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37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights


EVIDENCE

CONTENTS

Wednesday, April 10, 2002




¹ 1530
V         The Chair (Mr. Andy Scott (Fredericton, Lib.))
V         Dr. Jordan Hanley (Representative, Canadian Psychological Association)

¹ 1535
V         Dr. Cinny Bubber (Representative, Canadian Psychological Association)
V         The Chair
V         Dr. Dominique Bourget (President, Canadian Psychiatric Association)

¹ 1540

¹ 1545

¹ 1550
V         The Chair
V         Mr. Cadman
V         Dr. Cinny Bubber
V         Mr. Chuck Cadman
V         Dr. Cinny Bubber
V         Mr. Chuck Cadman
V         Dr. Dominique Bourget
V         Dr. Cinny Bubber
V         Dr. Jordan Hanley
V         Mr. Chuck Cadman
V         The Chair
V         Ms. Allard
V         Dr. Dominique Bourget

¹ 1555
V         Ms. Carole-Marie Allard
V         Dr. Jordan Hanley
V         Ms. Carole-Marie Allard
V         Ms. Allard
V         Dr. Jordan Hanley
V         Ms. Carole-Marie Allard
V         Dr. Jordan Hanley

º 1600
V         Dr. Helen Ward (Clinical Fellow in Forensic Psychiatry, Royal Ottawa Hospital)
V         The Chair
V         Dr. Helen Ward
V         Ms. Allard
V         The Chair
V         Dr. Cinny Bubber
V         Ms. Carole-Marie Allard
V         Dr. Cinny Bubber
V         The Chair
V         Dr. Dominique Bourget
V         Ms. Carole-Marie Allard

º 1605
V         The Chair
V         Dr. Dominique Bourget
V         The Chair
V         Dr. Jordan Hanley
V         The Chair
V         Mr. John McKay (Scarborough East, Lib.)

º 1610
V         Dr. Dominique Bourget
V         Mr. John McKay
V         Dr. Dominique Bourget
V         Mr. John McKay
V         Dr. Dominique Bourget
V         Mr. John McKay
V         Dr. Dominique Bourget
V         Mr. John McKay
V         Dr. Dominique Bourget

º 1615
V         Mr. John McKay
V         Dr. Dominique Bourget
V         Mr. John McKay
V         Dr. Dominique Bourget
V         Mr. John McKay
V         Dr. Dominique Bourget
V         Mr. John McKay
V         Dr. Dominique Bourget
V         Mr. John McKay
V         The Chair

º 1620
V         Mr. Ivan Grose (Oshawa, Lib.)
V         The Chair
V         Mr. John McKay
V         Dr. Dominique Bourget
V         Mr. John McKay
V         Dr. Helen Ward
V         The Chair
V         Mr. Ivan Grose

º 1625
V         Mr. John McKay
V         Mr. Grose
V         Dr. Dominique Bourget
V         The Chair
V         Dr. Cinny Bubber
V         The Chair
V         Dr. Dominique Bourget

º 1630
V         The Chair
V         Dr. Jordan Hanley
V         The Chair
V         Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC)

º 1635
V         Dr. Dominique Bourget
V         Dr. Jordan Hanley

º 1640
V         Dr. Cinny Bubber
V         Mr. Peter MacKay
V         Dr. Jordan Hanley
V         The Chair
V         Dr. Helen Ward
V         Mr. Peter MacKay
V         The Chair

º 1645
V         Dr. Helen Ward
V         Dr. Cinny Bubber
V         The Chair
V         The Chair
V         Mr. Phil Upshall (President, Mood Disorders Society of Canada)

» 1700

» 1705

» 1710

» 1715
V         The Chair
V         Hon. Mr. Justice Edward Ormston (Individual Presentation)

» 1720

» 1725

» 1730
V         The Chair
V         Mr. Chuck Cadman

» 1735
V         Mr. Justice Edward Ormston
V         The Chair
V         Mr. William P. Ashdown (Vice-President, Mood Disorders Society of Canada)
V         Mr. Chuck Cadman

» 1740
V         Mr. Justice Edward Ormston
V         The Chair

» 1745
V         Ms. Carole-Marie Allard
V         Mr. Phil Upshall
V         Ms. Carole-Marie Allard

» 1750
V         Mr. Phil Upshall
V         The Chair
V         Mr. Justice Edward Ormston

» 1755
V         Ms. Carole-Marie Allard
V         Mr. Justice Edward Ormston
V         Ms. Carole-Marie Allard
V         Mr. Justice Edward Ormston
V         Ms. Carole-Marie Allard
V         Mr. Justice Edward Ormston
V         The Chair
V         Mr. John McKay
V         Mr. Justice Edward Ormston
V         Mr. John McKay

¼ 1800
V         Mr. Phil Upshall
V         Mr. John McKay
V         Mr. Phil Upshall
V         Mr. John McKay
V         Mr. Phil Upshall
V         Mr. John McKay
V         Mr. Phil Upshall

¼ 1805
V         Mr. John McKay
V         Mr. Phil Upshall
V         Mr. John McKay
V         Mr. Phil Upshall
V         Mr. John McKay
V         Mr. Phil Upshall
V         Mr. John McKay
V         Mr. Phil Upshall
V         The Chair
V         Mr. John McKay
V         Mr. Phil Upshall

¼ 1810
V         Mr. John McKay
V         Mr. Phil Upshall
V         Mr. John McKay
V         The Chair
V         Mr. Justice Edward Ormston
V         Mr. John McKay
V         Mr. Justice Edward Ormston
V         The Chair
V         Mr. John McKay
V         Mr. Justice Edward Ormston
V         Mr. John McKay
V         Mr. Justice Edward Ormston

¼ 1815
V         The Chair
V         Mr. Ivan Grose
V         The Chair
V         Mr. Chuck Cadman
V         Mr. Justice Edward Ormston
V         Mr. Chuck Cadman
V         Mr. Justice Edward Ormston
V         Mr. Chuck Cadman
V         The Chair
V         Ms. Carole-Marie Allard
V         Mr. Justice Edward Ormston
V         Ms. Carole-Marie Allard
V         Mr. Justice Edward Ormston
V         Ms. Carole-Marie Allard
V         Mr. Justice Edward Ormston

¼ 1820
V         Ms. Allard
V         Mr. Justice Edward Ormston
V         The Chair
V         Mr. Justice Edward Ormston
V         The Chair
V         Mr. Justice Edward Ormston
V         The Chair
V         Mr. Chuck Cadman

¼ 1825
V         The Chair
V         Mr. Phil Upshall
V         The Chair










CANADA

Standing Committee on Justice and Human Rights


NUMBER 074 
l
1st SESSION 
l
37th PARLIAMENT 

EVIDENCE

Wednesday, April 10, 2002

[Recorded by Electronic Apparatus]

¹  +(1530)  

[English]

+

    The Chair (Mr. Andy Scott (Fredericton, Lib.)): Welcome. Bienvenue.

    I call to order the 74th meeting of the Standing Committee on Justice and Human Rights. Today, pursuant to the order of reference of the House of February 26, 2002, we are engaged in a statutory review of the mental disorder provisions of the Criminal Code.

    From 3:30 to 5 we have a panel including the Canadian Psychological Association and the Canadian Psychiatric Association. From 5 to 6:30 we will have the Mood Disorder Society of Canada, and an individual justice. There will be some refreshments at 5 o'clock.

    I would, then, turn to Dr. Jordan Hanley and Dr. Cinny Bubber from the Canadian Psychological Association and Dr. Dominique Bourget of the Canadian Psychiatric Association, with Helen C. Ward of the Canadian Academy of Psychology and the Law and a clinical fellow in forensic psychiatry at the Royal Ottawa.

    I hope the way we operate has already been discussed with you. You would make an opening presentation, ten minutes for each organization, and then we'll have an opportunity for the members of the committee to engage in dialogue.

    Dr. Hanley.

+-

    Dr. Jordan Hanley (Representative, Canadian Psychological Association): I'm a practising psychologist, a registered psychologist. I'd like to start of by thanking the committee for taking the time to hear us today on this important issue.

    Essentially, we're here to discuss Bill C-30, which back in February 1992 made some very important changes to the Criminal Code of Canada. In addition to changing the insanity defence to not criminally responsible by reason of mental disorder and codifying fitness to stand trial, some very important changes were made to the expert qualifications of those who were deemed capable of conducting these kinds of assessments, the fitness and NCRMD assessments. Specifically, section 672.1 of the Code stated that medical practitioners are the individuals who are solely considered experts to do court-ordered assessments in this area. We would like to see that changed to medical practitioners and psychologists, for a variety of reasons.

    One of those is the extensive training psychologists receive in assessing mental disorders, and also treating mental disorders. In addition, by law, of course, we are also able to assess mental disorder. Further, all the provinces by 1990 had put in place colleges that regulate our profession and also make it possible for us to assure the public that we are providing a very high level of psychological services.

    One of the areas that is most important for us, as psychologists, is the ability to actually do psychological testing. We develop, administer, and interpret these tests, and that's one of the specialties of our profession. Psychologists, both in Canada and the United States, have done a great deal of work in creating assessment devices that are directly relevant to fitness and NCRMD issues. In fact, psychologists typically instruct psychiatrists on how to use these instruments in order to conduct these assessments.

    So essentially, we believe that including psychologists would help to legitimize the assessment process, because we can bring into play the various types of assessment procedures we use, specifically psychological testing. That would standardize the procedure and essentially help to, as I say, legitimize the process.

¹  +-(1535)  

+-

    Dr. Cinny Bubber (Representative, Canadian Psychological Association): We found that the Criminal Code is actually inconsistent on who's considered a qualified expert with mental disorder provisions. For example, with issues concerned with dangerous offender and pre-sentence reports, which are actually quite complicated in themselves and involve a lot of diagnosis and assessment issues, psychologists and psychiatrists are treated equally under the Code. As well, under the Young Offenders Act, psychologists and medical practitioners are able to assess and diagnose regarding mental disorder provisions. It is only under this section of the Code, 672.1, that psychologists are not allowed to do that.

    In the criminal justice system we found that in the courts, particularly in B.C., but from our knowledge of courts across Canada, psychological and psychiatric reports are deemed of equal quality. The issue is not the discipline, but the individual's expertise in the area of specific forensic issues. In some cases, in fact, psychological reports are actually weighted more heavily to our advantage, because of the use of standardized testing.

    In the U.S. this has actually been a non-issue for the last 40 years. Forty years ago psychologists and psychiatrists were actually seen as being equal in that regard, and since then, once they changed their laws, each state has followed along. Again, the issue of competency to do these kinds of assessments has nothing to do with discipline, but depends on individual expertise in that area.

    Psychologists are qualified to assess, diagnose, and treat mental illnesses. In B.C. we have Riverview Hospital, which is the provincial facility for psychiatric patients, where most often medical practitioners actually defer to psychologists on these very issues, whereas within the forensic system this doesn't occur.

    Finally, there's an issue for us in that there are just more psychologists than psychiatrists in Canada, particularly in rural areas. In provinces like Quebec, Alberta, and Newfoundland the ratio of psychologists to psychiatrists is actually 15 to 1, which means that simple availability of psychiatrists for these assessments is very limited, while you have qualified psychologists in their own communities who can't do these assessments, because the Code doesn't allow it.

    So our basic position is that the role of psychologists should be expanded in the mental disorders provision of the Criminal Code. Psychologists have the expertise and the qualifications to conduct fitness and criminal responsibility evaluations, and we believe this should be reflected in the Code accordingly.

    Thank you.

+-

    The Chair: Thank you.

    Madame Bourget.

+-

    Dr. Dominique Bourget (President, Canadian Psychiatric Association): I wish first to thank you for giving us the opportunity to address the committee today on this very important subject.

    I work as a forensic psychiatrist with the Royal Ottawa Hospital. I am speaking today on behalf of the Canadian Academy of Psychiatry and the Law, CAPL, and the Canadian Psychiatric Association, CPA. At the present time I am the president of CAPL and I sit on the board of directors of the CPA.

    The Canadian Academy of Psychiatry and the Law is the professional body that represents forensic psychiatrists across Canada. It is an official academy affiliated with the CPA, where it serves as an expert counsel on matters relevant to psychiatry and law. As an academy, our mandates are to promote mental health in the Canadian population as it relates to psychiatry and the law. It also promotes standards of specialty training and forensic psychiatry in Canada and standards of practice in forensic psychiatry, education, and research.

    The Canadian Psychiatric Association, the parent organization for psychiatrists in Canada, is dedicated to ensuring the highest possible standards of professional practice in the provision of psychiatric services to Canadians. The CPA is also committed to drawing attention to attitudes and public policies that continue to marginalize and inadequately address the needs of the mentally ill. It is one of the five founding members of the Canadian Alliance on Mental Illness and Mental Health, CAMIMH, advocating that it is critical that Canada adopt a national strategy for mental illness and mental health and give a much higher priority in this country to this long-neglected population health issue, one aspect of which this committee is now reviewing.

    There is a well-known association between mental disorder and criminal behaviour, including violent crimes. From a mental health perspective, CAPL and all psychiatrists are very concerned with the high level of criminalization of the mentally ill. We believe very strongly in the protection of the rights of these individuals struggling with a major illness and struggling with problems with the law.

