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37th PARLIAMENT, 1st SESSION
Standing Committee on Justice and Human Rights
EVIDENCE
CONTENTS
Wednesday, March 20, 2002
| ¹ | 1530 |
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The Chair (Mr. Andy Scott (Fredericton, Lib.)) |
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Mr. Vic Toews (Provencher, Canadian Alliance) |
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The Chair |
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Dr. Louis Morissette (Psychiatrist, Institut Philippe Pinel de Montréal, Association des médecins psychiatres du Québec) |
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Mr. Chuck Cadman (Surrey North, Canadian Alliance) |
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Dr. Louis Morissette |
| ¹ | 1535 |
| ¹ | 1540 |
| ¹ | 1545 |
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The Chair |
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Dr. Louis Morissette |
| ¹ | 1550 |
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The Chair |
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Dr. Louis Morissette |
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Mr. Cadman |
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Dr. Louis Morissette |
| ¹ | 1555 |
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Mr. Cadman |
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Dr. Louis Morissette |
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Mr. Cadman |
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Dr. Louis Morissette |
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The Chair |
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Mr. Michel Bellehumeur (Berthier--Montcalm, BQ) |
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Dr. Louis Morissette |
| º | 1600 |
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Mr. Michel Bellehumeur |
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Dr. Louis Morissette |
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Mr. Michel Bellehumeur |
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Dr. Louis Morissette |
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Mr. Michel Bellehumeur |
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Dr. Louis Morissette |
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M. Bellehumeur |
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The Chair |
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Mr. John McKay (Scarborough East, Lib.) |
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The Chair |
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Mr. John McKay |
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Dr. Louis Morissette |
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Mr. John McKay |
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Dr. Louis Morissette |
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Mr. John McKay |
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Dr. Louis Morissette |
| º | 1605 |
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Mr. John McKay |
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Dr. Louis Morissette |
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Mr. John McKay |
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Dr. Louis Morissette |
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Mr. John McKay |
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Dr. Louis Morissette |
| º | 1610 |
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The Chair |
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Ms. Allard |
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Dr. Louis Morissette |
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Ms. Carole-Marie Allard |
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Dr. Louis Morissette |
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Ms. Carole-Marie Allard |
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Dr. Louis Morissette |
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Ms. Carole-Marie Allard |
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Dr. Louis Morissette |
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Mme Allard |
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The Chair |
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Mme Allard |
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Dr. Louis Morissette |
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Ms. Allard |
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Dr. Louis Morissette |
| º | 1615 |
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Ms. Carole-Marie Allard |
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Dr. Louis Morissette |
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Ms. Carole-Marie Allard |
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Dr. Louis Morissette |
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Ms. Carole-Marie Allard |
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Dr. Louis Morissette |
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Ms. Carole-Marie Allard |
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Dr. Louis Morissette |
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The Chair |
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Mr. Cadman |
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Dr. Louis Morissette |
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Mr. Cadman |
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Dr. Louis Morissette |
| º | 1620 |
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The Chair |
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Ms. Carole-Marie Allard |
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Dr. Louis Morissette |
| º | 1625 |
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Ms. Carole-Marie Allard |
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Dr. Louis Morissette |
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Ms. Carole-Marie Allard |
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Dr. Louis Morissette |
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The Chair |
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Mr. John McKay |
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Dr. Louis Morissette |
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Mr. John McKay |
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Dr. Louis Morissette |
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Mr. John McKay |
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Dr. Louis Morissette |
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Mr. John McKay |
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Dr. Louis Morissette |
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The Chair |
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Ms. Allard |
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The Chair |
| º | 1635 |
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Dr. Louis Morissette |
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The Chair |
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Dr. Louis Morissette |
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The Chair |
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Dr. Louis Morissette |
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The Chair |
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Dr. Louis Morissette |
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The Chair |
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Dr. Louis Morissette |
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The Chair |
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Dr. Louis Morissette |
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The Chair |
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Dr. Louis Morissette |
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The Chair |
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Dr. Louis Morissette |
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The Chair |
CANADA
Standing Committee on Justice and Human Rights |
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EVIDENCE
Wednesday, March 20, 2002
[Recorded by Electronic Apparatus]
¹ 
(1530)
[English]
The Chair (Mr. Andy Scott (Fredericton, Lib.)): Good afternoon. Bienvenue, tout le monde. I call to order the 71st meeting of the Standing Committee on Justice and Human Rights.
As advertised yesterday, the first order of business today will be the election of a new vice-chair of the committee. The witness can stay with us, it's an exciting exercise.
We received yesterday a letter from our former colleague, Mr. Paradis, in which he informed us of his resignation as vice-chair of the standing committee and we accepted that with great regret. Now I would call on nominations for the position of vice-chair, and I see Mr. Toews anxious to enter into the fray.
Mr. Vic Toews (Provencher, Canadian Alliance): I'm very anxious to nominate our colleague, John McKay, as vice-chair.
An hon. member: I second that.
The Chair: It's been moved and seconded, enthusiastically, that John McKay be the vice-chair of the committee.
(Motion agreed to)
The Chair: Carried unanimously. Congratulations, Mr. McKay.
I declare the motion carried and John McKay is duly elected vice-chair of the committee.
Thanks for dropping by, Mr. Toews.
Now I would turn to the other advertised business of the afternoon, and that is, pursuant to the order of reference of the House of February 26, 2002, a statutory review of the mental disorder provisions of the Criminal Code.
Today, from the Institut Philippe Pinel de Montréal, we have Dr. Louis Morissette, a psychiatrist with the institute.
Dr. Morissette, generally the presenter will make opening comments
[Translation]
of approximately 10 minutes, but since there aren't many people here, perhaps you can take a little longer.
Dr. Louis Morissette (Psychiatrist, Institut Philippe Pinel de Montréal, Association des médecins psychiatres du Québec): Thank you and good afternoon.
My name is Louis Morissette and I'm a psychiatrist. I've been a doctor since 1978 and a psychiatrist since 1983. I've been working at the Institut Philippe Pinel since 1982.
