Ladies and gentlemen, I'm going to call this meeting to order. This is meeting number 75 of our Standing Committee on Justice and Human Rights. Today we will be dealing with Bill , an act to amend the Criminal Code and the National Defence Act (mental disorder).
Just before we begin with our very special guest, the Honourable Minister Nicholson, Minister of Justice and Attorney General of Canada, we are meeting because of the seventh report of our Subcommittee on Agenda and Procedure. So to be official, I would like somebody to move this because this is what we said we were going to do.
An hon. member: I so move.
The Chair: All those in favour?
(Motion agreed to)
The Chair: We'll move on.
Thank you, Minister, for joining us. You have one hour, until 4:30, to talk to us about Bill . We'll give you time for an opening statement and then we'll go question by question.
Thank you very much. I'm pleased to be with Julie Besner and Carole Morency, whom you have probably met or known over the years, who have testified and provided information to the committee.
I am very pleased to come before the committee today to discuss Bill , the Not Criminally Responsible Reform Act.
Before I discuss what is in the bill, I would like to mention what is not proposed by this legislation.
First, the proposed reforms do not seek to punish individuals who have been found by the courts to be not criminally responsible on account of mental disorder.
Second, nothing in the bill would impact mentally disordered accused's access to mental health treatment. Bill seeks to provide guidance to those who are involved in the decision-making process for accused persons who are found by a court to be either not criminally responsible on account of mental disorder or unfit to stand trial. These individuals are referred to as mentally disordered accused and are dealt with according to the powers and procedures set out in the Criminal Code mental disorder regime.
I would like to speak first to the difference between these two verdicts. When an accused person suffers from a mental disorder that prevents them from understanding the court proceedings and communicating with their lawyer, the trial cannot take place and the court enters a verdict of unfit to stand trial. On the other hand, if the accused person is tried and is found to have committed the act or omission that constitutes an offence, but lacked the capacity at the time of the offence to appreciate what they did or know that it was wrong, the court enters a verdict of not criminally responsible on account of mental disorder.
A finding of NCR or unfit to stand trial are special verdicts, as those accused persons are neither acquitted nor convicted. Instead, orders referred to as dispositions are put in place to set out whether the accused will be detained in the custody of a hospital; discharged with conditions; or in the case of those found NCR, if they do not pose a significant threat to the safety of the public, discharged absolutely.
Bill proposes to amend the provision in the Criminal Code that sets out the considerations that the court and review board must take into account in making dispositions with respect to NCR or unfit accused persons.
One of the key proposals in Bill is the amendment that would clarify that public safety is the paramount consideration in the disposition-making provision. This is an amendment that has been strongly supported, you will be pleased to know, by my provincial and territorial attorneys general.
Codifying this principle would ensure that it is applied consistently across this country in all jurisdictions, and it would also be consistent with the Supreme Court of Canada jurisprudence, most recently in the case of Regina v. Conway, in 2010. In that same provision, Bill proposes to replace the term “least onerous and least restrictive to the accused”, with the requirement for the courts and review boards to make a disposition that is necessary and appropriate in the circumstances. This wording is easier to understand and is intended to be consistent with the Supreme Court of Canada's interpretation of this principle in Winko v. British Columbia. That is, in essence, that the accused's liberty shall be limited no more than is necessary in order to protect the public.
Bill amends the Criminal Code to enhance the safety of victims and provide them with opportunities for greater involvement in the hearing process. The bill provides that victims be notified when an accused is discharged if they so requested, and it allows for non-communication orders between an NCR accused and the victim. The bill also requires the courts and review boards to give specific consideration to the safety of the victim in determining whether or not an accused poses a significant threat to the safety of the public.
In addition to the amendments seeking to clarify the provisions of the Criminal Code, the bill proposes a new procedure for increasing public safety in cases where the public is at higher risk.
The bill proposes a new scheme that would permit the courts to designate certain NCR-accused as high risk. A high-risk NCR-accused scheme would apply to a small number of accused who have been found NCR and who pose a higher threat to public safety. A successful high-risk designation would follow certain steps.