    I will undertake to highlight major concerns and recommendations in response to the questions you have raised in this review. We also have a more detailed brief, which we respectfully wish to submit to the committee, and we have provided the clerk with a copy.

    In relation to the question on section 16 defence, here are the comments. In theory, section 16 offers an adequate safeguard that a mentally ill accused in Canada who is lacking the capacity to appreciate the nature and consequences of their acts or that the acts were wrong will not be treated like a criminal, but will be the subject of a disposition to ensure that the person receives the care required for the mental illness. The move from the insanity to the criminal responsibility terminology is seen as an evolution really. The application of the mental disorder defence, however, occurs within an adversarial system, where the burden of proof is placed on the accused, and the evidence that the accused suffers from a mental disorder is established on a preponderance of probabilities. Ironically, in many instances this translates into the burden of proof being shifted from the prosecution to a vulnerable and mentally challenged individual who has mental imbalance, poor contact with reality, impaired cognitive functioning, including impaired judgment.

¹  +-(1540)  

    Experience has shown that the more serious the act, the less likely it is that a mental disorder defence will succeed, despite the presence of severe mental illness. In theory, the application should be the same, in practice, the courts seem to use different standards. We will see, for instance, the defence and prosecution bringing in experts and cross-experts, and the adversarial system puts a lot of pressure on the accused to demonstrate the presence of a very severe mental disorder when serious crimes are involved. In the eyes of the public, a successful mental disorder defence is akin to an acquittal, which is not at all the case. A better educated public would realize that the protection of the public would be better served through the treatment of mentally ill individuals.

    Our recommendation would be that attention be paid to avoiding a burden of proof being unduly placed on the mentally ill defendant and to ensuring proper handling of the seriously ill, independently of the severity of the act itself.

    In relation to the determination of fitness issue, we find that there is clearly a need to clarify the definition of fitness and to introduce some safeguards for the accused who decides to conduct his or her own defence without counsel. In fairly recent years we have encountered several cases of individuals suffering from mental illness, often severe paranoia, who have undertaken to assume their own defence. In cases where the accused is charged with a serious crime, such as homicide or murder, we believe this should alert the court to the possibility that the accused lacks the capacity to appreciate the role of defence counsel, out of paranoia or another significant mental condition.

    We would recommend that particular attention be paid to fitness when a defendant chooses to proceed without counsel. We would then recommend that the court immediately order a new fitness assessment, which would include an assessment of the person's ability to make informed decisions and appreciate consequences, for instance, whether or not to retain counsel, call evidence, and testify, as well as the ability of the mentally ill accused to act in their own best interests.

    In relation to the automatism defence, from a medical perspective, all cases of automatism referred to as non-insane automatism necessarily stem from a condition that affects the functioning of the brain, be it epilepsy, hypoglycemia, somnambulism, head trauma, and causes a transient altered state of mind. These could all be dealt with within the meaning of insane automatism or a mental disorder. It is recommended that all claims of automatism be classified as mental disorders and dealt with accordingly within the meaning of section 16.

    In relation to the capping provisions, this issue still remains very controversial. From a theoretical standpoint, we support the concept of capping, with the prerequisite that the mental health system have the ability to take over the care of the mentally ill subject to discharge who still present with an acute or chronic mental illness. However, it appears to us that the proclamation of this amendment would require a considerable amount of coordination to ensure that the services and resources are there to serve these individuals.

    Our recommendation is that the capping provisions be revisited and that a research group conduct a review process of practices across Canada. We also need to remind ourselves that although this is the Criminal Code, the review boards in each province operate very differently, even if they follow the same principles. It is not all the same practice across Canada.

¹  +-(1545)  

    I'll pass very quickly on the other points, because I realize that I have quite a bit of material there.

    In relation to the dangerous mentally disordered accused provisions, they raise major concerns, including the fact that the determination of the DMDA at the time of the verdict certainly does not take into account the nature of the illness or the prognosis or response with treatment. In many cases it will remain speculative, at best, to predict future dangerousness at the time of the verdict. This may cause a great prejudice to the mentally ill individual. So our recommendation would be that the DMDA provisions be dropped or amended to allow the determination of DMDA at a time closer to the expiry of the disposition under the capping, if this occurs.

    In relation to the hospital orders provision, we certainly concur with others who have expressed the opinion that the proclamation of the hospital orders provision will have a major impact on mental health services and resources. This clearly needs to be addressed. Some of our members have advanced the concept of the capacity to serve sentence as perhaps a more attractive option than the hospital orders provision, knowing that the incarceration of mentally disordered offenders can contribute to an exacerbation or relapse of their illness, or that sometimes mental disorder is not diagnosed until some time into the period of detention. Certainly, the detention milieu is often poorly equipped to identify these individuals and manage them effectively. The high suicide rate in prison may be a consequence of this. Even though the correctional services have had to provide care in prison, this is often not adequate for people who need specialized care and resources. We believe that when appropriate, steps need to be taken to facilitate and ensure access to mental health services during sentence. There would be merit, in our opinion, in further exploring this concept, which is still at the very early stage, and identifying appropriate mechanisms and resources.

    Once again, I wish to thank you for your time.

¹  +-(1550)  

+-

    The Chair: Thank you very much.

    I go to Mr. Cadman for seven minutes.

+-

    Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair, and I'd like to thank the witnesses for appearing today.

    My first question is to the folks from the Psychological Association. Your argument, to me as a lay person, seemed to be a bit of a no-brainer, why you wouldn't be considered. Why do you feel you were overlooked in the original legislation?

+-

    Dr. Cinny Bubber: It's our understanding that when Bill C-30 came out in 1992, we actually were included in several of the earlier drafts. For some reason--and because we weren't involved in that process, we don't know--somebody drew a line through it and didn't allow it. That's our understanding of why it happened. We've been waiting since then.

+-

    Mr. Chuck Cadman: You've been waiting for an explanation.

+-

    Dr. Cinny Bubber: We don't have an explanation from then, and so we're starting again today.

+-

    Mr. Chuck Cadman: Again, for a lay person, it seems odd.

    On another issue, there's been some suggestion that those declared mentally unfit should be given an absolute discharge. I'd like to know how both groups feel about that.

+-

    Dr. Dominique Bourget: I don't see the rationale for this. I don't know against what background it was proposed. We certainly agree that the review board be given the power to discharge absolutely an unfit accused, but that would be at the discretion of the review board, within certain parameters, not merely that a person found unfit be totally left on their own without any resources or any kind of structure. We have to assume that a person found unfit suffers from a major illness, and that certainly needs to be addressed.

+-

    Dr. Cinny Bubber: In the U.S. they have a model where they provide them with an education to return people to fitness while in a hospital system. They actually have mock courts in there they walk a patient through to help them develop basic concepts of fitness. So if somebody's absolutely discharged, that wouldn't be a system that would help. That's something Canada could definitely do. I don't know if there are any hospitals currently that do it, but it's a service that can actually facilitate people returning to fitness. The assumption that someone's unfit and remains unfit I think is incorrect.

+-

    Dr. Jordan Hanley: Also, with people being found unfit, there's the possibility of just a cognitive impairment. Additional testing can help to identify specific deficits a person has. There may be some ways through psychoeducational training to address those issues and help those people. Simply discharging them prematurely is probably not the best idea.

+-

    Mr. Chuck Cadman: Thank you.

+-

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

    Madame Allard for seven minutes.

[Translation]

+-

    Ms. Carole-Marie Allard (Laval East, Lib.): Thank you for appearing here today. My first question is for Ms. Bourget.

    Ms. Bourget, you heard the people beside you from the Canadian Psychological Association asking to be included in the services we are discussing today. Has the Psychiatric Association taken any position on that?

+-

    Dr. Dominique Bourget: As a matter of fact, our position is quite different from the psychologists. We obviously think it important to have complementary roles and to work together, not against one another, but in our opinion we do not have precisely the same role or function.

    Clearly, for example, if we are talking about a person with a cognitive disorder like mental retardation or dementia or something like that, a psychological assessment may provide us a lot of information and may indeed be helpful to us. On the other hand, when you are dealing with a mentally disordered accused, it is clear to us that the diagnosis and treatment of that mental disorder remains a medical act, and it is important to us that those making the diagnosis and prescribing the treatment be qualified to practice medicine in Canada. The training is not the same and does not develop the same skills. I think that in some cases, the complementary role truly has its place, but I do not think psychologists can or should be substituted, if you will, for doctors when it comes to the mentally ill.

¹  +-(1555)  

+-

    Ms. Carole-Marie Allard: I would like to ask Mr. Hanley what he thinks of that. What do you think?

[English]

+-

    Dr. Jordan Hanley: I would have to respectfully disagree, not too surprisingly. There's this idea that when we're talking about mental disorders, we're talking about illnesses in the sense of a physical illness, the same as appendicitis or other physical diseases. While there are cases where a psychiatrist prescribes medication, there are certainly other mental disorders for which medication is not prescribed or particularly useful. There are other situations where psychological interventions are demonstrated to be more useful than medications or are combined with medications to help to alleviate those disorders.

    We're really talking about what a mental disorder is, and whether it is a medical illness. Again, I think in many cases, even though medication is being prescribed for these illnesses, it's not entirely clear what the exact cause of the disorder is. In addition, as far as the diagnosis is concerned, we've developed most of the instruments that are being used on a regular basis to accurately diagnose these disorders.

[Translation]

+-

    Ms. Carole-Marie Allard: So you admit you cannot prescribe drugs. You cannot prescribe drugs, you just said so, but a psychiatrist told the committee that most mental illnesses can be treated either with anti-anxiety drugs or with... Drugs can often be used to restore the patient's mental state and make the patient fit to stand trial.

+-

    Why do you think psychological treatment without drugs might make people fit to stand trial in cases like that? We are talking about the mentally ill.

[English]

+-

    Dr. Jordan Hanley: There have been a variety of studies and work to show that there are certain mental disorders that allow or enable an individual to progress and become better, even if medication has not been particularly effective. An example is cognitive behavioural therapy with schizophrenia. Many people see a disorder such as schizophrenia as relatively not treatable through psychological methods, but in fact, studies have been done that show that's not the case. Some people with long-term schizophrenia, where their illness is refractory, that is, it's not responding to medications, have actually been helped to improve in their symptomatology and go much longer before relapsing again once they're involved in psychological therapy.

+-

    Ms. Carole-Marie Allard: And what is psychological therapy for you, meeting with the patient, talking, and trying to work on his mind?

+-

    Dr. Jordan Hanley: Essentially. We're talking about addressing thoughts that are out of touch with reality. In many cases it's been thought that you can't address that from a psychological perspective, but more and more research is showing that in fact you can. In the study I'm referring to they had a group of patients and they were discussing their delusional beliefs, being out of touch with reality, their beliefs in not wanting to take the medication they have been prescribed. They were able to show those kinds of interventions actually help these individuals go longer before relapsing again, and this is without medication.

º  +-(1600)  

+-

    Dr. Helen Ward (Clinical Fellow in Forensic Psychiatry, Royal Ottawa Hospital): May I jump in?

+-

    The Chair: Madam Ward.

+-

    Dr. Helen Ward: I think the issue becomes somewhat clouded when we're just talking about mental illness in general. In fact, it's our experience that a vast majority of the people who would come under the criminal responsibility section of the Code and a large number of people who come under the fitness to stand trial sections of the Code do in fact have psychotic illnesses of one form or another. While there is credible research that shows that psychological therapies can be helpful, it's certainly an adjunct, it's not the main therapy. The main therapy has to be medications, and I think no one really from either discipline would disagree with this.

    In addition, as part of the diagnosis of psychotic disorders, it's very important to consider the physical, medical side of the illness. There may be people who have medical conditions that present as psychosis, and a psychologist would not be in a position to consider all the alternatives, order all the tests, interpret the tests, etc. That isn't to say they aren't useful. Clearly, they are useful. Certainly, in our practice we collaborate. But I think that may be one of the reasons the Code is different in this particular area. Psychotic illnesses are certainly a large part of what we see.

[Translation]

+-

    Ms. Carole-Marie Allard: Thank you, Ms. Ward.

[English]

+-

    The Chair: Ms. Bubber.

+-

    Dr. Cinny Bubber: I don't think the diagnosis, assessment, and treatment of psychotic disorders is significantly different within the criminal system and within the civil system. In the civil system psychologists and medical practitioners work together, psychologists often diagnose, and there is a collaborative effort. There is nothing that says the psychologist cannot diagnose psychotic disorders. We do work with other team members. We're not saying we're doing this in isolation at all. We are saying we are able to do diagnosis, we are able to treat along with other professionals. And psychiatry would say the same thing: they work with us as well.

[Translation]

+-

    Ms. Carole-Marie Allard: I would just like to point out that in criminal law, you need proof beyond reasonable doubt, whereas in civil law, it is on balance of probabilities. The systems are quite different, criminal law and civil law, in terms of the standard of proof, if I could just add that.

[English]

+-

    Dr. Cinny Bubber: That's true, and psychologists have the training to assess that. There are Canadian universities that provide extensive training. Most forensic psychologists in practice today have at least10 years of training in diagnosis and assessing mental illness, as well as four to five years of forensic training on these very issues, before they even get their Ph.D. Then, after that, there's additional training. The psychologists in Canada who practise in the forensic system are extremely well trained, in some cases more so than psychiatry.