The Institut Pinel is a secure psychiatric hospital with a 295-bed capacity. This facility was built in 1970 to house patients with psychiatric problems who have also been charged with criminal offences. The Institut is named after Philippe Pinel who, during the 1850s, was the first French psychiatrist to free psychiatric patients from their chains at the Salpètrière in Paris.
Why was the Institut Pinel built in the first place? In the early 1960s, a patient by the name of Mr. Pagé wrote a book in which he criticized the treatment he received while suffering from a mental illness and having been charged with committing a minor offence. He was incarcerated in Montreal's Bordeaux Jail for years, locked away in solitary confinement in the facility's basement where he received no psychiatric care of any kind. In his preface to Mr. Pagé's book, the future Minister, Mr. Laurin, pointed out the need for a specialized facility. A commission of inquiry was held in the province and the Institut Pinel was subsequently built.
As a psychiatric facility, the Institut Pinel is on par with the Oakridge Section of the Penetanguishene Institute in Ontario, as well as with a British Columbia facility that opened its doors in 1998. The name of that facility escapes me at this time.
[English]
Mr. Chuck Cadman (Surrey North, Canadian Alliance): Riverview?
[Translation]
Dr. Louis Morissette: I visited that hospital when it first opened. Pinel is a larger facility. It has a capacity of 295 beds, 256 of which are currently in use. Most of the patients are persons who, although charged, were acquitted, either because they were found not to be criminally responsible for their actions or unfit to stand trial. Both men and women are accepted at this facility which has 13 units in total, five of which are mixed. One unit is reserved for Correctional Service Canada for the treatment of sex offenders. A 15-bed unit is reserved for the treatment of aggressive young offenders.
I'm here today to address the committee on behalf of the Institut Philippe Pinel. I drafted my submission after holding discussions with other psychiatrists at this Montreal hospital. I'm also speaking today on behalf of the Association des médecins psychiatres du Québec whose members support my position and cannot be here in person.
Regrettably, the Institut's Director, Dr. Lafleur, as well as the Director of Professional Services, Dr. Chamberland, could not be here today, as they are both attending a convention outside the country. I'm not certain if I'm entering the lion's den or not, but I'm here on my own.
All of you are familiar with the background of the legislation that led to changes in the provisions respecting criminal non-liability. These changes came about as a result of a 1991 Supreme Court ruling which gave Parliament six months to draft new legislation, failing which all patients detained under lieutenant governors warrants would be released into the community. Bill C-30 was tabled in May of 1992. Overall, the changes have been very positive.
The biggest change resulting from Bill C-30 in 1992 was the establishment of review boards. Since Quebec is often a little different from the other provinces, it had been operating with review boards since 1972. That year, Quebec's National Assembly had stripped the Lieutenant Governor of final decision-making authority over patient release. The lieutenant governor's role was confined to signing the papers. The Assembly of the day struck a Lieutenant Governor's commission, which basically resembles today's commissions of inquiry. This three-person board was composed of a lawyer and two psychiatrists. A pool of Quebec psychiatrists was available,and two psychiatrists always served on the review board.
Therefore, the introduction of review boards in 1992 did not alter the way things had been done in Quebec for the past 20 years. The rules became somewhat clearer. The mandate and membership of the review board was more clearly defined.
No retired or sitting judge in Quebec has ever been appointed to the review board. Appointees have always been lawyers.
As I was saying earlier, between 1972 and 1992, the Quebec board was staffed by two or three lawyers who were accustomed to working with this clientele and who recognized patients from one year to the next. In 1992, some 650 patients appeared before the review board.
The legislation did not signal major changes for Quebec. Nevertheless, it did have a positive impact. In my conclusion, I will focus on what we, as psychiatrists, would like to see happen with the review board.
The committee has brought to our attention a number of issues on which I would now like to focus.
First, there is the numbers question. Before drafting my submission, I read the brief prepared by the Defence Lawyers' Association of Ontario, along with the report submitted by Dr. Arboleda-Florez. I'm not certain if it was in fact Dr. Bradford who submitted a paper on dangerous mental patients. I read that paper, although that may be somewhat of a different issue than the one at hand.
¹ (1535)
Therefore, I will endeavour to refer to some of the papers that I have read to see where there may be agreement, or disagreement.
From a psychiatric perspective, practically speaking and quite aside from what the legislation says, assessments to determine the fitness of a patient to stand trial are rarely requested for that specific reason. Every since I've been practising psychiatry, and that means for the past 20 years, I've observed that an assessment of this nature is requested first and foremost to provide care to psychiatric patients arrested by police for committing relatively minor offences for the most part and when there is no room for them at the region's general psychiatric hospital.
When I started practising in 1982-- and this is even truer today in light of bed closures at general psychiatric facilities in Montreal and Toronto--it was estimated that over half of all homeless people suffered from serious psychiatric problems and received no treatment. Thirty or forty years ago, these individuals would have been in insane asylums, as they were known at the time.
When I began practising medicine in 1974, Hôpital Louis-H. Lafontaine could accommodate 7,000 patients. Today, the hospital has an 800-bed capacity. This doesn't mean that doctors are better at treating patients. Admittedly, there have been advances over the past 30 years, but now patients are scattered throughout the community. For some, it has been a positive development, but others have been left without any follow-up services.
Therefore, it's good that the concept of fitness to stand trial has been quantified in Bill C-30. The definition provided is more precise and consistent with case law set down over the years. However, such assessments are rarely done strictly to determine if the patient is fit to stand trial. It's fairly easy to determine is a person is fit to stand trial. A psychiatric assessment done solely to determine this takes a mere five minutes. The patient is asked the following questions: what's your name, how old are you, do you know why you have been arrested, who is your lawyer, have you spoken to him, if convicted, do you know what can happen to you? The vast majority of patients answer these questions correctly. Assessments are a tool used by the judicial system to provide psychiatric care.
Defence counsel brought this matter up because it is of some concern to them. The legislation stipulates that the assessment to determine a person's fitness to stand trial should be done within five days. As I just indicated, since the assessment takes perhaps half an hour, there is no reason why it cannot be done within a period of five days.
