Ladies and gentlemen, I call to order meeting number 76 of the Standing Committee on Justice and Human Rights. Today we're televised.
Our orders of the day are pursuant to the order of reference of Tuesday, May 28, 2013, Bill .
We have three panels and a number of witnesses today. As I said before to members of the committee, each presenter has been offered 10 minutes. I will be a little flexible on that but still make sure they get their presentations in. Then we will have questions. Then we'll go on to the next panel.
We have lost a little time, so we may run this one a couple of minutes past, just to make sure we hear everyone.
I want committee to be aware, so that there are no surprises, that we passed a motion on Monday of last week that independents could come to the committee and move amendments during clause-by-clause consideration. Amendments need to be in prior to that. They've asked whether they can come.
The precedent is this, and this is my ruling on it. They are more than welcome to sit at the table with us. They can listen to the discussion and the presentations. If a member of the committee from one of the recognized parties wants to share some of their time with independents, they're more than welcome to do so. I'll recognize that. Otherwise I'll need unanimous consent of the committee to provide a speaking turn to those individuals. When it comes to clause-by-clause study, I will provide approximately two minutes to those independent individuals to present their amendments, if they have any. They will not be voting, but they can present their amendments at that time.
That is the ruling. They have been made aware of that through correspondence.
Let's begin. We have two individuals and one organization. Ms. Isabelle Gaston is here as an individual. From the Canadian Psychiatric Association we have Mr. Paul Fedoroff. As an individual, we have Carol de Delley. We'll follow the names on the orders of the day.
Madame Gaston, you're first to speak to us. The floor is yours.
Thank you for having invited me to participate in this meeting of the Standing Committee on Justice and Human Rights.
I am sure my experience within the system will help you to recognize the importance of Bill , a bill which I support.
I thank Harper for allowing the victims to be heard at long last.
I am an emergency room physician. I practise in a regional hospital centre and our hospital houses the third largest psychiatric department in Quebec. Consequently, many patients with psychiatric illnesses come to my emergency department for treatment.
One fact is more relevant for this committee. I was the mother of Olivier, 5 years old, and Anne-Sophie, 3 years old, who were murdered on February 20, 2009. I was present at all of the legal proceedings and on July 5, 2011, my former husband was found to be not criminally responsible for the death of my children. Afterwards, the work of a fastidious commission of inquiry into mental disorders led to the release on parole of the man who took the life not only of my children, but, by the same token, of two Canadian citizens.
Even though I am at the centre of a terrible tragedy, I hope that you will understand that my testimony is no more and no less biased than that of certain lawyers, psychiatrists or other witnesses who will appear before you. Indeed, some of them seem to forget that there are two sides to every coin. You were elected and you will have to vote on this bill. This topic is too important to be allowed to become a partisan issue, identified with a single party.
No law is entirely perfect and none will ever please everyone. However, I think that a good law is a law that tends to be as fair as possible for the majority of the citizens of a country. Bill gives priority to public safety.
While rereading the Canadian Charter of Rights and Freedoms, I realized that defending the right to life and safety is far from easy in Canada. It sounds good on paper, but when someone is dead, I get the impression that we tend to forget them. In Canada, all human beings are considered to be equal in value and dignity. Everyone is supposed to have an equal right to protection before the law. Actually, that is not the reality. This bill will give everyone the protection they are entitled to, not only to us, the victims, but to everyone in society.
When people object that the bill will do nothing to further prevention, that the rate of recidivism is low and that it will stigmatize those with a mental illness, I think that they are straying from the topic. They are forgetting to draw a distinction between primary prevention and secondary prevention. They forget that a serious crime was committed. That cannot be just set aside. They forget that someone else was the victim of a crime and someone else will be a victim if there is a subsequent offence.
People have to stop accusing those who are in favour of the bill—people like myself, for instance—of lacking empathy for those dealing with mental illness. That is a false argument. I am not lacking in empathy, quite the opposite. I am in favour of rehabilitation and I understand the suffering caused by a mental illness. I treat patients who are psychotic, depressive or suicidal with the same energy as those who come in with a heart attack.
It would be fairer, in order to really understand my position, to know the hierarchy of my values. I find it unfortunate that a person suffering from a mental illness commits a crime, but I find it even more unfortunate that someone loses their life or well-being because of that crime. For me, the death of Olivier and Anne-Sophie demands that I require that the system protect my life, my well-being and that of others, because it is when you lose those you love that you realize that being alive and healthy is a privilege.
Certain psychiatrists claim that this act will undo years of progress and that it is very unfair. Unfair to whom? According to you, is it unfair to demand that we be cautious? I do not agree with those who claim that the defenders of this bill are trying to be punitive with people who are not criminally responsible. Injustice is sustained by everyone, myself, my children and all of society. If you believe that demanding that the person who took someone's life receive care and at least short-term supervision is punitive, we do not have the same vision of the work done by mental health workers.
I am quite willing to be sensitive and acknowledge that it is not always easy to be in a psychiatric institution, but it is much better than being six feet underground. The atrocious death of my children demands that the system not cut corners with my safety and that of other citizens. A non-criminally responsible person will be able to take up their life at the completion of their mental rehabilitation.
If Bill is passed, certain patients will be declared “high risk” if they have committed a very serious crime, if they have been guilty of serious physical mistreatment of others, or if there is a strong possibility that they may commit other acts of violence. This makes perfect sense to me.
It is time for things to change, because the current state of the system is not very reassuring. In December 2012, even if the commission of inquiry into mental disorders felt that the murderer of my children still presented a serious risk because of his mental state, he was nevertheless released without supervision.
I do not understand the rationale behind such a decision. I have the impression that people are playing Russian roulette with my life. I don't feel protected, really, at this time. People try to reassure me by telling me not to worry, but out of millions of Quebeckers, it was nevertheless my sister and my niece who came face to face with the man who killed my children, in a shopping centre near their home, last February 18. That morning, I had declined the invitation to go shopping with them because I was working that day at 4 o'clock. Why?
I think that all families that are in my position have the right to feel safe, especially in their immediate neighbourhood. On the contrary, we are not informed about anything and we do not have access to the information that would allow us to know what point in the process our aggressor has reached. I have no idea how my former spouse would have reacted to me that day, nor how I would have reacted to him. What I do know however, is that I am afraid. I know that the current system is not there for me. I also know that should there be such a meeting, I would be alone to defend myself before, during, and after that encounter.
It is wise to let a judge decide to release or not release an individual deemed to be “high-risk”. The members of the commission of inquiry into mental illness probably do good work, but as a physician, I know it can be difficult to be both physician and judge. In my opinion, the biggest precaution that should accompany this change in the legislation is that the professional corporations should remind their members of their code of professional conduct and of the ethical rules that govern medico-legal assessment. Professional corporations should also point out that there is a major difference between medical evaluators and practising physicians. Under no circumstances should any physician be authorized to wear both hats. This seriously undermines the confidence of victims.
It would be desirable to increase the length of hospitalization in a psychiatric facility to three years. Even if you cannot force an individual to undergo treatment, you would thereby certainly increase his chances of eventually participating in the rehabilitation activities available to him. At the very least, this would allow for a longer period of observation, so as to permit a better assessment of the person who has committed a serious crime.