+-

    The Chair: Madame Bourget.

[Translation]

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    Dr. Dominique Bourget: I would just like to add that even under the Mental Health Act, across Canada, there is still a requirement for assessments to be done by psychiatrists, by doctors. Even under civil law, it is clearly a medical act. For example, when it comes to criteria for certifying and assessing mental state based on the danger a person may represent, it takes a doctor, a psychiatrist.

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    Ms. Carole-Marie Allard: It is true that psychologists are increasingly making inroads into civil court proceedings. I am thinking of automobile insurance and occupational injury cases. It is a fact that psychologists are now... I think many judges readily accept expert opinions from psychologists and do not refer to psychiatrists, but we are dealing here with proof beyond reasonable doubt. I am still talking about the fact that drugs are an option when a psychiatrist is in charge of treatment, whereas psychologists cannot prescribe drugs. With medical progress, mental cases can now often be treated with drugs...

    I do not mean to take anything away from your work. I deal with a lot of psychologists in my work, in my practice, and I can tell you that you are very important too, but when it comes to the Criminal Code, I wonder if Ms. Bourget agrees with what you have said.

º  +-(1605)  

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    The Chair: Ms. Bourget.

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    Dr. Dominique Bourget: Certainly, as I said before, I fully agree with what Dr. Ward was saying a little bit earlier. It is important, when you are talking about major mental disorders... We are not talking here about neurosis or anxiety, we are talking about people who are unfit to stand trial. In our work, we encounter people who have lost touch with reality, people who have delusions, hallucinations, and active psychotic symptoms.

    Clearly, the research has amply demonstrated that this type of problem, this type of illness, can be treated with anti-psychotic drugs. It is not true that it is just like a physical disorder, only different. More and more things are being discovered about the brain. We now know that the brain is an organ, and when this organ is ill, it presents distinct symptoms for which, when drugs are prescribed, we can see, with sophisticated diagnostic tests, where the drugs go to work, which neurotransmitters are affected, etc.

    So to us, it is clear there is a huge biological component to psychotic disorders that cannot be overlooked. It is also clear to us that if you sit down with patients, because we do do that sometimes, and ask them how they are doing, and listen to what they have to say about their delusions and so on... But that is not what is going to make them fit, and it will not necessarily help us rehabilitate those people so that they can return to the community and be capable of functioning.

    We really see that much more as a complementary role. We find that teamwork is great, but on our teams, the person ultimately responsible for making the diagnosis and deciding on the treatment plan is a doctor.

[English]

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    The Chair: Merci.

    Dr. Hanley.

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    Dr. Jordan Hanley: I think we're talking about two different issues here. We certainly would not take anything away from the medication treatment of individuals with, say, a severe psychosis. At the same time, what we're talking about is diagnosing those particular disorders. Again, psychologists have extensive training in diagnosing individuals with severe psychotic disorders, for example. We're certainly also talking about other methods, in addition to medication, that could be used to improve their condition, but primarily, what we're presenting here today is the issue of being able to diagnose. Essentially, that's why we wanted to add the psychologists to that particular section of the Criminal Code.

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    The Chair: Thank you very much.

    Mr. McKay.

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    Mr. John McKay (Scarborough East, Lib.): Thank you, Chair. Thank you, witnesses, for being here.

    Ms. Bourget, you made an interesting comment with respect to section 16. You said the court applies different standards according to the seriousness of the charge, and you made reference to a study. I assume from that comment that defence counsel are more vigorous in their application as to the fact that this person has a mental disorder to avoid the consequences of the serious crime, and they're somewhat less vigorous when the crime is less serious. Could you expand on that thought? Because it's a pretty significant indictment of the application of this section.

º  +-(1610)  

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    Dr. Dominique Bourget: I don't mean to criticize the way justice is being handled in Canada. That's not the point I want to make. I'm not sure the defence counsel would be more vigorous with a person accused of a serious crime, so that they be found not criminally responsible. What we see in real life is that the prosecution often doesn't put as much effort in when the crime is less serious, compared to a more serious crime. So that's the angle that we come from.

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    Mr. John McKay: So I've got it backwards. It's a matter of enthusiasm on the part of the crown. The crown wants to get a finding that this person is unfit or to have a finding that this person is perfectly fit to stand trial.

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    Dr. Dominique Bourget: When it comes to the section 16 defence, the prosecution is there to prove the guilt of the accused. So it's a bit different than the unfitness matter. There's not so much debate at that point on the fitness determination, but the debate there is more on the criminal responsibility finding.

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    Mr. John McKay: Okay.

    You made reference to a study. What does the study show?

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    Dr. Dominique Bourget: I'm not sure I know which study you mean.

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    Mr. John McKay: I think you said something like, studies showed that the court applied different standards according to the seriousness of the crime.

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    Dr. Dominique Bourget: As to the courts appearing to use different standards, I'm not aware of any particular studies on this issue. In the brief, which is certainly more thorough than the quick presentation I've rushed to make today, I also make a reference to the Andrea Yates case in the United States, which happened not too long ago, and the statement that was then made by the American Psychiatric Association, where they have also a similar experience. Our concern, as it relates to fitness, is more in relation to those people who choose to defend themselves without counsel, where the fitness determination is very crucial, in our opinion.

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    Mr. John McKay: You did make that comment about people who choose not to use counsel, that somehow this should be a consideration in assessing their fitness. How would you craft that, as far as changes in the Criminal Code are concerned? Really, isn't that a matter of discretion for the judge?

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    Dr. Dominique Bourget: We've seen a situation where this exactly was the case, a fitness examination in the middle of a trial, because a defendant had elected to fire defence counsel. This is rare. We have seen several cases over the past few years of people who have chosen to defend themselves. I remember these cases, because I was asked on a couple of occasions to assess the person for criminal responsibility. Somewhere in the middle of the trial the person, who was extremely ill, did not agree with a determination of not criminally responsible.

    People often have the perception that those who are charged with a crime are trying to escape consequences by raising a section 16 defence. In reality, diversion into the review board system and the mental health system is not always what they want. It is not always easy for them, because there are in place a series of structures and conditions they have to follow for quite a lengthy period of time. They have to submit to all sort of conditions, including treatment. Some people with severe mental illness prefer to be considered criminals rather than mentally ill people, because of the stigmatization that still exists with mental disorder in our society. We have to balance all these things.

º  +-(1615)  

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    Mr. John McKay: Taking what you say at its absolute highest--and anecdotally, it has a ring of truth to it--I still don't see how you could change the Criminal Code to reflect those concerns. I don't see how you could write it. It seems to me that both issues you raise are in the realm of the application of law and the reality of a courtroom, rather than in the phrasing of a section of the Code. Is that a fair statement. Have you given thought to how you would rephrase the Code if you had your choice?

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    Dr. Dominique Bourget: I am not sure how I would rephrase the Code. I come from the clinical end, from the medical end. I am only a psychiatrist. I think there are people who would be much better on this than myself. I wish to share those concerns with you today, because I feel these are significant concerns. These are significant problems for people with severe mental illness who go through the criminal system.

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    Mr. John McKay: I think you are right about that. I just to wanted to bring you out as to whether there's something that's offensive in section 16 that the committee could suggest a rewrite for. From what I hear you saying, there isn't any rephrasing there that immediately comes to mind.

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    Dr. Dominique Bourget: Certainly, I have concerns with the burden of proof and evidence on the balance of probabilities, the onus being placed on a mentally ill person or a mentally challenged person.

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    Mr. John McKay: Would you shift the onus, then?

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    Dr. Dominique Bourget: I think strong consideration should be given to shifting the onus.

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    Mr. John McKay: So if you shifted the onus to the crown from the defence, would you then change the balance of proof? Would you shift it from, say, a high standard, beyond a reasonable doubt or something of that nature, or would you leave it as a civil standard on the balance of probabilities?

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    Dr. Dominique Bourget: I'd like to see the standard not be discriminatory to the mentally ill in section 16, because this is different from the rest of the Code, and I'm not sure it serves mentally ill people.

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    Mr. John McKay: I can carry on.

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    The Chair: I think Ivan is anxious to wade in.

º  +-(1620)  

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    Mr. Ivan Grose (Oshawa, Lib.): No, he's not. It's over my head already.

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    The Chair: That's probably a good sign. Generally, when Ivan makes interventions, he begins with, I'm confused, so if he's not speaking, he's not confused.

    Do you have any more, John?

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    Mr. John McKay: On the last point you raised, that it doesn't deal with the accused person, that there's labelling that goes on and a discriminatory aspect, almost by definition, there's going to be a discriminatory aspect. I don't quite see how your point is relevant to shifting the burden. The issue is that this person is going to be labelled, and that is a discriminatory action in and of itself. It will affect this person's life. But if we do move it from a defence obligation to a crown obligation, presumably, that makes it somewhat more difficult, even if you leave the standard alone. Would that be a good thing or a bad thing?

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    Dr. Dominique Bourget: For the first arm of your question, I'm not sure I agree with the labelling thing. I think, when a person is diagnosed with a mental disorder, we should not see this as labelling the person. I think it is recognizing or being aware that this person is different, but not necessarily in a negative or derogatory fashion. It may just be a matter of semantics.

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    Mr. John McKay: But semantics are extremely important. I appreciate that you are concerned about the negative quality of this kind of analysis. Certainly, the language is a heck of an improvement from previous language of natural imbecility or something of that nature. Again, if you had a way to destigmatize this language, I'm sure we would be very interested in knowing what you think about how to do that, because I don't think there's anybody here who would disagree with your point.

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    Dr. Helen Ward: The issue probably is not so much the language, which I agree is a great improvement, it's the fact that it's really a societal stigma that goes beyond the scope of the Criminal Code or even this committee.

    I wanted to come back to your other point about how one would rewrite it or whether shifting the onus would solve the problem. I agree with you, I'm not sure shifting the onus would do that. And it might get into other problems, because historically, the right to raise the criminal responsibility issue was just for the defence, basically. The main problem we're raising is that somehow the standard of proof appears to shift. Not that it's written that way in the code, but somehow the standard of proof seems to shift the more serious the offence is. So the more serious the offence, the greater the burden of proof appears to be on the defence. That's the problem, given that mental illness is the same, no matter what the crime, the offence committed. I don't think there are easy answers for that, and that's partly why we didn't make a specific suggestion on wording.

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    The Chair: Thank you very much, John. I'm not even going to comment.

    Ivan.

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    Mr. Ivan Grose: Thank you very much, Mr. Chair. I decided I would wade in.

    I'm sorry I wasn't here for your initial presentation. I was on the telephone with a person I think might have made an interesting case study for either one of your disciplines.

º  +-(1625)  

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    Mr. John McKay: One of your constituents?

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    Mr. Ivan Grose: Yes, one of my constituents. I think he voted for me.

    Do you feel that with the system the way it's now constituted, we do not separate people who are mentally challenged--that's my word; mentally unstable, whatever you want to use--from the ordinary justice system, with the result that too many of them are treated, when the sentencing comes, as ordinary people who have committed a crime, which means that in our prison systems we have a great many people who should not be there? I'd like an answer from any of you about that. My personal opinion is that we have too many people in our regular prison system who are receiving no treatment. Let's face it, there is no treatment for mental disorders in the prison system. I know we pretend there is, but there isn't, not adequate treatment anyway. As a result, these people come out of prison, as most prisoners do, probably worse than they went in, untreated, still with the same problem they went in with.

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    Dr. Dominique Bourget: You're right about this. There's a recent Canadian study by Dr. Johann Brink and collaborators that showed that up to a third of federal inmates had a current psychiatric diagnosis on axis one, which represents the major diagnostic category. The rate of psychosis is three times as high as that in the community, so the figures are huge.

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    The Chair: Dr. Bubber.

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    Dr. Cinny Bubber: Actually, the system is getting worse in that regard. At the forensic hospital where we work in B.C. we've had to increase the number of beds in order just to cover people who are mentally ill who have been charged with a minor crime, trespassing or something like that, because they can't receive services in the regular mental health system. So if the RCMP or the police can charge them with a crime, they can get into the system, and then they're seen by us. Of course, then the issues come up.

    In corrections I think it's significantly worse, because treatment there is on a voluntary basis, as opposed to mandatory treatment, so they are untreated. At least within the forensic system they are treated. Sometimes they are bumped back out into the street, unfortunately, but in corrections most of them are untreated. As mental health services on a provincial level continue to decline, I think the rise in charging mentally ill patients will actually occur. I think we're just going to end up mirroring what's already happening in the U.S. in that regard. I think the biggest psychiatric facility in the United States is the L.A. County Jail.

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    The Chair: Madame Bourget.

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    Dr. Dominique Bourget: I don't know whether you were back when I spoke briefly about the capacity to serve sentence concept that we've just started exploring. That really meets your point on the high rates of the mental disorders in prison. I mentioned that study by Brink et al., and it also showed that the rates in all diagnostic categories are high at entry level into the federal penitentiary system. So the rate is very high to start with, and we know the tension milieu can exacerbate a relapse or exacerbate the illness. We also know, through studies by colleagues, that sometimes the mental illness is not diagnosed until some time into the detention.