I have to tell you that in Montreal, assessments are rarely done within a span of five days. Yet, the legislation states that they must be done within five days at most and in as unrestrained a setting as possible. Perhaps five or six assessments are done every year at Institut Pinel, out of a total of 340 done last year. Psychiatrists do their assessments in detention facilities and sometimes in hospitals, but since, more often than not, there are no beds available at hospitals, they meet with the patient in prison where they proceed to assess and treat the individual at the same time.
This practice concerns defence counsel, as I can well imagine it might. They maintain that a certain number of these patients arrested for breaking a window spend 30, 40 or even 50 days in custody before being released, often because continuations have been requested. They remain in custody far longer than they should given the nature of their crime. As psychiatrists, our position on this matter is somewhat different. We contend that in any event, these individuals would be put back on the street without receiving any treatment and without having access to any resources. Wouldn't it be preferable to take 15, 20, 30, 40, 50 or even 60 days to try to improve their mental health and find them some support in the community? Then, when the time came for us to draft our final report, we could truthfully say that the person can be released into the care of a particular facility.
As far as civil liberties are concerned, strictly speaking, a person's freedom is restricted if that person is detained for too long a period of time. However, were this not the case, these individuals would not receive any care at all. In my opinion, this would be just as bad as, if not far worse than, being deprived of freedom for one and a half months.
¹ (1540)
However, that's merely the opinion of the doctor who is more paternalistic, not the view of a lawyer concerned about rights and freedoms, although I don't believe these are necessarily opposing views.
One of the concerns expressed by the defence lawyers association had to do with mentally challenged persons who are declared unfit. In theory, and this still holds true, a mental disability cannot be cured. Therefore, theoretically, these persons will, for the rest of their lives, be unfit to stand trial.
In Ontario, the Taylor decision is considered to be the case law in the matter of a person's fitness to stand trial. The criteria for determining whether someone is fit to stand trial are so minimal that virtually anyone can be taught what to say in order to pass the assessment. I can't speak for every single case, but in Quebec, not many people continue to be deemed unfit to stand trial after a few months have passed. There are several such persons at Pinel. In fact, I would say that most of the persons who fall into this category are housed at this facility. They number no more than fifteen or twenty. They are seriously ill persons who are suffering from extreme schizophrenia and who cannot live anywhere else but in a secure facility. As for the mentally disabled, as I was saying, they can be coached and taught what to say in order to be declared fit. We don't have a problem with that.
Where we do have a problem, and I emphasize this in my submission, is with individuals who want to handle their own defence. Some of the people who fall into this category are mentally sound. However, I could say they show narcissistic and often sadistic traits which they use to re-victimize the victim during cross-examination. A number of individuals who want to act as their own counsel are paranoid. Medical experts tend to agree that they either suffer from paranoid schizophrenia or paranoia.
This very situation was the focus of the Taylor decision. A lawyer, and therefore theoretically an intelligent person, had been disbarred...
¹ (1545)
[English]
The Chair: I'm sure it wasn't to challenge the presumption.
[Translation]
Dr. Louis Morissette: He had been disbarred by the Ontario Bar Association during the 1980s and was seeking to be reinstated. He went to see the Bar secretary and the two began to argue. He was told that he was still sick, that he was still hearing voices and so forth and that therefore he could not resume the practice of law. He stabbed the secretary who fortunately survived the attack. The lawyer was sent to Penetanguishene where the doctors all agreed that he was suffering from a severe mental illness, namely paranoid schizophrenia, and that he had stabbed another person while in the midst of an acute attack.
The decision rendered in this case on appeal stipulated that if an individual makes some bad decisions about his defence as a result of his illness and his belief that he is being persecuted, or wants to handle his own defence because he trusts no one, then ultimately it is his right to do so and to make these choices. The first principle is the right to as speedy a trial as possible. The second principle is a person's right to choose his counsel. As psychiatrists, we maintain that a person suffering from a serious mental illness is not free to make decisions concerning his defence. His actions are dictated by his illness. Therefore, perhaps the legislation could include a provision stating that caution should be exercised when a person expresses the desire to handle his own defence and that closer examination is warranted. That's all I have to say on the subject of a person's fitness to stand trial.
As clinicians, we disagree with the board's authority to release an unfit person who has committed a minor offence. If the Crown attorney wishes to drop the charges, then so be it, but the review board should not become a tribunal that reviews patients. It's role is to serve as an administrative tribunal, at least in Quebec--I don't know how it is referred to in other provinces--and to ascertain whether or not an individual is dangerous. As far as the review board is concerned, the whole criminal aspect of the matter has already been settled. The board should not get involved in that process.
Regarding section 16, a number of appropriate changes have been made to the wording of this provision, as the terminology was outdated. However, in our opinion, there is no need to change the wording of section 16 any further as it relates to exemption from criminal responsibility. Rather, people must be made aware of existing case law.
I've had discussions with members of the Quebec Bar who are scheduled to make a presentation to the committee, I believe on April 16. They wanted us to recommend in our submission that Parliament include in the legislation the wording of the 1994 decision in Oomen. I was prepared to go along with that recommendation, but my colleagues were somewhat less favourable to the idea. That's why the recommendation was not made. I'm referring to the 1994 Supreme Court of Canada decision in Oomen. Let me read you the most important sentence in this ruling:
| Rather, the real question is whether the accused should be exempted from criminal responsibility because a mental disorder at the time of the act deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act. |
Why is the Oomen ruling so significant? It's because the courts and members of the community have difficulty grasping how a person who is exempted from criminal responsibility because of a mental disorder could possibly have planned and executed the crime on a particular day, using a particular weapon. The community expects a person exempted from criminal responsibility to be insane, based on the evidence. Either that person wanders the street naked, or speaks spontaneously about aliens to anyone and everyone. When people in the community encounter an individual with a mental disorder who does not display any abhorrent behaviour, but rather is merely delusional or has a persecution fantasy, they cannot easily understand that this individual may be mentally ill, even in the absence of obvious signs of mental illness.
¹ (1550)
Moreover, sometimes these persons are videotaped after they are arrested by the police. Either they answer the police's questions rationally, or they say nothing at all. Sometimes, their answers make sense.
