á  +-(1155)  

+-

    Mr. Orville Endicott: Absolutely.

+-

    Mr. Peter MacKay: And you say they're in a better position to make that call than the judge.

+-

    The Chair: Thank you, Mr. MacKay.

    Mr. Endicott.

+-

    Mr. Orville Endicott: They should have the expertise that gives them the insight to make that judgment. What your most recent question seemed to me to be getting at was, again, the issue of transition from one system to another. I think certainly, whether it's an absolute discharge or a recognition of a cap that's appropriate for the crime with which the person was charged, it would be unconscionable and contrary to the public interest if the information about what had happened to that person during whatever period since his first appearance in court wasn't shared with the provincial authorities.

    We don't live in two different universes here. We live in a federal system, which works best when there is communication and cooperation.

+-

    The Chair: Mr. Macklin, seven minutes.

+-

    Mr. Paul Harold Macklin (Northumberland, Lib.): Thank you.

    I'd like to pursue the line of questioning Mr. Blaikie and Mr. MacKay started.

    I think we're having this struggle because it appears that our law is based on certain presumptions, in particular, the concept of a disease of the mind. Yet today you came to us to speak about what I would call the limited intellectual development of individuals coming before the criminal system. In so doing, it strikes me that although you suggest you don't want to see two systems or two definitions of individuals who would come before this criminal system....

    Another witness earlier indicated that we should possibly be taking a look at a needs assessment of individuals who come before the criminal system in order to determine how the criminal system could appropriately redress the wrong that appears to have been committed by this individual. I wonder, are you able to advance this theory in any meaningful way that might help us see whether there is something we might be able to find through a needs assessment in dealing with an individual when they first come before the court, this in order to determine whether they fall into the category we don't want to use? In other words, are they with a disease of the mind, or are they in fact permanently intellectually limited in their development?

+-

    Mr. Jim Mahaffy: I'm not entirely sure I understand all the ramifications of your question, but we are not advocating a separate system within the justice system for people with intellectual handicaps. Our primary reason for not wanting this to occur is that we would then create another form of segregation within society, which in all forms we are trying to avoid.

    It's a bit of a problem for us, because at the same time we argue for supports for people who need those supports, supports that are different from those other people need or perhaps supports other people don't need at all. For us to argue for a separate system to address people with an intellectual handicap, one different from the system for those within a psychiatric problem...such a system does not look to us to be something that would work out positively in many respects.

    The other thing, a point Orville made and one I might repeat, is that there is often a fine line between psychiatric disorder and intellectual impairment. Often, people with intellectual handicaps do have a very close association with a psychiatric disorder, and vice versa, so it might then be a very cumbersome process to try to decide which system a person should enter into.

  +-(1200)  

+-

    Mr. Orville Endicott: We need a third, different from both labels.

    I just wanted to pick up on something the member alluded to, something I think is very important. He used the phrase “needs assessment”. I'm not sure whether this needs to be enunciated in the actual language of the Criminal Code, but he's absolutely right: there has to be a focus on the needs of the individual and not just a focus on the risk to society represented by the individual.

    Your question also reminds me that the issues paper did ask about whether the review boards should have the authority to require an assessment before they do their review of the individual's situation, and it seems almost self-evident to me that they should. Granted, members of the review boards, or at least some of them, do have professional expertise that is relevant to the issue.

    As to going to an outside assessor, someone who has more opportunity to interact with the individual and who has developed a sense of the progress or otherwise that the individual is undergoing during the period between reviews, I think that's obviously something that should be there, and if it isn't, I hope you'll recommend that it be there.

+-

    Mr. Paul Macklin: On sanctions or options for sanctions that should be applied to those who are of this limited intellectual development category--here I am categorizing them for you--how do you feel we should go about looking at what would be appropriate for that group? Would it be through a needs assessment, or is there anything else you could suggest that might be helpful in getting us toward a meaningful sanction for those individuals, in the eyes of society?

