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37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights


EVIDENCE

CONTENTS

Tuesday, April 23, 2002




¿ 0935
V         The Chair (Mr. Andy Scott (Fredericton, Lib.))
V         Dr. Howard Barbaree (Clinical Director, Law and Mental Health Program, Centre for Addiction and Mental Health; Professor, Department of Psychiatry, University of Toronto)

¿ 0940

¿ 0945
V         Ms. Gail Czukar (General Counsel, Centre for Addiction and Mental Health)
V         The Chair
V         Mr. David Griffin (Executive Officer, Canadian Police Association)

¿ 0950

¿ 0955

À 1000
V         The Chair
V         Mr. Jay Hill (Prince George--Peace River, Canadian Alliance)
V         Dr. Howard Barbaree
V         Mr. Jay Hill
V         Dr. Howard Barbaree
V         Mr. Jay Hill
V         Dr. Howard Barbaree
V         Mr. Jay Hill

À 1005
V         Dr. Howard Barbaree
V         The Chair
V         Mr. Robert Lanctôt (Châteauguay, BQ)
V         Dr. Howard Barbaree

À 1010
V         Ms. Gail Czukar
V         The Chair
V         Mr. Robert Lanctôt
V         Dr. Howard Barbaree

À 1015
V         The Chair
V         Mr. John McKay (Scarborough East, Lib.)
V         Dr. Howard Barbaree

À 1020
V         Mr. John McKay
V         Dr. Howard Barbaree
V         Mr. John McKay
V         Dr. Howard Barbaree
V         Mr. John McKay
V         Ms. Gail Czukar
V         Mr. John McKay
V         Ms. Gail Czukar
V         Dr. Howard Barbaree

À 1025
V         The Chair
V         Mr. David Griffin
V         The Chair
V         Mr. Jay Hill
V         Mr. David Griffin
V         Dr. Howard Barbaree

À 1030
V         Mr. Jay Hill
V         Dr. Howard Barbaree
V         Mr. Jay Hill
V         Dr. Howard Barbaree
V         

À 1035
V         Mr. Jay Hill
V         Dr. Howard Barbaree
V         The Chair
V         Mr. John McKay

À 1040
V         The Chair
V         Ms. Gail Czukar
V         
V         The Chair
V         Mr. Robert Lanctôt

À 1045
V         The Chair
V         Dr. Howard Barbaree

À 1050
V         The Chair
V         Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC)
V         Dr. Howard Barbaree
V         Mr. Peter MacKay
V         Dr. Howard Barbaree
V         Mr. David Griffin
V         Mr. Peter MacKay

À 1055
V         Ms. Gail Czukar
V         The Chair
V         Mr. David Griffin
V         The Chair
V         Mr. Jay Hill
V         The Chair
V         Mr. David Griffin

Á 1100
V         The Chair
V         Dr. Howard Barbaree
V         The Chair










CANADA

Standing Committee on Justice and Human Rights


NUMBER 079 
l
1st SESSION 
l
37th PARLIAMENT 

EVIDENCE

Tuesday, April 23, 2002

[Recorded by Electronic Apparatus]

¿  +(0935)  

[English]

+

    The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call to order the 79th meeting of the Standing Committee on Justice and Human Rights. Pursuant to the order of reference of the House of February 26, 2002, the committee resumes its statutory review of the mental disorder provisions of the Criminal Code.

    To help us with our deliberations, we have the Centre for Addiction and Mental Health and the Canadian Police Association. They are our first couple of witnesses, from 9:30 to 11 o'clock. Representing the Centre for Addiction and Mental Health, we have Gail Czukar, general counsel, and Dr. Howard Barbaree, professor and clinical director of law and mental health programs, Department of Psychiatry, University of Toronto. With the Canadian Police Association, we have David Griffin, the executive officer.

    I think you're familiar with the process here. If each group would present in roughly ten minutes, I'll give you some signals as to how close we are, and that will give an opportunity for the members of the committee to engage in some dialogue.

    With that, since my list has the Centre for Addiction and Mental Health first, I would invite the witnesses to make their presentation.

+-

    Dr. Howard Barbaree (Clinical Director, Law and Mental Health Program, Centre for Addiction and Mental Health; Professor, Department of Psychiatry, University of Toronto): Thank you very much.

    I'll begin by expressing our appreciation for the opportunity to make this presentation to you today and for accepting our written submission. There is a written submission, and I think you will be getting it in due course. It hasn't been translated yet, I believe.

    Let me just give you a bit of background. The Centre for Addiction and Mental Health is a result of a hospital merger that occurred about 1998. The founding members of the centre were the Clarke Institute of Psychiatry, the Addiction Research Foundation, the Donwood Institute, and the Queen Street Mental Health Centre. The Centre for Addiction and Mental Health is one of the largest designated facilities in Canada.

    Within the Centre for Addiction and Mental Health we have the Law and Mental Health Program, the program that deals with mentally disordered offenders under the terms of the Criminal Code. Our program has at its disposal at the moment 139 in-patient beds, and at any one time we have between 60 and 70 outpatients. We are most often taking care of about 225 mentally disordered offenders.

    Situated in downtown Toronto, the centre serves one of the largest, most densely populated urban areas in the country, and our client population is one of the most diverse anywhere. About 50% of our clients were born on this continent, so that gives you an idea of the diversity. Also, this urban environment is characterized by a higher than average prevalence of homelessness and poverty.

    We serve a large number of courts, a larger number than most designated facilities. In our catchment area there are approximately seven courts: two in the downtown core and five in the suburban areas.

    Given the constraints of time today and the fact that I have to speak a little slowly for the translation, I will focus my remarks on what I think is the most important issue that needs to be taken into consideration as the Criminal Code is reviewed and as we think about potential amendments to the code.

    As it stands now, courts are able to order accused persons to in-patient beds in designated facilities using a form 48. A court order for assessment is one that does not require any consent on the part of the hospital, whereas other forms, for example form 49, a treatment order, require that the court get consent from the designated facility beforehand before sending an accused person. The assessment orders do not.

    We have had a long history of working with the courts in Toronto, operating under a gentleperson's agreement that involves a waiting list, which we maintain. In the operation of the waiting list the courts would date the court order on the day we have committed to admitting the patient. This waiting list arrangement worked very well for many years, but recently courts have gotten impatient with the waiting time and the waiting list and have begun to make what they have come to call “forthwith orders” to in-patient beds.

¿  +-(0940)  

    A forthwith order works this way. On the day the individual appears in court, if a mental disorder is raised as an issue, essentially the court can order that person to be transported at that time to hospital, and the hospital is in a position of having to accept that individual into an in-patient bed.