Some argue that section 16 should be worded so that the emphasis is placed on a person's ability to make a rational choice, rather than on his ability to distinguish right from wrong. When asked if killing someone is right or wrong, most persons with a mental disorder will respond in the affirmative. However, when the same question is put to one person in particular, he may say that he had no other choice because the victim was trying to kill him and he had to stop him. Therefore, in his mind, he made a rational choice. That's the point that should be stressed. Based on case law, the wording of the provision is fine. However, it could be clearer.
On the question of automatism...
[English]
The Chair: Dr. Morissette, when I did the introduction, I mentioned that we normally take about 10 minutes. We're not holding to that, but we're over 20.
Dr. Louis Morissette: Okay. So we'll stop.
The Chair: If there's something you want to make sure you get on the record, I'll give you a minute or so to do that, but you'll also be able to do that as we go around the table for questions.
I'll go to Mr. Cadman for seven minutes.
Mr. Chuck Cadman: Thank you, Mr. Chair, and thank you, Dr. Morissette, for appearing today.
I have two questions, and I don't believe you touched on them in your presentation. One is to ask you your views on capping.
Dr. Louis Morissette: It's wrong and it should not be done. You're talking to a psychiatrist, and I know that lawyers have a different view. For people who are found guilty but not criminally responsible, it's because of a mental illness. When that's done legally, what is said is essentially we'll follow you so that you're no longer a danger to anyone in society.
Sometimes you may have someone who has committed capital murder and is in a very acute episode of his illness, but that illness is very controllable and very limited in time, and after two or three years they can be let off by the review board without any problem. I have many patients like that.
On the contrary, sometimes you have people who are arrested for small things but who have such a severe mental illness that their illness will continue for a long time, and you know that if they don't get treatment they will be impulsive, they will hallucinate, and they may rob, steal, or harass people on the street. Having a mandate from the review board helps them receive treatment and to stay out of the hospital, instead of coming back because they don't receive treatment and sometimes medication. So having a mandate from the review board for someone who was found not guilty of a small thing can be very helpful in the long run, because they receive treatment they would not otherwise receive. They are in a system where there's pressure legally and socially so that they get treatment.
Sometimes somebody does a very bad thing--for instance, kills someone--and you are able to let that person off of the review board after two or three months. I've seen it happen after six months for a person who killed in Quebec. I don't think it would happen in every province, but in Quebec it did happen, and it's okay from our point of view.
So capping is wrong, because you may keep people longer than you should. You may have to remove the mandate of the review board too soon, and you would deprive these people of the treatment they should get.
Having said that, at the end of the report we write that the review board should have the power to impose treatment, including medication, on people who are under their jurisdiction, as the law permits for people who are unfit to stand trial. Parliament did that in 1992, and I think it was courageous. Maybe we should go a bit further now and give the power to the review board to order the person, on the recommendation of the treating physician, to take their medication. That will prevent many things, such as hospitalization and sometimes reoffending.
¹ (1555)
Mr. Chuck Cadman: Another issue is the suggestion that substance abuse should be considered a mental disorder.
Dr. Louis Morissette: It is a mental disorder. That's not the point. The point is substance abuse--
Mr. Chuck Cadman: That there is something in legislation, I guess is what I'm asking.
Dr. Louis Morissette: It is already a mental disorder in our courts, but it does not bring non-responsibility. It's not because you are an alcoholic or a cocaine addict or a heroin addict that you will be found necessarily not guilty by reason of insanity or not criminally responsible. If you took cocaine and you became very paranoid and psychotic and were hallucinating, then you would be found guilty but not criminally responsible.
Substance abuse is already considered a mental disorder by every psychiatric association in North America and in the courts, but very rarely it brings a verdict of guilty but not criminally responsible, and it should not, from our point of view.
The Chair: Thank you, Mr. Cadman.
Before I go to Mr. Bellehumeur for seven minutes, I want to bring to the attention of the committee the presence in our gallery, such as it is, of the participants in Forum for Young Canadians. Welcome to the proceedings of the justice committee. Some of us will be joining you tonight for dinner.
Mr. Bellehumeur, for seven minutes.
[Translation]
Mr. Michel Bellehumeur (Berthier--Montcalm, BQ): Thank you very much.
Dr. Morisette, you've stated your views very clearly in your report. You're even very specific when it comes to certain matters.
If I've understood you correctly, you are not calling for many changes. In other words, you're relatively comfortable with the last series of legislative amendments. You seem, however, to want to see some improvements in terms of how the legislation is applied. Among other things, you mentioned that assessments are done quickly, that treatment is administered quickly, and so forth.
The one question mark I have when reading your report is this comment in the section entitled Review Board and the power completely to release an accused who has been declared unfit:
| In our opinion, it would be altogether wrong for both the accused and society if an accused who was found to be not criminally responsible for a minor offence were automatically released on the order of the Review Board after a specific period of time... |
That statement is contained on page 7 of your brief.
Dr. Louis Morissette: It's referred to as capping.
º (1600)
Mr. Michel Bellehumeur: That's right.
Currently, when a person who has been declared unfit commits a minor offence, that person already knows that he will be released, regardless of the assessment. Would it be fair to say that?
Dr. Louis Morissette: No. There are two separate issues to consider here. The capping provision applies only to persons found not to be criminally responsible.
The question raised by the committee was why the matter should be pursued in the case of persons charged with a minor offence and declared unfit to stand trial. It was felt that these persons would never be fit, whereas the review board was being granted the power to have the charges dropped when the accused has yet to be tried.
Mr. Michel Bellehumeur: I see.
Dr. Louis Morissette: In some provinces, certain persons remain unfit to stand trial for a considerable length of time. In fact, there may be many people who fall into this category. In Quebec, we're talking about a very small minority of persons who are extremely ill. They are not mentally disabled persons. Now that the courts and the law have granted us permission to treat unfit persons with drugs for a period of 60 days. the vast majority of these individuals are in fact deemed fit to stand trial after 60 days.
We feel that capping is wrong. In the case of persons who have committed a serious offence, no one would dare lift the review board's order. Some therefore remain in custody for too long a period of time as a result of the order. The reverse is also true. A person who broke a window may be released after two years, but could still be very ill. As a result of his release, he would stop receiving treatment.