+-

    Mr. Orville Endicott: Your questions are very provocative, in a positive sense. Even people with very limited cognitive functioning are capable of coming to a better understanding of their responsibilities, as members of the community.

    On sanctions, they need to be helped to understand that what they did was harmful, and that there is a price to pay for causing harm. That might be more appropriately understood by some people, in terms of community service--or who knows what. I think you're on to something that's very important. I'm sure there are a lot of people struggling with that very notion of how to help people understand the concept of social responsibility.

+-

    The Chair: Thank you, Mr. Macklin and Mr. Endicott.

    Mr. Cadman is next, for three minutes.

+-

    Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair.

    Just to explore a bit further this whole notion of whether we need two or possibly three further definitions--whatever it winds up being--there's a proposition that substance abuse should be considered some form of mental disorder. How you feel about that generally, and where would you fit that into your scheme of things?

+-

    Mr. Jim Mahaffy: The concept of intellectual disability has taken on a number of forms throughout the years. Very early in the movement there was the concept that intellectual disability was primarily congenital, or a condition from birth. Yet in present times it has come to include brain injury and lack of social development during childhood and adolescence. It's also come to include lack of development, through psychiatric or emotional problems.

    Substance abuse is something that can very often be associated with that. For instance, youngsters or adolescents with FAS and FAE are very much attracted to drugs, and have very serious drug problems.

    If you were talking about someone who was purely a substance abuser, and their entire problem stemmed from that particular cause, it would be a substantially different issue. But it's hard to define, because if they became very much impaired through the use of substances, they would have intellectual impairments.

  +-(1205)  

+-

    Mr. Chuck Cadman: On the issue of capping, we currently have the maximum available, if the person is convicted of the same offence. That goes beyond murder. If we're dealing with manslaughter, even break and enter carries a maximum life sentence. How do you sort that one out?

+-

    Mr. Orville Endicott: I guess it was Gilbert and Sullivan who coined the phrase “let the punishment fit the crime”. If we're talking about deprivation of freedom--and I've argued before that it is punitive--I think it's reasonable to say that what would happen in terms of deprivation of freedom to somebody else would be legitimate for someone who was either not guilty or unfit.

    As a maximum, if a person had no awareness that their actions were criminal, then even requiring that long a deprivation of freedom might be unjust. The capping provisions don't go that far. Therefore they would still leave us on the verge of injustice, in some situations, but I think it's high time they were proclaimed.

+-

    The Chair: You have three minutes.

+-

    Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chairman, and thank you, Mr. Endicott and Mr. Mahaffy.

    I have two questions. The first question has to do with your recommendations on section 672.39, the composition of the board. You're suggesting that people in the disability community, people with expertise in mental health, be added to the board. Now, is this an additional member to the board, or someone to be included in the first five of the composition? The sub-question of that is how do you absent a professional qualification as such--how do you determine who has this kind of expertise?

    My second question has to do with what has been going on here with respect to your argument that with mental disorder we should get rid of the concept of a disease of the mind. I'm obviously a layperson coming at this, but is schizophrenia a disease of the mind, is paranoia a disease of the mind, is Tourette's syndrome a disease of the mind, and is automatism a disease of the mind? All these are recognized concepts, and if you're going to throw that idea out and replace it with “intellectual disability”, what have you accomplished other than a change of language, introducing an element of vagueness that could arguably work against the accused because of the imprecision of “intellectual disability”?

  +-(1210)  

+-

    Mr. Orville Endicott: What I've been proposing in terms of language is to try to get away from terms that are inherently stigmatizing and that are likely to promote abhorrence on the part of members of the public. The law should not indulge in that kind of language.

    It wasn't too long ago that the Parliament of Canada amended the Criminal Code to remove terms like “idiot”, “imbecile”, and “feeble-minded”. It was within the past couple of decades. Now, “disease” may not be as obviously stigmatizing a word as the ones I've just given as examples, but I do favour language that does not presuppose a medical model of care.