First, an accused must be found NCR for a serious personal injury offence. This type of offence is currently defined in the mental disorder regime as an indictable offence involving the use or attempted use of violence or conduct intended to endanger the life or safety of another person, or a number of sexual offences. Second, the prosecutor must make an application to the court for a finding that the NCR-accused is a high-risk accused. Third, the court would hold a hearing to determine if the NCR-accused is high risk.
An NCR-accused may be found to be a high-risk NCR-accused in one of two situations. The first situation is that the court is satisfied that there is a “substantial likelihood” the accused will commit violence that could endanger the life or safety of another person. Substantially likely is a higher test or threshold than is currently required to maintain jurisdiction by a review board over an NCR-accused. This latter test is defined as “a significant threat to the safety of the public”.
The second situation where a high-risk designation may be made is if the court is of the opinion that the serious personal injury offence was of “such a brutal nature as to indicate a risk of grave...harm” to the public. Although the level of risk posed by an NCR-accused designated under this category would be different from the first situation, the nature of the actions that form the basis for the application, coupled with the serious potential harm should the accused reoffend, indicate a need for increased protection and restrictions.
An important limitation on a high-risk NCR scheme is that it would only apply to those found NCR. It would not apply to those found to be unfit to stand trial. There are two reasons for this. First, an unfit accused has not yet been tried for the offence, and therefore it has not been proven that they committed the act. Second, an individual who is not fit to stand trial would also not be fit to participate in a hearing to determine whether they should be designated as a high-risk accused.
A second limitation on the scope of the high-risk NCR-accused designation is that it would only apply to an accused who is over the age of 18 years at the time of the offence. The Youth Criminal Justice Act contains special provisions to deal with youth accused who suffer from mental disorders, including the imposition of an intensive rehabilitative custody and supervision order on young people with mental health issues who have committed serious violent offences.
The result of a high-risk designation is that the accused must be detained in a hospital. The review board would not have the discretion to order an absolute or a conditional discharge, nor could a high-risk accused be absent from the hospital except for medical purposes or for any purpose that is necessary for their treatment. Any absence would require an escort and a structured plan to address any risk to the public related to the leave.
A high-risk designation may also impact the time period between review hearings. Currently, mentally disordered accused persons have their cases reviewed on an annual basis, though this may be extended up to two years in certain circumstances, i.e. upon the consent of the accused and the Attorney General, or if the review board is satisfied that the condition of the accused is not likely to improve and the detention remains necessary for the period of the extension. A high-risk NCR-accused may have their review period extended by the review board up to three years.
Finally, a high-risk NCR-accused designation would not be permanent. It may be revoked by a superior court of criminal jurisdiction. The process would begin with a recommendation by the review board that the high-risk NCR-accused no longer presents a substantial likelihood of committing violence that could endanger the life or safety of another person.
Upon the recommendation of the review board, the court would hold a revocation hearing. After considering all of the evidence, the court would determine whether there is no longer a substantial likelihood that the accused would commit violence that could endanger the life or safety of another person. If the court is satisfied that the high-risk accused no longer poses an elevated risk, the court must revoke the high-risk finding. Upon revocation of the high-risk finding, the accused would be dealt with as a regular NCR-accused and continue to be supervised by the review board as appropriate.
I would like to underscore the importance of these amendments for all Canadians, especially victims who desire that public safety should come first in the mental disorder regime. Bill intends to strike a better balance between the need to protect society against those who pose a significant threat to the public and the need to treat mentally disordered accused persons appropriately.
Thank you, Mr. Chairman.
Mr. Minister, thank you for coming here today to give us your presentation and answer our questions.
Mental health and crime are difficult matters. As we know, they involve families, victims and the community. Divisions can occur. As you mentioned, public safety must be the priority, but there must also be respect for the rule of law and for the Canadian Charter of Rights and Freedoms.