In my situation, it took one year before the murderer of Olivier and Anne-Sophie decided to begin therapy. Unfortunately, that therapy was at an “embryonic” stage, according to his physician, when he was paroled in December 2012. At the hearing that preceded that parole, the patient admitted that he had made a great deal of progress, thanks to his stay in hospital, even though he had wanted to be released a year earlier. I would also like to remind you that the expert who testified a year before that parole suggested that the patient be released without any kind of condition. That example is a good illustration of the fact that aside from the patient, the health care team and the experts can also benefit from a longer assessment period.
In conclusion, this bill gives me greater hope that one day, the scales that are the symbol of our justice system will once again attain a certain balance for the parties involved. However, it remains essential in my opinion that a national or at least a provincial reform be brought about to guide the experts who testify before the court. No matter how often the expression “not criminally responsible” is redefined, or how rigorous the follow-up of those who are deemed not criminally responsible by the board responsible for that follow-up, those who interpret the legislation are the ones who can weaken our legal system and generate injustice, both for the accused and for the victims.
That is why it is urgent that rules and procedures be brought in as frames of reference for the experts who testify before the courts. The quality of the expert assessments presented to the judges and jury members must be monitored. Even if most of these expert assessments are of good quality, we must ensure that they respect all the rules of proper practice.
We must require at the very least that these assessments be rigorous, impartial and objective. The trust the general population, and victims, place in our justice system depends on it.
Thank you. I am available to reply to your questions.
Thank you very much for this kind invitation to present to you on behalf of the Canadian Psychiatric Association, and to sit next to Dr. Gaston, to whom I extend my sincere condolences.
I believe I was chosen for this honour because I am president of the Canadian Academy of Psychiatry and the Law, which is the largest organization of psychiatrists who specialize in assessing, managing, and treating the population that Bill will directly impact. However, I may also have qualifications on the basis that I am a practising psychiatrist at the Royal in Ottawa.
This legislation is about victims. Looking around this room, I know that some of you will be affected by this legislation. I know this because one in five Canadians is affected by a significant mental health problem. That means that virtually everyone in this room has at least one family member with this problem. In the same way that not every person with mental illness is honoured to have a family member in the House of Commons, most people with mental health problems do not commit crimes. In fact, most violent crimes are committed by people with no mental illness. Bill will not affect the majority of violent crimes against Canadians because they are committed by criminals who intend to break the law. Even among the people with mental health problems, the small percentage of whom commit crimes, most will not be affected in any way by Bill C-54. The legislation itself acknowledges this fact and states it applies only to a small proportion of accused with mental health problems.
Who are these people with mental health problems which Bill applies to? They are people with mental illnesses so severe that a judge in a court of law has determined that at the time of the crime, because of their mental illness, they were unable to appreciate the nature or consequences of what they were doing, or to know that what they were doing was wrong.
The Criminal Code of Canada, as in all civilized countries, recognizes that it is an injustice to hold a person responsible for their actions if their mind was so impaired they did not know what they were doing. These people are declared NCR, not criminally responsible, in a court of law by a judge, not a psychiatrist, and are referred to as “NCR accused”. Any one of you at this table could have a relative who is declared an NCR accused. I say this with the greatest respect because becoming an NCR accused has nothing to do with your personal character or the integrity or respectability of your family. It has to do solely with having a mental illness that prevents you from knowing that what you are doing is against the law and wrong. This is who Bill affects.
I began by saying that Bill is about victims. I and everyone in this room agree victims deserve the utmost in respect and care. Now imagine that your relative with a mental health problem, which they did not ask for, commits a violent offence and is found NCR. Who are the victims? The person who was attacked is, for certain, but also the family members of both the victim and the accused, as well as the community. What will Bill C-54 do for victims? It will not increase victim notification. That already happens always. It will not delay the speed with which NCR accused are returned to the community. Most NCRs are followed for longer than three years. It will not change the frequency of board reviews. High-risk offenders typically are seen more frequently, and it would seem bad practice to decrease the hearing times.
Here is what Bill will do. It will increase the burden on the criminal justice system in the process of designating so-called “high risk”. It will make it harder to transition NCRs safely back to the community since passes, which begin as escorted and lead to unescorted, assist in assessing true risk. It will risk stigmatizing people with significant mental health problems.
For the sake of all victims, including potentially your own relatives, I hope you will reconsider the merits of this bill carefully.
I will finish with a brief anecdote. Suppose a woman suffers from a delusion that a very severe poison is actually healthy. She gives it to her husband and her husband becomes upset or mildly ill. Now, suppose that same woman with the same delusion gives the same poison to her entire family at a birthday party and kills her entire family and all her children. Suppose another person who is a criminal, who intends to kill people, intentionally poisons someone. Ask yourself, is it just, is it fair to treat all those individuals the same way?
Bill moves us towards treating a person with a delusion as though they were a criminal.
Good afternoon and thank you for providing me with this opportunity.
Today I represent many victims of NCR offenders as I call upon members of the House of Commons of Canada, regardless of what party they belong to, to join together to unanimously pass this legislation.
In July 2008 my 22-year-old son, Timothy Richard McLean, had his basic human right to life violated when he was sleeping and he became a victim of an NCR offender. I believe that my son died in the horrific and very public manner that he did to shed light on the issue of NCR so that positive change could result and the safety of the public would be ensured.
My family and I have had to endure the trial and five annual review board hearings, and Timothy will not even have been dead for five years until the end of July. This has left us with no opportunity to grieve our loss. I have spent the time since Timothy's gruesome death trying to raise awareness in the public about what NCR is and why I believe it needs to change.
I have had the support of Manitoba cabinet ministers Eric Robinson and Andrew Swan as well as MPs , , and , and I thank them for that support. There is a seemingly endless team of professionals providing for every need of the offender. While in care and with regularly administered medication and intense therapy in a controlled environment, paid for and provided by the taxpayer, I would be surprised if the offender did not show remarkable improvement. What about the victims? In our particular case, along with our very large family, there were 40 or so civilian witnesses and almost as many police officers who were witnesses to this horrible experience. Who speaks for and represents all of them? Today, I do.
We are all the living victims of an NCR offender. The psychiatric community and the Schizophrenia Society claim that with this legislation we are stigmatizing the mentally ill. They have much to say in the defence of what they claim is a very small number of extremely ill individuals. I ask, where were all these professionals when these very disturbed individuals or their loved ones were trying to get help? In most cases the offender has a history of mental illness, often diagnosed but usually untreated. The crucial reason for the lack of treatment is that the person with the mental illness does not believe they have a problem and therefore refuse to get help. The reality in Canada is that even when close family members or associates have verifiable proof that an individual is suffering from severe psychosis or mental health issues, if that disturbed individual is resistant to treatment, they are under no obligation to get treatment.
In her book, Changing My Mind, Margaret Trudeau states:
||A person with a mental illness needs an advocate—someone to chart the waters, interpret possible side effects of drugs and provide reassurance when recovery seems so terribly slow.
I concur that what mentally ill individuals need more than anything is an advocate to act in their best interests, because the afflicted person is incapable of making such decisions for themselves.