    I think what Jim was trying to say in his main presentation today was that a lot of people require opportunity for participation in community a lot more than they require drugs and therapy. In other words, the problem can be identified more in terms of their experience as members of our society and their rejection and marginalization than it can be explained as something that is organic or environmental that is within their skin itself. I think when we talk about disease--

+-

    Mr. John McKay: If your chief goal is to avoid stigmatization, the question of any of us is would you rather be known as having a disease of the mind, or would you rather be known as having an intellectual disability?

+-

    Mr. Orville Endicott: Maybe I shouldn't speak for Jim, but I think he would rather be called a person with a disability than a person with a disease. Am I right?

+-

    Mr. Jim Mahaffy: Yes. It's not so much the stigmatization that is the problem; it's the outcomes of that stigmatization.

    In community living, if I can go back in its history, people with intellectual disabilities were treated under a medical model. That's how we got institutions for people with intellectual disabilities. People basically stagnated, and people saw them as having no potential.

    When the community living movement evolved and community services evolved along with it, there was a whole change in approach. This has allowed a tremendous flowering of these people coming out of the institutions. People are doing things in communities now that was absolutely unthinkable 10 or 20 years ago. The people who have come in contact with the justice system are the ones who have been left out the community living movement, because we haven't had a direct way of being able to approach them.

    If we can remove that stigma from them and focus on their needs, which are primarily social and for support in the community, we feel we can help many people to a much greater degree than we can with the present wording and the present concept of their involvement in the justice system.

+-

    The Vice-Chair (Mr. Chuck Cadman): Thank you, Mr. McKay.

    Monsieur Lanctôt.

[Translation]

+-

    Mr. Robert Lanctôt: What you are saying gives me food for thought. You seem to be saying that some type of penalty is in order. Community work is being advocated for reintegration instead of as part of the treatment. It seems to me that using a penalty in the treatment is not the best way to deal with a mental health problem. Reintegration should be part of the treatment.

    That is why I am having a hard time following you when you say that we should try to use the penalty to meet our objective. The opposite should apply; let us administration the treatment by reintegrating those people and, at the same time, ensure that the public is safe.

    I don't quite understand what you are asking for. It is as if you are telling me that after a certain length of time, this person can be released. He will be given a discharge, whether or not he has been treated and cured. He will be put out on the street to fend for himself. But he will be back. I have a hard time accepting that. Reintegration, which I support 110 percent, should be part of the treatment. I think that what you are suggesting is the opposite and I have a hard time understanding where you are coming from.

  +-(1215)  

[English]

+-

    Mr. Orville Endicott: I certainly don't think we should be understood as trying to convince you that community living, in and of itself, will turn a person around, or make the person no longer a risk.

    I think Jim has been trying to hammer home that obviously it takes support services within the community, but the community is where those support services are going to take hold, and a person is not going to have a chance to learn to live in the community by being behind bars.

+-

    Mr. Jim Mahaffy: If I can use the example of individuals with FAS and FAE, it's my understanding that the best chance we have with those young people is to get them before they enter the criminal justice system. Experience has found that time and time again, when they get inside they learn behaviours from the people around. They absorb the behaviours they find around them in institutions. Once people with FAS/FAE find their way into the justice system, they very seldom ever get back out.

    So if we are going to try to solve this problem in a proactive way, we need the kinds of preventative measures that will keep people with those kinds of problems from getting involved in the first place. If we have to deal with people who are already there, we're looking at different measures, different requirements. But we would like to see a system that tries to aim for as much prevention and identification for people with intellectual disabilities in the system, so we can focus the resources available on things that will actually work to help them.

+-

    The Chair: Thank you, Mr. Mahaffy.

    Mr. McKay for three more minutes.