Mr. Michel Bellehumeur: They could re-offend.
Dr. Louis Morissette: That's correct.
Mr. Michel Bellehumeur: I understand. I have no further questions.
[English]
The Chair: Merci, Monsieur Bellehumeur.
I'll go then to the new vice-chair, Mr. McKay.
Mr. John McKay (Scarborough East, Lib.): It wasn't even indicated that he was going to ask a question. Well, thank you very much, Mr. Chair.
The Chair: Well, this is it. This is the burden of office.
Mr. John McKay: I don't really notice it.
Yesterday we had quite a long conversation on what constitutes an “intellectual disability”. We were invited in effect to divide “mental disorder” into two categories, if you will. Actually the person, Mr. Endicott, was proposing that you get rid of the notion of “disease of the mind”, because he thought that was too much of a medical term, and replace it with a concept called “intellectual disability”.
I don't know what an “intellectual disability” is. I'd be interested in knowing if there's any meaning in--
Dr. Louis Morissette: There is, and it should not be in the law because “intellectual disability” will be applied to mental retardation. It should not be limited to that in section 16.
So as to “disease of the mind” and “mental disorder”, there is a book, which probably you have heard about, entitled DSM -IV, where all mental disorders are listed. It's similar to the International Classification of Diseases (10th revision). That's for worldwide. DSM -IV is more for North America.
The problem is not with what a mental disorder or mental state is. It is the relationship between that.... If I were a gambler, does it explain in any way the bank robbery that I will do in a week after losing all my money? If yes, do I know when I rob the bank that what I do is wrong? Could I have done otherwise?
We should not lose too much time on the definition of “mental disorders” or “mental disabilities”. Mental disabilities will be rapidly.... It's equivalent to mental retardation, so we should stay away from that term.
Mr. John McKay: Your view of it is to leave the definition as is.
Dr. Louis Morissette: Yes.
Mr. John McKay: It has meaning for both legal and psychiatric authorities.
Dr. Louis Morissette: Let's look at pedophilia. Yes, it's a mental disorder. Does it not bring responsibility from the Criminal Code? No.
º (1605)
Mr. John McKay: No, but it can, in theory.
Dr. Louis Morissette: It can. When?
Mr. John McKay: I guess the real question is, in theory, whether it should be able to.
Dr. Louis Morissette: No, no. The way I see it, you need a deranged mental state by drugs, pedophilia, pedophilic impulses, manic disorders, schizophrenia, whatever. Once you have that, then you can go to the second step, which is determining the relationship between that mental state and what you did.
I may be schizophrenic, hearing voices. Does it explain that I burn the red light? Not necessarily. I may be a cocaine addict. Does it explain that I rape a girl? Not necessarily. Maybe, but not necessarily. That's the work of the court to see if it does have a relationship.
I don't know whether that's clear or not.
Mr. John McKay: No, no. I think actually it is clear. It does help the debate because yesterday, as I understood Mr. Endicott's testimony, we were being invited to, if you will, move away from the medical model, which has a legal nexus between the analysis of the condition and the criminal responsibility. The way you've described it there is a crossover.
Dr. Louis Morissette: In 20 years' experience I have never seen someone acquitted by reason of mental illness without having a medical report. I think there should be some kind of relationship between the definition of “mental disorder”, “medical disorder”, and what will happen.
Until now, some provinces have used psychologists sometimes, but in Quebec it's only psychiatrists who do that.
Mr. John McKay: Let me use an example of fetal alcohol syndrome/fetal alcohol effect, and there, clearly, you have a diminished size of brain. Certainly your IQ is possibly below 70 and you will never recover. That is who you are for life.
Dr. Louis Morissette: Yes.
Mr. John McKay: I think there the argument that Mr. Endicott was putting was that the people who suffer from FAS/FAE are not people who should be described as having diseases of the mind. Their mind is what their mind is. I'm not quite sure where he was going in terms of criminal responsibility when they do come into contact with the law, but he did quote statistics that show that a high percentage of the inmate population in Canada's prisons suffer from FAS/FAE. At one level it's an attractive argument, but I'd like to hear the counter.
Dr. Louis Morissette: Is it a disease or not? For me, clearly it is. It's part of the DSM-IV or the International Classification of Diseases. It would be included in organic brain disease. But there are many conditions that can bring you organic brain disease. Alzheimer's is an organic brain disease. A car accident with a coma for three months is an organic brain disease. It may promote, after six months or a year or two, shrinkage of the brain.
So if it's caused by alcohol or a car accident or Alzheimer's, it does not matter. The brain is not functioning as it should, as most brains do. Call it a disease. The problem is not there. It's if you commit a crime, what is the relationship between that crime and your mental state, or your mental condition, or your brain as it is? Does your brain suffer from schizophrenia, manic depressive illness, fetal alcohol syndrome, or Alzheimer's?
I don't want to simplify it, but whatever you call it, there's a condition that is out of the norm, and what is the relationship between that condition and the crime? Is there any? And if yes, how did it affect your judgment or how did it affect your understanding of what you were doing? That's how we deal with the situation.
º (1610)
The Chair: Thank you, Mr. McKay.
Madame Allard.
[Translation]
Ms. Carole-Marie Allard (Laval East, Lib.): Good day, Dr. Morissette. Recently, you wrote me a letter concerning Bill C-7. I haven't had time to respond to it, but I have taken note of your comments. I was surprised to learn that you take the time to read Hansard. I congratulate you for taking the initiative.
Dr. Louis Morissette: I don't read it on a regular basis.
Ms. Carole-Marie Allard:
You refer to the question of automatism in the case of an individual who commits an offence with...You maintain that it is not a problem. Specifically, you state the following on page 5 of your brief:
| ...the question of automatism does not cause any problems and even if the verdict of automatism without mental disorder results in a complete acquittal, this verdict is not very common and in the experience of the clinicians [...] an accused who is acquitted in such a case does not pose a danger to society... |
However, you seem to be saying that this individual would continue to be subject to the supervision of the review board. There was a case recently in Quebec where a father assaulted a bus driver, a pedophile who had been acquitted after invoking automatism as a defence.