An NCR designation removes the offender from the criminal justice system and places them in the provincial health care system. The accused then receives the treatment and medication they should have received in the first place, and the issue of the murder is never addressed. A Criminal Code provincial review board by its very name is misleading. Most Canadians believe that the crime is reviewed at these hearings and that the accused or offender is still considered a criminal. That is not the case. There will be no criminal record for these offenders. The accused is now referred to as the patient, and the only thing being reviewed is the patient's mental status. It should be called what it is, a mental health review board.
I can understand that these extremely ill individuals may not be psychologically accountable; however, they are, without question or doubt, still responsible for killing another human being. The rights of the accused should not overshadow those of the innocent victims. The suffering of the victims and their families should not go unnoticed in our society. Provincial review boards ought to make it mandatory for the health facilities to release information on NCR patients. Victims should have the right to all information regarding the treatment and movements of those found not criminally responsible. I recognize the controversy and complexity of these issues. I believe that we as a society need to work together to create a Canada that is balanced and equal, a country that provides timely and tangible support to the victims and to enable seriously ill individuals to get the help they need but may not necessarily want.
I also believe it is crucial to protect all citizens, including the afflicted. I want to know when they are released back into our neighbourhoods and what we are doing to ensure these individuals are taking their medications. What programs are in place? How exactly are they being monitored? Whom do they report to?
If they reoffend, who will be responsible? We know it's not going to be the mentally ill individual, the provincial review board members, the psychiatrists, or the Schizophrenia Society of Canada.
Ekosi. Meegwetch. Thank you. Merci, with respect.
I always say that on February 20, when my children were murdered, the person who existed that day died with them.
In what I do, I know now that being alive is a privilege. Whether this has an impact on me or not, I know that it will be a good thing for the other families who may follow me, because, unfortunately, there will be other crimes.
One important element in the bill would be the victim's statement. That seems to me to be an important point in Bill . I was interrupted because all of this was very rules-bound. I wanted to show the photograph of my children, but my freedom of expression was curtailed. I think that this bill could lead to some changes.
There's also the fact of having to go back before a judge. Ideally, I would see the trial judge because currently, people wash their hands of things to some extent. They feel they are there only to assess the person who was found not criminally responsible. In my situation, I found it quite remarkable that the individual would have made progress in only one month, when he was assessed by the same psychiatrist. According to me, this would allow for a more critical perspective. I am aware of the fact that the board does very good work, but sometimes, because of regulations related to the right to information, it is difficult to assess the work these people do.
In Quebec, you see, these things are done behind closed doors. There are people at the Institut Philippe-Pinel in Montreal, there are some in Trois-Rivières and some in Quebec, but those who committed the most serious crimes are mostly sent to the Montreal Philippe-Pinel Institute and no one evaluates the work the people involved do in that regard.
To answer your question, I think that this bill offers a certain protection because of the fact that the accused would return before the same judge.
In my situation, we would have to see. I don't think it would apply.
Why is he opposed to this reform if he thinks that it does not really change things?
Dr. Fedoroff says that it is unfair to those who have a family member with a mental disorder. What I can say is that even a member of your family could be murdered. Do you understand? There are two sides to every story. By constantly being in contact with people with a mental disorder, perhaps we end up finding them nice and forget that there are other people in society. We forget that our decisions can affect an entire community and many families.
My brother’s best friend is schizophrenic. It is surprising to see schizophrenics and people who suffered from depression and were very ill support these measures. In fact, millions of Canadians suffer from a mental illness, but most of them will never commit a crime. I think Bill is really a minor precaution in the sense that it will only affect a very small number of people. So I don’t see why we are creating a tempest in a teapot.
They are still people who committed horrible crimes, and I invite you to read the definition. I will not go into the details of what I went through as a mother and what my children went through. When I see the only report card my child had, I find it hard not to feel that it is unfair. I would feel blessed if I could go visit my son or daughter in a psychiatric institution.
There is a whole range of activities and services offered at the Institut Philippe-Pinel, such as macramé, psychological and criminal law services, a pool, mini-golf, and pool tables. Perhaps they feel it is unfair. However, if I could give them a choice, I don’t think Olivier and Anne-Sophie would find it unfair that they are required to be treated in an institution. We are not punishing people. Rather, we are asking them to get treatment and to be careful. That is the least we can do for those who have lost their lives or whose integrity has been damaged.
In addition, we are not talking about 40 years. It has already been four years since my children died. It would be a good idea to enforce this law. I don’t understand why anyone would be opposed to it. I think this legislation is one more step in protecting everyone.
You want me to speak in French?
Mr. David Wilks: Sure, yes.
Dr. Isabelle Gaston: Okay.
Four years less two days after my children were murdered, my sister and her daughter, who just had a baby, went shopping in Montreal, at the Rockland Centre. I did not include the baby in my description, but her baby was with them as well. We heard in the media that Mr. Turcotte was somewhere else, in L'Épiphanie, outside Montreal.
My sister told me that she was about two metres behind her daughter and the baby stroller when they came face to face with him. They were so close to Mr. Turcotte that the stroller could have hit him. They looked at each other and then my niece started screaming: “Criminal! Criminal! Criminal!”. All the security officers came. He turned away and my sister followed him. She said something to him and they had a short conversation. You can understand that, after that incident, we lived under stress for four, five or six days. I wondered how that was possible and whether he had followed her. Those are the types of questions that go through our heads. In moments like that, we have no idea what to do or who to turn to.
To answer the question, I think that, if a minimum contact distance were set and we were told where the person is, we would feel safer. That morning, I turned down the invitation to go shopping. I could have very well been there. That is not very reassuring, especially since, according to the board, he still poses a major risk.
This bill would ensure that the individual is released only when it is established that he or she is no longer a threat to society. That would really change everything.
Vince Li has not been released. He is still in a psychiatric facility in Manitoba. However, he has just been granted unsupervised grounds passes. These are grounds that are not fenced. Also, he has been granted escorted passes within the community of Selkirk where he is detained, as well as in the city of Winnipeg, now including the surrounding beaches. This means that families who are spending time at the beach on a Sunday could actually run into him. Mine could too. I have a place at the beach. That's very disconcerting to me.
I have received information from people involved in many other NCR cases. Because I've been so vocal, they've all been sending me their cases, their information, and their experience. In many of these cases, the offenders and victims have come face to face. These people are living in the same communities. It's a very frightening thing.
In one particular case, when a woman ran into her daughter's killer, she was thrown right back. It retraumatized her. She began drinking heavily, lost her job, lost her income. She's tried to kill herself three times now. I question how many more victims one offender creates.
As far as recommendations go, I don't think I'm qualified to make recommendations as to how these people should be handled after the fact. Clearly, what's in place is not adequate. If you think of what is in place in a very major centre and how it can't keep up, then what about rural areas? What about way up north where the resources and programs and the individuals that you would want these people reporting to don't exist?
There's much work to be done there. I don't have all the answers, and I've never claimed to have all the answers. I'm a grieving parent or trying to be one. I'm trying to bring this to the attention of the powers that be so that something can be rectified.
Thank you very much for the opportunity to appear before the committee.
I attend on behalf of the Canadian Association of Elizabeth Fry Societies, an association of 26 members who work with and on behalf of marginalized, victimized, criminalized, and institutionalized women and girls throughout the country. As many of you know, we provide services that range from early intervention for those who have been victimized right through to and including prison resettlement and after-care programs. My presentation will be very brief.