+-

    Mr. John McKay: To follow up on our previous conversation on the issue of those folks who are in the community and your resistance to medical modelling of them, aren't many in large part back into the community because of the medical modelization of these folks and the medications that are now available to deal with the condition they present for themselves and for others?

    And the second question had to do with your not answering my first question about section 672.9.

+-

    Mr. Orville Endicott: You're first.

+-

    Mr. Jim Mahaffy: There certainly is a coordination of medical supports, not just with the people with FAE but with all kinds of people who have intellectual disabilities. They often have many other medical problems or needs for medical treatment. But the medical treatment in isolation is in most cases absolutely useless, because unless there's a social support system around those people they're still isolated, still segregated from society, still on the margins; they're not leading useful lives.

    The main objective of community living is to reintegrate people to be useful, contributing members of society. In order for that to occur there needs to be a whole set of supports for people, which are often incredibly effective once they're in place and very difficult to envisage at the onset, before someone is put into that situation. It's hard to sell people that the supports are necessary, but once they're in place they often become very obvious and a very natural part of providing someone with support to live in the community.

  +-(1220)  

+-

    The Chair: Mr. Endicott, I think there was a question there for you.

+-

    Mr. Orville Endicott: I apologize to the member for having ignored it the first time around. The question, as I recall, was about the composition of the review board. We were proposing that an additional member be identified, someone who has professional expertise in providing community supports.

    There is already in the section a requirement that if there's only one psychiatrist there has to be another individual with experience in mental health services. I think our recommendation could either be to scrap that second mental-health-labelled individual and replace him or her with someone with community support credentials or possibly add a third specified member.

    As I recall, the code doesn't require any particular upper limit on the numbers of people who are on the review boards. Probably the provinces tend to have quite a large number, but only a small number of them sit to do a review of any particular case at any time. It would be the cases of people we're primarily focussing on this morning where the chair of the review board would say, well, let's have so-and-so, who is a member of this board because of professional qualification in provision of community supports to people with intellectual disabilities. There are ways in which you can determine what credentials would be appropriate for that.

+-

    The Chair: Thank you very much.

    Peter MacKay, three minutes.

+-

    Mr. Peter MacKay: We've heard from a number of previous witnesses who were concerned about treatment programs, but also just about the number of beds available in facilities. This comes back to Mr. Lanctôt's comment about resources, because the criminal justice system, in many ways, holds the person within the system but doesn't house them. So you have this anomaly where the criminal justice system, just like in the young offenders case, sentences individuals into that stream, and then almost washes their hands of them. It says all right, you're to complete your assessment, and your fate will be determined elsewhere, to some degree.

    I don't have the Criminal Code in front of me, but there doesn't appear to be any ability, triggered by the mental health board or even the lawyer acting on behalf of that individual, to stop that. Once that path begins, there's no way--as Mr. Endicott referred to earlier--for the accused to say they would rather just go through the regular criminal justice system. Then they would be out in six months or less because they would have parole, and early release would kick in. That certainly isn't the answer, because it avoids the person's problem.

    So it's not a perfect system, but it is ultimately aimed at protecting the public from this person and bringing about some semblance of accountability. It's now far more predicated on the protection of the public, as opposed to the treatment aspect of it.

    How do we bring that balance back? Is it through empowering these review boards to give them more almost quasi-judicial decision-making ability? Is it about creating a new office or entity, wherein somebody oversees these criminal review boards at the provincial level and decides whether they are making proper decisions?

    It's an incredibly complicated and convoluted process, once that determination of a person's fitness or mental health has been decided. I guess we're looking to you for some creative suggestions as to what alternative system might be created.

  +-(1225)  

+-

    Mr. Orville Endicott: We've tended to focus this morning on the inadequacies of a system, and by their very nature systems tend to deal with people as though they were more or less all the same. We could perhaps have admitted that there are things going on now that recognize the concerns that have been expressed around this table. There are diversion programs, for example, where people never get before a judge. I think there is power in the review board to order a non-custodial disposition, during the period when the person is unfit to stand trial. That's extremely important, and we wouldn't want to see anything happen to jeopardize that authority. It is quasi-judicial and important.