Dr. Louis Morissette: Automatism refers to a truly remarkable occurrence. We see reports of it in the newspapers. For example, a person will get behind the wheel, drive for 40 kilometres and then stab his in-laws. Occasionally, the accused in such cases will invoke the defence of automatism. However, this type of defence rarely proves successful in court. In the particular case to which you referred - and it's a matter of public record, so we can discuss it - the judge, after hearing the psychiatric evidence adduced, held that the accused was not suffering from a psychiatric disorder, that indeed psychiatrists would not suggest automatism in this case. The accused merely said that he had lost control upon seeing the man who had molested his child and had assaulted him. He was not acquitted as a result of the automatism defence. Basically, the jury found that his actions were justified. However, no psychiatric defence was presented in this case.
Ms. Carole-Marie Allard: No defence...
Dr. Louis Morissette: No psychiatric testimony was presented to the jury. When I saw that one of the committee's questions concerned automatism, I was surprised because the question doesn't often arise. Automatism is rarely invoked as a defence. It's a rather extraordinary defence, one that raises many questions in people's minds, but few people invoke it and in those cases, it's associated with a mental disorder such as epilepsy, a diabetic coma or some other illness.
Ms. Carole-Marie Allard: Why do you believe that section 16 as it is now worded...?
Dr. Louis Morissette: Primarily because of case law. The 1999 decision in Stone very clear defines what automatism is from a legal standpoint. From a psychiatric perspective, the question of automatism does not present any problems for us.
Ms. Carole-Marie Allard: Do I have time for another question, Mr. Chairman?
[English]
May I ask another question?
[Translation]
The Chair: Yes.
Ms. Carole-Marie Allard: Dr. Morissette, when the review board now examines a case and determines that a person is unfit to stand trial, what happens subsequently to that individual? Is he treated until such time as he is deemed fit to stand trial?
Dr. Louis Morissette: First of all, the person goes before a judge who determines whether or not he is fit to stand trial. If the judge declares the person unfit at this initial hearing, then the attending physician may, in his report, request permission to treat the individual against his will - the law allows this - with drugs for a period of 60 days. To my knowledge, there's never been a case where treatment has been extended beyond the initial 60-day period. Treatment is always terminated after 60 days.
Ms. Carole-Marie Allard: They become fit.
Dr. Louis Morissette: Most of these persons, at least in Quebec, are ultimately found fit to stand trial. Either the person in question was told how to respond, or the medication took effect. The problem comes later.
As for the few who are still deemed unfit, pursuant to the Criminal Code, they can no longer be treated involuntarily. Civil procedures must be invoked. It's possible to do that, but more complicated as well. The review board must review their case every year to must determine if they are fit, or unfit. If they are deemed fit, the board will order them back before the judge.
We argue in our brief that this stage of the process is unnecessary. If, during the ensuing year, the attending physician does not believe the individual in question has become fit to stand trial, the review board will continue to re-examine the case and every two years, the Crown Attorney will have to prove that the evidence still exists to convict that person. However, if the attending physician feels at some point during the year that the patient is getting better...In essence, the only person who can say if the person is fit or unfit to stand trial is the judge. The attending physician is asked to draw up a report stating that in his opinion, the person is fit so that he can appear before a judge immediately, instead of having to wait to appear before the review board once again. Delays of several months can be encountered.
º (1615)
Ms. Carole-Marie Allard: What happens to this person in the meantime? Is he released or does he remain in custody?
Dr. Louis Morissette: In Quebec, the majority of individuals in this category are housed at Institut Philippe Pinel. A few--three, four or five--are living on the streets, while still more are in general care hospitals.
Ms. Carole-Marie Allard: In light of your earlier statement...I'm a lawyer and in the past, I've requested close treatment . It's very hard to deprive a person of the freedom to come and go.
Dr. Louis Morissette: I understand that, but certain persons are kept in custody pursuant to the provisions of the Criminal Code.
As we note in our submission, sadly, because of limited resources, some individuals who were found by the court not to be criminally responsible as a result of a mental disorder or not fit to stand trial for the same reason, remain in custody in a detention facility before a bed becomes available in a psychiatric hospital. To our way of thinking, they are left to rot in jail because very little in the way of psychiatric care is offered in prison. Briefly, we relate in our submission how these patients are not high class, how they are not likely to vote and how they are not likely to be favourably looked upon by the public. They are thugs and insane people, two of the worst possible characteristics. It's difficult to find people willing to support their cause and they can remain in custody for weeks and months on end instead of receiving the treatment they need in hospital.
In Quebec, most of these people will be treated at Pinel. Some, but not all, general care facilities accept these patients. Among other things, we recommend that the review board have the power to order that a patient who has either been acquitted or declared unfit be confined to a hospital in his own region so that he can be close to his family and community, instead of having to stay at Institut Pinel in Montreal or in Burnaby, British Columbia. That's quite a distance from Prince George. Penetanguishene is located in Northern Ontario.
Ms. Carole-Marie Allard: Do this committee have the power to order the review board to do just that?
Dr. Louis Morissette: This stipulation could be included in the legislation, in the section dealing with powers.
Ms. Carole-Marie Allard: The review board's mandate was likely set out in provincial legislation.
Dr. Louis Morissette: No, it wasn't. In fact, the mandate is set out in the part of the Criminal Code defining the powers of the Review Board, including release criteria and so forth.
[English]
The Chair: Merci beaucoup. I think there'll be lots of opportunity and I'm trying to keep some semblance of order.
Mr. Cadman for three minutes.
Mr. Chuck Cadman: Thank you. Being a lay person--I'm not a lawyer or a psychiatrist--something that crops up if I'm just talking to people.... People have a bit of a difficulty understanding something. You referred to the Stone case. I mean, we're familiar--
Dr. Louis Morissette: In B.C., yes.
Mr. Chuck Cadman: There was an automatism defence there. There was also one earlier in the 1990s in B.C., the Williams case, that was not successful. But people start to try to understand how it is that somebody can claim that kind of defence when the offender or the accused is the only one who was there and possibly was not interviewed for some weeks afterwards. Then, all of a sudden, “I blacked out”, and that becomes a defence when nobody's there to substantiate it. How does that work?
