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37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights


EVIDENCE

CONTENTS

Thursday, March 21, 2002




Á 1105
V         The Chair (Mr. Andy Scott (Fredericton, Lib.))
V         Mr. Steve Sullivan (President and Executive Director, Canadian Resource Centre for Victims of Crime)

Á 1110

Á 1115
V         The Chair
V         Mr. Chuck Cadman (Surrey North, Canadian Alliance)
V         Mr. Steve Sullivan
V         Mr. Chuck Cadman
V         Mr. Steve Sullivan

Á 1120
V         Mr. Chuck Cadman
V         The Chair
V         Mr. Lanctôt
V         Mr. Steve Sullivan
V         Mr. Lanctôt
V         Mr. Steve Sullivan
V         The Chair
V         Mr. Paul Harold Macklin (Northumberland, PC/DR)

Á 1125
V         Mr. Steve Sullivan
V         Mr. Paul Harold Macklin
V         Mr. Steve Sullivan
V         Mr. Paul Harold Macklin
V         Mr. Steve Sullivan
V         Mr. Paul Harold Macklin
V         Mr. Steve Sullivan
V         Mr. Paul Harold Macklin
V         The Chair
V         Mr. Chuck Cadman

Á 1130
V         Mr. Steve Sullivan
V         
V         Mr. Ivan Grose (Oshawa, Lib.)
V         Mr. Steve Sullivan
V         Mr. Ivan Grose
V         The Chair
V         Mr. Lanctôt

Á 1135
V         Mr. Steve Sullivan
V         The Chair
V         Mr. Chuck Cadman
V         The Chair
V         Dr. Chris Webster (Forensic Service, St. Joseph's Healthcare)

Á 1140
V         The Chair
V         Mr. Chuck Cadman
V         Dr. Chris Webster

Á 1145
V         The Chair
V         Mr. Lanctôt
V         Dr. Chris Webster

Á 1150
V         The Chair
V         Mr. Paul Harold Macklin
V         Dr. Chris Webster

Á 1155
V         Mr. Paul Harold Macklin
V         Dr. Chris Webster

 1200
V         Mr. Paul Harold Macklin
V         The Chair
V         Mr. Chuck Cadman
V         Dr. Chris Webster
V         The Chair
V         Mr. Ivan Grose
V         Dr. Chris Webster
V         Mr. Ivan Grose
V         Dr. Chris Webster

 1205
V         
V         The Chair
V         Mr. Lanctôt
V         The Chair
V         Dr. Chris Webster

 1210
V         Mr. Lanctôt
V         Dr. Chris Webster
V         Mr. Lanctôt
V         The Chair
V         Mr. Paul Harold Macklin
V         Dr. Chris Webster
V         Mr. Paul Harold Macklin
V         Dr. Chris Webster

 1215
V         Mr. Paul Harold Macklin
V         Dr. Chris Webster
V         Mr. Macklin
V         The Chair
V         Mr. Lanctôt
V         Dr. Chris Webster
V         The Chair
V         Dr. Chris Webster
V         Mr. Lanctôt
V         Dr. Chris Webster
V         The Chair
V         Mr. Chuck Cadman
V         Dr. Chris Webster

 1220
V         Mr. Chuck Cadman
V         Dr. Chris Webster
V         The Chair
V         Mr. Steve Sullivan
V         Dr. Chris Webster
V         The Chair
V         Mr. Ivan Grose
V         Mr. Steve Sullivan
V         Mr. Ivan Grose
V         Mr. Steve Sullivan
V         Mr. Ivan Grose

 1225
V         The Chair
V         Mr. Lanctôt
V         The Chair
V         Dr. Chris Webster
V         Mr. Steve Sullivan
V         The Chair

 1230
V         Dr. Chris Webster
V         The Chair
V         Dr. Chris Webster

 1235
V         The Chair
V         Dr. Chris Webster
V         The Chair
V         Dr. Chris Webster
V         The Chair










CANADA

Standing Committee on Justice and Human Rights


NUMBER 072 
l
1st SESSION 
l
37th PARLIAMENT 

EVIDENCE

Thursday, March 21, 2002

[Recorded by Electronic Apparatus]

Á  +(1105)  

[English]

+

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

    I call to order the 72nd meeting of the Standing Committee on Justice and Human Rights. The order of the day 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, and we're hearing witnesses.

    I understand a couple of witnesses from St. Joseph's Healthcare are plane-delayed and are hoping to arrive at approximately 11:30. What I think we should do is proceed with Steven, the president of the Canadian Resource Centre for Victims of Crime. Steven is quite familiar with our little group.

    So perhaps we'll receive Steven Sullivan's presentation--sorry for being so familiar--and then we'll accommodate our other witnesses as they arrive.

    Mr. Sullivan.

+-

    Mr. Steve Sullivan (President and Executive Director, Canadian Resource Centre for Victims of Crime): Thank you, Mr. Chair. I'd like to thank the committee for allowing us to come and talk about this important issue.

    I know the committee will be undertaking a broad review of the mental health provisions in the Criminal Code, but our experience is actually quite limited, so our comments will be brief this morning. They'll be focused on a few key areas, not surprisingly one of which is the involvement of victims of crime in the process, the second being the issue of capping, which I understand the committee has heard some testimony about. The third is a broader recommendation about potentially high-risk offenders and what, if any, role the mental health system can play and what this committee could do to examine that issue in a little more detail at another time.

    The issue of victims of crime within the mental health provisions was, as you know, given some attention in Bill C-79, which was passed by the federal government in 1999. It allowed victim impact statements at court and review board proceedings in cases of a verdict of not criminally responsible, and victims, like other members of the public, were allowed to attend review board hearings when they took place.

    But the concerns of victims of crime in cases where an offender is found not criminally responsible are really the same as when the offender goes through the normal mental health system and is found sane for all intents and purposes. They want information, they want protection, they want to know that they're safe, and they want a voice in the process.

    In the report, A Work In Progress: The Corrections and Conditional Release Act, by the subcommittee looking at the Corrections and Conditional Release Act, the interests and needs of victims were summed up quite well when the committee wrote:

    

...the needs of victims are not complicated. They want information about the corrections and conditional release system and the progress of the case in which they are involuntarily involved. They wish their voices to be heard at different stages of the corrections and conditional release process. They want redress where these rights are not respected.

    I would say that those needs and interests of victims are parallel in the mental health provision system. Therefore, our recommendations with regard to victims go towards a little broader expansion of the right of victims to choose how to present impact statements in sentencing hearings. We recommend they be allowed to give oral victim impact statements. Currently, I understand, they're limited to written statements.

    Also, we would like better assurances that victims will be notified of review board hearings. I understand those are provincially run, but in the Youth Criminal Justice Act the federal government made an important statement when it said that victims should be given information about the proceedings under that act. I would recommend that the committee consider that for this provision as well.

    The second issue I will address is the issue of capping, which, as I'm sure you all know, never became law although it is technically in the Criminal Code. There's been a lot of concern around capping since it was first adopted as part of the broader package. The report of the Federal-Provincial-Territorial Task Force on High-Risk Violent Offenders recommended in 1995 that the capping provisions be reviewed before being proclaimed.

    At least two inquests we're aware of, the Dennis Kerr and the Christopher Stephenson inquests, both in Ontario, raised concerns about the capping provisions. The Stephenson inquest recommended that if the provisions are to be enacted, they also be accompanied by community protection legislation that will permit an application to the courts prior to release in order to continue the detention of a dangerous mentally disordered offender.

    In the Kerr inquest, the jury expressed a desire to reinforce and support the Stephenson inquest recommendation, and they also recommended that before capping became law there be a uniform mental health act across the country. As you know, each province has its own mental health act, and there is currently no uniform mental health act.