    We're not here to trash the present system; we're here to encourage you to rethink some refinements that can make the system better accommodate the individual needs of persons before it.

+-

    The Chair: Thank you very much. If no one objects, I have a couple of questions I would like to put.

    One observation I would make is that part of the discussion around the adequacy of the various provisions we're entertaining is born of the fact that we probably don't represent a consensus view of the adequacy of the criminal justice system, period.

    For instance, if you consider the possibility of capping, and any concerns you might have about the inadequacy of capping or what might happen in terms of public safety, let's just say--I don't mean to be provocative, and I'm not wanting to engage the committee in a debate over the adequacy of the mainstream system--part of the discussion we're hearing speaks to the fact that not all of us agree on whether the criminal justice system, independent of this issue, works. I think that's part of this.

    I don't think we should get caught in this very narrow piece of the debate, having to overcompensate in terms of public safety on this side because we don't think the criminal justice system works in favour of public safety, period--I'm not saying I'm of that view. I think it's an important point to make: we cannot make sure this system is more fail-safe than the system that otherwise exists.

    The question I would put, and we haven't discussed this too much yet, is in the event we built a system--and I know there's some resistance to the language here, but let's try to get past some of that--and if we were able to provide the kind of intervention, or diversion in advance so that we don't get to the criminal justice system, or an adequate alternative to incarceration--and I think we all recognize that part of the problem, even part of the problem that's creating the alleged offence, is inadequate services to people in the community--if we were to provide those services, would there not be at least the possibility that some of the people who are currently incarcerated would in fact find an alternative before they get there? In other words, we're really talking about a community that we think should exist outside the criminal justice system.

    In the event we offered the kinds of services that would offer comfort to everybody, in that people were not just being warehoused but actually treated--for those people for whom treatment is the issue.... The witnesses are here, but it just occurs to me we haven't considered the possibility that there are people inside the correctional system today who are there only by virtue of the fact there aren't those services. If we could design them to accommodate the challenges we face around this review, there might be an added benefit: that people who are currently not getting the kind of service they should get because they are in the correctional system would have access to these services, if they existed, even before they got to the criminal justice system.

    Is that a fair comment? I think there are lots of people CACL would do advocacy for who are currently in the criminal justice system but might not be if there were services that might be the result of this inquiry. I'll accept that this may be a question of resources, not law.

+-

    Mr. Orville Endicott: I'm glad you brought that up, because it gives me another opportunity to plug the material I presented by way of handout, which admittedly is now more than a decade old.

    The Correctional Service of Canada asked me to do a literature review about people who are incarcerated in the regular prison system. What I learned was shocking. The literature tended to be mostly from south of the border. I think there's an abysmal lack of knowledge in this country of how many people are in the situation you describe, being part of the regular prison population, which is obviously not doing society any good and doubly obviously not doing them any good.

  +-(1230)  

+-

    The Chair: I will go to Mr. Fitzpatrick.

+-

    Mr. Brian Fitzpatrick (Prince Albert, Canadian Alliance): Maybe I'll just pass on some information. The Prince Albert Penitentiary is in my riding, and I've toured it a couple of times. About 70 percent of the inmate population is aboriginal. The professional people in the prison system I've talked to are almost certain most of these people are in there because of fetal-alcohol-syndrome-related problems.

    I've interviewed people who are on the inmate committees and have been in the system right from one end of the country to the other and are non-native. That's their belief too. They're basically of the view that because of this problem they're not even able to develop skills to function. It's just an anecdotal observation I have with my own penitentiary.

+-

    The Chair: Mr. MacKay.