    As I said, earlier the waiting list process worked quite well. But in the last fiscal quarter of 2001-2002, 35% of our admissions from the courts involved forthwith orders. In fact, on one day last month we began the day with our assessment unit filled with patients in every bed and later in the day we were to receive six forthwith orders. And had it not been for the fact that there was a labour dispute interfering with the transport of accused from court, I'm not sure what we would have done to accommodate those six individuals.

    We operate our in-patient units on greater than 100% capacity. When patients come in unexpectedly we're forced to admit them to seclusion rooms--the rooms we use to manage risk. There's a limit to the number of patients we can safely manage on in-patient units. Ultimately, forthwith orders threaten the safety of the staff and patients in our units.

    We are making the request in our submission that the Criminal Code be amended to provide for hospital consent in response to orders from the courts for assessment. The other part of the Criminal Code that allows the court to make an order we are not required to consent to is section 672.29, where a court can ask us to keep an individual fit until a particular court date.

    In circumstances where the hospital cannot control admission to hospital beds and where courts force admissions, where the persons being admitted are potentially violent and dangerous, and where hospital resources are finite and limited, hospitals are not in a position to manage the risk they're required to manage.

    We have been in situations in the past few months where the risks on our units have increased beyond what is reasonable and comfortable. And we're concerned that unless this is changed in the Criminal Code, or our circumstances change, we'll be forced into situations where the level of risk is unacceptable.

    With that, I'll turn the microphone over to Gail Czukar, who has continuing remarks.

¿  +-(0945)  

+-

    Ms. Gail Czukar (General Counsel, Centre for Addiction and Mental Health): Thank you, Howard.

    I'm just going to cover a few of the other points in our brief, and hopefully some of the details will be able to come out in the discussion and the questions.

    We have three other points. I might just say that the process for developing a submission such as this, at the Centre for Addiction and Mental Health, involves a number of people. We try to consult with our stakeholders, both internally and externally. That includes our patients and client consumer groups.

    The Empowerment Council was before you last Thursday on their own. I understand it was a bit of a mixed session, but they were here and they do have a submission and they have their own positions. But we did consult with them and with patients in the hospital to try to arrive at this. Therefore, our positions are actually quite limited, because we haven't had adequate time to do the kind of thorough process we would like to. So we're putting a certain number of things before you. If amendments do come forward we hope there will be time to have a fuller process for developing our policy response on those.

    We would like to say at this point that with respect to the capping and dangerous mentally disordered accused provisions, we don't want to see these proclaimed. We don't think they're necessary. We think that if capping is proclaimed the dangerous mentally disordered provisions should be proclaimed along with them. That would be imperative. But we think that the Winko decision allows for a better management of mentally disordered offenders than the capping provision and the public safety issues.

    With respect to review board powers, we haven't had an opportunity to fully review the review boards' submission to you and their requests. But with respect to being able to discharge long-term unfit accused, we support that. We think they should be able to make absolute discharge orders for people who are low risk and low need. The board are the experts. They have the capacity to assess whether a person is an ongoing threat to public safety. And if they think not, they should be able to discharge that person.

    There are more appropriate services in the community. Many of these people are people with developmental disabilities and would be more appropriately served in various community services than in the hospital.

    And finally, with respect to the review board ordering pre-disposition assessments, it's the same tune that Howard has already sung. And that is that if the review board has that power, we worry about our resources being used for that. The centre's practice is to include the kinds of assessments the board needs with respect to disposition. So it's certainly not a question of whether the board needs that information in order to make the right kind of disposition; they do. We do it as a matter of practice.

    What we worry about with respect to people who are in the community is additional demands on our resources to do those kinds of assessments before the board can make their dispositions. So we're worried about that.

    Those are our submissions. I would just say also that we think you have a limited mandate in the sense of recommending changes to the Criminal Code. We recognize that as a limited part of the system.

    The solution to the problems in the forensic mental health system really are systemic and have to involve all the main players: the justice system, both at the federal and provincial levels; the judges; the review boards; the crowns; the health system; the Ministry of Health, as funder and policy-setter; and us, as providers; and community agencies as providers, as well; the corrections system, which has to hold people in custody when they can't be admitted to hospital. And our recommendations are that people only be in the hospital for assessment and treatment purposes and not simply for custody. So that leaves people in corrections. And of course the system that serves developmentally disabled people, as well, has to be part of the solution.

+-

    The Chair: Thank you very much.

    Mr. Griffin.

+-

    Mr. David Griffin (Executive Officer, Canadian Police Association): Thank you, Mr. Chairman.

    As the national voice for 275 member associations and approximately 29,000 front-line police personnel in Canada, the Canadian Police Association welcomes the opportunity to appear before the committee with respect to your review of the mental disorder provisions of the Criminal Code of Canada.

    The CPA has taken a special interest in this issue as interveners in the case of Regina v. LePage, which was decided by the Supreme Court of Canada together with the cases of Winko, Orlowski, and Bese. As the committee has heard, this judgment of the Supreme Court of Canada upheld the current provisions of the Criminal Code of Canada, dismissing arguments that these provisions infringed upon individual rights to liberty, security of the person, and equality as guaranteed by sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

    It is in this spirit that we appear before the committee today. Our primary objective is to urge the committee to recommend the repeal of the unproclaimed provisions of the Criminal Code, as well as to offer other suggestions with respect to the efficient application of this part.

    As the committee is undoubtedly aware, this decision of the Supreme Court of Canada in the Winko case has provided considerable guidance in the application of the current provisions in force. In our respectful submission, this decision offers abundant and irrefutable support for our assertion that the unproclaimed provisions are neither required nor, more importantly, in the public interest. In the Winko decision, the court confirmed that any restrictions on the liberty of not criminally responsible accused are imposed to protect society and to allow the accused to seek treatment, not for penal purposes.

    A separate and distinct regime has been established under part XX.1 to deal with those persons who are unfit to stand trial or not criminally responsible on account of mental disorder. Under this regime, an NCR accused is diverted into this special process whereby the emphasis is on achieving the twin goals of protecting the public and treating the mentally ill offender fairly and appropriately. The court noted that the court or review board has a duty not only to search out and consider evidence favouring restricting the accused, but also to search out and consider evidence favouring his or her absolute discharge or release, subject to the minimal necessary restraints.