Á  +-(1110)  

    Capping became an issue for the victims and the broader policing community in 1994 when Denis LePage went to court to address his issue. He was a mentally disordered offender who had been detained for a long period of time, and his argument was that if he had gone through the regular criminal justice system, he would have already been released . At the time I was working with Victims of Violence, and we were approached by the Canadian Police Association, which was seeking intervener status in that case. They obtained that, along with CAVEAT and Victims of Violence.

    As you have also probably heard, the LePage case went to the Supreme Court along with some other cases. In 1999 the court released its decision on the Winko case, but it addressed the other cases as well. The Supreme Court upheld the mental disorder provisions in the Criminal Code despite the fact that capping had never been proclaimed. They argued that if someone is not a risk to the public, he or she must be released under the current provisions. If someone continues to be a risk to the public, it seems illogical to me to release them.

    The argument has been made that it's not fair to mentally disordered offenders that they may have to spend longer times detained than regular offenders. But the basis of the mental health provisions is that these offenders are different, so I don't think it's illogical to treat them differently from non-mentally disordered offenders.

    As you know, there's also the dangerous mentally disordered accused provision, which was brought in as part of the capping provision. It also has never been proclaimed. It was brought in to catch those offenders who may remain a risk beyond a set sentence or period of time. But like the current dangerous offender provisions in the Criminal Code, that application must be made at the time of the sentence. It's difficult for the crown to predict whether someone will be dangerous in 10 years or so. So our argument is that really is not a solution to the capping provisions.

    According to the Supreme Court, the mental health provisions seem to be working relatively well without capping and therefore there's no need for it. I think it would endanger the public to say that a mentally disordered offender has to be released in 10 years, for example, despite the fact that he remains a danger.

    A couple of issues, which we don't have a whole lot of involvement in, were raised in the discussion paper we received from the committee. One has to do with whether the review board should have the power to order an assessment prior to reviewing an offender's disposition, and we recommend that they should. It seems logical to us. This was also a recommendation of the Kerr inquest.

    The other issue that was raised was the defence of automatism. It's our position that, if retained, it should be a defence that is defined by Parliament.

    I don't know if you've asked this individual to come before your committee, but there was an article in the Peterborough Examiner in March about Dr. Stanley Semrau. He is a forensic psychiatrist who has worked with a number of mentally disordered offenders. He has written a book. I don't know much about it; I'm just suggesting that the committee might want to hear from this individual because he seems to have a lot of experience. He has raised serious concerns about the current mental disorder provisions. He in fact says they should be dispensed with. He has raised concerns about automatism as a defence and says that's largely rejected by the psychiatric community. I think his point of view is something this committee may want to become familiar with.

    The article refers to his examination of Clifford Olson and Terry Driver. I know he testified at Olson's section 745 hearing a couple of years ago. Terry Driver is a murderer from Abbotsford. So I'm assuming he's from British Columbia.

    The final issue I want to just briefly touch on--and recommend that, if it's not part of this examination, the committee consider in the future--really hearkens back to a promise that was made in the 1993 Liberal red book, which said:

Under a Liberal government, sex offenders who are not rehabilitated at the end of their sentences could be transferred by court order to secure mental health facilities for further detention. This approach has proved successful in Britain and the Netherlands.

    Obviously we don't have that legislation. The government brought in legislation to deal with high-risk offenders, Bill C-55. It was a very positive bill, and we supported it. But I think the issue of sex offenders being released at the end of their sentences and still being dangerous is an ongoing problem. We've seen communities across the country where police services are notifying the public about the release of these individuals and they're using section 810 orders more and more. I think police are scrambling to deal with these, and a lot of the solutions are very short-term solutions.

Á  +-(1115)  

    We know that some sex offenders remain a high risk for a very long time after they are released from prison. The Correctional Service of Canada has been proactive in setting up circles of support and accountability across the country where volunteers in the community will work with the offender and assist him and hopefully reduce his risk of potential recidivism.

    So we are recommending that this committee undertake at some point an examination of the issue of the release of high-risk sex offenders at the end of their sentences. Some have suggested the mental health system is appropriate for these types of offenders; at the end of their sentence they could be detained under the provincial mental health provisions.

    I think we've seen from the Stephenson inquest that the provincial mental health systems were never set up to deal with these types of offenders. They're there for short-term committals and have proved ineffective in dealing with these types of sex offenders. In the Stephenson inquest, they dealt with an individual, Joseph Fredericks, who spent the majority of his adult life in mental health facilities in Ontario. He received treatment for all that time, and every time he was released he victimized another child until finally he murdered Christopher Stephenson.

    So clearly there is some question about whether the provincial mental health systems will work. But I think it's an ongoing problem. The government recognized it was a problem in 1993, and I think it still remains a problem today.

    Those are basically my comments. As I mentioned, we've had very few victims who've been part of this process come to us, but there have been some. I think we've reflected the concerns that they brought to us. So I welcome any questions the committee may have at this time.

+-

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

    Now I'll go to Mr. Cadman for seven minutes.

+-

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

    Thanks, Steve, for coming again, and again, and again.

    We've had some suggestions or some proposals that the review board be given the power to grant an absolute discharge in the case of an unfit accused. I certainly think we heard some back and forth between the psychiatrists and the legal profession on that. I wondered if you have an opinion on that.

+-

    Mr. Steve Sullivan: I think that would probably concern us quite a bit. In terms of the provisions that deal with those who are found unfit, again, we don't have a lot of involvement with them, but it seems illogical to me to say that because someone is unfit to stand trial, despite what they might have done we'll just give them an absolute discharge. They may remain a risk to the public. I think it's appropriate to detain or have an involvement with that person until we can hopefully make him so he is fit to stand trial and then determine the best course of action. But I think an absolute discharge would put the community at risk and it is something we'd be opposed to.

+-

    Mr. Chuck Cadman: There's also been some suggestion that the mental disorder defence be available for voluntary substance abuse. In other words, it would be considered a mental disorder.

+-

    Mr. Steve Sullivan: I think there are obviously treatment issues when you're talking about substance abuse, but voluntary substance abuse as a mental disorder I would have concerns about. Obviously those people who do abuse drugs or alcohol will need treatment for that, whatever system they go into. But I don't think it should be equated to someone who has a mental disorder who doesn't know right from wrong, for example. I think they are two different things and they should be treated differently.

Á  +-(1120)  

+-

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

+-

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

    Mr. Lanctôt.

[Translation]

+-

    Mr. Robert Lanctôt (Châteauguay, BQ): Thank you for being here, Mr. Sullivan.It is not for lack of interest that I won't ask you questions about the issues we have already covered with the other witnesses.

    Nevertheless, you have mentioned a subject on which you seem to have a diiferent perspective from that of some other witnesses. You told us that automatism should be defined in the Criminal Code. On the other hand, other witnesses told us that we should not do that because it would have no effect, given the Stone decision of the Supreme Court. They were saying that non-insane automatism is extremely rare and that in those cases, the accused is usually not violent and therefore not very dangerous. As well, if the accused pleads the defense of automatism with mental disorder, he will come in any case under the supervision of the review commission.

    So, could you tell me why you want this defense to be defined in the Criminal Code?

[English]

+-

    Mr. Steve Sullivan: I think it's just a broader philosophical view that Parliament should be defining those things in the Criminal Code; that, from my point of view, a part of democracy is that Parliament be the last voice on those things. I don't raise the issue because I know of cases or have had experience with victims where there's been a problem with automatism; it's more, as I said, a philosophical view.

    I would also go back to what Dr. Semrau has addressed in his book--and again, I haven't seen it, but the committee may want to hear from him. According to him, the psychiatric community has rejected the automatism defence. This is a reference from a newspaper article; clearly it's not conclusive about what he said, but the committee may want to get more from him.