Dr. Louis Morissette: Exactly. Maybe, to answer your question--
Mr. Chuck Cadman: Without a complete course in psychiatry--
Dr. Louis Morissette: To put things in perspective, of all the criminal acts or criminal actions in Canada, 1% will present a defence of insanity and half will be accepted. It's the same in the States, it's the same in Canada. Only 1 pourcent of all criminals will ask for a defence of insanity, and only half will be accepted.
Having said that, automatism is spectacular, but with Stone we have the jurisprudence and we can read what the court said, and his defence was not successful. How come someone can claim that? I may go to the bank and claim $1 million. Will they give it to me? Not necessarily.
I think your question concerns how some psychiatrists can go up there in court and testify that someone blacked out. I did it a couple of times, but to tell you the truth, in 20 years I did it maybe five times and it succeeded three times. The three times had nothing to do with psychiatry or science. It had to do with the victim and the accused. Three times it was a woman who had killed a bad man. Somehow the lawyers were able to bring about to the jury or judge that the victim was deserving. They're not supposed to do it, but they succeeded in doing it and these women were acquitted. That's it.
It's true that as a psychiatrist, when somebody says to me that they blacked out, many questions arise in my head. When did you black out? After the first stabbing or the third stabbing, or did you black out before? If I'm really convinced that someone blacked out without drugs or alcohol before starting the action, then automatism can be argued.
The last time I argued it, maybe a few months ago, it was a man, so I don't think it will succeed. He hit someone. He was working with somebody else, and that other person called him something bad. The patient never had a bad action in his life before, and he hit the guy and he does not recall. There were other people around, and they said, “We were so surprised he did it. He never did that before. He had a strange face and he looked so weird just before and for a few minutes after.” It makes sense. Will the judge accept it? I don't know.
So the question that the people, the community, may have is good, but it's very rarely accepted. From a psychiatric point of view we may defend it sometimes, but you're right, we rely essentially on what the person tells us because there are rarely witnesses.
º (1620)
[Translation]
The Chair: Thank you.
You have three minutes, Ms. Allard.
Ms. Carole-Marie Allard: Dr. Morissette, have you seen the movie A Beautiful Mind?
Dr. Louis Morissette: Yes.
Ms. Carole-Marie Allard: It deals with schizophrenia. The film appears to be conveying the message that a person with schizophrenia can survive, but will continue to have hallucinations his entire life. I'd like to hear your views on the subject.
Dr. Louis Morissette: I think the movie should have been entitled A Beautiful Wife because the protagonist would never have accomplished all that he did without the unwavering support of his wife. There's no question about that.
Schizophrenia is a chronic, incurable disease which can, however, be controlled with drugs. Mr. Nash isn't the only person who managed to succeed in life despite suffering from schizophrenia. Bobby Fischer is also a paranoid schizophrenic. He suffers from the same disease as Mr. Nash and was a chess champion for many years.
As you saw in the film, at the turn of the century, this disease was known as early dementia, or dementia praecox because intelligent individuals appeared to lose their abilities, particularly their ability to concentrate. Therefore, the belief was that their intelligence declined as well. That is not the case but over time, most persons afflicted with schizophrenia experience some loss of mental capabilities. There are exceptions, however. Some remain functional despite their hallucinations and delusions.
The end of the film paints a very accurate picture of the disease. It's based on a true story. However, this person managed to succeed in life because of his wife and the support he received. Otherwise, he would have been unable to function.
º (1625)
Ms. Carole-Marie Allard: May I ask another question?
We often hear of cases where adolescent schizophrenics murder their parents. This has happened on several occasions in Quebec. I would imagine that at some point...In the film, we see the protagonist become aggressive. His wife asks him if he believes he is capable of harming her. If you've encountered similar cases, can you tell me kind of defence these persons invoke when they appear in court?
Dr. Louis Morissette: It's a rather technical question. Every year in Quebec, between four and six teenagers commit murder. Nationally, the number stands at 50. It's true when they say the numbers have not increased in 25 years.
My area of expertise is adolescents. That's virtually the only group I treat. After reviewing 85 cases in Quebec, only a handful of patients suffering from a mental illness, from a psychiatric standpoint, actually presented an insanity defence. Older adults, that is those between the ages of 20 and 30, are the ones likely to commit murder as a result of their schizophrenia.
The film presents an accurate account of this disease. Often, schizophrenics feel persecuted by a parent and therefore, feel they must get rid of that person. To their way of thinking, their actions are legitimate. However, most, albeit not all, schizophrenics believe they are committing murder in self-defence. That's why they are surprised when they are held accountable for their actions.
Ms. Carole-Marie Allard: As far as the topic at hand is concerned, will a teenage schizophrenic who murders his parents be declared fit to stand trial by the review board?
Dr. Louis Morissette: Yes, that won't be a problem. Pursuant to section 16, the same process is followed in the case of both adolescents and adults when invoking the mental disorder defence. The procedure followed in youth court is the same as that followed in adult court. The review board adopts the same approach when dealing with adolescent and adult cases.
Currently in Quebec, five of the nearly 700 or 800 cases before the review board involve teenagers. I don't have the exact figures. This defence is rarely invoked in youth court. However, when it is, the same case law applies, along with the same procedures, rules of evidence and outcome. In other words, if the individual is found guilty, but not criminally responsible, the case is turned over to the review board. The person may be confined to a hospital or treated in the community. It all depends on the board's decision.
The Chair: Thank you, Ms. Allard.
Mr. Bellehumeur.
Mr. Michel Bellehumeur: I have no further questions, Mr. Chairman.
The Chair: John McKay.
[English]
Mr. John McKay: Does the term “sociopath” have any real meaning for what we're talking about? My limited understanding of a sociopath is that you really don't understand the nature and consequences of what you're doing. You may have coping mechanisms. You may have a superior ability to interface with society. When it comes right down to it, you don't understand you are hurting someone. You don't understand you are committing violence against an individual.
If it's true, then you really don't have any criminal responsibility. You almost operate in a vacuum of criminal responsibility.
Am I misunderstanding? Does the word “sociopath” have any meaning?