    The committee has asked witnesses to address a number of issues in their submissions, which I will address in sequence. The first question is the court's application in the mental disorder defence as set out in section 16 of the Criminal Code. We are satisfied with the court's application and do not believe it requires amendment. As interveners in LePage, one of the companion decisions to Winko, the CPA made extensive submissions supporting the application of the mental disorder defence as set out in section 16 and upheld by the Supreme Court. We agree with the decision of the court and strongly urge the committee to recommend the formal repeal of the unproclaimed provisions dealing with capping and dangerous mentally disordered accused.

    The second question concerned the definition and/or criteria for determining fitness to stand trial. Concern has been expressed with respect to the crown's onus to return every two years to demonstrate that they still have all the evidence required to try the person for the offence, should the accused become fit to stand trial. This is in addition to the assessments conducted no less than annually to determine whether the person is fit to stand trial.

    While we do not have any specific knowledge of cases involving this requirement, it is obviously conceivable that a dangerous accused could be returned to the community due to evidentiary challenges faced by the crown for older cases. In this case the person may fall under the jurisdiction of provincial health legislation. Provincial mental health laws are not structured to adequately protect the public in such circumstances; provincial health laws are focused on different objectives and are not intended to deal with this type of circumstance.

¿  +-(0950)  

    We recommend that the committee consider the appropriateness of removing the crown's obligation after the first two-year review, where the person remains unfit to stand trial and presents a significant threat to public safety. The person would remain subject to annual reviews, at minimum, to determine if this status had changed.

    With respect to automatism, we submit that Parliament should define the scope of this defence within the Criminal Code, and provide the courts the authority to impose supervisory orders in cases of non-insane automatism.

    To assist review boards in the effective administration of these provisions, we recommend amendments to include a saving provision for a court or review board to retain jurisdiction for missed deadlines, or extend deadlines under this part; the power of adjournment, for example the ability to adjourn to obtain additional information; and the authority to order psychiatric assessments. The power to discharge absolutely an unfit accused should, in our respectful submission, rest solely with the court.

    On capping, we strongly submit that the capping provisions should not be proclaimed enforced and that these provisions should be repealed. Successive ministers of justice have exercised appropriate prudence and judgment by not moving forward with these provisions.

    The Supreme Court of Canada has rejected arguments that the existing enforced provisions of the Criminal Code infringe upon charter rights without the capping provisions. This provides important guidance to the committee, as the original capping and dangerous mentally disordered accused provisions were introduced as a legislative package to address charter concerns when the preceding law was struck down. We submit there is no bona fide reason for the capping provisions to be proclaimed, and to do so would pose tremendous public safety consequences.

    As this committee has heard, capping was not proclaimed at the time the legislation was enacted, in order to permit provinces to make necessary amendments to their mental health legislation. It has since been determined that provincial mental health legislation does not provide adequate scope and is not designed to protect the public in the same manner as the regime in the Criminal Code. The intended seamless blending of federal and provincial mental health legislation has not occurred and will not occur.

    The Supreme Court has described the Criminal Code regime as one that treats the offender with dignity and the maximum liberty compatible with the goals of public protection and fairness to the accused. The law does not infringe upon fundamental rights and freedoms; it preserves them. An offender found to be not criminally responsible and who is determined to be a significant threat to the safety of the public is removed from the penal system and subject only to those restrictions required to protect society and allow the accused to seek treatment. This determination is to be considered at least annually. If the court or review board later determine the NCR accused to no longer be a significant threat to the safety of the public, it must order the accused discharged.

    We therefore submit that the capping provisions provide no bona fide constructive enhancement to this process, pose serious public safety concerns, and should therefore be repealed.

    Sixth, if the capping provisions were proclaimed enforced, would it be necessary or useful to bring about the dangerous mentally disordered accused provisions into force at the same time? In addition to our concerns about the capping provisions, the DMDA provisions are of limited value in protecting society, as the provisions require a determination to be made at the time of the original finding of not criminally responsible, not at the time the cap takes effect.

    As the threshold for this classification is high, it is unlikely that many offenders will be classified in this manner. An accused whose condition deteriorates over time will in fact present a higher risk to the public at the time of release than that presented at the original court determination.

    The current regime is highly preferable to the capping and DMDA provisions. We strongly urge the repeal of these unproclaimed provisions. We do not have the expertise to advise the committee on the statistical questions or the issue of hospital orders.

    We do have two other recommendations to submit to the committee. First is on the role of victims. As professionals engaged at the front end of the justice system, police officers are acutely aware of the frustrations that can be felt by victims of crime when such complex legal systems are applied.

¿  +-(0955)  

    While our laws have become increasingly responsive to the needs and legitimate role that victims expect in our justice system, this is not universal. Victims should be afforded information about the progress of the accused's case and the opportunity to provide a victim's impact statement at the time that release is being considered.

    With respect to dangerous and high-risk offenders, we have similar concerns as those cited for DMDA provisions applying to the existing Criminal Code provisions related to dangerous and long-term offenders.

    We are concerned that offenders who have completed their sentences yet still present a high risk to reoffend can be released into the community without recourse. While this is not specifically related to the issue before the committee, we highlight this as a concern for your review in the future.

    Thank you. I would welcome any questions.

À  +-(1000)  

+-

    The Chair: Thank you to both presenters very much.

    I go now for seven minutes to Mr. Hill

+-

    Mr. Jay Hill (Prince George--Peace River, Canadian Alliance): Thank you, Mr. Chairman.

    I thank the delegation each individually for appearing this morning.

    Perhaps I'll begin with Mr. Barbaree, just to elaborate a little bit further on your submission this morning, sir. If I understood you right, you said that the courts had grown impatient with the waiting lists and so were using form 48 more often than they had in the past. How long were people on that waiting list?

+-

    Dr. Howard Barbaree: The waiting list varies from about a one-week wait to about a four-week wait, and that has been the traditional waiting period we've experienced for probably the last ten years.

+-

    Mr. Jay Hill: So there was no increase in that.

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    Dr. Howard Barbaree: There was a brief increase to five weeks. We have responded to that by increasing the number of beds available in Toronto to the assessments for the courts. In 1998 we had 23 beds available for court-ordered assessments and now we have 38 beds available. We've almost doubled the number of beds available, yet in that time we've not been able to bring the waiting period down.

    The ideal waiting period of course would be to be able to admit these individuals immediately upon the court making the order, but the demand has increased, partly because of the changes in the law in 1992. The numbers of assessments that had been ordered increased significantly at that time.

    At the Centre for Addiction and Mental Health in 1998, I think--well, in the mid-1990s--we had something like 20 or 30 beds devoted to the mentally disordered accused either for assessment or for rehabilitation. The numbers have now grown to about one hundred and--

+-

    Mr. Jay Hill: Do I understand it correctly? If your recommendation of having hospital consent before someone was admitted was followed through, what would happen to the person? Would the person stay in custody at the city jail, for example, until such time as they could be admitted?