You mentioned the need to protect victims. That is important for us too. We continue to examine it today in the context of this bill. But we also get the impression—and this often happens with the Conservatives—that a political game is being played. If I am not mistaken, there has been a fundraising campaign in connection with Bill . On our side, we feel no politics must be played with such an important issue. The Guy Turcotte case affected us deeply in Quebec. The public asked a lot of questions.
Under Bill C-54, in your opinion, would the Guy Turcotte case be considered high-risk? With this bill, you are creating a new category of accused. Would it apply to Guy Turcotte?
Again, I don't agree with the premise of your question with respect to meeting with victims' groups. Yes, we do meet with victims' groups, and indeed a number of these individuals have come forward with their concerns and have enumerated and set out either the notification that they have received or the lack of notification in some instances.
So again, it's critical that we move forward on this. We have indicated, as you point out, that we have a special category now with respect to high-risk individuals, but there is a procedure in place. After an individual has been found to be NCR, the crown could bring forward the application. This of course will be considered by the court and I think that's entirely appropriate, Mr. Chairman, because it's the court that initially makes the decision that the individual is not criminally responsible. So I believe it's appropriate that, within that forum, the courts then would make that decision. As I pointed out in my opening remarks—as the member will remember—we're talking about a small group of individuals who are particularly dangerous, not just to the public—I always say this—but they're a danger to themselves as well.
So we've put certain parameters around that category. As I indicated, it's not a permanent designation, but nonetheless, it's one that is appropriate and reasonable under the circumstances.
Thank you for appearing, Mr. Minister, and thank you for bringing your officials to cast some light on this important legislation.
Obviously, protection of the public is always paramount in the mind of this government. Certainly what's interesting about this bill is that it also takes into account the right of victims to be made aware of the release of very dangerous individuals. The bill also balances the treatment component of the individuals who have been found not criminally responsible so they're not left unattended to.
The cases of Vince Li, Allan Schoenborn, and Guy Turcotte brought the issue of being not criminally responsible to the forefront in Canadian society. We know that it's a fundamental principle of criminal law that a person must possess a guilty mind, the mens rea, to be criminally responsible for a wrongful act. Of course, in order to be tried people must be able to communicate and give instructions to their lawyers and understand the nature and the consequences of a criminal trial, because their liberty is at stake.
So if a person is found to have committed an act that constitutes an offence, but lacks the capacity to appreciate why he or she committed the offence or know that it was wrong due to a mental disorder at the time, we understand the court makes a special verdict of not criminally responsible on account of mental disorder. Such people are not tried and they're not convicted.
Could you please explain what happens to someone who is found not criminally responsible, Minister?
Again, I do consult widely on these, and when I get together with my provincial counterparts, who have responsibility for the mental health components of this, I always ask them for their input because they ultimately have the responsibility for the hospitals. They set up the boards that review the dispositions of the individuals found to be not criminally responsible, and for the most part, the treatment these individuals receive is administered by provincial agencies. So I do consult very closely with them, and indeed I certainly appreciate and rely on the input they make to, quite frankly, not just this piece of legislation but a number of pieces of legislation that we have heard.
But quite apart from that, we do speak with victims' groups on a regular basis wherever I go in this country.
I would say to all individuals and groups having a look at this, look at the components of the bill. This is very reasonable in terms of clarifying what the law is, better protecting victims, and indeed, addressing the issue of a small number of high-risk individuals who are a risk to the public and a risk to themselves. That's all I'd say to groups that....
I have to say that I do appreciate the input I have had from provincial attorneys general and those who work with people in this area. It's been very satisfying and I've been very encouraged. Indeed, I've been very encouraged, since the introduction of this bill, that a number of them have come forward and said that they are supportive of the different elements of this.
The bill, overall, works and I hope, Mr. Casey—and I believe, Mr. Chairman, you'll be having a number of witnesses over the next couple of days—that certainly you'll come to the same conclusion I've had, that this is a very reasonable response to a number of issues that have been raised in this area.
No, certainly they have a huge role to play, I don't have to tell you that.