While the legislation provides an opportunity to shine a light on a very important issue, an issue that is underscored by some horrible tragedies that have been experienced by Canadians, the reality is that beyond that, there is a consensus that applying a new label of “high risk” will not be particularly helpful, and that unless there are additional resources to ensure there are supports in place to assist individuals who are given that label, they will likely end up with an unnecessarily long period of being incarcerated, or institutionalized—my apologies—in centres that will not necessarily be able to provide the sort of treatment that needs to be provided to individuals who have been labelled “not criminally responsible”.
We would hate to see a return to the asylums of the past or to institutionalized settings in which people remain for very long periods with limited review processes and few opportunities to access the treatment they require. We think it has implications for many others who might not necessarily be labelled as not criminally responsible, but might be identified as high risk.
I have several examples of those, and I'd be happy to talk more about that in answer to questions. That in sum is our submission.
Mr. Chair, on behalf of the Criminal Lawyers' Association, I want to thank this committee for the opportunity to comment on this very important issue.
It's personally a privilege and a pleasure to once again appear before this committee. My name is Paul Burstein. I'm the immediate past president of the Criminal Lawyers' Association, an association with over 1,200 criminal lawyers. We are one of Canada's largest specialist legal organizations. Like me and my colleague Ms. Dann, most of our members have regular contact with mentally ill people who, after falling through the cracks in our system of mental health, end up embroiled in the criminal justice system.
Personally, I've been working with mentally disordered offenders for over 20 years, since part XX.1 of the Criminal Code was first enacted. That legislation came into force on February 4, 1992. I became a lawyer three days later and have been working under that regime ever since. I've represented many mentally disordered offenders before the Ontario Review Board and on appeals to the courts of appeal against those dispositions.
For almost 20 years I've been part of a small roster of lawyers that the Ontario Court of Appeal appoints to assist it in dealing with mentally disordered offenders who have filed their own appeals against ORB dispositions. I've appeared before the Supreme Court of Canada on a number of very important cases that have dealt with the subject matter of Bill . I've taught courses dealing with mentally disordered offenders. Most important, like so many millions of Canadians, I'm a parent of a child who has long suffered from a major mental illness. I can well appreciate how families are also victims of mental illness in having to deal with the person afflicted with the mental illness and how they act out as a result of their illness.
My colleague Ms. Dann is a former clerk for the Supreme Court of Canada. She also works with a firm that does much work with mentally disordered offenders. She devotes much of her practice to that. On behalf of our association, Ms. Dann will make some brief comments on what our members believe this committee must consider before moving forward with Bill . Then she and I will answer any questions the committee might have. We've left the clerk with some written submissions that further outline our submissions.
Thank you for the opportunity to address the committee.
I had the opportunity to listen to the last panel and the compelling testimony of both Ms. de Delley and Dr. Gaston. I was moved, as I expect all of you were, by that testimony. Their testimony and the testimony of other victims and family members who come before you highlight the very difficult task that this committee has before it.
As legislators, you are responsible for looking beyond the sometimes horrific nature of these offences and perhaps our natural inclination to want to see a perpetrator punished. By definition, people who are found NCR are not morally culpable for their crimes. As our Supreme Court has said and as our jurisprudence has decided, they did not appreciate what they were doing, or they did not understand it was morally wrong, and these individuals may have their liberty restricted only for reasons of public protection and for treatment, but not for punishment.
The Criminal Lawyers' Association applauds Parliament's desire to ensure that victims and all Canadians are adequately protected from the involuntary misconduct of seriously mentally disordered persons. For that reason, we support the provisions of Bill aimed at increasing victim engagement and notice to victims and the other related provisions.
Unfortunately, in our view, the remainder of the amendments contained in the bill do not further Parliament's laudable goal. We say that because they aim at the post-verdict treatment rather than the pre-offence circumstances of these seriously mentally disordered persons.
In the words of Justice Richard Schneider, who is the head of the Ontario Review Board and one of this country's leading thinkers on the issues of mental illness and criminal law, “Assuming there was a real problem with the current scheme, the proposed amendments completely miss the target.”
I think consideration of the case of Vince Li perhaps will demonstrate some of the shortcomings of the legislation. It also is instructive because it is clearly one of the most difficult and traumatic cases that we in the public have heard about. When Mr. Li killed Mr. McLean, he was not subject to any review board disposition. He had never had contact with any review board system at all. He was, however, actively psychotic, and his mental illness, schizophrenia, was untreated.
By all public accounts, he has done well in treatment. He has gained insight into his illness, understands that he will need to take medication for the rest of his life, and is open to a court order requiring him to do so. While initially confined to a locked wing of a hospital, in 2010 he was granted grounds privileges. Last year, he was given the privilege of escorted passes in the community and just last month was granted further privileges allowing supervised full-day trips into the community, on the recommendation of his treatment team.
At the hearing, the crown, the representative of the Attorney General of Manitoba, did not oppose the increase in privileges, and we can assume that he or she did that because they accepted the evidence that those privileges would not be a risk to the public. Under the current regime as it stands, Mr. Li will remain detained until releasing him would not present a risk to the public. There is no need for him to be designated a high risk.
The CLA urges the committee to consider the possible negative impacts that such a designation could have, particularly the second pathway to this designation, whereby the court can make the designation on the basis that the offences “were of such a brutal nature as to indicate a risk of grave...harm to another person”. Whatever the definition of “brutal” is—and the CLA submits in our written submissions that there may be a problem with the vagueness of that term—Mr. Li's case would seem likely to meet it.
The problems with this provision are multifold.
First, the CLA is aware of no evidence that the brutality of the index offence is connected to the rate of reoffending or recidivism.
Second, the brutality of the index offence will not change, no matter the progress the offender makes. As currently worded, the provision suggests that even where a court concludes that Mr. Li poses no risk of violence, pursuant to proposed paragraph 672.64(1)(a) of that provision, the designation could remain under proposed paragraph 672.64(1)(b) because of his past act.
Third, where this designation is made, the NCR accused is deprived of rehabilitative privileges, such as passes into the community, even where the exercise of such privileges would not present a risk to the public.
This has a potentially disrupting effect on the therapeutic nature of the psychiatrist-patient relationship, increasing frustration and providing less motivation for rehabilitation, paradoxically potentially increasing public risk.
What the high-risk designation would not do is ensure that someone like Mr. Li is identified, treated, and monitored before he deteriorates to a point where his illness produces a serious violent crime.
The CLA's position is that if this government is committed to preventing the criminal consequences of serious mental illness, it must devote more resources and support to the provincial authorities responsible for mental health. The government has established the Mental Health Commission of Canada, which we applaud and view as an excellent initiative. What we would ask is that you listen to their sage advice.
In their policy documents and strategy documents they say that the way to reduce the overrepresentation of people with mental illness in our criminal justice system is a robust mental health care system aimed at prevention. We need to increase the role of the civil mental health system in providing services, treatment, and supports to individuals in the criminal justice system before they commit these horrific acts.
We need to provide training to police about mental health problems and illnesses, how to respond to mental health crises, and information about the services available to them.
If the high-risk designation regime is enacted, the CLA recommends some specific changes to the legislation. They are in our written submission.
In concluding, I want to answer some of the concerns expressed by questions asked of the minister and the Department of Justice on Monday and earlier today.