+-

    Dr. Howard Barbaree: Yes. I think our position is that the issue of individuals waiting in jail for assessment is a serious issue. We need to increase our resources to the point where those waits are kept at a minimum and to reorganize the system so as to bring that about. Partly that's done by increasing the number of beds available for assessment, but partly I think it's by doing some of these assessments in the jails themselves and better assessments in the courts.

    As to the in-patient beds that we have devoted to assessment, there's only one option that the court seems to use at the moment, whereas there are other options that could be put in place.

+-

    Mr. Jay Hill: In a nutshell, what's the problem now? You're saying the courts have increasingly used these forthwith orders, because obviously they believe the waiting list is too long and they want this dealt with in a more expedient manner. They're saying you have to take these people in and do the assessment immediately. I think that was the term you used. What's the problem with that?

À  +-(1005)  

+-

    Dr. Howard Barbaree: Part of the problem is that the courts partly engage in a process of mental health triage that is quite apart from the administration of justice. If you look at the referrals we get for 30-day in-patient assessments, almost 30% of those are for fitness assessments. Fitness assessments can be done in a matter of minutes—or, at the most, hours. To have someone take up an in-patient bed for 30 days for a fitness assessment is just an inappropriate use of hospital resources.

    The courts often make those orders because of additional concerns on their part that the individual get hospital care, rather than being kept in detention. But this happens prior to the decision being taken in the court that this individual is either unfit or not criminally responsible. As I understand it, the presumption is that the individual is fit and criminally responsible, and the idea that he or she should be in a hospital bed rather than detention kicks in after that decision has been taken.

    In their use of our resources, the courts are anticipating the decision that an individual is mentally disordered and using the assessment order as a vehicle for getting individuals into a hospital bed in advance of this decision being taken.

    If we were able to use our hospital beds effectively and appropriately in the assistance of the administration of justice, I don't think we would have this problem of resources not meeting demand. But our beds are taken up by individuals who are waiting for their appearance in court and on whom we've done the assessment, which could have been completed the same day he or she came through the front door.

+-

    The Chair: Thank you, Mr. Barbaree and Mr. Hill.

    Monsieur Lanctôt.

[Translation]

+-

    Mr. Robert Lanctôt (Châteauguay, BQ): Thank you, Mr. Chairman.

    I'd like to thank all three of you, but more especially Mr. Barbaree and Ms. Czukar. You've illustrated very clearly for us the problem associated with the lack of hospital resources and funding. We have focused at length on resources and funding shortages, but because of your explanations, it may be the very first time since this study was launched that we have a clearer picture of the problem. I hope the committee will take note of your observations because the shortage of resources is very apparent and is cause for concern, even for you, in your capacity of hospital administrators. You're telling us that although the assessment could be completed in a matter of hours or days, the process now takes over 30 days.

    We are not doctors or psychiatrists. As it is possible to complete in a matter of hours or days an assessment that will be viewed as credible by the courts, the lawyers and everyone else?

[English]

+-

    Dr. Howard Barbaree: I think the assessments of fitness are commonly done in a few minutes to a few hours, often at the court site itself. A number of our psychiatrists are dispatched to the courts. In the downtown court we have a psychiatrist on site on a daily basis conducting fitness assessments and then giving evidence immediately after the assessment in court. Fitness assessments, I think, have credibility, even though they are short in duration. I don't think it's an issue of our shortchanging the courts in terms of the duration of the assessments. In fact, I think the law, as it was originally contemplated, considered the assessment to be a five-day process at maximum. The 30-day assessment would only be requested with the consent of both parties and in extenuating, special circumstances.

    Now, 30-day assessments become almost the rule rather than the exception. We believe it's not really, specifically for assessment purposes that these 30-day assessments are being requested; they're being requested so these individuals who are thought by the courts to be mentally disordered can be given hospital care rather than detention time.

    We have some experiences in which the original request by the court is made by way of a treatment order—a form 49. When we've indicated to the court we don't have a bed available and don't consent to the treatment order, we've had situations where the courts will make an assessment order so that the individual can be transported “forthwith”.

    I think if the hospital were in a position to be able to manage this resource more economically and effectively, assisting the courts in the administration of justice, we would have more resources left over for the treatment they are requesting. We're in a position where we are so focused on worrying about where we're going to get beds to deal with the forthwith orders that we aren't in a position, really, to manage our resources effectively.

À  +-(1010)  

+-

    Ms. Gail Czukar: Could I just add that it's ironic that many of these orders are being made by very well-intentioned judges who see before them an individual they consider to need help. That is the business of the hospital, to provide treatment and help. But when the judge orders a person into the forensic system, there are a lot more resources required to help that person, because there are additional costs and additional people involved just in administering all of this. Howard has a full-time staff person who deals with notifications to review boards and police. None of that would be necessary if the person were in the general mental health system.

    The effect of this is that resources are being transferred into the forensic mental health system. I think you've had witnesses before you talk about the increasing criminalization of the mentally ill. Again, we recognize it's well-intentioned, in that judges, crowns, defence lawyers believe they're doing the right thing for the person, but doing the right thing for that person ultimately leads to there not being enough resources in the system.

    We totally support keeping the forensic system and the mental health system together, not separating them. We think if the forensic system were separated from the general mental health system, this problem would only get worse: people would be increasingly criminalized; more resources would go into the forensic system, because it deals with the all-important issue of public safety. We prefer to keep as many resources—treatment resources and support resources—as possible in the community and hospital mental health system, to continue to support people so they don't fall into the criminal system when they shouldn't.

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    The Chair: Mr. Lanctôt, you have half a minute.

[Translation]

+-

    Mr. Robert Lanctôt: Mr. Chairman, I'd like to know who is responsible for establishing this new 30-day standard to replace the previous one? Is it the psychiatrists themselves, or was it introduced by the judicial system?

[English]

+-

    Dr. Howard Barbaree: That's a very good question. I'm not sure exactly how to answer it.

    As long as I've been involved in this system, the standard has been the 30-day assessment. We try, our psychiatrists together with the courts, to do as much of the assessment as possible in the brief form. Before the mental health court was developed in downtown Toronto, we used to bring the accused to the hospital for a period of a day, and we tried to do as many of those assessments as possible in what we called the brief assessment unit. But the in-patient stays, as long as I can remember, have been 30-day assessments.

    The other thing we've suggested here that would help us more effectively use our resources would be to have the capacity to send the accused back to detention when we've completed the assessment. And I think under the law, that's what was originally contemplated.