    The point I was making is that even though there are now hospitals in prisons and prisons in hospital, the milieu is still poorly equipped to identify these individuals who suffer from a mental illness. It goes from the guards to other prisoners. The identification is not always made in a very timely fashion. The milieu is also poorly equipped to treat them, to manage their care in a proper environment, and we know that a proportion of the mentally ill people will move into requiring a higher level of specialized care and resources, a third level of care, for instance. This is simply not available in the prisons and the detention centres.

    Also, sometimes these people, because of a lack of treatment, because of a lack of insight into their conditions and what they may have done, will be seen as dangerous individuals and will be kept at warrant expiry, with the result that when they're released, there's no real handle on them to bridge them with the mental health system. Sometimes they're lucky, they come and see us, but many of us, I'm sure, don't have this access facilitated for them when they cannot themselves find it, and that's a real tragedy.

    Again, I don't have the solutions. I'm just here maybe to raise these points. I don't know what we can do to improve the system, but certainly, we see that many of them are not being helped very much by spending time in detention, and we've accomplished nothing, because they can be released, they'll be left untreated. They've committed a crime before, they may well commit another crime later on.

º  +-(1630)  

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    The Chair: Thank you very much.

    Dr. Hanley.

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    Dr. Jordan Hanley: One thing that has certainly been going on in British Columbia for quite a few years is having psychologists and psychology graduate students in remand centres, so that when people are first coming in, one of their first experiences is to undergo a psychological interview, if you will, and we use a variety of rating scales and techniques to try to assess if there is any kind of mental disorder prior to their even going on the units where they're going to stay. That can, at least in some cases, set in motion further follow-up by both psychologists and psychiatrists.

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    The Chair: Thank you.

    Peter MacKay.

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    Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC): Thank you.

    I want to thank all the panelists and apologize for my late arrival and for the sparse attendance. You may or may not have been advised, but there are two justice committees sitting today, and I am a member of both, and there's a justice bill in the House, so there's a scheduling problem.

    I wanted to ask you some questions, and again, I apologize if these have already been posed. In particular, given your unique position to assess this, I wanted to get your sense of whether there was merit in the idea of capping with respect to the not fit designation we often see as an indeterminate sentence that, basically, keeps a person in suspended animation, very likely for a minor offence, which could result in a period of incarceration, albeit in an institute, rather than a prison, that can be tenfold and beyond what they might have received had they simply pled guilty to an offence of mischief or minor theft.

    Further to that, I wonder whether you see some illnesses currently defined in the Criminal Code as perhaps in need of either greater definition beyond what the courts have already stated or the creation of a third category outside the current parameters under the not fit and not criminally responsible designation. There may be instances, for example, with an affliction such as a dissociative disorder or a disorder like multiple personality, Tourette's syndrome, those that while rare, seem to be outside what was previously contemplated. We're seven years late in getting at this review, so we want to make sure we get it right, or at least as correct as possible in the circumstances.

    The last question is one I'm sure you've contemplated and probably already addressed, the resource situation. It comes down to priorities for all levels of government. I know personally from the practice that legal aid, and to the same extent, the prosecution, are often operating like a MASH unit, simply ushering people in, patching them up, doing the best they can in the legal sense. I would suggest that you very often find yourself in the same circumstance. The beds at the local forensic unit where I come from in Nova Scotia are constantly full to capacity. I'm sure you're often left with a great feeling of unease about the decisions you are forced to make for reasons that are not based entirely on your training, but more for practicalities, the demand you simply can't meet.

º  +-(1635)  

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    Dr. Dominique Bourget: I will try to answer your questions. I may not remember them all.

    With relation to the capping issue, in our brief we agree that the review board be given the power to discharge absolutely an accused unfit person when there is no evidence that this person presents a significant risk to society. The example I provided is that when, for instance, we have a mentally retarded person or a person with organic brain damage, they will never be likely to become fit, because there is simply no possibility of improvement or no possibility of treatment or reversing the condition. When there is no evidence that such people represent a significant risk, the review board should be given the power to discharge them absolutely. There is certainly no gain in keeping these people coming to a review board hearing once a year, and nothing else being done for them. That is something that we see in practice now.

    On your question about rare diagnoses, whether there should be a third category, I think these conditions can all be dealt with within the meaning of section 16 as it reads now. I don't think there need to be other categories in the Code to deal with these. That's what we've been doing. For instance, I've had to testify in court in cases of dissociative disorder. It is clear that this is a diagnostic category and an illness that is classified as a mental disorder. I don't see a problem there.

    With regard to resources, this is certainly an ongoing problem. There are many provincial representatives who could probably discuss this better than I can. From our end, we certainly appreciate that there is a lack of resources in the community to effectively help mentally ill people.

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    Dr. Jordan Hanley: If I could speak to the resources issue as well, we see that as being one of the primary ties to the whole reason for our being here and requesting to be included in diagnosing fitness and NCRMD issues. Earlier I raised the difference between the numbers of psychologists and psychiatrists in different provinces throughout Canada. In some places, like Quebec, the ratio is 15 to1 in favour of psychology. In British Columbia it is 2 to 1. The issue there, which we see on an ongoing basis, is with psychiatrists who are flying up north and all over the place into remote communities in order to conduct these kinds of assessments at great expense to the taxpayers, where psychologists actually are there or live close by. Essentially, if the psychologists who are with the people in the community could do these assessments, there would be substantial dollar savings. In addition, you are also talking about more community-based treatment then, because it's not a person who is simply going into the community and leaving. That person knows the community and the people, and could probably also play a role in effective treatment with those individuals.

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    Dr. Cinny Bubber: It's not that we're happy about it, but psychologists cost less.

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    Mr. Peter MacKay: Can I ask a very specific question, one that troubled me for a long time when I was practising law? What do you do with the individual, whether it be a psychiatric or psychological affliction, when the diagnosis has been to take medication and the individual complains, quite legitimately-I have seen it, and I am sure you have seen it--that the side effects are so severe that they would rather risk being charged and feel better about themselves from a health perspective and try to deal in some other way with the psychosis than by following the court order that they must take prescription drugs as prescribed. This seems to be a real falling-off point, and perhaps it's one for which there is no solution.

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    Dr. Jordan Hanley: Psychology, again, attempts to address that. Taking the medications is one issue, but then, as you mentioned, there are the side effects. I've certainly worked with bipolar individuals who really enjoy their mania, and it's a bit of a downer for them to have to take their medications and miss out on all that. We would approach this from a more therapeutic perspective.

    There are plenty of times where individuals, even with quite pronounced mental illness, will sit around in a group with psychologists and discuss ways to work these problems out, talk about the symptoms they experience from their medications. It's a supportive way to try to help them deal with that. Often mental illness does isolate people quite a bit. They may think they're all alone in this, but as we know, throughout society there are a number of different organizations, Alcoholics Anonymous for example, that completely focus on people knowing that they're not alone, there are other people they can talk to if they're experiencing those kinds of problems. It's basically just getting support and realizing that those symptoms aren't part of the mental illness, which is also something they're concerned about.

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    The Chair: Dr. Ward.

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    Dr. Helen Ward: I would like to make two points about that issue. I certainly agree with you that it's a terrible problem that you have people who are under the NCR radar and they're out in the community not taking their meds and not doing well, and they reoffend. It's a larger societal issue. We've seen the pendulum swing back and forth over history on the question of whether we should lock everyone up for their own good or people have the freedom to be ill. That is part of the crux of this matter. At the moment we are at a point where there is some balance. There are more and more community treatment laws. Those are provincial. There are more and more laws that mental health professionals outside the criminal system can use to get these people into treatment in the community. These laws are by no means perfect and they're patchy, but I think in that direction there is some progress being made. It would be nice to see that coordinated nationally, but I'm not going to rearrange federalism here.

    The second piece, I think, relates to people with major mental illnesses, particularly psychosis. I think there is hope in the matter of side effects from medications and people being unwilling to take them. The newer generation of antipsychotic medications are more tolerable. There's good evidence that people comply more with these medications because they find them more tolerable. We are entering the era where these medications will be available, for example, in intramuscular forms, which also ensures compliance. So I think there is hope, even though that's not the whole answer. There are some medical things that I think are going to make that situation somewhat easier.

    But I agree with you, it's a terrible thing for lawyers and those of us who treat these people to see.

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    Mr. Peter MacKay: Thank you.

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    The Chair: Thank you very much.

    Thank you to the members of the panel.

    I believe our next panel is here, so we'll be proceeding to that 15 minutes early. Before we do that, is there anything any member of the panel feels they would want us to know that hasn't been touched on? Do you feel satisfied that most of the issues have been brought forward?

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    Dr. Helen Ward: Yes, and I would like to commend the committee. They clearly have very well-informed questions, and I was very impressed.

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    Dr. Cinny Bubber: I would just like to thank everybody for the opportunity to come out here. This is something we've never done before, so it was very exciting for us. Thank you.

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    The Chair: Mr. MacKay made the point, but I'll repeat it, that even as we sit, a subcommittee of the justice committee is across the hall meeting on security issues and a justice bill is in the House, Bill C-15B, being debated by members of the committee. That's why you see members coming and going. They're going down the hall to speak to the issue. As Mr. MacKay also suggested, we're about seven years behind in the review, so we have to persist and get on with the job, and that's what we're trying to do. I thank you very much for your assistance in that effort.

    Thank you.

    I'm going to suspend for a moment to allow these witnesses to find their way. You're certainly invited to sit in and take in the next group, as they obviously sat in for you. We would invite the new witnesses to come forward.

º  +-(1647)  


º  +-(1657)  

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    The Chair: I would like to reconvene the 74th meeting of the Standing Committee on Justice and Human Rights. We are continuing our statutory review of the mental disorder provisions of the Criminal Code. To help us in that regard, we have, from the Mood Disorders Society of Canada, Phil Upshall, president, and William Ashdown, vice-president, and appearing as an individual, Justice Edward Ormston.

    I welcome all three, and would note that you were observers of our last panel. I invite you to make comment as you see fit. Also, I'm sure you heard my explanation earlier as to why we're somewhat sparse today. Food is being made available in the back, and so from time to time members will probably find their way there. Please understand that the end of our day may, for some of us, be quite a while from now.

    Mr. Upshall.

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    Mr. Phil Upshall (President, Mood Disorders Society of Canada): I'll try to keep my submission short, but that means I'll probably go over time. Then we could engage in some discussion.

    Thank you very much for the invitation and the opportunity to appear before the committee. We're cognizant of the activities of all members of Parliament, and commend you for the tremendous amount of work you do and the split efforts you have to undertake at all times.

    I have filed a brief with the clerk. Unfortunately, I filed it too late to get it translated and to all the members, but I understand the clerk has several copies. I'll just be reading from it two or three times during the course of my submission, and I have a number of reports that I'll be referring to.

    My name is Phil Upshall, and I'm the President of the Mood Disorders Society of Canada. I'm a founding member of the Canadian Alliance for Mental Illness and Mental Health, and I filed with the clerk a copy of our call for action on mental health reform. The Canadian Alliance for Mental Illness and Mental Health was referred to by the forensic psychiatrists who were here. There are five of us in the group: the Canadian Psychiatric Association, the Canadian Mental Health Association, the Schizophrenia Society of Canada, the National Network for Mental Health, and, the Mood Disorders Society of Canada.

    I'm also a member of the mental health panel for the Canadian Community Health Survey for Statistics Canada, and I'm a member of the advisory board for the Institute of Neurosciences, Mental Health and Addiction, part of the Canadian Institutes of Health Research. A number of other of my credentials are in the bio that's filed with it.

    I'm a member of the mental health implementation task force in Ontario. In that regard, I was the co-chair of the specialized services subcommittee, and within the context of our studies, we undertook a study of forensic services within Ontario. It's in that context that I had the honour to meet Judge Edward Ormston, who's sitting beside me today. Judge Ormston acted as a member of our subcommittee and informed us in great detail about the practical aspects, what goes on in court, how prisoners are treated, the difficulties judges face, and other things that really informed our decision-making process. We're still in the middle of our reform efforts, but it's safe to say that with regard to the forensic side of things, we think we'll have a much better report by virtue of his input.

    Beside me today is Bill Ashdown. Bill is the vice-president of the Mood Disorders Society of Canada and has been involved with mental health issues for many years. He sits in the place of John Starzynski, who helped prepare this brief. John is a lawyer who's involved in the bar assistance program in Ontario, and he's busy today and couldn't attend.

    With those introductions, let me just tell you briefly about the Mood Disorders Society. We are a national voice for Canadians living with mood disorders, depression, bipolar disorder, and related panic and anxiety disorders and their families. We are a consumer-, family-, and volunteer-driven organization, and we enjoy not-for-profit charitable status. Among our objectives are to assist those Canadians suffering from depression and manic depression and allied mood disorders, their families, and caregivers; to educate the Government of Canada and its various departments; to work towards the elimination of stigma; to support organizations in the provinces; to promote the development of a national network of provincial and local mood disorders associations; to promote research into the causes and cures of mental illnesses; and to work toward the elimination of all barriers, including work-related, health care-related, and societal barriers, to those living with a disabling mental illness.