But as you know, this government has sponsored the Mental Health Commission. You'll know of all the different efforts we have had, working with our provincial counterparts, in the whole area of mental health. Mr. Chairman, I'm sure you've heard evidence of that over the years on this committee, which has been very important indeed. The Mental Health Commission, instituted by the Government of Canada, is a perfect example of a major financial commitment on behalf of this government.
That being said, I never underestimate or belittle in any way the huge responsibility that the provinces have with respect to health care. As you know, they have the constitutional responsibility for that.
But again, this is why we have to be so careful crafting these pieces of legislation. We all have a responsibility to deal with these individuals, and again, what we are doing is very reasonable and it addresses those individuals who have had mental health issues. We are better protecting them and indeed the public. Yes, I agree, we all have a role to play, but I certainly never underestimate the huge role that the provinces have in administering health care, as they do of course under the Constitution.
I know we've just had a budget recently. I always look to see what money goes towards assisting the provinces in health care, and I'm very pleased that we've increased those amounts again this year. So yes, we're giving more for health care to the provinces. We've taken that responsibility very seriously. I've been pleased with the relationship at that level, and certainly, with the coming together of a piece of legislation like this.
Again, I think this is an important component of what we do. You're quite correct. We've introduced dozens of pieces of legislation, all with the aim of better protecting the public, and at the same time, making sure that the interests of victims are heard and considered. This bill is consistent with our efforts to better represent victims across this country. This is why I believe that so many victims are pleased and supportive of what we are proposing in Bill
As I indicated in an answer to an earlier question, ensuring that the victims are notified when an individual is being discharged, I think is only fair and appropriate. Again as I indicated to you, this is “if requested”, if they want to be notified. Victims sometimes say to me that they don't want to hear about this, and that's fair enough. But for those victims who do want to be notified, I think it's fair and reasonable that there's a regime in place to have the ability to have a non-communication order between that individual and the victim, If an individual gets released into the community. This is one of the important components of this particular bill, to ensure that the safety of victims is considered when decisions are being made.
We don't want anybody to be victimized in this country over and over again. So, yes, a major component of what we are doing here is ensuring that the individual concerns of victims are recognized.
I indicated three different components of what we are doing for victims, and again, I believe these are all very reasonable. I think they will stand the test of time. I hope that when you have individuals or groups before this committee, this comes up for discussion, because again, I've been very encouraged by the comments I have heard and the comments from my provincial counterparts for that matter as well.
That's a very good point.
What we say is that public safety will be the paramount consideration when the boards make a decision with respect to a not criminally responsible individual. Now there are individuals who will say that actually it was one of the considerations. That's on the list. I appreciate that, and you appreciate that. But what we're saying is that this should be the number one, the paramount, consideration, to begin with, in terms of making sure the public is protected.
Again, what we have found on other pieces of legislation.... You're not just protecting the public, you're protecting the individual from getting involved with something like that again. Everybody has a stake. Everybody has an interest in that. So yes, you're quite correct. We have made that very clear. That's in addition, of course, to the other provisions that I believe better protect people, and the ones that are specific to victims. So you have that, but again, that's something you will hear in your discussion of this.
Again, I believe that's one of the very reasonable propositions we have put in this bill. The protection of the public is the paramount consideration when a decision is being made with respect to an NCR-accused. That's only fair and reasonable, and I think you will hear support of that. Certainly I hope it gets your support, as I'm sure it will.
Thank you for being here this afternoon, Mr. Minister.
Let me remind you that we supported this bill at second reading. But that was not to give you a blank cheque, it was to achieve a balanced approach. We recognize that this is a very difficult issue for victims, families and communities. Of course, as my colleague said, public safety must be the top priority, within the context of respect for the rule of law and for the Canadian Charter of Rights and Freedoms. So we will be studying this bill closely.
We have been clear that we are open to change. We must be sure of the way in which we manage cases in which the accused suffers from a mental illness. So there must be effective mental health care. We also want to know, very specifically, how we can help victims through this process.