+-

    Mr. Peter MacKay: I have a very quick question about empirical data or research that you're aware of that might be out there and might assist us. It's fine to have the statistics about the percentage of individuals in custody, and there are these horror stories, even Hollywood films like One Flew Over the Cuckoo's Nest, about how they were treated in mental institutions in the past. Are you aware of any studies--Canadian, North American, European, or otherwise--that point to methods of treatment of the various types of illnesses that lead to individuals finding themselves incarcerated or in custody? I think that might be of some assistance in looking at this overall situation.

    I would assume that a person being held in a forensic unit would at least have greater ability to access some form of treatment than an individual who for whatever reason chooses to go into a prison system, where not only are they less likely to get any kind of formal training that's going to help them when they get out, but it's virtually impossible to suggest that they're going to get any kind of mental treatment, medical, drugs, or otherwise.

+-

    Mr. Jim Mahaffy: I'm not aware of any research that has been conducted on that basis by Corrections Canada. I was actually in touch with their research bureau a few months ago, and they have not done any recent research into either the composition of people with an intellectual disability in the prison system, or any research more along the line of what you were asking about treatment. It's basically done on an individual-by-individual basis, and there's been no systemic look at anything as an overall approach.

+-

    Mr. Peter MacKay: As a quick supplementary, this leads to another problem that in this forum we haven't talked about of late, and that is the ability of a judge and our justice system to mandate that a person take treatment.

    I've experienced cases where an individual was diagnosed with bipolar disorder, a form of schizophrenia, and it was treatable if the person took medication, and they refused to do so. This creates a huge dilemma. You can't hold the person down and force them to take the pill. That gets into other constitutional issues of a person's right to control their own body, I suppose.

  -(1235)  

+-

    Mr. Orville Endicott: That's right. Obviously we don't have time to do justice to that issue of whether people can be ordered to take treatment. The Province of Ontario, as you know, as a result of an incident in Ottawa has adopted fairly recently a statute called “Brian's Law”, named after a journalist who was killed here in Ottawa.

    That stirs up a constant hornets' nest among the mental health community, particularly people who call themselves survivors of the mental health system. I guess I would choose not to comment about it, because it's something I don't feel capable of dealing with adequately, and the time doesn't permit it either.

    The people we're talking about this morning, people with intellectual disability, tend not to require medication to control behaviour. They may require it for things like epilepsy or something like that.

    The other thing I wanted to say, if I may, is in response to Mr. MacKay's question about resources. The document I've circulated to you has a very extensive bibliography, and some of it is encouraging stuff. All of it is ten years old. The reason I initially addressed my comments to the chair is that I believe he knows that the Canadian Association for Community Living has a wholly owned subsidiary called the Roeher Institute, which has a mandate to research the very kinds of things you're concerned about. If this committee has the authority to turn to a resource like that, I would certainly recommend the Roeher Institute to undergo the kind of information gathering that you need.

+-

    The Chair: I thank you very much. I am quite familiar with the work of the institute and the work of CACL. I take your appearance here today as part of that. And we are pleased that you've helped us. As we go through this more, and listen to questioning and the way people's heads are moving around this issue, I get the impression that we're becoming more informed but no closer to a solution. This is a very complicated issue, one I think we're all struggling with. I think you've helped us very much to understand it better. Thanks. Nice to see you again.

    Before I adjourn--and you're excused, Messrs. Mahaffy and Endicott--I would simply advise members that I've received Mr. Paradis' resignation as vice-chair of the committee. So I would give notice that we will be dealing with the vacancy that is created by his resignation as vice-chair of the committee during tomorrow's proceedings.

    We're hearing witnesses from 3:30 to 5:30, I presume, and during the course of that, if we have a quorum when we start, we might have the election quickly at the beginning. If not, then we may wait until the end. In any case, I would give notice of my intention to bring that election up as an item of business for tomorrow.

+-

    Mr. Peter MacKay: Will you accept nominations now?

-

    The Chair: I don't think we have a quorum, Peter, but thanks for the effort.

    The meeting is adjourned to the call of the chair.