»  +-(1700)  

    I draw your attention to the Government of Canada's throne speech on January 30. We were really pleased to read in it the following two statements:

Persons with disabilities face barriers to full participation in the economy and society. The Government of Canada will work with the provinces and territories and other partners toward a comprehensive labour-market strategy for persons with disabilities.

It will strengthen its efforts to encourage physical fitness and participation in sport, and take further steps to combat substance abuse, reduce tobacco consumption, prevent injuries and promote mental health.

    These were exciting statements for people in the mental health and mental illness NGO community. It's been many years that we've felt we've been second-class, third-class, or no-class citizens when it comes to being able to access members of Parliament and policy development processes. The last year has proven that the door is open to us to make our points and to persuade you that it's really essential to put mental illnesses and mental health on the national agenda.

    Our purpose today in coming here is not to bring you the clinical aspects, but to bring you some comments from the standpoint of consumers, many of us who have had an actual interface with the system and who know it on a practical basis.

    I've made a comment about the purpose of the Criminal Code. I'm not going to read the entire comment, but I will point out that we say criminal law is not a social law, but especially in mental disorders provisions, it has assumed that role. The issue is, if it should do it at all, how to do it without adopting a paternalistic, biased view of the mentally disordered accused. Without the required intention, a mentally disordered accused remains just that, an accused. Can there be justice for an accused in a culture of preconceived notions of mentally disordered persons as being dangerous, out of control, and unable to care for themselves or know the difference between right and wrong?

    The present provisions refer to persons charged with an offence as accused, even after being found not criminally responsible, a label that furthers the stigmatization of persons who need help, rather than alienation and isolation. As you read the multitude of briefs presented at these hearings, we would urge you to consider the labels some of the presenters use to describe very ill Canadians and ask if this language is appropriate. Would such language be tolerated if used to label others who have major health care issues, such as those living with cancer or diabetes?

    We have a very firm position that there's a need for comprehensive mental health reform in Canada. We do not believe you can reform the mental health provisions, the mental illness provisions of the Criminal Code, or service delivery within the institutions that support those decisions without a full overhaul of every aspect of mental health and mental illness service delivery in Canada.

    Your original questions asked if we had some information we would like to share with regard to facilities in the provinces. The brief says no. However, I do have some material that I would like to make available to the research staff, if they would care to have it. This is public material that I acquired through the forensic discussions on the mental health implementation task force.

    In 1998 in Ontario there was an administrative memorandum that set out a policy on forensic services. It set out visions, goals, and principles for a forensic system. The first vision was:

People will not be stigmatized or discriminated against on account of mental disorder, even where the mental disorder leads them into conflict with the law. Mentally disordered offenders will be integrated within broader mental health programs and services consistent with the level of risk and needs.

    That's an interesting statement. We could discuss whether there's any reality to it.

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    As for the principles upon which this policy are based:

Treatment, care and support will be accessible, equitable and developed with consumer and family input. Services will be designed to meet the special needs of mentally disordered offenders. Programs will be quality driven. Legal status must not serve as a barrier to mentally disordered people in accessing clinically appropriate services.

    There is an expectation that the mental health system should provide both dedicated forensic and integrated mental health services.

    There is a comment towards the end of the memorandum that says:

Chronic, relapsing schizophrenics are a population at risk for becoming forensic. The development of program models which have proven success in working with this population will also serve to reduce pressures on the forensic system.

    That comment informs one of our recommendations, which is early intervention.

    There was a comment about distribution of assets within Ontario. I will tell you this. In a report entitled “The Distribution of Mental Health Forensic Beds in Ontario” in 1998, under the heading “What is Currently Available”, based on Ontario's current total population of 11.4 million, it works out that we have 5.6 beds for 100,000 population in Ontario called forensic beds.

    In another memorandum called “Forensic Mental Services, Ontario” there is a heading called “Current Problems With Forensic Services”. The most important one is noted as:

Large increases in the numbers of persons found not criminally responsible and unfit to stand trial and assessments for fitness and criminality responsibility have resulted in significant pressures on the system, particularly in beds. These pressures are in part due to the 1992 amendments to the mental disorder provisions of the Criminal Code, resulting in the NCR defence being seen as an attractive option in a larger number of cases. Forensic beds are not evenly distributed.

    I have a number of other quotes I'm going to skip in the interest of time, but I'll provide to the clerk, that provide some data. Particularly, there is an assessment that is very informative from the Centre for Addiction and Mental Health, which talks about their forensic treatment, the skills that they use, and the lack of assets they have to deliver the services.

    You've asked for specific comments about certain issues. We believe section 16 should be amended to remove the reverse onus on the mentally disordered accused. Our full argument is in the brief, but our initial comment is that it seems incongruous to make a distinction between the consideration of an accused with a perceived mental disorder and one who is not. The standard of determination was obviously included in the Criminal Code to address the issue of untreated persons with a mental disorder deposited into a system inappropriate to their health needs because no other alternative existed to bring attention to them.

    You asked if there is a need to clarify or expand the definition or criteria for determining fitness to stand trial? We believe the definition must be clarified. We believe that in using a balance of probability standard under subsection 16(2), the current definition discriminates and diminishes an accused's ability to meet the charges.

    You asked about automatism, and our short response is, there is no purpose in trying to codify or define a defence not recognized by the mental health services community or the DSM-IV

    You asked a question about review boards. We believe review boards should be given the authority to order an assessment and to discharge absolutely an unfit accused. Review boards are charged with ensuring that an accused must be given the best possible conditions to determine his or her future steps. I go on to comment about an assessment prior to review being absolutely necessary.

    We talk about capping. The short answer is that we believe the capping provision should be proclaimed in force and that the dangerously mentally disordered accused provision should also be brought into force at the same time. We believe that as long as Canada continues to incarcerate mentally disordered persons who are not guilty, there is no justifiable reason to incarcerate them for a period longer than that for which they would otherwise be imprisoned.

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    With regard to whether the hospital orders provisions should be proclaimed in force, our response is, no. Our response is very similar to the earlier comments as to why they ought not to be.

    Briefly, our conclusions for the purpose of this brief are that we recommend that early intervention and treatment for persons with mental illnesses or disabilities be approached primarily so that we can prevent their getting into the criminal system.

    We recommend that for as long as the criminal justice system delivers health care to the mentally disordered or disabled individual, a major emphasis be placed upon the education of all officials within the criminal justice system, including lawyers, crown attorneys, judges, police, corrections staff, guards, and all others, with regard to the nature of mental illnesses and the need for appropriate treatment. Without this effort, the stigma of mental illness will continue to infuse the system and prevent the provision of necessary treatments and supports.

    We recommend that this committee call for a federal-provincial-territorial mental health task force to study in detail all aspects of mental health care in Canada and the promotion of mental health. It is within the context of the task force that the provisions of the Canada Health Act, as they relate to the provision of care for the mentally ill or the mentally disabled, as well as the harmonization of provincial mental health legislation can be discussed. It is also within this context that a special funding envelope for mental health needs of all Canadians can be studied. We urge you to consider, when you are looking at this recommendation, the social union framework, which has mechanisms that we would suggest are very appropriate to your review.

    We recommend that persons currently in the care of Corrections Canada who are mentally disabled be provided with a more appropriate physical setting conducive to returning to a higher level of health and more treatment and support services that will facilitate this recovery. In this regard, we note that currently, Corrections Canada is expecting to spend about half a billion dollars--if the reports we read are right--on the improvement of current facilities and the construction of new facilities. We urge this committee to ensure that an adequate sum is spent to improve the conditions of those with mental disabilities who are incarcerated.

    We recommend that the composition of review boards be changed to include mental health consumers and support workers who are familiar with the justice system and would bring a practical and front-line viewpoint to the review boards' discussions. This would be consistent with the trend in health care and scientific matters to include the voice of the consumer patient and non-governmental organizations whose front-line knowledge has proven to be very valuable in these discussions.

    We recommend that this committee request an audit of the Corrections Canada budget to determine the full amount spent on a per capita basis to incarcerate and treat a mentally disordered accused. I have a document here that was presented to us at our task force: in Ontario that number is $150,000 a year, $350 a day for the lower level, $450 a day for the higher level. We can spend that money, I think, far better than on guards and concrete and jail cells.

    It is obvious that our criminal courts and our federal and provincial corrections facilities are being strained. As Canada's population ages, mental illnesses and mental health concerns will become increasingly important and will place substantial pressures on all of our society's major institutions. We urge the Government of Canada to engage in a national discussion, through the Standing Committee on Health or through an independent commission of inquiry, that would result in a national action plan involving the federal, provincial, and territorial governments and would deal with issues such as promotion of mental health and the understanding of the challenges that mental illnesses present in the 21st century.

    I recognize that some of the suggestions are beyond this committee's purview, but as members of Parliament with a number of concerns we're fully aware that you face in your communities, your constituencies, and Canada at large, we hope you will give due consideration to these.

    Thank you very much for the opportunity to present. Bill and I are here to answer any questions you may have.

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    The Chair: Thank you very much. In the context of the latitude that's available to us, given that we are, as Mr. MacKay said earlier, somewhat late in this, and given that we're accustomed generally to having to deal within the confines of legislation, I think our committee will probably take a very small l liberal view of our work here to address some of the larger issues we've been asked to address. So I think we probably are in synch on that front.

    Now I would refer to Mr. Justice Ormston.

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    Hon. Mr. Justice Edward Ormston (Individual Presentation): Thank you, Mr. Chairman and ladies and gentlemen. I was invited quite late, and as a result, I have nothing to review and no papers to present, but I can give you a bird's-eye view from where I sit in Canada's only mental health court.

    You may not know it, but Canada's only mental health court sits at Old City Hall in Toronto. Old City Hall in Toronto is probably Canada's busiest courtroom. We have 28 judges there. We run through a couple of hundred thousand cases a year. We sit during the day and during the night with justices of the peace. I administered that building for some period of time. I've been a judge for about 12 years.

    On that point, of course, you're all familiar with the concept of judicial independence, and I have to place a caveat before you that I only speak here for myself, I don't represent the voice of my bench or my chief justice, although he does know I'm here.

    My observations are that the Canadian provincial court system these days has really become the social welfare system of last resort for a great many people. If you're poor and marginalized and living on the fringes of society, and if you're looking for help with something like anger management, because you know that your father beat your mother for years and you want to make sure you don't get involved with that, you know it's not as easy as simply going down to a psychologist and getting counselling on things of that nature. What happens practically is that those people are criminalized, found guilty of something, then they get the anger management they need. Similarly, drug offences, mental health concerns, alcohol problems are by their very words health care problems, but they're being downloaded onto the criminal justice system because the poor, the marginalized, these people can't get help in any other fashion.

    In about 1995 or 1996 I used to sit in our guilty plea court, and we would do 100 pleas a day, shoplifting, prostitution, those common things that would come through. Then the court would grind to a halt when a mentally disabled individual or a mentally disturbed individual came into the courtroom. You have to calm them down, you have to take time in dealing with them, you have to ensure that they know where they are, you have to see whether or not they're fit to make that kind of call. If we weren't certain whether they were fit or not, they would be sent back down to the cells in the Old City Hall, they would go back to the Don Jail, they would wait three or four days until they got an appointment at the Centre for Addiction and Mental Health. There they'd have about a 25-minute assessment in respect of fitness, then they'd come back around through the route. They'd finally get back to me in about nine days. So somebody has spent nine days in the dungeons at Old City Hall and in the dungeons of the Don Jail for stealing an apple, something you and I wouldn't spend a minute in jail for, and the primary reason is that they had a mental disorder of some nature.

    The people I'm dealing with, I think, are a little different from those you've heard about. You've heard about psychopaths and sociopaths and antisocial personality disorders, which I now understand are all the same. The psychiatric profession keeps changing the labels on you, you never know where you are. It gives me some concern to think that ten years ago homosexuality was in the DSM-IV and was considered a mental illness. In any event, the people I'm dealing with are basically street people. These are the people who are dirty and dishevelled and smelly and loud. You see them coming down the street and they look dangerous to you, but they're not dangerous. They're sad and they're suffering at a very profound level, and they're very lonely, because nobody talks to them. Those are the mentally disturbed people we deal with in the mental health court. We don't deal with the psychopaths or the sexual predators, the Paul Bernardos of the world. Those are the people that look normal, but are dangerous. I deal with the people you think look dangerous, but in fact are very ill, and they're continually in the system.

    As a result, a group of individuals who were in the courtroom, crown attorneys, defence lawyers, court clerks, security guards, police officers, all felt there had to be something done for these individuals. I was fortunate that I was the administrative judge, so I selected a courtroom and we began to place all those individuals in that courtroom, where they will be dealt with by one judge, and we were able to convince the psychiatrist from the Centre for Addiction and Mental Health to privilege the patient instead of the doctor.

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    So instead of sending the patient around the loop, we brought the doctors into the courthouse every day. So what happens now in Old City Hall is that every day anybody who has a mental disturbance and is arrested in the city of Toronto and has fitness concerns is brought down to this particular courthouse with its own set of cells. We have qualified social workers on site. We have a specified duty counsel, an expert in these matters who's on site and does this all the time. We have psychiatrists who come into the court, and they do the fitness assessments right on site in about 25 minutes each. So a person who's arrested, if he's fit and if he can make bail, is going to be released that day, and we'll send him off to the social workers to be dealt with. We'll then keep bringing him back to court for perhaps four or five or six months, enough time to convince the crown attorney that the petty crime he committed was due to his illness and not because he was an evil person. The crown attorneys will then withdraw those charges against the individual. By this time we'll have him set up, hopefully, with social workers and housing and things of that nature.