    Again, I don't raise the issue because there are necessarily problems with it; it's more a philosophical sense that these are the issues Parliament should be deciding on. The last word should not necessarily lie with the common law and judges making law.

[Translation]

+-

    Mr. Robert Lanctôt: Very well.

    This is my last question, Mr. Chair. You mentioned a mental health act that would be provincial and uniform. You know very well that it would be impossible because this is a provincial jurisdiction.

    But, if we keep the status quo without capping, I don't think Québec would need an act that would be identical to that of Ontario or Alberta, and that would be uniform. Leaving aside the issue of capping, if there is no capping and we keep the status quo, I think this problem would be solved. What do you think?

[English]

+-

    Mr. Steve Sullivan: I agree. I raise the issue of the uniform mental health act because in the Kerr inquest, which was an inquest in Ontario into an individual who's in a mental institution and ended up murdering another person who was in the same institution, the jury recommended if the government is going to proclaim capping there should be, first, a uniform mental health act across the country. I think your point addresses that: if we don't proclaim capping, then there is no need for it.

    I wasn't advocating for uniform mental health law across the country; I was just raising this because it was the concern raised by that particular inquest. But I think you're right: if capping isn't proclaimed, then I think that inquest would agree there's no need for a uniform mental health act.

[Translation]

+-

    The Chair: Thank you, Mr. Lanctôt.

[English]

    Mr. Macklin.

+-

    Mr. Paul Harold Macklin (Northumberland, PC/DR): Thank you, Mr. Chair.

    Thank you for appearing before us.

    With respect to capping, I guess I have some difficulty in approaching the idea of dropping that from the scene where someone who comes before the court system in fact is intellectually impaired and there is no hope of their recovering. How do you believe we should deal with cases of that nature? Let's say someone who has an historical mental age of 11 or 12, but is 25 or 30 years of age, is appearing before the court system. What are we supposed to suggest ought to be the disposition with respect to those individuals if capping isn't a means of at least placing a point in time where they will be released?

Á  +-(1125)  

+-

    Mr. Steve Sullivan: I guess I would support the current system, which says that you are detained, you are kept separate from society, until you are no longer a risk. Is it fair that people, who by no fault of their own have a mental disorder that makes them a danger to the public, are kept away from society for however many years? Probably not. It wouldn't be any fairer if we released them and they ended up murdering or raping someone.

    I guess the point is that in the normal system of justice we put people away for a certain period of time. A part of that is punishment because they knew what they were doing, and therefore we punish them for a set period of time. With mentally disordered offenders there's no punishment included in it. One could argue that being kept away from society is a form of punishment, but that's not the intention of the provisions; the intention is to protect society. We should do what we can to protect those persons. They should be kept in an institutional facility that is different from a prison, that is not a form of punishment, but they should not be released into the community until such time as they're no longer a risk. If that means they're never released, then unfortunately that is a reality, I think, that has to be.

+-

    Mr. Paul Harold Macklin: Well, let me take that a little further. When you're defining risk to society.... If someone is a risk to property--in other words, they've stolen something from a store--where would you want us to draw the line in terms of risk? It sounds as if you're advocating “locking these people up for the rest of their lives”. Surely there is a graduated scale of risk to the public you would have. Could you think forward and give us from a victim's perspective what you might see us doing in that regard?

+-

    Mr. Steve Sullivan: If the review board looking at a case found that this individual was a risk to go out and steal a bicycle, no one would advocate that this person be detained or locked up. If they found the risk was of this individual sexually abusing a child, then I think that would justify keeping this person put away. That's why you have the review board making the decision. They will look at all the information and determine what risk is too great for society

+-

    Mr. Paul Harold Macklin: So if I hear you correctly, you're basically drawing the line at property offences versus offences against a person

+-

    Mr. Steve Sullivan: Clearly, for most people--and us included--if there's a risk to public safety, a risk of harm being done to people, then that would be where we would have the most concern about offenders being released.

+-

    Mr. Paul Harold Macklin: Then taking it that far, if we remove the property risk level, looking at individuals.... You talk of the extreme, and I think we're all concerned about the extreme of rape--I think you use the term--and murder. Where do we look at risk from the point of view of the person who has committed a simple assault, in other words, has in some way struck someone? It's not uncommon for this to occur in situations where social skills are not well developed in an individual.

+-

    Mr. Steve Sullivan: I think it's almost impossible to get into an area where you can say this person is a risk to go punch someone in the head; this person is a risk to abuse a child; this person is a risk to go steal a bicycle. I don't think--and you'll hear from experts on that--you can put people into those kinds of categories. Any decision will obviously be made by people who have reviewed the entire file and who have listened to the doctors and other experts make recommendations to the effect that, yes, this person is a risk to do this; this person is not a risk; or he's a risk but he's manageable--as we do in the normal system. People are released on parole or on statutory release. Even though they're a risk to commit a certain offence, it's not a serious personal injury offence, so we say that risk is manageable.

    I would see that kind of scale in the mental health system. A decision would be based on all the information. Nobody can say, “He's a risk to go punch someone in the head; make him stop”, and he's going to walk away. I don't think you can make those determinations, certainly not in law.

+-

    Mr. Paul Harold Macklin: Thank you, Mr. Chairman.

+-

    The Chair: Thank you, Mr. Macklin.

    Mr. Cadman.

+-

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

    I just have a brief question about an individual who has been diagnosed with a mental disorder, who is on medication, who at some point makes a decision to go off the medication, and who then commits a violent offence. We've had a number of those cases in the past few years. I would like your opinion on where you feel the responsibility lies, at what point the person is responsible. Are they responsible, or should they be able to use the mental disorder defence after making a decision to go off the medication?

Á  +-(1130)  

+-

    Mr. Steve Sullivan: That's a difficult question. We know that with some people their risk can be managed if they take certain medication. Sometimes that medication has side effects that are undesirable to the person taking it. It would probably be on a case-by-case basis. If the person still suffered from their mental disorder when they forgot to take the medication--those types of things--and then committed a serious offence, then that person should probably still be able to benefit from that defence.

+-

     It gets tricky when someone decides that they don't want to take their medication and commits an offence, but it's still because they have a mental disorder. I think, from a victim's view, the key is that whether you put him into the regular system or the mental health system, if he remains that high a risk, he should be dealt with somewhere and kept away from society somewhere. Where he would go would depend very much on the circumstances, and I don't know that an answer can be given. We can write a provision of the code and say if he doesn't take his medication the next time he's going to jail, something like that. I think it should be dealt with very much on a case-by-case basis in the courts. That's the best arena for it.

    The Chair: Mr. Grose.

+-

    Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chairman.

    Mr. Sullivan, you mentioned victims' statements when we're dealing with a mentally deranged person. I'm wondering of what value is a witness statement in this case, because he or she is not an expert on what is wrong with the accused. It seems to me that we're getting into the revenge thing rather than looking at this person as a little bit different. They're deranged and we have to look after such people some other way rather then punishing them by five, ten, fifteen, twenty years or whatever.

    I realize that it's we who allowed the witness statements, not you, but I'd like your opinion on it.

+-

    Mr. Steve Sullivan: There are a couple of things. There was a concern when victim impact statements were first brought in that they'd be statements full of revenge and used as tools of vengeance. In fact, studies that have been done in the U.S. have found that in fact they are not those kinds of statements. They are statements about the impact of the crime on the victim.

    Where it can be useful, I would think, is in a case such as Mr. Cadman talked about, where an offender is being released into the community and he has to take medication to control his behaviour. And if the victim were there to remind him of how important it was to take that medication, if the offender could see what happened the last time he wasn't on medication, then that might be of valuable use to the individual. Certainly for the victims it's the same as in any system; there's a cathartic effect in giving statements and being part of the process. But I think it could be very useful for the individual who is potentially going to be released in the community, who potentially could be required to take medication, as a reminder when he or she does not take a medication.