In terms of recidivism, the Department of Justice commissioned a study by Professor Anne Crocker. It's referred to in our written submissions, and also in the written submissions of the Canadian Bar Association. It sets out some of the statistics on recidivism for NCR accused people.
I also want to suggest that it is crucial for this committee to consider the impact the legislation will have on the capacity of provincial institutions. On this point, I note that this committee back in 2002 reviewed the mental disorder provisions of the Criminal Code, held public hearings, and at that time, 10 years ago, found that the forensic mental health system was strained to the limit and that given the lack of adequate resources it would be irresponsible and unrealistic to recommend the implementation of provisions that would place greater burdens on institutions that are the legal and fiscal responsibility of another government.
The situation, I can tell this committee, has not improved in the last 10 years. The Chief Justice of Canada, Beverley McLachlin, is among the many who have observed that the lack of adequate forensic treatment facilities for mentally disordered offenders is a persistent problem, and a problem that results in individuals waiting extended and lengthy periods of time in custody in a jail facility before they are able to enter into the forensic mental health system.
Our written submission, particularly on pages 9 and 10, highlight many of the cases where this problem has been documented.
Good afternoon, Mr. Chair and members of the committee. It is a true honour to speak to you today and to be part of this very important conversation we're having this afternoon.
I feel that Bill presents many unique opportunities to change the law in this area, and I want to discuss the implications of this bill and some of the potential consequences it could have.
When Minister Nicholson was before this committee on Monday, he spoke about a need for a balance in what the Supreme Court has called the “twin goals” of the NCR regime. That is on the one hand public safety, and on the other hand, fair treatment of the NCR accused.
However, if balance is the issue, then the Canadian Bar Association respectfully submits that Bill gets that balance wrong. This imbalance here is significant, because getting it wrong ultimately puts long-term public safety in jeopardy.
No one denies the pressing need for adequate protection of the public. However, true protection of the public requires much more than detaining the NCR accused. Long-term public safety is best achieved through treatment and reintegration into society. Unfortunately, Bill does little to encourage this. The CBA supports some provisions of Bill but recommends against others.
I will now discuss the three major amendments proposed by the bill.
First, the CBA supports the proposed requirement that victims be notified, if they so choose, of the NCR accused's discharge, as well as the option for review boards to issue no-contact orders.These amendments fill a gap and have the laudable goal of addressing the needs of victims in the NCR regime. These build upon the introduction of victim impact statements in 2005, and the CBA fully supports them.
The second amendment I want to discuss is the removal of the “least onerous and least restrictive” requirement. The CBA recommends against this.
Under the current regime, review boards must make a disposition that is the least onerous and restrictive to the NCR accused, taking into consideration public safety, the mental condition of the accused, their reintegration into society, and their other needs. Public safety is already a fundamental consideration for review boards when deciding whether to release or detain an NCR accused. It's front and centre.
In the words of then Justice McLachlin in the Winko decision, “it ensures that the NCR accused’s liberty will be trammelled no more than is necessary to protect public safety”.
This requirement of being the least onerous and least restrictive is thus an important component of the balanced approach of the current regime. The Supreme Court has repeatedly said that the “least onerous and restrictive” requirement is at the heart of the constitutional validity of the NCR regime. Several cases going back nearly 15 years have affirmed this standard as essential for compliance with the Charter of Rights and Freedoms.
The proposed amendment to remove this language would bring that constitutional validity into question. Introducing the new and untested language of “reasonable” and “necessary” in the circumstances serves to negate the goal of consistent application of the law by review boards across the country.
Likewise, the proposal to make public safety the primary consideration in the bill disturbs the crucial balance between public safety and fair treatment of the NCR accused by making one more important than the other. This is another component that the Supreme Court has repeatedly identified as central to the current regime.
The CBA therefore recommends that the committee not remove the “least onerous and the least restrictive” requirement.
The third and final amendment I wish to discuss is the proposed addition of a designation of high risk that would apply to some NCR accused. The CBA submits that this addition is not only self-defeating but counterproductive to the goal of enhancing public safety.
First, the proposed high risk regime suggests that just because the NCR accused has committed one serious offence, they will do so again. Existing evidence suggests the exact opposite. Furthermore, the Winko decision is clear that there can be no presumption of dangerousness. We moved away from the stereotype of the mad offender in the Swain decision nearly 20 years ago.
Second, the proposal risks being overbroad. That means the means to achieve its objectives are broader than necessary. This brings its constitutionality into question. The consequence of being designated high risk is that the NCR accused falls into a different custody regime.
It is unclear how this furthers the goal of enhancing public safety. The extra restrictions placed upon a high risk NCR accused could be characterized as punitive in nature. The objective ought not to be punishment because the accused has not been convicted of a crime.
However, if enacted, what does the CBA propose? We have three recommendations.
First, we recommend eliminating the proposed subsection enabling courts to designate an NCR accused as high risk if it is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.
Second, if this proposed subsection is not eliminated, then the CBA recommends that it should be redrafted to provide greater clarity, including a definition of “brutal nature” and a statement that the focus is on future conduct.
Finally, if the high risk regime is enacted, the CBA recommends adding a procedural mechanism to permit the NCR accused to apply directly to the court on an annual basis to remove the designation. This would encourage his or her progress and treatment.
I'd like now to offer some concluding remarks for the committee's consideration.
Our understanding of treatment and societal acceptance of mental illness have come a long way. We must always remember that the NCR accused is not a prisoner but a patient who needs effective treatment. That treatment is how we ensure public safety in the long term. Bill must recognize this essential point: an NCR verdict is not an opportunity to exact retribution on an immensely ill offender.
Thank you, Mr. Chair. I look forward to the committee's questions.
The problem with trying to do something for victims of mentally ill persons or mentally disordered offenders is that they start being victims long before an actual offence has been committed. If you look at the Crocker study, the vast majority of actual victims, that is the people who suffer physical harm in the sense that we understand a crime to be, are close family members or persons known to the mentally disordered person.
More importantly, I can guarantee, and I speak from experience as a criminal defence lawyer.... As I said before, I don't like doing this, but obviously the personal experience here has some bearing. As a parent, you're a victim in just having to deal with a loved one who is suffering, who acts out, who won't do what you want them to, even though you know it's in their best interest. For any number of reasons, they won't listen. The problem is that there just aren't enough resources in the community.
We're not here to blame the federal government. Health isn't your primary role; we understand that. But there's a shortage of money in the system, both in terms of the forensic system and the civil mental health system, and it just all gets backed up. It's all connected. If there's not enough resources in the civil mental health system—you've already heard this from other people—then the jails become the mental health facility.
You don't need the words on paper that this legislation represents. It is most certainly a laudable objective that you want to prevent crime, that you want to help victims avoid being victims, but this isn't going to do very much to do that. That is why we say you need to focus on the front end, which unfortunately is going to require a financial commitment more than just a legislative commitment.
That's what we would say.
Unfortunately, I can't see any manner in which this would assist victims to have monetary or psychological support.
I would echo the comments of my colleagues on the panel and my own comments at the beginning, that really what we need to be seeing is more resources placed into health services. While I recognize that because of the division of powers this is not the jurisdiction of the federal government per se, through the transfer of tax dollars and the creation of health guidelines we could be seeing those supports.