    We hoped as well to have one special set of remand cells. Toronto has about four different remand centres. One of them is very good with the mentally ill offender. They have a nurse who has psychiatric training. We hoped to be able to get all our people into those cells, but of course, we can't, because judges can't control Corrections and decide where people go. We hoped to be able to convince the Metropolitan Toronto Police Force to bring all our patients down in one van together, so they wouldn't have to be isolated from the other prisoners in separate vans, but that's hasn't proved possible.

    We're managing as well as we can with this population, but it indicates to me that they really have no business in our criminal justice system. All I'm doing there is triaging these people for the health care system. I know the police would like a third option of some nature. Right now, when the police arrest a mentally disturbed offender because he's urinating in front of one of the restaurants or something, and of course, the restaurant owner doesn't like it, they have two options with that individual: they can bring him to a hospital and wait around for 6, 7, 8, or 12 hours and get him checked into the hospital, or they can charge him, book him and he comes down to the mental health court.

    There should be a third option for these individuals, where the police can bring them to a safe house with social workers, with psychiatrists, with people on staff who could control them for a day or so and then release them back into the community with social workers. Because as soon as they're charged, they pick up all that criminal justice baggage, like the right to bail, that you don't have to say anything, that you're entitled to a lawyer. These things often impede dealing with the mentally ill individual in a health care setting, because they're waiting for legal aid items of that nature.

    I find as well that the medical model you've heard a lot about seems to be really almost 100% concerned with pharmacology. Forensic psychiatrists think the answer to all the problems is to juice them up with something. Quite frankly, it makes me wonder. If Jesus Christ came back down to earth today and did what he was doing, there's no doubt we'd lock him up, declare him unfit, treat him with Thorazine, bring him back, cut his hair, find him a job, and tell him to quit hanging around with those other 12 guys. But those are the people who we see on our streets all the time, and they think the answer is only medication. Quite frankly, there is another way.

    Mr. MacKay was asking the question about side effects, and I ask them that every day. I say, why don't you take your meds, George? He says, you know, Your Honour, I'm crazy, I'm not stupid. Quite frankly, they would rather be crazy, and it's not against the law to be crazy. They're entitled to live in their own space as long as they're not affecting anybody or hurting anybody. Many of the people I observe, if they have a friend, a home, and some meaningful occupation in society, someone they can relate to on a daily basis, can do quite nicely without meds. They self-identify when they need help, or their worker sees them or their friend sees them every day and they know something is happening. They will help them then, but they don't necessarily have to do it all the time. That's exactly what they're worried about.

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    I have got several specific items here in relation to the Criminal Code that will make my job easier in a technical sense. Philosophically, the majority of the mentally disturbed defendants you're dealing with are the people I have just described. They're street people who have been de-institutionalized, for all the reasons you've heard, but today we're getting caring, loving parents who think they have to charge their son, because that's the gold card into the psychiatric institutions. They can't get a civil bed. Why not? Because the beds are full up with forensic people, or the review board people in Ontario. They think, if they charge their son with assault, the judge will be able to force him into a institution or some form of treatment. Yes, I can do that if there's a hospital bed available. If there's no hospital bed available, he's probably going to languish in the Don jail until such time as we can find him a bed. Those are the other individuals I have before me all the time. The prisoner is crying in the prisoner's box, his parents are crying in the body of the court. They keep telling me he just needs treatment. Unfortunately, with the hospital bed situation, that isn't possible these days.

    There are other kinds of philosophical aspects that I would be pleased to talk to you about later, but there are some practical things I think you can do. There is still a difficulty in the Criminal Code in that some people, including some judges, think you can't have a bail hearing if a person is not fit. How can he make any choices? I think that should be clarified. I think the operation of the Criminal Code, in particular these sections dealing with the mentally disturbed individuals, acknowledges the fact that you can have a bail hearing with somebody who isn't fit. If you have people who are willing to take the person out on bail and supervise him, it doesn't matter whether he's fit. Indeed, the Code assumes that fitness hearings will be held out of custody, but it's not clear.

    There's a case in Ontario called Regina v. Whittle. It was a statement case, but there's a comment in there that there should be a static level of fitness throughout the whole proceedings. It shouldn't include the bail hearing. We should be able to do bail hearings for people who aren't fit to get them out of jail.

    The other thing in respect to when you can order a fitness assessment is that it should be expanded to include sentencings. As of now a judge can order a fitness assessment up to verdict. Once I find him guilty, if he comes back to me in two days and he's not fit or he appears to be rambling, I can't order a fitness assessment, because the verdict has been pronounced. So section 672.11 should be expanded to include sentence as well.

    The other problem we're having is what to do with the individuals who are developmentally delayed. There has been a debate here before this committee as to whether or not that's mental illness. Quite frankly, these people have to be dealt with. The simple solution would appear to be to expand the definition of section 2 to include developmental delays or things of that nature, so we can treat them in a more humane fashion. There is nothing in the circumstances now.

    As a judge, I have the authority to order a disposition. If I determine that a person is unfit, I can make a disposition. I rarely do. Generally, I leave it up to the hospitals. But if I make a disposition and the person disobeys it, there's no sanction. There's a sanction for breaching a probation order, there's a sanction for breaching other things, but there's no sanction in the Criminal Code for breaching a disposition. I have heard anecdotally, in respect of other cities where they have dangerous psychopaths or dangerous sexual offenders who are on disposition orders, that if they breach them, the hospital has no recourse either. There's nothing you can do. That should be a simple amendment, in my opinion.

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    The other thing I would raise specifically is whether or not a judge on his own should be able to raise the not criminally responsible matters at a trial if the accused doesn't. If an accused who has a mental illness, but is fit at the time of trial decides that he would rather have a trial, go through it all, and be sentenced, do I have a right, as a judge, to say, no, I think you're not criminally responsible, and we will deal with you in another fashion? That is somewhat offensive to me, in the sense that the judge is entering the arena in those circumstances. I know some judges feel they have that authority.

    I'm sorry if I've spoken too long, but those are my views from the street, and I'm prepared to answer your questions.

    Thank you.

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    The Chair: Thank you.

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

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    Mr. Chuck Cadman: Thank you, Mr. Chair. Thank you, panel, for appearing tonight--yes, it's almost tonight.

    To raise the issue of the people on medications, I think you went into that quite extensively, Your Honour. You say the vast majority are people who are essentially harmless and should be left alone. What about the person who goes off the medications and, as a result, does commit a serious offence? How do we deal with that one, if it's known beforehand what will happen if they do go off their medication?

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    Mr. Justice Edward Ormston: Ontario has legislation in the Mental Health Act now. Brian's Law is in place. If you feel they're going to be a danger to themselves or others, you can implement that.

    I agree, there are times and circumstances when medication is necessary, but my concern now is that it's become the panacea, it's the first option everybody turns to, and quite frankly, do we really have an understanding of how that stuff works?

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    The Chair: Mr. Ashdown.

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    Mr. William P. Ashdown (Vice-President, Mood Disorders Society of Canada): I certainly agree with Judge Ormston in his concerns about medications. I'm conscious of being the second string here, as I'm standing in for John Starzynski, so I feel as though I've come from the back lot of a playground onto the left wing of the Montreal Canadiens. My only expertise in all this is that I am, as my colleagues have frequently reminded me, extremely depressing, and that's justifiable, in that I've had 30 years with the diagnosis of this illness. I come from a long line of family members who have had this illness, going back over four generations, and I've also been involved in the business of mental illness for the last 20 years, more or less, the last 12 years as the executive director of the Mood Disorders Association of Manitoba.

    During that period of time I was privileged, or cursed, to interview in the range of 5,000 individuals and families, all of whom were coming to me for various major and, in many cases, life-threatening problems, some of which revolved around the law, many of which were relationship issues and economic issues. The one overwhelming fact I found, the one thing that tied them all together is something we have focused on in one of our recommendations, and that is the whole question of education. The amount of knowledge out there in the real world, and most particularly in the world of criminal justice as regards mental illnesses, and very specifically our mental illnesses of the mood disorders, which comprise about 85 percent of the total, is very limited, and as a consequence, it is extremely easy for people to leap to the wrong conclusion on a fairly regular basis.

    I know. I have been to most of the prisons in Manitoba, indeed, in western Canada, visiting people with these illnesses, and I can say that the rate of incarceration for people with our illnesses is extremely high. A lot of the time they are in there for situations for which, had they not been labelled with a major mental illness, it would have been absurd to put them behind bars. Not only is it absurd, it's a waste of taxpayers' money, and it is certainly not doing them any good in respect of rehabilitation.

    So I just wanted to underline the point of education, because I think that lies virtually at the heart of everything we do and say about mental illness. If we, as a culture, as a society, don't have a much better understanding and firmer grasp of what these illnesses actually are and how they work, we can never hope to properly treat them. We can never hope to properly enforce our laws and expect success within our criminal system when we're dealing with people who are ill in a way we don't understand or comprehend.

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    Mr. Chuck Cadman: Thank you.

    Along the same lines, Judge Ormston, I wasn't going to bring this up, but since you made the comment about medication being the panacea and you made the reference to the forensic psychiatrist juicing people up and made a comment about getting their hair cut--I'm not so sure how I should take that one....

    Some hon. members: Oh, oh!

    Mr. Chuck Cadman: You heard the testimony from the psychologists prior to this, and they're asking that they be included in the sections where they could actually make the diagnosis or do the assessments. I don't know if this is a fair question to you or not, but would support that?

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    Mr. Justice Edward Ormston: Sure. There's no magic, quite frankly. I have great respect for psychiatrists. Many of my best friends are psychiatrists. Psychologists can do this.

    I think one of the problems with the fitness test is that it's really too low. The fitness test is based on a case in Ontario, Regina v. Taylor. Dwight Taylor was a lawyer who walked into the Law Society of Upper Canada. He was apparently schizophrenic, and he stabbed a guy in the leg who wasn't going to give him back his ticket to practice law. So when he was asked the various questions--Do you know what a judge does? Do you know what a defence lawyer does? Do you know what a crown attorney does? What's perjury?--the typical things they ask in respect of a fitness exam, he could answer them perfectly.

    I think that test should be beefed up somewhat, perhaps in the definitions. I think there should be a rational understanding of their legal predicament, because fitness can fluctuate from hour to hour. I can have a person in at 2 o'clock, the doctor will ask him the questions, and he will fail. He'll come back at 4 or the next day, and he'll have them cold. They also learn. They learn in jail. They learn from the questions that are asked how to answer those questions. So although they will tell me what the job of a lawyer is and what the job of the judge is and all that, I still don't think they're fit.

    So I'm concerned about the whole concept of the fitness test. I believe psychologists can do it as well as doctors. I believe nurses can do it as well as doctors. Trained psychiatric nurses can do this as well as doctors.

    I have an anecdote again. The person comes up before me in court, he's yelling and spitting and swearing and cursing. He's just been arrested by the metropolitan Toronto police. He's apparently schizophrenic. He's off his meds. He's been sleeping on the streets. The leaf blower comes along at Osgoode Hall, because at Osgoode Hall justice must not only be seen to be done, it must be tidy. This poor paranoid schizophrenic looks up and there is this leaf blower with the head phones and the ray gun in front of him, and he thinks he's being invaded. So he says he's going to kill him if he doesn't get out of there. The leaf blower phones the police. The police roll up. They're wearing about 60 pounds of stuff these days. Have you noticed that? They've got helmets and bats and batons and guns and tonka sticks. They come out with sirens wailing. He's sure he's the first person the aliens have come to get, the poor paranoid schizophrenic. We bring him down, we throw him in our jail cells for a bail hearing, and then we want to pull him out before me. Well, he doesn't want to come out. He hasn't a cigarette or a coffee or anything. So he shows up in front of me spitting, yelling, and screaming. They try to calm him down. They say, do you know where you are today? I'm in that dungeon at Old City Hall at the corner of Queen and Bay--if you've seen the jail cells at Old City Hall, they look like a dungeon. What's the job of your lawyer? Well, a lawyer's job is to take as much money from me as he can.

    Some hon. members: Oh, oh!

    Mr. Justice Edward Ormston: Okay. What's the job of the crown attorney? The job of the crown attorney is to believe all the lies the police tell about me. Okay. What's my job? You're the big fat dummy who thinks he knows everything.

    Some hon. members: Oh, oh!

    Mr. Justice Edward Ormston: These are comments I've heard at home.

    Some hon. members: Oh, oh!

    Mr. Justice Edward Ormston: I don't mean to be humourous--well, I do mean to be humourous, but these are the circumstances that happen all the time. That person has a concept of where he is and what's going to happen to him, and he expresses it forcefully. If you can take your time with him and calm him down, he has a pretty good appreciation of what's going to happen. He expresses it differently.

    So I don't think fitness for the test currently is that tough. If the test were made a little tougher, I think it would be better, in the sense that there would be a rational understanding of what's happening to him, and I would like to see that happen.