    We get a number of orders from the courts where in the space at the bottom of the page the court has penned instructions that we keep the individual until their court date, and we're given a court date. So we're constrained to some extent in our ability to make those in-patient stays shorter than the 30 days.

    Just to reiterate something that Gail said, I think we're in the unfortunate position here of commenting critically on the way the system is working now. I think there's no intention at all on our part to criticize the courts. The courts are doing what they feel they need to do in the context of the current law and the situation they find themselves in. And we certainly understand why in the courtroom on a day-to-day basis a judge would want to move a mentally disordered accused from a situation where he's returning to detention with no mental health care to a hospital setting.

    Our problem is that we are responding to seven different courts, each of which doesn't really understand the demand on our services or the fact that the other courts in the city are sending people at the same time. We're in the position, because of the way the law is structured at the moment, of being forced to deal with all of those who come on a particular day.

À  +-(1015)  

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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, and thank you to the witnesses. I apologize for my lateness.

    I have two or three questions, and I'll direct them to both sets of witnesses. They're with respect to other testimony we've heard before this committee.

    The first observation I'd like you to comment on is from one witness before us who said that the fitness standard was just simply too low, that essentially, if you had a pulse and you could tell what a judge did and what a lawyer did, you were in. He felt that was an inappropriate standard, that the standard was too low. So that's number one.

    The second observation had to do with the disposition of those folks who are not fit to stand trial and will likely never be fit to stand trial. The witness felt there should be some sort of discharge mechanism in the review board so that they could.... Initially, I thought their testimony was that the review board could discharge them, but I think when we asked further questions it was that the review board wouldn't discharge them, but would refer them back to the court with a kind of tag that said this person would never be fit to stand trial. That's kind of a simplistic example.

    The third question has to do with the person who is found fit for trial but who, over the course of the trial, is found not fit for sentencing. There may well be a finding—because the standard is so low—that this person is fit for trial but simply not fit for sentencing.

    These are interesting observations that people have made in previous testimony. I'd appreciate it if both of you could comment on those three issues.

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    Dr. Howard Barbaree: Thank you.

    With respect to the fitness standards, at the centre we're not taking a position arguing for any change to the current standards. I think our feeling is the standards work pretty well at the moment. We end up taking care of the individuals in the category we should be taking care of, in the end.

    I think we've argued in our brief that review boards have the capacity to discharge unfits. We feel they have as much capacity to appropriately do it as the courts would.

À  +-(1020)  

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    Mr. John McKay: Is it a misinterpretation of their jurisdiction to say they don't have the authority to discharge?

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    Dr. Howard Barbaree: No. I think, currently, they don't have the authority to discharge unfit individuals. We're arguing that a reasonable change to the law would allow them the authority.

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    Mr. John McKay: When you say discharge, do you mean a discharge absolutely from all liability, including criminal liability?

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    Dr. Howard Barbaree: Yes.

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    Mr. John McKay: Your argument then would be to have the board intrude into the criminal law authority area?

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    Ms. Gail Czukar: Do you want me to comment on it?

    I'm not sure it intrudes on criminal law authority. I think the review board is there to make a decision, based on expert evidence, about whether the person is ever going to become fit to stand trial. It's basically the decision being made. They make decisions to discharge people who have not been found criminally responsible on account of mental disorder, absolutely, down the line. If it doesn't go back to the court, the review board can do it.

    It doesn't seem to us this is different in that sense. The crown has an opportunity every two years to make its case against the person. It's a question of sufficiency of evidence, and so on. It can be done or not done.

    With respect to the person's ability to become fit, at some point in time we think the review board is capable of making the decision.

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    Mr. John McKay: Is it possibly over the concerns the police have about public safety?

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    Ms. Gail Czukar: The crown concerns would be represented at a hearing. In Toronto, they're always present. The decision the board is making is on whether the person represents a significant threat to public safety. The crown is there to present evidence with respect to it. The board takes it into account, as they do in every hearing.

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    Dr. Howard Barbaree: With respect to the third question, referring to the issue of keeping individuals fit after they've reached a level of fitness, keeping them fit throughout the trial, here again we have a very good illustration of our concern about utilization of hospital resources and the difficulty we have in trying to use those resources economically in the current system.

    A reasonable approach would be for us to bring these individuals into hospital and treat them to the point where they are fit, and then to return to them to detention and to keep them fit with regular psychiatric care conducted in the detention centre. Hospitalization is not required for many of these individuals to remain fit to stand trial. In the community, these individuals would not be ill to the point where hospitalization was required.

    The courts send us individuals and request that we keep them fit. We had an individual recently who we sent back to court on numerous occasions fit to stand trial. For various reasons, the trial has been postponed. This is an individual who could be kept fit in another setting quite easily and reasonably, but instead takes up a whole bed that we could be using for one of the individuals in a much more severe psychotic state waiting in jail.

    This brings up another issue, too, that bears on the issue of courts wanting these individuals to be in hospital rather than jail. It has to do with the level of psychiatric care offered in detention centres. The level of care there at the moment is minimal. The judges are—and I think rightly so—concerned about sending individuals back to jail in a mentally disordered state. Jails are stressful places for these individuals to be, and for many of them the hospital is a much preferable alternative.

    If appropriate mental health care could be provided to them in detention by having special units, this would be a much preferred way of dealing with individuals who are not so severely disordered, have been effectively treated, and are in the process of being kept fit in hospital. That environment could be quite easily provided in a detention centre and requires fewer resources than a hospital bed.

À  +-(1025)  

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    The Chair: Thank you very much.

    Mr. Griffin, the questions were put to you both. Did you want to respond? Don't feel compelled to.

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    Mr. David Griffin: I'll be quick, Mr. Chair.

    With respect to the fitness standard, obviously Dr. Barbaree is far more qualified to answer, but I would concur with his answer. The standard seems to be working.

    With respect to the third question, I have no knowledge or advice to provide the committee. Again, I think Dr. Barbaree has articulated this well.

    With respect to the disposition of those who will never be fit to stand trial, expediency argues in favour of allowing the review boards to simply make that decision, but we still see that as an important role of the court.

    It's distinctly different from a release function post-determination, where the accused person has been tried, the decision of the court has been rendered, and the review board then has the authority to determine whether or not that person will be released into the community. In respect to the actual finding on the criminal charge, that responsibility should be left with the court and not deferred to the review board.

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    The Chair: Thank you very much.

    Mr. Hill.

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    Mr. Jay Hill: Thank you, Mr. Chair. I have a number of questions for Mr. Griffin.