In the coming weeks, we will be speaking to victims, to mental health experts, to representatives of the provinces, and so on. A number of witnesses will shed light on this for us and we will choose the best solution, the most balanced approach. We will not get involved in political games; we will examine the issue on its merits, case by case.
Mr. Minister, a number of victims have told us, not once, twice or ten times, but hundreds of times, that what they are looking for first and foremost is (a) psychological support and (b) financial support. Will Bill provide victims with psychological and financial support?
I'm encouraged, Monsieur Jacob. I think you said that you support the bill and you support a balanced approach, and about a minute or so later you said you're open to the bill. I hope that's not changed and that you will continue to support the bill. I think that's very important, for the reasons you've enumerated with respect to the interests of victims. This would be good. I hope you work on your colleagues in the Liberal Party, as well, and speak to them about perhaps getting together and unanimously moving forward on this. That would be very encouraging for everyone who worries about victims in this country.
You talked about some of the monetary issues. This is one of the reasons I have been such a supporter of the victims fund and the tens of millions of dollars that the government has put into it. We've funded many groups and individuals. We've better assisted people who have been victimized. I tell people that the money we have put toward these issues is taxpayers' money well spent.
Mr. Chairman, you know that I'm a big fan and a big supporter of child advocacy centres, which are to provide for children who are victims of crime. Again, all those people who find themselves victimized, I think should agree with me that there's much better support at the federal level for them, on a number of different levels.
As I pointed out to Mr. Casey, this is not in any way to diminish the huge responsibility that the provinces have with respect to health care. Indeed, that is their constitutional responsibility. But I always say that we have a responsibility as well. When you have a look at estimates and you see things for the victims fund, you don't even have to ask. You know I'm a big supporter of that because I think these things are appropriate.
Again, getting back to your initial comments, I would certainly hope that this bill moves through expeditiously. I hope all the opposition members stand up and say they're going to support victims in this country and that they're going to move forward on this important, and at the same time very reasonable, legislation. Certainly I look forward to your support.
You've made a good point. Sometimes you can get confusion when you're talking with people in this area. They don't go to prison, they don't go to jail, if they've been found not criminally responsible. In fact, they go to a hospital and that's entirely appropriate.
The boards that are set up under provincial auspices include people who will have a look at this individual to see what the best way of dealing with the individual is. Keeping the individual detained is one of the options, of course, but conditional release is another one, or an absolute discharge if in fact it's determined that the individual doesn't need to be detained. These medical questions come into play but there are certain guidelines that are given to these boards. Again, they're modified within this particular bill.
Your colleague mentioned making sure the protection of the public is the paramount consideration before we get into this. So there are a number of considerations taken into account, as they should be. But again, nobody should be confused about this. People aren't being jailed. This is not part of the prison system.
My colleague, , will tell you that he is very determined and very supportive of the efforts within the Canadian prison system to get these individuals the kind of mental health treatment that they need. Again that's another expenditure from the federal government in the whole area of mental health, and one, of course, that I support as well.
But that's not what we're talking about here. We're talking about people who have been hospitalized within the provincial system. I'm a big supporter of giving more money to the provinces to assist them in health care, but that being said, they are within this system and we want to get them the help they need, because everybody benefits from that. The individual benefits, and certainly society benefits. It's a safer, better place in which to live when they do get that kind of help.
They tell me they want to be notified. They say they don't want to see the individual who has caused horrible tragedy to their families in the grocery store or sitting in church with them next Sunday. They'd have a problem with that. As one of your colleagues said, a lot of these things just make common sense.
Again, this is what we are doing at the federal level with respect to victims across this country. We're looking at all aspects of the criminal justice system and within this regime as well, to make sure that victims are heard, that their priorities are taken into consideration. This is why I say to people, when they want to look at this, to have a look at what we're doing for victims. Yes, they should be notified if that's what they want. Yes, there should be provision for non-communication orders. Wouldn't that be reasonable if somebody has been victimized, that there should be an order out there that this individual shouldn't be communicating with them?