+-

    Mr. Ivan Grose: That's an interesting point of view. Thank you.

    Thank you, Mr. Chair.

+-

    The Chair: I'm going to see if Mr. Lanctôt wants one more question, and then we'll go to our next witness, Mr. Webster.

[Translation]

+-

    Mr. Robert Lanctôt: I appreciated the question that explained the answer that was given to Mr. Groses's question. I appreciate this answer. I was asking myself that same question. This was very relevant. My other question is somewhat contrary to the one of my colleague Macklin.

    First, we are not here to punish those people; on the contrary, we are here to treat them. Even if it was something minor and because of a lack of ressources in the system, he is in the community and a crime has been committed, he is still taken care of. It may not be in the mental health system, but he is in the judicial system and he can be treated. I think we can help him. He will receive the tratment he needs.

    About your example, statistics say that it is a very small minority of these people, a few exceptions really, who will spend their life in detention. The other ones will be released after a few months. At least, after they have received a treatment. If we introduce capping, we might have to release them before they have completed their treatment. I would like to have your opinion on that. It goes a bit against Mr. Macklin's.

Á  +-(1135)  

[English]

+-

    Mr. Steve Sullivan: I think you're right. Of course, we come at it from the extreme view of victims of crime who suffer serious offences committed against them, but you're right, the purpose of these provisions is to treat people. In Ontario there's been a move to get people out of the institutions, or at least there was a little while ago. You can argue they're still manageable if they're not a serious risk to the public, but you also want to make sure you're right and that they're treated. If you can do that treatment in a community, if they live in the community or they have access, then by all means that should be done, but the focus should be on treating the offender and at the same time, in those extreme rare cases, protecting the public as well. They are not mutually exclusive.

+-

    The Chair: Thank you.

    Mr. Cadman.

+-

    Mr. Chuck Cadman: I want to make a brief comment on Mr. Grose's question and Mr. Sullivan's answer about the victim impact statement. He suggested that it reinforces to the offender the importance of the medication and also it's cathartic for the victim to do the impact statement. I would suggest it also reinforces to the review board, when the review board hears from the victim what the impact had been, why it's important to make sure this person stays on the medication or whatever. That's just a comment.

+-

    The Chair: I would like to welcome Dr. Chris Webster from St. Joseph's Healthcare. I understand you were delayed by the weather.

    Mr. Sullivan has already presented. Obviously, Mr. Sullivan, you're invited to stick with us.

    If Mr. Webster has a presentation, please note that we generally try to keep these to around 10 minutes. I'll give you all kinds of bizarre signals as we get close.

    Also, I would tell members of the committee that I'm going to continue with the three-minute rounds after Mr. Webster so we can perhaps engage both of our witnesses further.

    Dr. Webster.

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    Dr. Chris Webster (Forensic Service, St. Joseph's Healthcare): Good morning, and thank you for having me here. I apologize for being a little late. It was entirely due to Air Canada, of course.

    I've never been to one of these things before. This has an august appearance. I'm not used to such glory.

    Perhaps I should tell you something of my humble origins--within the 10-minute time limit, of course. By basic training I'm a psychologist. I've been a research psychologist throughout my career, and I've been interested for the past 25 years or so in the issue of risk prediction, predicting violent acts, particularly as they occur in patients with mental illness and in people who are in the criminal justice system. Along with other colleagues I've written extensively on this topic. Naturally, one does such work within the context of the legal framework. That is, after all, the crucial thing that directs our activities.

    I was really intrigued to read the excellent summary that was sent to us, this piece of paper that is called a review.

    In the mid-1980s I was part of that group of researchers, lawyers, and various other people who flew into Ottawa repeatedly to give advice to the mental disorder project. Perhaps a little to our surprise, in 1991-92 we actually ended up with some new legislation, which in some respects seemed to be more or less what we expected. That is, there were changes in the language and so on, and it made it more modern. But there was this tendency to import part 24 of the Criminal Code into it, the dangerous offenders sections, which seemed new to us--or at least new to me. The notion of the capping provisions seemed altogether new, and a number of us were surprised. I suppose we all expected the capping provisions to be introduced within a year or so, but of course they've not been.

    We were also conscious of the fact that, I think, the law stipulated that there would be a review of the changes, of the amendments to the Criminal Code, within five years or so. It does seem that now, with your work, this is finally taking place.

    Just one other last thing I would say is that around 1988, 1989, or 1990, I and a colleague from the University of Montreal, Professor Sheilagh Hodgins, were given some contract grant money from the Department of Justice to do a study of what was then called the lieutenant governor's warrant system. For three years we collected accurate data on all the people in all the provinces under that system. The data was assembled and organized and it was given to the Department of Justice. It had been our fond hope that this process of collecting data would continue after the changes in the law came into effect.

    It turned out that the matter was turned over to Statistics Canada--we turned it over to them--whereupon it faltered. No more data was really collected in any systematic way and hasn't been since that time. In other words, since 1991-92 when these changes came into effect, we have been dealing largely with impressions, it seems to me. They are perhaps well-founded impressions, coming from parliamentarians, the public, academics, and the like, but we have very little data to tell us what actually occurred as a result of these very important changes. I think that was a bit of a pity.

Á  +-(1140)  

    The only study that has been done at all on this now quite large group of people was done fairly recently by a person called Richard Schneider, who is a psychologist and also a lawyer and who has recently defected to become a judge of the provincial court in Ontario. But Richard Schneider did the one and only study of this population when he was legal counsel. That was his last job before he fled into the judiciary. Richard would excuse me for saying that it's a pretty superficial study; it really is just a head count. It doesn't even tell you the gender of the people now in what we tend to call the disposition order system.

    I think I've really just tried to specify why I'm interested in this, how I got to be interested in it, why I remain interested in it. Of course, I and Dr. Stephen Hucker--who happens to be in Germany at the moment; that's why he's not here, and he apologizes in that respect--did submit a written response in which we tried to answer the more specific questions posed by your committee.

    If that's all right, sir, I think I'll stop there.

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    The Chair: Thank you very much. We're glad you made it.

    Dr. Chris Webster: Thank you.

    The Chair: And after your comments about Air Canada, we wonder how you're going to get home.

    Mr. Cadman.

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    Mr. Chuck Cadman: Thank you, Mr. Chair, and thank you, Dr. Webster, for appearing. I think those who surround this table understand about Air Canada and the snow, especially when you have to go to the west coast.

    You made some comments that suggested to me that you support the capping provisions. I got that from when you said you hope to--

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    Dr. Chris Webster: No, that's not necessarily so, no.

    Mr. Chuck Cadman: I see.

    Dr. Chris Webster: I think that as matters have transpired, it probably is not actually necessary to institute the capping provisions. I think that has a certain amount to do with recent Supreme Court decisions and in the way in which the onus has now shifted from what it was before. In other words, there now is more pressure on the boards to ensure that people are not unduly detained. Of course, that was the intent of the capping provisions, which themselves had an internal cap with the notion of using dangerous, mentally disordered accused persons.

    So no, as matters have occurred, I think the level at which the boards are now run.... And I should mention I sit as a member of the Ontario review board, so I see this from the other side of the table now as well; in other words, I'm part of the decision-making process. Certainly, at least with respect to Ontario, I would have nothing but high praise for the way the board actually operates, and I think it's probably a distinct step forward from the way the boards used to operate under the former lieutenant governor's warrant system.

    I think the boards, certainly in Ontario, are very attentive to Supreme Court rulings, and we are educated in these and we are asked by the chair to keep these very much to the forefront of our mind. In other words, we are constantly cautioned to ensure that we are not detaining people who really should not, in fairness, be detained. Under the old system, as you will well know, there were some real travesties, particularly with respect to the terribly protracted detention of people suffering from mental handicap.