Following the recommendations of the Mental Health Commission, as well as of many professionals in all the evidence that will likely be put forward and that has already been put before this committee, as well as the evidence that is out there, what we need is a resourcing of what Senator Kirby, as he then was, called the “poor cousin” of health care in this country, which is mental health care.
I'm sure there isn't one person in this room who doesn't have experience of a family member with mental health issues. As someone who has had to resort to using committal procedures for family in the past, I can say that it's certainly not something any of us wants to do. But one of the most problematic components of using those provisions is the lack of resources, once you get the person into the system.
I would urge that at every level there be a commitment to address these issues for victims, for those individuals who have mental health issues for which they are declared not criminally responsible, and for many more with whom I am vastly more familiar than those who have been declared not criminally responsible, who are in the prison system with mental health issues and who require support so that they do not end up in isolated conditions.
That's an excellent question.
Part of the concern of the high-risk offender designation is that it really is overly broad. By incorporating the definition of “serious personal injury offence” in, and I can't remember the section, but it's the one that's in proposed section 202.161, which includes use of violence or threatened use of violence. Incorporating that will capture anyone who is up on a charge of assault, simple assault, who arguably could benefit from perhaps an NCR verdict in terms of getting into the mental health system.
Now, with their being at risk of being designated as a high-risk offender and thereby being disentitled from a review until three years down the road, I can't imagine a single defence lawyer advising their client facing a simple assault charge where, if they are found guilty, they are unlikely to go to jail for anything more than six months—these are summary conviction offences—to take an NCR verdict where they were going to end up with a high-risk offender designation and be detained for three years. It will most certainly deprive a significant number of accused who are in need of an NCR designation and treatment from pursuing that kind of verdict.
If you look at Crocker's report, for a significant number of offenders, about 40%, their first contact before they committed a very serious offence was for some minor offence, assault, theft, or something like that, something that otherwise they could have been caught up with in the mental health system if they had voluntarily sought an NCR verdict.
So it's a bad idea.
I agree that's a very important statistic to look at. With respect, I just don't think you're reading it entirely correctly. You have to go to the appendices and break it down.
The vast majority of those percentages you're citing about people who have previously been convicted or had an NCR finding are previous convictions. There are a handful, yes, who have had a prior NCR finding, but most are just prior convictions, which is the very point I'm trying to make.
People come in contact with the criminal justice system, and they're identified as having a serious mental illness that was a factor in their offending on a lower level, certainly not something as serious as murder, assault, bodily harm, theft, robbery, and they don't get the treatment they need. They're let out back into society, unsupervised, unsupported, and they become very ill again. They deteriorate and then their crime escalates to something more serious.
If there were adequate resources to make sure those people were supported not just for the first six months after they come in contact with the criminal justice system but beyond that, they wouldn't then escalate and commit more serious crimes.
It actually makes my point, I think.
Sure. I'll start with one about a woman who actually, under this provision, even regardless of the definition, would likely come under this definition of high risk, not because of anything she'd done while she was considered NCR, but in fact, all based on her illness and how she was treated when she got into prison.
This was a young woman who was first raped in juvenile custody when she was put into custody because she ran away. She's 41 now, so she's been through the system. She was raped in custody, escaped custody, and then tried to find her birth family. She found her birth family, was raped by her father, escaped her father, and broke into a school.
She was first put in adult jail for breaking and entering, was strip searched, fought back, accumulated assault charges, and accumulated more charges inside. Her first-ever violent charges were actually in custody. She accumulated 10 years of sentences for violent charges in custody. When she got out she had been labelled as having personality disorders, much the same as we've seen with Ashley Smith. When she got out, and we managed to get her into proper psychiatric care, she was actually labelled schizophrenic and was put on medication. As with many people, she went on and off medication. Her first violent offence in the community was when she went off medication. She first tried to go into hospital. She called the police and the police knew her and they took her to the hospital, in fact. They took her to two different hospitals which wouldn't take her on the basis of her criminal record. On the basis of the record she'd accumulated in prison, she was not accepted.
She then told the police she was afraid she was going to do something to herself or somebody else. They stood there and watched as she said that she was sure that somebody was watching her. She was clearly full-blown psychotic and she stabbed her roommate as the police watched. She told them to look and they would see springs come out of her. When blood came out, she was jolted into some other kind of state and walked over and put her hands out to be arrested. They took her to the jail, unshackled, in the front seat of the car. Clearly she was not perceived as a risk, but she was immediately put in isolation.
When we intervened to have her moved to the forensic unit to be assessed, the initial assessment was that she would not be found NCR, because she was on her meds and she was perfectly capable of describing what had gone wrong, but when we asked them to go back and look at the assessment based on what the police report said, they re-examined that and realized, clearly, there were some major problems.
She was then placed into—
I would like to thank the committee for providing me with the opportunity to testify on Bill the not criminally responsible reform act.
My name is Chris Summerville and I've been the CEO of the Schizophrenia Society of Canada for seven years, as well as the executive director of the Manitoba Schizophrenia Society for nearly 18 years.
I am here not only on behalf of the Schizophrenia Society of Canada and all of its provincial counterparts, but also on behalf of eight national mental health organizations and Canada's largest mental health hospital, CAMH. They see the necessity of working together to minimize the negative impact of Bill .
As well, I am a family member who grew up in the presence of mental illness—a brother with schizophrenia, another brother and my own father who lived with bipolar disorder. All three came into conflict with the criminal justice system due to untreated mental illness. Two of the three eventually committed suicide. I know mental illness inside and out. I could tell you of many personal traumatic horror stories due to untreated mental illness—physical, emotional, and sexual abuse.
Now let me be crystal clear. There are negative impacts and unintended consequences of this bill. Mental health and mental illness are complex, as the government is aware with its establishment of the Mental Health Commission of Canada, of which I am honoured to be a board member.
Understanding mental illness requires a commitment that will lead to overcoming barriers to treatment and recovery. Bill does little to understand mental illness in order to protect Canadians, and therefore it will not protect Canadians. It's as simple as that.
First and foremost we wholeheartedly support changes that create greater involvement for victims in the process. Without a doubt we want all victims affected by crime to be part of the process. It is our goal and desire to have fewer victims of crimes committed by, and on, people living with a mental illness, and that is why we are here today.
That being said, there are missed opportunities in this bill for victims, such as enhanced trauma-informed psychological support and services. The government has an opportunity to make changes that will result in fewer crimes being committed by people living with a mental illness. I would remind you that only 3% of people with a mental illness come in conflict with the law, let alone commit a serious crime. This means ensuring that people living with a mental illness have access to the services they need. How many times do we hear about a person living with a mental illness trying to find help before they fall through the cracks or commit a crime? Too many.
Instead of focusing on preventing the crime in the first place, Bill focuses on punitive and stigmatizing measures that undermine the purpose of the not criminally responsible designation in the first place.
We should be here today discussing a bill that would enhance mental health services for all: early identification; early intervention; and early treatment options. Mental illnesses are treatable and recovery is possible. This includes schizophrenia and psychosis.
I can honestly say it is awkward for me to be pleading with the Government of Canada to work with the mental health community on a bill about people living with mental illness. None of the nine organizations were consulted before the announcement of this bill. This should be common sense, but now I am in front of all of you today trying to make sure changes are not made that will actually jeopardize the safety of Canadians, while further stigmatizing people living with a mental illness.