When I have met with victims, these are the kinds of stories they tell me. It's very disconcerting, quite frankly, when people start telling you about some of the things they have gone through. I always tell them the same thing, that they have the right group in Ottawa today. We are determined to do something about that. We will stand up with victims and that's exactly what's taking place in this piece of legislation.
The bill requires that several stages have to be gone through in order to submit a request to the court. Subsequently, the case will be heard by the court that has the file, either the provincial court or the superior court.
As defined in the Criminal Code—and the minister mentioned this just now—when an accused is found not criminally responsible for a serious offence, a serious personal injury offence, the crown may make a special request for a hearing to be held on the matter. During that hearing, a number of aspects of evidence have to be presented.
If I am not mistaken, this is mentioned in clause 12 of the bill, where the court is asked to consider evidence such as the nature and circumstances of the offence, the accused's current mental condition, the past and expected course of the accused's treatment, and, something that is likely to be very relevant for the court, the opinions of expert witnesses and psychiatrists appearing to provide evidence.
As the minister mentioned just now, after examining the evidence, the court may invoke one of two situations if the court is satisfied that there is a substantial likelihood that the accused will commit violence that could endanger the life or safety of another person and if it is of the opinion that the original offence for which the accused was found not criminally responsible was of such a brutal nature as to indicate a risk of grave harm to others.
In either of those situations, the court may declare that an accused is high-risk. At that point, the accused will be subject to a detention order and the case will be sent to the review board that will review it. Reviews can be conducted annually, or every two or three years, depending on the particular circumstances of each case. If, at a later date, the review board is of the opinion that the danger has decreased, the court may reconsider the case to see if there are grounds for revoking the high-risk accused designation. Actually, the review board may send the case back to the court, which will hold a new hearing to determine if the threshold is still met or if, on the other hand, the designation may be revoked.
I certainly appreciate our testimony from the witnesses today. I've actually received some correspondence from some of my constituents. I was actually hoping to ask the minister, but obviously, I am very happy to have you here. Some of the questions that have been brought up in regard to some of this legislation....
Again, I want to thank the analysts, Mr. Chair, for putting together so many good questions for us, because there are a number of questions I'd like to ask. Part XX.1 of the code came into force in 1992. This was in response to the Supreme Court decision in R. v. Swain. It was amended in 2005 in response to the court’s decision in R. v. Demers and the parliamentary review undertaken by the Committee on Justice and Human Rights in 2002.
The minister gave a very good analysis in his testimony, and actually, I think I'm going to take that testimony and send it to one of my constituents.
In your opinion, what impact would Bill have on cases like we've seen, such as Vince Li, Allan Schoenborn, and Guy Turcotte?
Thank you to the witnesses for appearing here today.
You had mentioned earlier, and I just want to clarify this, that although there has been no discussion with regard to high-risk versus dangerous offenders, certainly the dangerous offender classification has been in the code for some time. It recognizes that a person who continually repeats a criminal offence could, under certain circumstances, be found to be a dangerous offender. Those offences stream from murder to infanticide to a number of the most serious and grievous crimes that are found in the Criminal Code.
Would you agree that a person who is NCR under high risk, who commits a crime that would be designated as a dangerous offender crime in the Criminal Code, would be recognized as having committed one of those crimes in which the accused would fall under one of the amendments to the code under which they could be held for up to 36 months or three years?
Could you explain to this committee, if you are able to, how we came to that three-year requirement to be held, as opposed to the one year now?
Thank you, witnesses from the justice department, for being here. You have provided excellent answers to the questions.
I want to let the committee know that, based on what has been approved, we will be meeting for a three-hour session.
As you know, we are going through lots of votes in the House of Commons. All the meetings are here in Centre Block. My goal as chair is to make sure we hear the evidence provided by the witnesses. We will vote if we have to, then come back and hear witnesses to make sure we get the witnesses' testimony on the record. Some are coming a long way. We may not get to everyone's questions but I want to make sure we hear the witnesses.
That will start on Wednesday. We look forward to it.
With that, the meeting is adjourned.