    There was a case in New Brunswick maybe 15 or so years ago. You'll recall the case of this young man, who at about age 16 snatched a woman's purse. I think at worst if he hadn't gone through this particular system he would have maybe got three months; as it was, he was detained for 10 or 11 years. With the new legislation, I think the chances of that kind of really severe detention are markedly limited.

    So I'm now not at all sure that we need the capping provisions, they're extremely convoluted and complex. As I say, the boards tend to be pretty attentive to using that phrase “significant threat” and thinking a lot about what it actually means.

Á  +-(1145)  

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    The Chair: Thank you, Mr. Cadman.

    Mr. Sullivan, I want to make sure that you feel comfortable in the context of this, that this isn't his turn, or whatever.

    Mr. Lanctôt.

[Translation]

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    Mr. Robert Lanctôt: Mr, Webster, thank you for being here. Your area of expertise leads me to ask you the following question and to stay with the issue of capping.

    Can we go as far as saying that since the changes that followed the Stone case and since the establisment of the review board, that does a good job, for the criminal, for the one that is declared non responsable or unfit to stand trial, could it not be a form of de-institutionnalization and even a way out? Can it be a good way to put back on track, with appropriate treatment, the one who didn't take his medication? Does the review board take over the role of the health system? Could it be that we should keep the status quo?

[English]

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    Dr. Chris Webster: Thank you.

    The question in part is, has it really not turned out that what we had developed, almost perhaps unwittingly, is in a sense a large community treatment order system, without quite even thinking about it or without recognizing it at the time? I think to an extent this has occurred. That is to say I think some authorities have found it convenient to move people, to direct them into what we might call the forensic system simply in order to ensure that they do get that supervision, which they might ordinarily not get in their provinces under their provinces' mental health acts. To an extent I think that has occurred.

    That has had, I think, quite a dramatic effect, certainly in Ontario, because it has meant that large numbers of people who before might have been what one might have called “ordinary” mental patients have been charged and have then found themselves in the criminal justice system; and coming under the influence of the review boards they've found themselves with a disposition order, which has in a way kept them in the system. The effect this has had, of course, is that it has decreased the number of available general psychiatric beds. All of the Ontario hospitals face this increase in forensic patients at the expense of general psychiatric patients.

    So in a certain sense it solved some problems. It has brought some people under supervision. It has increased the likelihood that they will take their medications and comply with other aspects. But I think the committee needs to know and needs to investigate, or needs to think about, the fact that there have been some costs to this, costs at a provincial level.

    In Ontario we have built, or established, or modified maybe around three or four medium secure forensic units since this bill was introduced. I don't say that was purely as a result of the introduction of this bill, but this bill has in a way aided that process. Even in the relatively small hospital from which I come, which is the forensic service of St. Joseph's Hospital in Hamilton, what used to be called Hamilton Psychiatric Hospital, even that unit is now in the process of developing a medium secure unit. We have a minimum secure unit; we shall now develop a medium secure unit. This has happened in various other locations in Ontario.

    This is actually not even peculiar to Canada. If you go to England, Sweden, Norway, or Germany, what you'll find is a tendency for the size of general psychiatric hospitals to be decreasing and the numbers of forensic psychiatric beds to be increasing. The evidence that this is occurring, as I say, not just in Canada but even worldwide is really incontrovertible. It's just a trend that is occurring.

    In part it is because these supervisory services are not so readily available in the ordinary psychiatric system. I think the federal government perhaps needs, at least in my opinion, to know that it has stepped into a bit of a breach here, almost without quite knowing that this would likely happen. I don't think this was an intended consequence of Bill C-30. I don't think so. But in fact the number of patients within this system has increased dramatically. It has increased by about two times to three times. The figures are all in Richard Schneider's report, just in terms of numbers. So we do need to take into account that we've really increased the size of this forensic system to cope with Bill C-30.

    That doesn't mean to say I'm arguing against Bill C-30. I'm just stating a fact as I see it.

Á  +-(1150)  

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    The Chair: Mr. Macklin.

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    Mr. Paul Harold Macklin: Thank you, Doctor, for appearing today.

    It may be outside your area of expertise, but I wonder in your capacity, how do you view those who I will say are “intellectually impaired” but it's either genetic or from an accident as opposed to a disease in the generic sense? Do you believe our legal system is functioning properly as they come in contact with the legal system? In other words, are they being shut out in any way from getting proper protection before they are in this process of it being determined whether they are fit to stand trial or whether they're not responsible?

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    Dr. Chris Webster: Yes, of course. It's been a long-standing and well-recognized issue that people who suffer from mental handicap, mental retardation, are at a disadvantage. When it comes to dealing with things like fitness to stand trial, they go in with a major disadvantage. And there are some people, of course, who are likely never to become fit to stand trial. This is a sad state of affairs for those very, very few people who find themselves in this position.

    A lot depends upon the seriousness of the initial charge. These are always related, as you well know. If the charges are fairly small, chances are that people will vary the level of fitness. I know it's laid down in the code and we have three criteria, but the courts use some sense in the application of those criteria.

    Although it's a serious problem--and mental health professionals need to be very attentive to this matter, as in the case of say, the 16-year-old young man--I don't think they constitute a very large number of people. There are a very few. And certainly, in my clinical experience and at the review board level, we now look at these cases very carefully

Á  +-(1155)  

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    Mr. Paul Harold Macklin: Would you have any suggestions for this committee based on your experience that might be helpful? You say there is flexibility within the system on the fitness to stand trial issue. Do you think we should be looking at modifying the way in which the needs of the individual are assessed at that point?

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    Dr. Chris Webster: Well, it's an interesting thought. One thing the new provisions have done is require that the crown show that it still has a case against the individual after two years. I'd be really interested to know how often this criterion is met or how often this is investigated and dealt with.

    In other words, I don't know the answer to this. That's why we need a database, to follow these things. But I would be interested to know if there are individuals with a mental handicap who end up in this system and for whom the whole question of whether there is still a case remaining against them after two years is not really looked into. It would be particularly important to do this in the case of a relatively minor or trivial offence.

    I've been working for many years with colleagues at Simon Fraser University and we have produced a small book--I wish I had a copy here--called The Fitness Interview Test, FIT. It's a small manual, and the most recent revision begins by talking about the three criteria in the Criminal Code. It lays those out.

    Any kind of test psychologists or psychiatrists come up with, any scale or device must conform to the law. The law is our base; it's where we start. You can invent any kind of instruments you like, but if they don't actually fit with the law, they're not much use and they could be potentially harmful. But what I would urge is that mental health assessors be trained in the fitness assessment procedure--if not our so-called FIT, then in some other system on which there is general agreement.

    On the surface it looks pretty easy to do a fitness assessment. It looks pretty straightforward. In fact, as you work your way into it and begin to deal with the complexity of the severity of the alleged precipitating offence, it becomes more complex. But what we say is that there are about 20 points you can raise in a fitness assessment that help you come to a sensible conclusion from a mental health perspective, which you can then take to the court.

    This business of a standardized or thought-out, structured way of assessing fitness has been around for a long time. There was a very distinguished psychiatrist in the mid-1980s called McGarry, who was put in charge of a large mental hospital in a place called Bridgewater. He had huge numbers of people in there who were said to be unfit. After a bit of thought, he and a group of colleagues put together a thing called the competency assessment instrument, which they then applied against all 200 or 300 people.

    They concluded that they were detaining unnecessarily maybe half the people in their institution. They took those cases back to the court, backed by the CAI, the competency assessment instrument--which, to be frank, we modelled our fitness interview test on--and the courts released about half of those people. It was dramatic. It showed that a huge number of people can be unfairly detained for very long periods for no defensible reason.