Our primary request today is not to rush such an important bill, but for you to work with the mental health community in collaboration with victims. If the government chooses not to, we revert to the following recommendations to minimize unintended consequences.
Number one, remove the creation of a high-risk category based on the brutality of the crime. This is simply not evidence-based and there is no correlation between high risk and the nature of the crime and the response to treatment. We want individuals reintegrated into the community at the right time, as medically decided by the patient's health care team, which includes forensic psychologists and psychiatrists. Creating categories and labels that have no evidence behind them will prevent the patient from getting the help that he or she requires.
Number two, expand the criteria around supervised passes from “medically necessary” to “for any purposes related to the accused's treatment plan and recovery”. This would allow for easier access to treatment-related visits.
Number three, eliminate retroactivity of the bill. Again, the purpose of the NCR designation is to provide treatment for the individuals so they may recover and successfully live life in the community with the appropriate supports and services. They are patients, not criminals.
If retroactivity continues to be the goal, then retroactivity may prevent a patient on conditional discharge and anyone moving toward discharge from reintegrating into society at the right time. Holding them longer than they need to stay when having responded successfully to treatment will not only hinder their care, it will mean the longer detainment is for punitive reasons and not to protect the public or better their mental health.
Number four, include the requirement for research to evaluate the impacts of the proposed changes. Too many people, such as Dr. Crocker, have expressed their concerns over the proposed changes. To encourage transparency and accountability, research should be conducted before the bill takes effect, and if the bill is passed, certainly research after the bill takes effect.
I want to conclude by asking you to give more credit to Canadians. They want an effective, recovery-oriented working mental health system. Most Canadians fully recognize that rushing this bill is in no one's best interest. They recognize that further shaping this bill by working in partnership with mental health organizations will not jeopardize their safety because certain high-profile NCR individuals are soon to be before the review board.
If these individuals are not fully ready to be reintegrated into society, the review board will not allow it. Please give greater credit to the review boards and the medical service providers—the professional experts. Evidence shows the work they do is producing successful results. Let's not interfere with this with a bill that will not render any positive results.
It's a great pleasure to be here today to talk to you about Bill .
I'm speaking on behalf of the John Howard Society of Canada, which is a community-based charity committed to supporting effective, just, and humane responses to the causes and consequences of crime. The society has more than 60 front-line offices across the country, with programs and services that help to make communities safer.
You've already heard a number of witnesses who have parsed the content of Bill for you. I won't go into that in detail, except to say that the John Howard Society of Canada has no problems with the elements of the bill that are designed to assist victims, particularly in notification and providing no-contact orders. But as an evidence-based organization that is principally driven, we are unaware of any evidence suggesting that the existing review board procedures dealing with “not criminally responsible” are flawed. We would welcome seeing the basis for these proposed changes.
One of the key elements of a fair justice system is an ability to differentiate between the criminal and the medical dynamic in certain incidents. At the heart of fairness in the criminal law is that to be held responsible and liable to punishment, the perpetrator must not only do the act, but must also have criminal capacity, that is, to have understood the nature and consequences of the behaviour and to have appreciated that it was wrong. Factors such as mental illness, brain injury, and age can render a person incapable of having the necessary criminal intent, and therefore the person is not blameworthy or punishable for the act.
Many people, when they see a horrific act done by someone who is later found not to be criminally responsible, continue to refer to it as being a crime. It is a tragedy, but it doesn't hit the Criminal Code standard of being a crime because the perpetrator is not criminally responsible.
We are very concerned to make sure that those who have committed acts and are found NCR and no longer a danger to the public are not punished but are treated and reintegrated safely back into the community. The treatment and release regime in this area is delivered with much greater success than the treatment, release, and rehabilitation regime of the criminal justice system generally in terms of reduction in recidivism.
I had the benefit of reading the Canadian Bar Association's brief. We are very supportive of their charter jurisprudence dealing with the mentally ill accused and some of the issues that they raised. Our concerns are concentrated on two fronts. One is the adverse impact on the NCR regime. Our first concern is the high-risk designation under proposed paragraph 672.64(1)(b), which allows there to be a designation of high risk based on a single act. No matter how brutal, a single act is not an indicator of future risk. To impose additional restrictions on liberty based on this labelling is unfair and would likely violate section 7 of the charter and fail to meet a rational connection test under section 1.
Moreover, the high-risk designation and personal injury offence both could be based on psychological harm. To allow psychological harm as a trigger for a high-risk designation invites what the Supreme Court of Canada identified in Swain as “an irrational fear of the mentally ill” to influence the labelling and the treatment of the NCR.
The problem with the designation, and the regime that follows is it may be that people who can be quickly treated with psychotropic drugs and are able to be successfully and safely reintegrated into the community would have to wait an additional two years. Instead of the annual review, there would now be a three-year review. This would be an unfortunate and arbitrary detention of someone who does not need to be detained based on their mental health status.
Moreover, those designated as high risk who have permanent brain injuries and conditions that are not treatable, such as FASD and senile dementia, could be subject to indeterminate detention.
There are many community-based regimes which allow for people with certain brain injuries to function in a safe way in a community. It would avoid them taking up space in very expensive, highly limited forensic psychiatric institutions if there was some ability to look at their ability to be dealt with in the community in a safe way.
The regime really only has two categories: you're either in the regime or you're no longer designated high risk, and that presents another slight problem for us.
We also would prefer that the designation of high risk be done by the review board, rather than it being a judicial determination. The review boards are equipped with psychiatrists and the medical expertise to actually make a fair assessment as to whether or not someone constitutes a future risk. It would be beneficial to leave the expertise in the review board for that purpose.
The other concern of the John Howard Society is the adverse impact on the justice and correctional system and on scarce mental health resources. There is a legitimate concern that fewer mentally ill accused will raise an NCR defence. To get to the gate of a judge determining that you should be designated high risk, you would first have to be found to be NCR, which is usually a hearing which is kicked off by the accused or the accused's lawyer because they have identified certain psychiatric problems.
If they choose not to go with an NCR defence, it would be likely that they would be dealt with in the formal justice system, even though they may not have been capable of framing a criminal intent. The result would be that it would be unjust to punish them for an offence for which they lack the mens rea, but opted not to pursue an NCR defence because they did not want to be labelled with the high-risk designation and risk longer periods of confinement.
This could mean that more people with serious mental health conditions would end up in our corrections system, which is ill-equipped to address their needs. This is a high priority for many organizations, including the Correctional Service of Canada, to improve the capacity to deal with people who have serious mental illnesses and who are in the correctional system now. Adding to those numbers will make this challenge all the more difficult.
The other concern is with people who are designated as high risk and detained for longer periods in forensic psychiatric facilities. You're giving priority to people for scarce limited resources who may not pose the highest need or the most risk to the community, and most legitimately need that particular set of services.
In conclusion, the John Howard Society strongly supports the policy objective of limiting the harms caused by mental illness, both to the primary victims, those afflicted with the disease, and to others, including their family members.
Bill , however, will not achieve that objective. It will impose labels inconsistent with therapeutic goals of treatment and public safety. It will remove therapeutic expertise by making the labelling and associated regime a judicial process or a judicial determination. It will require that limited psychiatric hospital space be allocated on the basis of the designation, and it will have the effect of compounding the serious challenges posed by those with mental health issues in the corrections system.