    First of all, when it comes to this issue of NCR, one of the concerns I hear out in the real world is that it appears as if the opportunity exists for people to escape any responsibility for their crimes—and of course I'm speaking here about sexual assaults and murders, those types of horrendous crimes.

    Does the Canadian Police Association have any information on the recidivism rates of NCRs compared to those who stand trial and go through the regular court system, which compels them to be held accountable and to take responsibility for their crimes? I'm talking specifically here about an assessment process where a review board makes a decision that NCR offenders are no longer a threat to the general public and releases them. Has there been tracking and a comparison done of the two?

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    Mr. David Griffin: I honestly haven't looked into that, so I don't know what the data may show.

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    Dr. Howard Barbaree: A large-scale research project done by the research department at the Oak Ridge division of the mental health centre Penetanguishene literally examined the recidivism rates among the entire population of “not guilty by reason of insanity” acquittees in Ontario. This research has been going on for about fifteen or twenty years now. Those individuals have been compared to individuals who have been sent to correctional settings.

    On average, the NGRI acquittees historically—and NCR individuals now—have lower rates of recidivism than correctional samples. But they're quite different populations in many ways.

    What determines recidivism rates are personal characteristics that include things like criminal background and developmental events. So those things are more for determining risk of reoffence than whether an individual has a mental disorder or not.

    Interestingly, in the sample they followed from Penetanguishene, the individuals who had a lifetime diagnosis of schizophrenia had lower rates of recidivism than others. So there's some indication in that population that individuals who have personality disorders are more likely to reoffend.

À  +-(1030)  

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    Mr. Jay Hill: There's something I'm curious about, and I hear this question, too. Within the general public we're probably dealing, to some extent, with misperceptions about this whole issue. Do you have any knowledge about the minimum term someone found NCR for the crime of murder would serve, including hospitalization, treatment, or whatever? That's the kind of question we hear from the general public.

    There's the concern that if somebody commits a horrendous murder.... I'm reminded of the Chaulk and Morrissette case in Manitoba, where a person served a few years in a treatment facility. One of the individuals—I don't remember which one it was—was released and subsequently murdered again.

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    Dr. Howard Barbaree: I'm not sure who you're directing that question to.

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    Mr. Jay Hill: Do either of you know what the minimum term for someone can be? Is it possible to have an assessment done, go through a period of treatment, be charged with even second-degree murder, non-premeditated murder, and then serve only a year in a hospital or that type of facility? Is that what happens?

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    Dr. Howard Barbaree: That is possible. The law, as it stands, separates these two systems that have entirely different philosophical bases. In the criminal justice system, the term of incarceration is set to be proportional, somehow, to the severity of the crime or the harm that was done by the accused in committing the crime.

+-

     On the mental health side of the system, I think the Winko decision very nicely sets out how these individuals are to be dealt with. Winko says that as long as they're a significant threat to the safety of the public, we keep control of them.

À  +-(1035)  

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    Mr. Jay Hill: Is there an assessment done at the time of the release to determine whether they're cured or not?

    Dr. Howard Barbaree: Yes.

    Mr. Jay Hill: Is it just made on the basis that they're not cured but they're a low risk to reoffend?

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    Dr. Howard Barbaree: Winko sets out the criteria and these individuals are reviewed on an annual basis. Particularly an individual who committed as serious a crime as murder would be subject to a very detailed and careful review. At the review boards, some of the hearings go on for days as testimony is heard from the experts, the psychiatrists who have treated the individual. We often have victims come in as witnesses. So the review board is responsible for taking a very careful look at these individuals, and then they apply the test as laid out in Winko.

    In answer to your question, an individual who has committed a crime as serious as murder but is found not criminally responsible and is placed in the mental health side of the system could be released to the community by a review board within a year. That would be the timeframe. That would be the minimum amount of time. So in answer to your question, yes, that side of the system is based on a philosophy that the individual committed the crime on account of their mental disorder. If the mental disorder can be treated effectively and if as a consequence of that the expert's opinion is that their risk is now sufficiently low that it doesn't meet the Winko test, then I think the review boards are in a position where they feel they don't have much choice.

    Now, when I say they're released to the community, I think it's important to describe how release most often happens. Release is a very gradual process in this system. The dispositions that review boards make have three different levels to them. In the first, they're detained in hospital. In the second, they're conditionally discharged. With a conditional discharge, they're living in the community but reporting to the hospital under conditions. Third, there's the absolute discharge.

    Typically an individual who would commit a crime as serious as murder would be detained in hospital for a significant period of time. I'm not in a position to be able to say what the average period of time is, but if I think about the individuals I know in our hospital who have committed crimes like that, many of them have been in for in excess of 10 or 15 years.

    One of the characteristics of the detained in hospital disposition is that the board will allow the individual the privilege of living in the community while detained in hospital. What that means is that on the basis of the evidence provided to the review board and the recommendations made by the hospital and the psychiatrists involved, the individual has made enough progress while being detained in hospital to suggest that they could live in the community safely. They live in the community for a period of time in approved housing under very strict conditions. They're often seen in hospital in outpatient sessions, sometimes initially on a daily basis. Then as people gain confidence that they're doing well, their hospital visits might go down to every two days, every three days, then weekly, then biweekly, and so on.

    The board usually goes to the decision of a conditional discharge after someone has been detained in hospital for a period of time. Then they've been detained in hospital with the privilege of living in the community for a period of time, and then they go to the conditional discharge and then the absolute discharge. But the period of time in which they're detained in hospital, particularly for individuals who have committed serious offences, is often in the order of years, not months.

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

    I remind members of the committee that the rules haven't changed. That was a three-minute round. It was just a very illuminating answer, and I think we all had our understanding of the issue enhanced by it.

    Mr. McKay.

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    Mr. John McKay: I'd like to go back to two questions I asked previously. First of all, with regard to the fitness issue, if you're both happy that the fitness test is working reasonably well, then the question is, do you need a doctor to do it? If it's such a low standard, why not use nurses or non-medical people?

    The second question has to do with Ms. Czukar's answer. I thought I heard you say that the board has the ability to discharge somebody later on in the system but not at first instance. If the board has this ability to discharge later on, then why doesn't it have it at first instance?

    I'd like you to comment not only on that but also on the testimony we heard from a representative of the Office of the Attorney General of Ontario. He said that prosecutors have a duty to divert from the criminal justice system and that they have, if you will, a great deal more information on people who are actually a risk to public safety.