    It would be hard to legislate this, but I do think there could be a line or two in there suggesting that the mental health practitioners who conduct these assessments, duly qualified medical practitioners, be conversant with conventionally accepted assessment devices. As I say, if this were to be done systematically, I think it would be greatly to the benefit of the individual and indeed to society.

    Does this help at all?

  +-(1200)  

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    Mr. Paul Harold Macklin: Yes, it's very helpful. Thank you.

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    The Chair: It certainly helped me.

    The chair calls on Mr. Cadman.

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    Mr. Chuck Cadman: Following Mr. Macklin's line of questioning, the suggestion has been proposed that review boards be given the authority to grant an absolute discharge to an unfit accused. As a member of the review board, would you like to see this kind of power accorded to you?

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    Dr. Chris Webster: I think so, yes. Review boards, as they're currently constituted--and I think they're constituted very wisely--have the knowledge and ability to make that decision. It's one step that could be taken out. That's certainly what I would recommend, on the basis of not only the review boards I've sat on but review boards I have observed in the course of doing research. I think they have that capacity, especially now since this bill has come into effect. It's just one more step that's really unnecessary, to take the person back to court.

    You have the expertise on the board. You have a very senior lawyer or judge chairing it, another lawyer, and a psychiatrist. That's fairly impressive. I don't think the court step is really necessary. I don't know if you agree with me or not.

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    The Chair: Thank you, Mr. Cadman.

    Mr. Grose.

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    Mr. Ivan Grose: Thank you, Mr. Chairman.

    You mentioned that you've spent 25 years, I believe, in research. I hope you've done some statistical research.

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    Dr. Chris Webster: Oh, yes.

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    Mr. Ivan Grose: Okay. So at the end of the day, are we diverting enough people into the mental health system rather than keeping them in the penal system? What is rate of recidivism? Are we doing better than we were 10, 20, or 30 years ago? That's really what we have to answer.

    Let's take the headline people out of it--the sex offenders, pedophiles, and so on. Lump them in with the rest of them, but let's not concentrate on them. We have to answer to our constituents. Are we doing a good job, a better job than we were? Can we do much better? We can always do better, I realize that, but how do we look compared to 25 years ago?

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    Dr. Chris Webster: In light of my 25 years of working in these systems, we're probably doing somewhat better than we did before in terms of being fair to both the patients under our protection and society in general. That is not to say, after the fact, that major errors haven't been made. We read about those in the newspaper, and of course they tend to skew our whole thinking. But it's understandable; it's almost a scientific phenomenon in itself.

    Yet sometimes it's scientifically very hard to demonstrate statistically that even when you put huge amounts of extra resources into helping patients--I'm talking about people with mental disorders and personality disorders--that increased effort makes all that much difference. A recent large-scale British study came out that randomly assigned a large number of patients to ordinary psychiatric after-care treatment and to intense supervision. They found no difference, as it turns out. There could be a number of reasons for that, but the answers are somewhat up in the air. You have to rely on my general impression, but I think we should be investigating this.

    We have data from 1988, 1989, and 1990. It's locked up; we have it. We ought to be able to find out. We ought to be able to answer that question less impressionistically and more scientifically without incurring huge costs. I think it really needs to be done.

    You should also note, by the way, there is a bit of a problem in the sense that once we grant an absolute discharge to a person at the review board, that person is lost to us. We have no ethical or legal right to pursue that person from that point on. It becomes almost impossible to investigate, because certain few people will get absolute discharges, will two or three years later commit other serious crimes, and they could be lost to us.

    But I think a great deal could be accomplished by reviewing the state of affairs in a more organized and systematic way to produce the kinds of answers you probably need to assure your constituents properly.

  +-(1205)  

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     Yesterday in the Globe and Mail there was a piece that pointed out the remarkable piece of information that if you have good nursing care in the hospital, you are less likely to die. Does the committee think it's a staggering finding that if you have good experienced nurses there, fewer people die? This is important to know. I think we need the same kind of approach here. The question is, with the system we have in place, what is our failure rate?

    That, to a large extent, is an answerable question, and it's one we really ought to have. If the law is reshaped, it should be reshaped according to political considerations, the mood of the public, and all these things, but it should also be reshaped in part by some actual statistical information, which at the moment we do not have.

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    The Chair: Thank you.

    Monsieur Lanctôt.

[Translation]

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    Mr. Robert Lanctôt: I would like to come back to two comments. Mr. Webster, you tell us that expertise has a role to play in society, among others within the review board, and I fully agree with you on that. You talk about people with a forensic training, therefore about psychologists and psychiatrists. We have been told there was a lack of Crown counsel. I think it is a global thing. We have to look at the expertise of all the members of the board, to give it more expertise, but should it replace the courts? I wonder what would be the benefit of that. I think the aim is to give the best report possible to the courts so they can take a decision based on the expertise of the members of the review board.

    Somebody told us yesterday that at the Pinel Institute, we should have two and not one psychologist or psychiatrist on the board, and that would strengthen the openess and the quality of the report prepared by the review board. I know there still is the lack of ressources, but it is a suggestion we could make, add a member of your profession. I am a lawyer myself, but I don't really think a member of the legal profession should replace one from the medical profession. I think there are qualified people in your area and there are also qualified members of the court that can keep doing what they do.

    Thank you.

[English]

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    The Chair: I think you're paying for the comment about defecting to the bench.

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    Dr. Chris Webster: That's true, but skipped over was my comment with respect to fitness to stand trial cases, that it was chaired by a very senior lawyer or judge, and that there was another lawyer on there too. I think I paid due deference to the legal side of this.

    I guess what we're talking about here is that in Quebec, clearly, they tend to work with three-person boards on a routine basis. I take this to be the case, which would really mean that you would have a chair, a lawyer, and one psychiatrist. The law stipulates there must be a least one psychiatrist.

    In Ontario, since the inception or since close after the inception of Bill C-30, the practice has been to always have five sitting members. It is very rare in Ontario for that full board not to be there. So in practice, Ontario uses the Criminal Code the way it's laid out but does not resort to falling back on a quorum. The chair insists that there be fully five persons there. I've not yet sat, in 18 months, on a board that didn't have five people.

  +-(1210)  

[Translation]

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    Mr. Robert Lanctôt: There are always two psychologists or two psychiatrists on the board?

[English]

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    Dr. Chris Webster: No. What we always have on the Ontario board would be one psychiatrist for sure, always, and sometimes a second psychiatrist or a psychologist. So sometimes it's psychiatrist-psychiatrist, sometimes psychiatrist-psychologist.

    A number of psychiatrists have said to me that they actually like having a psychologist sit rather than another psychiatrist. The advantage of having the psychiatrist there is that the psychiatrist can usually deal with issues around medication, which psychologists can't. On the other hand, research-inclined psychologists can often bring a quite different and somewhat more research-inclined perspective to bear.

    Just by the by, I was at the Institut Philippe Pinel for a day last fall talking to the entire staff, psychiatrists, psychologists, and others, about the way we approach risk assessment. At Pinel they're certainly trying to take advantage of what is occurring elsewhere in the country, and they have recently translated our so-called risk assessment scheme, which is called the HCR-20, into French. So they're beginning to use the standard device that is in fairly frequent use across the country now.

    Does that get to it? Have I answered the question enough?

[Translation]

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    Mr. Robert Lanctôt: Yes, thank you.

[English]

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    The Chair: Mr. Macklin.

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    Mr. Paul Harold Macklin: Thank you, Mr. Chair.

    In your notes you appear to have thrown out a challenge to us and I would like to throw it back to you. That is: “We think automatism should be defined in the Criminal Code and we are of the view that courts should have power to impose supervisory orders in some cases of non-insane automatism”.