    But in answer to your question, as it stands now, psychologists, I think, can do fitness tests as well as anybody.

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    The Chair: Thank you very much.

    Madame Allard

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[Translation]

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    Ms. Carole-Marie Allard: Thank you for appearing here today. I have a number of questions, and I think I will start with Mr. Upshall.

    I would like to understand the National Action Plan on Mental Illness and Mental Health. Some say that if the mentally ill are not dangerous and are on the streets, we should just leave them there. It is still the dangerousness test that determines whether something must be done about a mentally ill person. That is more or less what Justice Ormston told us.

    What is your position on that? Should the mentally ill be deinstitutionalized, or should we return to a more coercive solution so that they can be better supervised, or should we let them go? That is what I would like to know.

[English]

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    Mr. Phil Upshall: That decision has already been made, with respect. A lot of our people who have mental health problems have been discharged from the psychiatric facilities. That's only one aspect of our national action plan, which is really meant to bring mental health and mental illness issues into the mainstream of health promotion and health care, in the same way you might talk about cancer or heart and stroke or diabetes. At the moment mental health and mental illness issues are just getting on the radar screen of our national agenda, and frequently, they do not appear as health care issues.

    With regard to the de-institutionalization of patients, we are very satisfied with the theory that says it's okay to de-institutionalize an awful lot of the people who are in our mental health institutions, primarily hospitals, but also the jails. The issue for us, as Judge Ormston so eloquently pointed out, is not the fact that they're dangerous, but the fact that they lack any support. I like to use an analogy with physically disabled individuals. If someone's in a hospital with a broken back, they can't get out without a wheelchair, so we give them a wheelchair, and we don't take that wheelchair off them three blocks away from the hospital, they have it forever, or until they heal. But when we discharge people from a psychiatric institution, frequently, they don't get the support they need, they don't get the housing they need, there is no hope provided to them that they can re-enter society, and they walk around with the label of mentally ill or crazy.

    Danger is not an issue at the beginning. It becomes an issue as people fall back into psychosis or some other form of difficult mental illness because of a lack of support. You'll see this in our brief and a number of the materials that I'll leave with the clerk. If we can have early intervention and appropriate education, as Bill mentioned, the rate of de-institutionalization without any danger to themselves or to society is quite high. In fact, it's more likely that a person who's charged with drunk driving for the third or fourth time is going to commit that offence again than with a person with a mental illness. The danger is in other people in our society. The problem is that we have a stigma associated with mental illnesses that immediately cries out “dangerous”. As I lived with them, I can say there is no sense of danger being among them, except in some cases that are obvious.

[Translation]

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    Ms. Carole-Marie Allard: Without getting into the criminal side of things, for now, we heard a psychiatrist, and I think his evidence really struck me. He said that half of the homeless on the streets have mental illness problems. That's quite serious. Are we not just playing into the hands of the health system, with its currently overloaded emergency rooms and attempts to reduce treatment costs, when we say that if a mentally ill person is not a threat to society, we won't keep them? We release them and they go back to living on the streets. But if half of the homeless have mental illness problems, shouldn't we start taking care of them instead of leaving them on the streets, homeless, on the basis that they are not dangerous? That is why I wish to know whether your committee agrees with this theory somewhat, or if you completely disagree and think they should be released because they are not dangerous. That is why I am emphasizing the dangerousness aspect.

    I will speak to you after, Justice Ormston.

»  +-(1750)  

[English]

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    Mr. Phil Upshall: I think it's important to allow everyone in this democratic and free society to do what they want to do, as long as they're not harming others. Whether it's someone who smokes too much and is going to get cancer or anyone who eats too much and is going to become obese, now a Health Canada issue, that's one of our fundamental freedoms.

    Mental health promotion and education are very important. With regard to the mentally ill who are homeless, there is every reason to believe that segment of the homeless would not be homeless and would choose not to be homeless if they had the appropriate housing, jobs, or other supports, appropriate medical treatment. They're just not there, as Judge Ormston has mentioned. I've dealt with the metropolitan Toronto police emergency task force. They tell me they will sit for six to eight hours in an emergency room with someone who is mentally ill, two officers, and they charge out at about $100 an hour each. The cost is incredible to our society, but because it isn't in the health care silo, it isn't counted. It's the same with the cost per day of looking after someone in a forensic secure bed: $450 a day, $150,000 a year. That money could be easily diverted. Money out of the corrections budget could easily be diverted to provide health care.

    In Ontario de-institutionalization occurred, but provision of the supports to the people who were de-institutionalized was not made. To people who are de-institutionalized or who are mentally ill living in a rooming house is not a support, any more than with someone who is in a wheelchair getting up a set of steps without a rail. There are supports in regard to mental illness that just have to be there . As a country, we can afford them, and we should afford them.

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    The Chair: Just by the facial expression, I think Judge Ormston is dying to get into this.

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    Mr. Justice Edward Ormston: I am.

    Don't get me wrong, there is a place for the drugs, for the medications. The medications have allowed people to come out of the institutions and have allowed a great many people to live normal, safe, lovely lives, but they were supposed to build resources for the other people, they were supposed to build halfway houses, they were supposed to provide clinics. The people who don't have homes don't have a place to keep their drugs. They can't afford the $4 prescription fee every time they want to renew it. They can't afford the transit fees to get to it. They don't have a home. If they had access to those drugs, a place where they could keep them, they would be a whole lot better.

    The other frustrating part is that this committee can't do this alone. The greatest frustration I found in respect to the mental health court was breaking down the individual silos government set up. For example, a Ministry of Health official will not approve a $100,000 grant to hire two more mental health social workers, because his budget will go up, and he gets his raise on his appraisal by keeping his budget down. The fact that those two workers are going to save the Ministry of Corrections $1 million by keeping people out of jail, that he doesn't get credit for. There has to be some way these systems can talk to each other, so the mental health administrator who provides the money to hire two more social workers gets credit for the money he's saving Corrections.

    How do you break down those silos? We did it in the mental health court through the people who are eyeball to eyeball with the offender, not their bosses, because their bosses only talk to me about money: we can't afford that, why don't you get us more money? Social workers would tell me things like, this client needs a particular program, but my organization doesn't provide it; if you order it they'll have to do it, but don't tell them I told you. And the jail guards would say, if you write your order a certain way, they have to take them to that particular jail at a certain time; but don't tell them I told you, because they want those prisoners at a different place for reasons of their own in respect to Corrections.

    So the people who are eyeball to eyeball know the answers. They work well with each other, but we need some way to break down those silos. You need something like a mental health czar. For example, Seattle has a similar mental health court. In fact, the United States now has 600 mental health courts. Their first court started, I think, about three months before ours did, and now they have 600. They're all funded by federal money and they're all set up. They have a mental health czar, who's a boundary violator. So he can phone up the ministry of corrections and say, move those prisoners from there to there, because there's better treatment for them, and he can phone up an agency and say, you're getting money from the state government, you provide that program for this person, we don't care what your budget says, or, you move this person to there. He can break down those barriers.

    That's what I think is one of the real frustrations, that this committee is going to have to deal with the Department of Health, all ministries of health, and Corrections on all levels. There has to be some committee that can bring it altogether. I think the resources are there, if people would just learn how to share them.

»  +-(1755)  

[Translation]

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    Ms. Carole-Marie Allard: Justice Ormston, you have alerted me to a certain reality. You seem to be talking about minor offences, in your courtroom. You are not talking about people who have committed indictable offences. You seem to be talking about people who have peed on the street or things like that. So your court is what I would call a lower court. You deal with petty crimes, really.

[English]

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    Mr. Justice Edward Ormston: But these are the vast majority of people the Criminal Code has contact with. Why is that? It's because the Criminal Code has become the social welfare system of last resort for these people.

[Translation]

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    Ms. Carole-Marie Allard: I understood that, but even in the case of a minor offence, you have to consider whether the person is fit to stand trial. You have to go through the same questions, whether it is a murder or a minor offence. You are governed by the same requirement.

[English]

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    Mr. Justice Edward Ormston: If it's a murder, I certainly agree, but if it's a minor offence, I think there should be another option, so you don't have to prosecute every minor crime that's committed if there's a mental health background to it. That's been one of my points: let's divert those matters out of the system. We do a lot of that now, but we still have to charge them before we can divert them out of the system. Give the police another option, so they don't have to charge them and they don't have to bring them to a hospital, they can bring them to another place, where they can get a cigarette, they can get a coffee, they can be calmed down, you can contact a social worker, and then you walk them out the back door with the social worker.

    Can this committee do that? Probably not, but the Department of Health could.

[Translation]

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    Ms. Carole-Marie Allard: Doesn't the problem have to do with the definition of offences in that section? In my opinion, in order to decide whether a person is fit or unfit, the seriousness of the crime should be taken into account. What you seem to be saying, at any rate, is that the people are not dangerous. So why put them through a trial? Why deprive them of their freedom? Why? Why? Why?

[English]

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    Mr. Justice Edward Ormston: From your lips to God's ears.

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    The Chair: On that note, Mr. McKay.

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    Mr. John McKay: Do we have an opportunity to test the lips?

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    Mr. Justice Edward Ormston: I'd be before the Judicial Council.

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    Mr. John McKay: I have three questions to Mr. Upshall. First, you said there is a large increase in bed use because of amendments in 1992. I'd like you to expand on that, because I'm not sure I quite understood the a to b correlation.

    Second, in passing, you said section 16 removed the reverse onus. I'm looking at section 16 and I'm looking at the reverse onus, and I don't know how the section would work if you removed it.

    Third, you made a point about clarifying the definition. Those are my three questions to you.

    Judge Ormston wants a third option. There's a candidate for the leadership of the Progressive Conservative Party who seems to want to criminalize homeless people. I'm wondering whether we have variations on that notion, which was thoroughly discredited in the press, but may have a germ of sense to it--which, of course, we are not admitting on the public record, as Liberals.

    Second, you say a judge can order a disposition, but there is no sanction. I don't understand that. That's an interesting point. Those are the two questions.

¼  +-(1800)  

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    Mr. Phil Upshall: Your first question referred to the increase in forensic services. Rather than using my own words, I will refer you to a backgrounder on the provincial forensic system done by the Ministry of Health in 1997 in Ontario. This will just take a second to read.

In general terms, the main problem remains the tremendous increase in the demand for forensic services since 1992. When the Criminal Code was amended in February 1992, the pattern of referrals to forensic services changed dramatically across Canada. It became a much more common practice for courts to order psychiatric assessments. The requirement for a judge to have reasonable evidence of mental disorder before ordering an in-depth assessment was removed. In Ontario the rates of increase for new admissions ranged between 65 percent and 70 percent across the ten PPHs. Compounding the problem of the increase in the absolute numbers was the expectation for these admissions to be accommodated in secure beds.

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    Mr. John McKay: Is that just a judge not using common sense and simply ordering a psychiatric assessment because he wants to clear out a courtroom?

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    Mr. Phil Upshall: Why would you ask me a question about judges and common sense when there's one sitting beside me?

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    Mr. John McKay: I just wanted to see whether the eyebrows moved.

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    Mr. Phil Upshall: He's threatening to hold me.

    I think it's an abundance of caution. I think the other question is that when we go into a hospital for health care, we go in with our arms wide open and a willingness to work with the health care professionals for treatment. When a person with a mental disorder or disability goes into the criminal system, they are never picked up by an ambulance, they're picked up by a police car, perhaps even Tasered. They are taken to jail cells. They are totally frightened. They become unwilling to engage in general conversation, except with people they think they can trust. Frequently, those are the people they are incarcerated with. As they engage in this kind of discussion, as Judge Ormston said, they learn how to talk, what to say, and what not to say. So sometimes, even in the first appearance, they can appear before the judge as reasonably informed.

    Judges, out of an abundance of caution, I think, want to make sure whatever they do is not appealable. At the same time, a lot of judges now--unfortunately not enough--are paying attention to the mental illness issues before them with each accused and saying, maybe there is an issue here, I'd better get an assessment.

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    Mr. John McKay: Excuse me. What was in the amendment that caused this sea change of concern?

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    Mr. Phil Upshall: The requirement for a judge to have reasonable evidence of mental disorder before ordering an in-depth assessment was removed. So a judge, on his own motion, could say, with or without a whole bunch of evidence, perhaps just because they eyeballed the accused, this is an assessable situation.

    Did you ask a question about rates of bed usage? I can give you a comment.

¼  +-(1805)  

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    Mr. John McKay: No, I didn't. What I was concerned about was the removal of the reverse onus. I said I looked at section 16, and I don't see how this section would work if you removed the reverse onus.

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    Mr. Phil Upshall: It would just work the same way for everyone, whether you are a drug addict, drunk, whatever. The issue is, can the crown prove that you are guilty beyond a reasonable doubt, that you meant to do what you did, and the act you committed fell within the scope of the Criminal Code? No one else has reverse onus imposed upon them to prove whether they are sane or insane. It's up to the crown to prove both elements of the offence. To suggest that a defendant in a mental illness issue should have to respond--I appreciate it's not the criminal level, it's only the reasonable preponderance of evidence--we think is discriminatory and stigmatizing, notwithstanding the Supreme Court of Canada's decision. Why is it that this Parliament, in the past, has felt it necessary to impose that responsibility on someone? That's our point of view. Why is it there? When you think of someone who has diabetes, doesn't take their insulin, and goes into coma, crashes a car, kills some people, the criminal courts do not come down on that individual, someone who doesn't take their medication.