    The third question has to do with some radical testimony we heard last week. An individual said that our current homicide system is just nonsense, that we have various findings of manslaughter, first and second degree murder, and this and that. His proposal was that we just call it what it is. There's a death here, a homicide. He suggested that we in fact address a person's mental state at the point of sentencing, rather than at the point of whether or not this person is guilty. He said that the intoxication defences involve a guessing game among experts as to what their mental state was at the time. Similarly, with the provocation offences, they have no meaning, and various things like that.

    So those are my three questions, and all within three minutes.

À  +-(1040)  

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    The Chair: They have time for a ten-second answer.

    Ms. Czukar.

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    Ms. Gail Czukar: With regard to your question about fitness, we said in our brief, which I see you now have, that our position is that you don't need psychiatrists to do fitness assessments in every instance, that psychologists should be allowed to do them. With adequate training, social workers and nurses as well would be able to do fitness assessments. So we would support the view that has been expressed here previously that others should be allowed to do fitness assessments, not because the standard is low but because they can become experts at assessing.

    With regard to the testimony from the representative of the Office of the Attorney General of Ontario that the crowns have information about dangerousness that is not adequately considered by the review boards when making decisions about whether to release people who are unfit, I find it quite surprising that the crown would withhold evidence of dangerousness from a review board. The very decision the review board is supposed to be making is whether the person is a significant threat to public safety. If the crown has information that's relevant to that, it should be coming forward.

    I do have the blues for the committee hearings, but for some reason I don't have them for that day, so I don't know who from the AG's office appeared before you. I wasn't able to read what they said. But I did see your previous question about that.

    I also want to clarify my previous answer. I didn't say that the review boards should have the ability to discharge in the first instance. I was distinguishing between their authority to grant an absolute discharge to a person who has been found not criminally responsible but not to someone who has been found unfit. The issue is that this person has been found unfit by a court, and the disposition is that they're in custody in a hospital because they're unfit to stand trial. The normal course of the law would be that the crown would come forward every two years to say they have some kind of prima facie case. So the person would continue to be detained as unfit, but everybody would know that this person is never going to become fit. At that point the criminal law theory breaks down.

+-

     What we're arguing is that when that person has been detained and it's clear they're not going to become fit, there are much more appropriate places for that person to be than in a psychiatric facility. It's a misuse of resources, it's not good for the person, and it's probably an abuse of their rights. That person should be released and absolutely discharged. We think that a review board is in as good a position to make that determination as a court. That's what I was saying, and I hope that clarifies it.

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    The Chair: Thank you very much.

    Mr. Lanctôt, you have three minutes.

[Translation]

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    Mr. Robert Lanctôt: If I understand correctly, three minutes are allowed for questions and three minutes for answers.

    When representatives of the Canadian Association of Review Board Chairs testified before the committee last Wednesday, they told us they were not asking for the power to grant absolute discharges in the case of persons deemed permanently unfit to stand trial. Rather, they wanted to be able to recommend that persons who no longer represented a threat to the public should be returned to the court's jurisdiction. In light of the evidence adduced, the courts would then rule on the accused's fitness to stand trial. They cannot do this now. Therefore, should the accused be granted an unconditional discharge? I think it would be much wiser to allow the chairs to turn the matter over to the court's jurisdiction.

    I appreciated their perspective, because a number of other witnesses have said that the board should have the right to grant an absolute discharge. The board, however, maintains that it does not want this power. It would like to be able to make recommendations and refer accused to the court's jurisdiction.

    How do you feel about this suggestion by the Canadian Association of Review Board Chairs? I thought it was rather clever indeed.

    I think I'll use the remainder of my three minutes.

    We always hear about the lack of resources, but I'm a little surprised to hear you say that the accused should continue to be treated in a secure facility. From a resource or financial standpoint, that might be a good idea, but we mustn't lose sight of the fact that while the accused may not be fit to stand trial, they are not yet criminals. And now we're suggesting that they be held in custody in a correctional facility. That surprises me. If someone I knew was suffering from a mental disorder, I would want that person to be treated in a hospital, not in a correctional facility.

À  +-(1045)  

[English]

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

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    Dr. Howard Barbaree: Perhaps I can answer your second question first, which relates actually to one of the questions asked earlier and has to do with whether the current criminal justice system does a good job of dividing the mentally disordered accused into those who are not criminally responsible and those who are criminally responsible.

    The fact is, if we go into the two systems and look at individuals who have a serious mental disorder and try to make comparisons between those two groups and discover what the psychological or mental or social or demographic differences are between the two groups, we aren't able to discern important differences at all. There's a recent study published in Britain. Their laws are not dissimilar to ours. It is a very large study that shows no differences in any important respect between those two groups of individuals.

    There are, in jail, a large number of individuals with serious mental disorder who require treatment. I think in the current system it's the responsibility of the correctional authorities, federal and provincial, to provide appropriate mental health care to those individuals in their settings.

    One of the principles I think most of us would adhere to is that individuals shouldn't be constrained in their access to mental health care because they're incarcerated. If they have mental health care needs, or any health care needs, being incarcerated shouldn't prevent them from having the same kind of access they would have in the community.

    At the present time I don't think that's true. Particularly for individuals in Toronto in detention, with whom we are most familiar, they don't get the kind of care and treatment while they're incarcerated that they should get.

    My point is that not only on the basis of those humane concerns about care for those individuals—quite beyond that—if we had the capacity in jail to provide mental health care of that kind, much of what we do in hospital at great expense could be done in jail. I'll return to the argument I made earlier. According to the system as it's currently set up, we're not supposed to be moving them from jail to hospital until after the decision has been taken as to whether the individual is NCR or unfit. Prior to that, we're only supposed to be using the hospital resources to assist with the administration of justice. The care of those individuals can be done in many cases—most cases—quite well in jail.

    We'd send our same psychiatrists to the jail to provide care as would provide it in the hospital setting. What's required for appropriate care in jail is a special unit with psychiatric nurses present to provide the care beyond the psychiatric care.

    We're actually in negotiation with the Ministry of Correctional Services. We're contemplating the establishment of a 100-bed remand centre in Toronto. The centre would take care of the psychiatric care, but it would be done within the confines of a correctional facility. If we're able to go forward with that, we would be able to address some of these issues.

À  +-(1050)  

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    The Chair: Thank you very much.

    Peter MacKay.

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    Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC): To pick up on your last point, Dr. Barbaree, the emphasis is clearly different in the correctional system from what it would be in any sort of forensic unit. The emphasis is obviously greater on the protection of the public, mixed with reformation and rehabilitation, as opposed to the treatment philosophy.