    First, could you tell us what you believe the definition ought to be, and second, what cases do you believe and what types of orders, should be applicable to the second part of that statement?

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    Dr. Chris Webster: It's a really tough question, and if my colleague Steve Hucker were here--he testifies in all kinds of automatism-type trials and has been doing this for years--I would say he would give you a much firmer answer to that question. I think what I would do, if you require a proper answer to that.... I don't think I can really give it to you--

    Mr. Paul Harold Macklin: All right.

    Dr. Chris Webster: --and I think I should decline from trying to do so.

    I'm merely trying to say that I think if you put a couple of well-known forensic psychiatrists or psychologists, one of each maybe, together with a couple of well-known lawyers in this area--and there are a number, as you well know, who have testified in things like the Parks case, for example--who have really come to grips with this issue, I think it would be possible to come up with a definition of non-insane automatism that might satisfy a committee such as this. But I don't think I should take a fly at it today.

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    Mr. Paul Harold Macklin: Would you care to respond to the second part of the question dealing with ``...we are of the view that the courts should have power to impose supervisory orders in some cases of non-insane automatism'' and tell us what your--

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    Dr. Chris Webster: I think there may be a few cases there--and they would be immensely rare--where a person committed a very violent act while in the state of automatism and, although the person might have no conscious remembrance, even, of the incident, the prospect of that occurring again could be quite horrific. It doesn't seem unreasonable in such cases that the court should be allowed some form of supervision. I think they'd be immensely rare, but I think it probably should be allowed for.

  +-(1215)  

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    Mr. Paul Harold Macklin: Thank you.

    Pursuing that a little bit with respect to automatism, you say you do risk predictions. Are you able to predict with any degree of certainty the recurrence of automatism incidents?

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    Dr. Chris Webster: I couldn't answer the question. In the kinds of statistical databases I have helped set up with my colleagues and so on, such cases would be so rare that you wouldn't actually be able to do anything with it statistically.

    For example, my main database contains the names of 600 people who were assessed in 1978-79 at a place called the Metropolitan Toronto Forensic Service. We've followed these people since. Out of that group of 600, I'd be surprised if there were two or three cases of non-insane automatism.

    So although I argued earlier for the importance of general statistics, with respect to these odd individual cases I don't think you're going to be able to do much with it statistically. We have to rely on the law then, you see.

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    Mr. Paul Harold Macklin: Thank you, Doctor.

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    The Chair: I'm going to go out of order to Mr. Lanctôt, because it's specifically a supplemental to this.

    Mr. Chuck Cadman: Very good.

[Translation]

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    Mr. Robert Lanctôt: Thank you very much.

    I would like to ask Dr Hucker if he could give us something in writing if he can't be here. Yesterday, in his brief, Dr Morissette told us the contrary, that we should not define automatism. He gave us examples and he was saying that the case law, since the Stone case, solved a lot of things and that in the great majority of cases, the review board already supervises the defense of insane automatism and that it is extremely rare in the absence of mental disorder.

    We were told that with a definition that is not clear or not very precise, there is a problem, especially if it is declared invalid by the Supreme Court. Definitions are not always necessary; a judgment may contain a method or criteria. I would therefore like Mr. Hucker , if he is unable to testify here, to explain us in writing why we need a definition.

    Thank you, Mr. Chair.

[English]

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    Dr. Chris Webster: Thank you. That's a good point. What I will do is refer this to my colleague Steve Hucker and ask him to address a note to you. Is that okay?

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    The Chair: Yes, that would be....

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    Dr. Chris Webster: I have just a quick question on that. You say it was Dr. Morrison?

[Translation]

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    Mr. Robert Lanctôt: It is Dr. Morissette from the Pinel Institute.

[English]

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    Dr. Chris Webster: Oh, Morissette. I actually know him. It's nice to know who you're talking to.

    But I will definitely ask Dr. Hucker to correspond with the committee on this, through the chair.

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    The Chair: Thank you very much.

    Mr. Cadman, thanks again for your acquiescence.

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    Mr. Chuck Cadman: It's Thursday.

    I'd like to go back to something we were discussing when you came in, Dr. Webster, and that is the issue of victim impact statements. Currently victims are permitted to submit impact statements to a review board for review hearings for those judged not criminally responsible. Mr. Sullivan's organization has proposed that victims be allowed to present those impact statements orally to bring it in line with the Criminal Code provisions and the Corrections and Conditional Release Act.

    My first question is, do you feel that would be useful? As well, in your experience as a member of the board, how much weight is actually given to victim impact statements in your decisions?

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    Dr. Chris Webster: I find that when you go to a board hearing, especially after, say, an initial hearing, there sometimes isn't much information. But normally when you go to a board hearing you are presented with a lot of background information. There is usually a very extensive, full history about the incident and the individual's past and the like.

    I think I would have some worry, perhaps, about the use of victim impact statements in these meetings. I say that largely because I think that material is already in the file. The board goes over it each year. If these statements were allowed in at the board, the cases would almost be retried each year, with the information brought forward and gone over again and again.

    I'm not saying, of course, the incident doesn't have to be gone over and thought about and pondered and taken very much into consideration, but I guess I would have some worry--and this is a personal view--about the continued reintroduction of victim impact statements.

  +-(1220)  

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    Mr. Chuck Cadman: Excuse me, but does the law not now require that impact statements be considered by the board at all hearings? Are you saying that this is not necessarily done?

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    Dr. Chris Webster: I rarely see victim impact statements in the board.

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    The Chair: Mr. Sullivan.

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    Mr. Steve Sullivan: One of the reasons it's done is that very often provincial systems have problems getting information from one system to the other. For example, even the Ontario Board of Parole doesn't get impact statements introduced at sentencing hearings. When it comes to reviewing board hearings, very rarely are victims notified. There's no body that notifies them of hearings coming up. It's not surprising that there aren't very many impact statements there. I don't think it's because victims wouldn't want to submit them. They don't know that the hearings are taking place.

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    Dr. Chris Webster: Could I just make a further comment on that? I think one thing that has happened since the changes--the reorganization of the law under Bill C-30--is that very frequently, let's say, the parents of victims will appear at hearings. They will take their place in the process, in the room. In a certain sense that is an important process, it seems to me, and it's necessary that they be allowed to attend, but in a certain way it creates for particular individuals facing the review board its own kind of very strong impact. Am I being clear? The very presence of parents creates an impact. I can recall a case of that kind recently. Under the law it is possible for, if you like, interested and affected parties to make yearly, continuous representation by their mere presence, it seems to me, under the existing arrangement. To me, that seems fair enough.

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    The Chair: Thank you very much.

    Mr. Grose.

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    Mr. Ivan Grose: Thank you, Mr. Chair.

    I will address this to Mr. Sullivan. Since you last testified, if we haven't veered off the road, we've been at least driving on the shoulder. I notice that you've been busily writing. I'd like your comments on just what we've been doing here in the last 20 minutes, because it has been quite different from the testimony and the questions that you answered.

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    Mr. Steve Sullivan: I think it's obviously a different point of view. Dr. Webster has far more experience in the system and expertise than I do. I make the comments as an outsider who represents a particular clientele. As far as reforms to particular sections of the code are concerned, clearly Dr. Webster has far more knowledge than I would have in how the system exactly works and where the flaws are.

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    Mr. Ivan Grose: Yes, but you do represent a group of people, and whether or not their acceptance of what Dr. Webster says would be easy or difficult is important to us.

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    Mr. Steve Sullivan: That's why we've come to make some representations. I think the broad concerns we've raised are generally the concerns that victims would have. I just don't know that victims have the particular experience or expertise to offer the specific kinds of recommendations that Dr. Webster might have.

    I don't know whether that answers your question.