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    Mr. John McKay: I suppose, to take the converse, the presumption of personal responsibility is the underlying presumption of the entire system.

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    Mr. Phil Upshall: Absolutely.

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    Mr. John McKay: I guess that's the reason Parliament in 1992 chose to change that onus.

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    Mr. Phil Upshall: But there's no onus on any other accused to prove or disprove anything. It's up to the crown to present a case for both the actus reus and the mens rea, and then the defence, if it feels appropriate, will respond. That's the legal issue.

    That said, there is no doubt in my mind that there needs to be federal-provincial agreement that if someone is before the courts who clearly needs an assessment as a health issue, the person is entitled to it, and perhaps has to be required to get it, but not within the context of the Criminal Code, not in a stigmatizing way where they end up with a record. They end up in CPIC, whether they are guilty or not. It's horrific.

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    Mr. John McKay: But the stigmatization would stay, regardless of which way you did the onus. Whether a defence proves on a balance of probabilities that I'm not fit or the crown proves on a balance of probabilities that I'm not fit or am fit, as the case may be, the stigmatization would still be there.

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    Mr. Phil Upshall: My quick response is that if the crown closes its case and says it is beyond a reasonable doubt as to actus reus and mens rea, in every other case except a mental health case all I have to do is raise a reasonable doubt. I just have to do a bit of an attack on either the actus reus or the mens rea, I certainly don't have to get so far above that to get to a balance of probabilities. All I have to do is put a dent in the crown's case. As you know, in every other case judges will say, I really think the crown may have almost proved its case, but it didn't, and I have to let this person go. I don't know what the judge would say on that.

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    The Chair: Is that all three questions answered?

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    Mr. John McKay: No. We haven't dealt with clarification of the definition.

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    Mr. Phil Upshall: That's the need to clarify or expand the definition and criteria for determining fitness to stand trial.

¼  +-(1810)  

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    Mr. John McKay: I assume that's what it refers to.

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    Mr. Phil Upshall: Our point is that by using the balance of probabilities standard under subsection 16(2), the current definition discriminates and diminishes an accused's ability to meet the charges. We go on to say in the brief:

Assessments to determine fitness to stand trial add to the further loss of hope and ghettoization of the mentally ill. It all too frequently also means lengthy incarceration, waiting until assessment can be done.

    As you've heard, these go on for four, six, seven, eight months.

To put this another way, MDSC advocates treatment if the strict provisions of the Criminal Code prove the commission of an offence with its attendant preconditions to conviction. Anything less breaches the essential human and natural rights of any accused.

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    Mr. John McKay: Okay, I understand.

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    The Chair: We'll now go to Justice Ormston.

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    Mr. Justice Edward Ormston: There's nothing in the Criminal Code that sanctions the breach of a disposition. There's an offence for breach of probation, for example, there's an offence for breach of a conditional sentence order, but if, after I've found that an individual should be subject to a disposition, instead of sending him off to the ORB, I say, you will attend the hospital on such and such a date, you will abstain from alcohol and drugs, you will attend such counselling, if he doesn't do any of those things, there's no specific provision dealing with a breach of a disposition allowing me to jail him after that or do things of that nature.

    There's section 127 of the Criminal Code, which deals generally with breaches of a judge's order, but I think there should be a specific sanction for the breach of a disposition. It could also be very effective for the ORB, who may be dealing with far more dangerous people, sexual predators, to have that very item in it, that you are not to consume or use crack cocaine. If they do, what's going to happen? They'll get sent back to the hospital? That's not going to stop that person. If there is a jail sanction attached to that breach of disposition, you might give the ORB and the hospitals that are administering these dispositions a lot more teeth in respect of how the offender treats them.

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    Mr. John McKay: Where's the Criminal Code charge at this point, where you're making a disposition order? Is this person still charged criminally?

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    Mr. Justice Edward Ormston: The person is charged criminally, and he's been found unfit. I can either make a disposition, in which case my disposition is reviewed within 90 days by the Ontario Review Board, or I can decline to make a disposition, in which case the Ontario Review Board has to see him within 45 days. If I make a disposition for him to go to a certain hospital to do certain things, I have no recourse if he breaches it, other than perhaps under section 127, but I'm not certain that it applies.

    I've heard anecdotally--I don't know whether Dr. Bradford discussed this--that in Ottawa they have some serious offenders who they really can't do anything with at the hospital if they breach their dispositions, other than taking them back into the hospital. What may be needed is that jail sanction, particularly for these individuals, to keep them on the straight and narrow.

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

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    Mr. John McKay: Well, he didn't answer the question about the third alternative.

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    Mr. Justice Edward Ormston: I didn't hear Mr. Flaherty's actual comments, and I'm not certain whether they're accurately reported.

    The third option that's available in Seattle is premised on several things. Their police officers take something like 60 or 120 hours of training in dealing with mentally disturbed offenders. When a person phones in, their operators are trained to say, is this a mental health call? If so, they will often try to link the officer up with a social worker. They will then attend upon that person and convince him to come into the car without an arrest, because once they're arrested, the criminal justice process comes into place, bail hearings, right to counsel, all of that stuff. They don't effect an arrest, but they provide transportation to the safe house. So the police officer knows the person's off the street, the citizens feel better, he's confident that the person's not going to show up 20 minutes later at the same place, because professionals are now dealing with them. It's been very successful in Seattle. There are no charges laid a couple of days later, the person is calmed down and, hopefully, linked up with a social worker.

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    Mr. John McKay: What's to prevent this officer doing that right now, just talking the individual into the car?

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    Mr. Justice Edward Ormston: Where does he take him? He can only take him now to a hospital, and he has to sit there for 14 hours, or the jail. He can't drive around with him all night, and there's nowhere else he can take him.

    Where does the funding come from for that kind of thing? There again, I think you have to speak to the Health officials in this building, because, quite frankly, forensic psychiatry is at the bottom of the list of a health care dollar. By the time you get through heart, cancer, AIDS, and everything else, you get to psychiatry, and at the very bottom of that pile you get the forensic psychiatry. So whatever the governments decide among each other in respect of health care funding, if one of the requirements was that this type of facility should be put in place for these types of individuals, that might work.

¼  +-(1815)  

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    The Chair: Thank you very much.

    Mr. Grose.

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    Mr. Ivan Grose: No, thank you, Mr. Chairman. To their credit, these gentlemen have not managed to confuse me. I guess, then, I have to plead guilty, do I?

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    The Chair: I thought at the very least you might speak to the question of a mental health czar, but I'll let it go.

    Mr. Cadman, please.

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    Mr. Chuck Cadman: You were mentioning where the police take somebody. I had occasion a couple of weeks ago to ride along with my local RCMP at home in Surrey, and I talked to one member. I recall a similar incident, where they chased a person into a Sky Train station, our rapid transit. This person was a suspect in something or other. The person made the comment that he was going to kill himself, and proceeded to try to jump in front of the transit vehicle, just about pulling the police officer with him. Because the police officer had hold of his arm, everything was okay. They took him to the hospital, and by the time they got back to the detachment, the guy had been released. I know of a case where a person actually committed suicide two weeks after they were taken in again on another incident I was involved with.

    Where is the accountability here? The comment by the police officer in the case a couple of weeks ago was, what the hell is wrong with the shrinks at the hospital? That was exactly the way they put it. How could they let this guy back out? Is it a question of resources? Is there some kind of liability there when a person goes out and the next night does manage to jump in front of the train?

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    Mr. Justice Edward Ormston: I think part of the problem the hospitals have is that once they speak to an individual, three or four hours after the event, he may have sobered up, and if they determine that he doesn't currently pose a danger to himself or others--

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    Mr. Chuck Cadman: And that's exactly what was said.

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    Mr. Justice Edward Ormston: --they let him go: we spoke to him, he doesn't pose a threat. They don't want to keep him, because of their hospital bed shortages. That's exactly it. So the police feel they have to arrest them, and that's why I think our courts are clogged with these types of people, because the police have no other place. The police recognize the illness, I've got no question about that.

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    Mr. Chuck Cadman: Okay, thank you.

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    The Chair: Thank you, Mr. Cadman.

    Madame Allard.

[Translation]

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    Ms. Carole-Marie Allard: Is your courtroom in Toronto labelled “for the mentally ill”? It is not publicly identified that way, but everyone knows that is what it is. Has the experiment been confirmed by...?

[English]

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    Mr. Justice Edward Ormston: It's not called the mental health court. The profession knows what it is, and it's courtroom 102 in our building.

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    Ms. Carole-Marie Allard: I sit on the committee on the non-medical use of drugs. They have a tribunal in Toronto for drugs.

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    Mr. Justice Edward Ormston: Yes, we have in Toronto a separate drug treatment court as well.

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    Ms. Carole-Marie Allard: Yes. The committee went and studied that. So your tribunal is another thing.

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    Mr. Justice Edward Ormston: That's very frustrating too. The money to fund that court came from the federal government, out of the crime prevention fund, and they got about $5 million to fund that court. But many of their problems are dual diagnosis problems. You have mentally ill offenders who are self-medicating with crack cocaine or other things, or you have crack cocaine offenders who are mentally ill. It's frustrating that we can't gain access to their funding for part of our court as well. So make that a regulation on the disbursement of their funds, if part of it has to go to mental health courts to treat the dual diagnosis.

¼  +-(1820)  

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    Ms. Carole-Marie Allard: It is an experiment, I understand.

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    Mr. Justice Edward Ormston: It's an experiment, but it certainly works in the United States. Again, they've got 600 drug treatment courts in the United States, they've got 600 mental health courts down there.

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    The Chair: Thank you very much.

    I think we've heard an awful lot about resources. Notwithstanding the limitations on our capacity to implement, I don't think there are those same limitations on our capacity to consider. And so I hope that will inform public policy in Canada, simply by virtue of the fact that we've had this exercise.

    I have a question for Mr. Justice Ormston. In the event that we had the resources that were necessary, how far are we away from your profession's being in a position to actually make the kinds of decisions that would see those resources being used to the extent I think we would want them to be?

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    Mr. Justice Edward Ormston: The National Judicial Institute is sponsored by the federal government. It trains judges. They're developing the mental health training program for judges. My colleague, Mr. Justice Snyder, who is a psychologist, Dr. Richard Snyder, has presented many of the papers you've seen, and for two weeks now he's been a member of our bench. He has worked on that program with George Thompson, who runs it.

    There seems to be building, certainly in Ontario, a theory of therapeutic jurisprudence. The drug treatment court in Toronto does that, the mental health court in Toronto does that, we now have an aboriginal court in Toronto, we have separate domestic violence courts, all dealing with social problems. Therapeutic jurisprudence is difficult to explain. The purpose of the law is to punish, to rehabilitate, but if you say the purpose of the law is to heal, you're into the aspect of therapeutic jurisprudence. There comes a time in every judge's life when they know they can make a difference to this person's problem by monitoring it in a certain fashion, bringing them back to court, giving them acknowledgment from an authority figure that they're doing well on their treatment, as opposed to simply sentencing them, giving them their two years probation, and never seeing them again. Some judges are bringing people back and saying, you're doing well, keep it up.

    Those types of things work very well with a certain group of offenders, but it takes time. We're caught up in that spectrum of court and trial delays. So we're getting into the business of processing cases, as opposed to hearing cases. Now some judges are deciding that we have to slow down a little bit and deal with the individual. We just can't deal with everybody en masse.

    You ask how far away we are. We're not far away. By the time you get it in place, we'll be there.

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    The Chair: I think a couple of members of the committee have already expressed to me a desire to look at your facility more closely. I think we'll probably give that some thought.

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    Mr. Justice Edward Ormston: Well, please contact me, and we'll arrange a day for you. We sit every afternoon. The prisoners come in at 11 o'clock, but the judge walks in at 2, and we sit until it's done. The psychiatrists are there, and you will see the interaction of people coming in. You'll see the people who are out of custody coming back.

    People do things to get little awards. I tell the story about my court clerk, who is an aboriginal gentleman, who decided that he would present a certificate to the individuals who were successfully diverted out of the program. It's a piece of aboriginal art showing that society is growing and merging together, and he presents it to them, paid for out of his own pocket. Our court guards, who make a minimal amount of money, took a day off to get training from psychiatrists on how to handle mentally disturbed offenders without violence. So they rarely handcuff them, they talk to them, we give them plenty of time. People do this voluntarily. There's a lot of goodwill out there, if we only had the structure to put into it, and we're hoping to get the structure from some of these recommendations.

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    The Chair: I thank you very much. It's been very helpful, informative, and entertaining.

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    Mr. Chuck Cadman: I almost feel like applauding.

¼  -(1825)  

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    The Chair: Mr. Cadman would like to applaud.

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    Mr. Phil Upshall: I would like to say thank you for your attention and for your obvious care and interest in this subject. It's an exceptionally important subject. We thank you very much for the opportunity to present.

-

    The Chair: Thank you.

    I'm going to go in camera for a couple of moments.

    [Editor's Note: Proceedings continue in camera]