    With that in mind—and I would open this to the entire panel—are you comfortable with this decision of absolute discharge, or a final disposition being made by a review board, as opposed to the justice model we currently have where a judge acts upon the final decision or recommendation of that review board? Ms. Czukar has given her opinion, but it's almost perverse that we've heard from other criminal defence lawyers—the Canadian Bar Association, the criminal defence association—and the review board, who say “We would far rather follow the existing mandate that we have in making a recommendation for the final disposition”. I don't know whether that's to absolve themselves of the civil liability that might flow or whether they simply feel their experience is that works best.

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    Dr. Howard Barbaree: I'll just answer quickly and turn the mike over to the rest of the panel.

    It seems to me that when you look at the individuals we see who are unfit and who would be candidates for an absolute discharge by a review board panel, a large number of them have committed offences most people would not consider to be significant criminal offences. Maybe a way of doing this that would be reasonable would be to somehow divide the offences into serious and less serious ones. The review board could make decisions about the less serious ones and turn the other ones back to the court. That would be a reasonable way of compromise.

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    Mr. Peter MacKay: It would also deal with some of the backlog.

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    Dr. Howard Barbaree: Right. And it would deal with some of the costs involved.

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    Mr. David Griffin: Our concern is about taking that role of the judiciary and transferring it to the review board. Post-determination for an NCR accused, the review board is really concerned about release back into the community, as opposed to criminal culpability, and I think the initiative should really be left to the courts.

    Ultimately, we've all sort of talked around this issue of the person who is never likely going to be fit to stand trial and about how the system deals with that person. I think right now it's awkward. Everybody's talked about how you deal with these two-year reviews. Everybody knows that this person is never likely to be fit to stand trial. Our primary concern there is that if that person is a significant threat to public safety, then we have to have a safeguard in place to ensure that release isn't going to be made for the wrong reasons or that they aren't going to fall through the cracks. That's why the system keeps that person having to come back to the courts.

    On the flip side, if it's a less serious offence, one the majority of the community would not be overly concerned about, then it doesn't make sense to have to go through this exhaustive process of bringing that person back every two years. Maybe there is some common sense to streaming these cases based on the level of seriousness, but for us the most serious offences, like murder, sexual assault, and those types of things, we want to make sure they're kept within the purview of the courts.

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    Mr. Peter MacKay: I have a very quick question with respect to the victims. I know you've touched on it in your written submission, Mr. Griffin, but to the other witnesses, do you feel there is a role at a review board hearing for victims to give oral testimony or to have their concerns heard, particularly where it involves violence?

    I think there's a lot of merit in this discussion of dividing crimes into serious and less serious offences. We are doing that with young offenders in the new Youth Criminal Justice Act, and I think that it could allow us to streamline the way we deal with cases a lot.

À  +-(1055)  

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    Ms. Gail Czukar: Well, the centre doesn't have a formal position on this, so it's really a question of practice and personal views. I know Dr. Barbaree has already said that at the review board hearings they sometimes hear from victims. Certainly when we consulted with our internal colleagues, including our client counsel, the empowerment counsel, they did not see a role for victim impact statements in review board hearings. I can't say where everyone else would be on this issue, but my sense is that on balance we would probably be away from it; that is, in favour of not having victim impact statements.

    As Dr. Barbaree has explained very well, there's a difference in philosophy between the criminal justice system and the mental health system. The issue for the review board is the threat to the community, but it's also the health of the accused person. The victim impact statement tends to emphasize the criminal system more than the health system. If the issue is whether this person is well enough and enough under control to be in the community and not be a significant threat, the victim impact statement.... The crime could have been committed 10 to 15 years ago, and it could be highly prejudicial to a decision that can reasonably be taken differently.

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    The Chair: Mr. Griffin.

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    Mr. David Griffin: We have wrestled with this point because it's a question of a different purpose and role for the review board here.

    I think that first and foremost the victims have to understand the process and be aware that this person may be released back into the community. In a lot of cases there are family relationships or other relationships here where there is communication or there is general knowledge about different things that perhaps don't make their way up to the review board. We certainly think that the victims should be aware of the stages in the process, that they should be notified, and that they should have information about what is likely going to take place. They should be asked for information if they indeed have information about the individual.

    As for impact statements, this does present some concerns. The victims should have some voice in the process, maybe not to the extent where it prejudices the process, but at the same time they shouldn't be mere spectators. I think it's a case of finding a balance.

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

    And the last question is going to go to our newest member of the committee, Mr. Hill, whom I failed to recognize as a member of the committee, so he gets a bonus question as a result.

+-

    Mr. Jay Hill: A bonus question, wow. Thank you, Mr. Chair. Well, there has to be some advantage.

    As the final question, I just want to pick up on the whole issue of victim impact statements. One of my colleagues, Randy White, has done an enormous amount of work over the last number of years trying to get a victims' bill of rights recognized in law. I was under the impression there were some changes made a year or so ago so there was a greater emphasis on victims' impact statements in law.

    I'm led to believe by your submission, Mr. Griffin, that perhaps that's not the case, that they're still falling through the cracks, at least in connection with NCR. Is there some difference between them and the recognition, say, at parole hearings of other offenders, where I think there is greater recognition of the role the victims can and should play in the process? You say in your submission that there isn't that recognition when it comes to mental disorder crimes.

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    The Chair: Thank you, Mr. Hill.

    Mr. Griffin.

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    Mr. David Griffin: We've seen tremendous changes, I think, in terms of the role of victims in our justice system—in the parole process, in sentencing, and in the court process. My understanding is it hasn't extended to this process. We believe that it should, that certainly victims shouldn't be hearing about these things through the media or through third parties. They should be contacted and made aware of what's going on.

Á  -(1100)  

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    The Chair: Mr. Barbaree.

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    Dr. Howard Barbaree: In the correctional system's parole hearings, victims play a role. They make presentations. In our system they don't, formally. Usually the information about victim harm and the effects on the victim is presented to the panel by the crown.

    As Mr. Griffin says, very often the victim is part of the family into which this individual is being reintegrated. They are often present at the review board and are often asked to speak, not formally as a victim, but as a person who is supporting this individual back into the community.

-

    The Chair: I thank you very much.

    For the purposes of the edification of the committee, there is, in fact, a provision currently for victim statements before review boards. It isn't the same process as would take place in the criminal justice system. I would refer you to section 672.541 under the section in question.

    With that, I thank the witnesses very much for their testimony. It's been very helpful. This is a complicated issue. I think that as the days pass, the complexity of the issue becomes more apparent to us, but so does our understanding of the subject. I thank you and other witnesses for that.

    Now I'm going to suspend our committee while we go in camera.

    [Editor's Note: Proceedings continue in camera]