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    Mr. Ivan Grose: The reason I ask is that we've been getting some really highly conflicting evidence over the last few days, and I wondered if you were part of that and weren't getting a chance to tell us; but if not, fine.

    Thank you.

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[Translation]

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    The Chair: Mr. Lanctôt.

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    Mr. Robert Lanctôt: My question is directed to Mr. Sullivan, because he gave Mr. Grose an answer that kind of threw me off.

    I was in agreement with what Mr. Webster was saying. Mister Webster, you were not here, but Mr. Sullivan answered the same question or almost the same by saying that if the victims are allowed to participate or to present orally their point of view, they even might want to help the accused follow his treatment when he is not supervised anymore. The victim coul be used as a “watchdog”. I do not know if the victims would all want to do that but this answer threw me off. What do you think of that?

[English]

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    The Chair: I think it's directed to Dr. Webster.

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    Dr. Chris Webster: If I'm understanding it correctly, it is possibly true in the very remote case, highly remote case, that the victim or the victim's family might be helpful in a supportive or rehabilitative role, but I think those cases are going to be pretty rare, really rare. To try to frame law around that would be very, very difficult, it seems to me.

    We've mercifully, I think, over the past couple of decades become used to the important contribution that victim awareness groups have made, often inspired, I think, in earlier years by Mr. Cadman. I can remember a attending a talk you gave in Vancouver some years back, actually quite a while back. So I think this movement has become very important, and as mental health professionals, I think we've come to be attentive to those movements, as we should.

    But that's one piece of the puzzle, and it's only a small piece. To think that in the majority of cases victims would be well equipped to be supportive and helpful to individuals who appear before review boards, I think, is a little fanciful.

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    Mr. Steve Sullivan: Perhaps I could address this as well. I think the point was made earlier that, from our point of view, one of the most important things victims want is for whatever happened to them not be allowed to happen to somebody else. By going to hearings--and it may not be a huge number--for those who choose to participate, it's a reminder, not only for the offender, as we heard earlier, a not criminally responsible person, that if you don't take your medication, for example, if you are released, this is what could happen. What happened to me could happen to somebody else if you don't take the treatment. I think that's an important reminder.

    Also, as Mr. Cadman pointed out, these are pretty high stakes to the review board. That's not to suggest they don't take these things seriously, but we've seen in sentencing and parole hearings that victims can be an important reminder to people that the stakes are incredibly high. What happened to the victim is important, I think, in helping the offender, or in this case the not criminally responsible accused, to understand how high those stakes are. I think victims can play a role in that process, and a productive role.

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    The Chair: Thank you.

    Mr. Lanctôt, if members don't mind, I have a couple of questions.

    I'm quite interested because probably every day we've gotten into the resource question. I'd like to take you back to the issue that the general mental health system has been overtaken or overcome, perhaps, by a forensic system or disorder process. I don't know what the right terminology for this is, but I would wonder if it could be argued--and if my impression is wrong, I'd like it to be corrected-- that the displacement that people have referred to is a result of the legislation. I suppose it could also be a result of the institutionalization.

    We've had this phenomenon take place where we de-institutionalize, therefore there's a large number of people who would potentially be involved in the general mental health services that would be available in a community. That would be a large number all at once if we were to go to this de-institutionalization process.

    Alongside that, we try to be more enlightened in terms of how we deal with mental disorder in the context of the criminal justice system. That also puts pressure on the system. As a result, people who otherwise wouldn't have been institutionalized 30 years ago and wouldn't be going through the criminal justice system now are probably not getting access to services they might have gotten access to when there wasn't so much competition for those services. Then, because they're not getting service, they may be engaged in behaviour that is in fact bringing them into the system in an entirely different way, an unfortunate one. Am I...?

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    Dr. Chris Webster: The issue of resources is critical.

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    The Chair: But is my impression...?

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    Dr. Chris Webster: Yes, I think you put your finger on a really important problem. Let me try to be concrete.

    For example, you're at a review board, you're sitting there, you've heard the case, and you begin to understand it. You begin to understand that this person needs some help of some fairly specific, obtainable kind through the auspices of... [Editor's Note: Inaudible] It might necessitate in-patient stay for a while, community supervision, or whatever. What happens is the review board discusses for quite some long time and then it says, “Well, okay, let's see if we can make some concrete recommendations here. Now, Dr. So-and-So, you have a bit of a connection with such-and-such a hospital, why don't we take a break for half an hour while you go and get on the phone to see what you can do to get this person some help.” Well, that often proves to be very, very difficult, because the resources are overloaded. Then you get a lot of huffing and puffing about how maybe the review board should order this and so on, and it goes back and forth.

    It's sometimes very, very difficult to get those resources brought to bear in an expeditious way. You're not wrong to say that if you don't get them brought to bear expeditiously you may be further jeopardizing society, and you may be doing the patient or the accused person a considerable disfavour by not engaging with this problem right away.

    Now, the Bill C-30 amendments mercifully did make it clear that people don't actually have to be admitted to a hospital. It used to be before Bill C-30--we need to remember the steps we've made forward here--it was routine, in Ontario anyway, that when people were put on a lieutenant governor's warrant, if they were male, they would go to the Penetanguishene Mental Health Centre. We had 330 beds there. From there, almost regardless of what got them there in the first place, they'd have to cascade down through the system. With Bill C-30, as you know, the review board can place the person in the community right away if it so desires. But trying to do that sometimes, practically, is quite difficult.

    So there are some big resources issues that really, I think, need to be modulated between the federal government and the provincial key officials in the mental health system.

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    The Chair: You mentioned in your introduction your background with regard to assessing risk. How well in Canada do we assess risk--comparatively I suppose is the best way to measure it--and how well do we manage it?

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    Dr. Chris Webster: Well, we're like most countries. There has been a terrific change in the last 25 years. We used to talk about what we called “dangerousness”. That was the word, the concept we framed our thinking around. Now we talk about risk prediction, and it's much more specific. People now talk about what risk are we really talking about here, what is the precise risk this individual presents? To whom is this risk going to be presented and over what time period and under what conditions? To the extent that we've become a lot more specific in our thinking, we've made some real advances. We no longer say this person is a dangerous person, let's lock him up for a good long time. We're inclined now to try to ask what is the risk and how can we manage that risk. That's the other part of it.

    I and my colleagues at Simon Fraser University have just published what we call a companion guide to this thing we call the HCR-20 assessment device. The reason we did it was that we began to realize that assessing risk of violence is one thing, but if you can't manage it and you can't prevent it, you may not be much further ahead. So we've really invested a lot of energy in producing a scheme, if you like, to help mental health and correctional officials try to manage risk better than we're currently doing.

    Really, we have a long way to go in this area. It requires a lot more focused attention. If you go back 30 years ago, we--and I was one--used to say there is no point in even beginning to try to predict violence. That would be 30 years ago. We would say that mental health professionals are likely to be more often wrong than they are right. People wrote articles called Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, attacking psychiatrists and psychologists. We went through a whole long period there where we were all feeling put down and life was pressing in on us--

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    The Chair: We have some familiarity with that feeling.

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    Dr. Chris Webster: Yes. I'm sure you must feel the same way.

    In the last seven or eight years, we have started to stand a bit taller. We've come to the conclusion that lots of clinicians actually have some ability in this area. If one is systematic about it, one can be tolerably correct in a reasonable number of cases. We wouldn't have made those statements 30 years ago. There has been some advance here. We have a long way to go.

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    The Chair: I'm looking around and I see no one looking forward.

    I thank the witnesses. I think it's a testimony to the clarity of your presentations that for the first time since we began this inquiry, Mr. Grose did not begin his intervention by telling us he was confused. I thank you, particularly, for the extra trouble you must have gone through to get here, with the delays and so on.

    Thank you, Mr. Sullivan, also.

    With no other business, I will adjourn the meeting. Thank you.