Dr. Louis Morissette: Oh, yes, it has a meaning, but usually today we prefer to use the term “psychopath”.
Mr. John McKay: Yes.
Dr. Louis Morissette: Maybe it will be interesting to know that there's a group in B.C. where they care for this group. They have defined and use the term “psychopath”. The old term would be “anti-social” or “sociopath”, but today the forensic literature in general will talk about psychopaths. Hare and his colleagues have defined the term and have devised a way to evaluate them, to measure the level of psychopathy.
Having said that, if it were true that a sociopath or psychopath did not appreciate that he was hurting someone--
Mr. John McKay: Excuse me, are “sociopath” and “psychopath” interchangeable, or is sociopath just a lay term?
Dr. Louis Morissette: From my point of view, yes. Sociopath is the old term. Today we would use psychopath.
º (1630)
Mr. John McKay: Okay.
Dr. Louis Morissette: Well, at least I'll talk about psychopathy. I don't know what sociopathy is, if it's something else.
If it were true the psychopath or sociopath did not know he was hurting someone when he was hurting that person, then yes, he should be found not criminally responsible. But then it would be equivalent to saying he had an IQ of less than 55 or 50, which is never true. My answer would be that a psychopath or sociopath always knows what he is doing. Maybe he has not enough empathy; he does not have the capacity to fully understand the harm he does to the other person, but he knows he's doing harm. His priority would be: I satisfy my pleasure; I want my pleasure now.
Mr. John McKay: So if you're a smart sociopath or psychopath, you're in trouble. But if you're not a very smart psychopath--
Dr. Louis Morissette: Exactly. If you are very intelligent and a psychopath, you are chief of the gang. Sometimes you are chief of some companies.
Some hon. members: Oh, oh!
Dr. Louis Morissette: You're chief of the biker gang. You're up there and you use the less intelligent psychopath to do the dirty work. And in prison, if you use the very strict definition of psychopathy, you have about 10 pourcent or 20 pourcent of the population in prison who are clearly psychopathic under the definition of Hare.
It did happen in the early 1970s in Ontario that some people called psychopaths or rapists were acquitted by reason of insanity. It's a big problem now, because these men are 55, 60, 65, 70. They are in Penetanguishene, and nobody wants to release them. The review board does not want to release them. They should not have been found not guilty in the first place. But psychopathy is not treatable, so they are stuck there. They thought at the time they would take the easy way out by taking that path. The courts agreed at that time. It's not true today, but at that time they did agree. In 1971-72, there was a group of about 20 who were acquitted. Ontario is stuck with them now.
The Chair: Thank you.
Madame Allard, did you have anything else?
Ms. Carole-Marie Allard: No, it's okay.
The Chair: I just have a couple of questions myself.
I want to explore a little the intervention from the Canadian Association for Community Living, who were here yesterday. Mr. McKay made reference to them in the context of their trying to distinguish between a disease of the mind--or mental disorder--and intellectual disability, and so on. In presenting their argument, they mentioned FAS/FAE. What about an intellectual disability that you cannot attribute to a particular condition like FAS/FAE? Is it still considered...?
º (1635)
Dr. Louis Morissette: Yes. Tourette's syndrome has motor tics and vocal tics. Associated with that, tics are not bad in themselves. There is very often impulsiveness, lower IQ, and rage associated with the illness. These people sometimes get enraged and may hit people for no reason.
We don't know where it comes from. Eventually we'll probably know it's a genetic disorder. At this point, we only see what is there; we don't know where it's from.
These people are not acquitted for reasons of insanity if they do something bad.
The Chair: This is more often the case when someone is found unfit by virtue of intellectual capacity. You would not simply attribute it to Tourette's, FAS, or FAE.
Dr. Louis Morissette: Are you asking about mental retardation?
The Chair: Yes.
Dr. Louis Morissette: In Quebec, for someone who can talk and has an IQ of 60.... You have to know that 85% pourcent of all mentally retarded people have an IQ of 55 and higher. These people can learn. They talk and can learn things. They may learn to read a bit. They may count money. You can teach them.
Look, when asked a question, they say, “Yes, I've been accused of touching that lady. Yes, I know if I'm found guilty I will be fined or may go to prison for a few days if it's a small infraction.”
Fitness is very rarely an issue for us. You can teach them, coach them, and they become fit. Are they responsible? It's another question. I don't understand how many unfit people are in the system if they are only mentally retarded. If they have an IQ of 50 and more, we'll teach them.
The Chair: If I then asked about responsibility, would you answer me in the same way?
Dr. Louis Morissette: Not necessarily. There's quite a difference between an IQ of 50 and an IQ of 65. At an IQ of 65 to 70, they know they should not do things. At an IQ of 50, they may be found not guilty.
It depends on the evidence in court. The commission has to decide. It's maybe the hardest part. The judge will decide first. Then the review board has to decide whether to put the person in a hospital, or do they put the person on probation in a community? Do they let the person go completely?
Most of these people you see under supervision, when they are given services for work, do work and behave properly. Mental retardation or disability, from our point of view, is not the problem. Sometimes you will meet someone who has mental retardation, a schizophrenic illness, or a manic depressive illness. It's more complicated. It is only a few, not many.
The Chair: I think the intervention was to speak to the problem with reference to illness. Ultimately, the Canadian Association of Community Living's position would be that this isn't an illness; it's a state of one's intellectual capacity.
Dr. Louis Morissette: It's the same for schizophrenia. Once it's there, it's there. It's the same with mental retardation. Call it whatever you want; the problem is there and you try to deal with it. Mental disorder is large enough to use the term, in our point of view.
The Chair: Schizophrenia is treatable.
Dr. Louis Morissette: It is controllable.
The Chair: I meant to say controllable.
Dr. Louis Morissette: It's different.
The Chair: I understand. It was my mistake.
Dr. Louis Morissette: To be treatable, it usually means it could go away. It does not go away.
The Chair: I see no other questions.
I thank you very much. The committee was obviously quite taken by your testimony and interested in it. I'm sure, of the many witnesses we see, you'll be invited back.
º (1640)
Dr. Louis Morissette: If I have something to say.
The Chair: We're awaiting the outcome of a number of trials.
The meeting is adjourned.