The real challenge for public safety is the number of inadequately treated prisoners with mental health issues who will be returning to communities. This is where as a society we need to marshal our efforts and our resources. The review board process for the NCR is working well and does not need, in our view, to be changed.
Thank you for the opportunity to speak before you today on Bill .
I am a mother, a victim impacted by a crime committed by someone found NCR, and a practising psychologist.
l am the mother of Zachary Lawrence Antidormi. Zachary was murdered on March 27, 1997, at the age of two and a half. Zachary was playing with his best friend when our neighbour, Ms. Lucia Piovesan, came out of her house with a large kitchen knife tucked under her cape and stabbed my little Zachary 12 times. My beautiful Zachary died as a result of his injuries and, as you can imagine, my life was changed forever. I did not have my beautiful boy. I was rendered non-functional for almost a year, and people have now come to call me a bereaved mother and a victim.
Ms. Piovesan, who was 60 years old at the time of the act, suffered from a serious mental illness. She suffered from paranoid schizophrenia. Her delusions led her to believe that the spirit of her own dead son lived within my Zachary. She stabbed Zachary numerous times to release her son's spirit from Zachary. Ms. Piovesan was found not criminally responsible.
Ms. Piovesan had a history of erratic behaviour. Over the years, she had come in contact with hospitals, various doctors and psychiatrists, and the police, but she was never properly assessed or treated. We had called the police to our home more than a dozen times with the hope of having her apprehended and assessed. Ms. Piovesan's daughter also tried, without success, to have her mother apprehended, assessed, and put into treatment, but she, too, continually hit barriers.
Ms. Piovesan's daughter, as is true for much of the public, did not understand her mother's thinking or her mother's behaviour. She did not understand her mother's mental illness, and she did not appreciate the quality of her mother's delusional thinking. She tried to correct it and challenge it. In the end it was her mother's delusional thinking that formed the basis of her actions to murder my son to release the spirit of hers.
This year, on March 27, I was home from work owing to the fact that since Zachary's death, I have taken that day off, mainly for self-care. It was on March 27, 2013 that a verdict of not criminally responsible was reached in a tragic case in Ontario. It was determined that the individual who committed the crime suffers from a serious mental illness, and owing to the nature of his illness, he engaged in a behaviour that led to the death of another human being. The media coverage on this case and on Bill stirred feelings in me that surprised me, given their intensity. Given the intensity of these feelings, I felt compelled to explore them further.
Bill stirs in me feelings of upset in that the bill is very stigmatizing and punitive and does not reflect an accurate understanding of serious mental illness. The creation of a high-risk category based on brutality of the crime, for example, is not founded in any evidence. Brutality of the crime does not determine risk. Drawing attention to the brutality of the crime serves, instead, to perpetuate a myth that people with mental illness are violent. Further, lengthening the review from one year to three years for the high-risk accused is, in my opinion, punitive, not rehabilitative.
l do not understand how this bill will accomplish what it claims to be one of its main goals, namely, to enhance public safety. It is my understanding and experience that the review boards, which review cases annually and determine the level of security for those found NCR, work very hard to balance public safety with the rights of those with mental illness, and their efforts seem to be working.
My family was not protected. The lack of protection was not, however, due to flaws in current NCR legislation, but to a mental health system that is not working and has many gaps. Bill would not have protected my family, but an improved mental health system might have.
As already stated, the current NCR legislation appears to be working, with recidivism rates of NCR accused lower than those of persons found criminally responsible and managed by the corrections system. I find myself repeatedly asking, “Why target individuals after their crime is committed rather than directing more attention to preventing such crimes in the first place?”
When I read about the high-profile NCR case in the paper and learned that people had noticed the mental health of this individual deteriorating, and that he attended a walk-in clinic just a day before the killing with his main presenting complaint related to his thinking, I could not help but wonder what happened at that walk-in clinic.
Disordered thinking is a main characteristic of schizophrenia and this man was seeking assistance given his disordered thinking. Why was he not admitted for further assessment and treatment of his complaints and psychiatric status? Would it have taken too much time and effort? Were there no psychiatric beds available? Did the attending physician carry out a proper assessment? Did he have the knowledge to make an accurate diagnosis, or did he consider a referral? I can't help but ask, as I did some 16 years ago, did a faulty mental health system fail the families of the victim and the individual who committed the crime due to his mental illness? We must remember both families are victims.
Bill seeks—it claims—to protect the public and support victims. The mental health community supports the amendments related to victims' involvement. To this end, I can say that as a victim, I have been treated with respect and consideration. No one is arguing against the amendments pertaining to victims' involvement. Other components of the bill, however, are ill-informed and not evidence-based. As I have already indicated, they are stigmatizing and punitive and lead the public to believe that people with mental illness commit these acts because of ill intent created out of a sound mind. It is the mental illness that leads to the act.
Understanding Zachary's murder was not easy for me even as a psychologist. Understanding mental illness is complicated, and for victims such as myself, there is a strong need to hold someone accountable for the murder of their loved ones. The “lock 'em up and throw away the key” approach, however, has a vengeful nature and points the finger in the wrong direction. It does not reflect any attempt to understand the complexity of mental illness. Until the government directs its efforts at improving the mental health system versus creating a bill like Bill which will not protect Canadians, we are no better off.
Zachary was murdered over 16 years ago. Over these years, I strongly hoped our government would take leadership in helping people with mental illness so they would never get to the point of committing a crime. Instead, Canadians are presented with a bill that will not protect the public or help prevent a crime committed by someone with a mental illness.
As a victim, I ask this government to work with both the mental health community and victims to create a bill that will actually be effective in enhancing public safety rather than one that will only negatively impact people with mental illness.
Thank you to the witnesses for testifying.
Our sympathies to you, Ms. Triano-Antidormi. I think I said your name close to right, but I know it's Lori.
We heard some testimony, and we're led to the impression this bill radically changes the whole mental health way of dealing with those not criminally responsible. In essence, it does two things. It ensures that public safety is first in releasing those who are held not criminally responsible to the public and it enhances the victims' rights and gives them notification so they can avoid, perhaps, meeting the perpetrator.
How does it do this? Basically, there's the possibility of a not criminally responsible person being designated a high-risk person. In doing so, that person's case would be reviewed after three years, during which time, of course, they would receive treatment. Under the current regime, people can be held indefinitely. I believe the perpetrator in your case, Lori, is still being held. It was back in 1998. This is nothing new. 1998 is longer than three years ago. In both cases treatment is followed. In this new format, treatment is followed.
One can argue that very few of the not criminally responsible will be given a high-risk designation. Why? The tests to have that designation are relatively serious. The court can only make the finding if it is satisfied that there is a substantial likelihood the not criminally responsible accused will use violence; that they could endanger the life or safety of another person, if discharged absolutely or conditionally; or that the court is of the opinion the offence was particularly brutal as to indicate a risk of grave harm to another person.
Who would be the not criminally responsible who might be found of this? The cases of Vincent Li, Allan Schoenborn, Andre Denny, and Guy Turcotte come to mind. There are not millions of cases; there are very few. With that in mind, what we're doing here, in essence, is putting public safety first. It's making sure that these criminals are treated for whatever time is needed. There's no one-size-fits-all because some may need more time than that. It may be more than three years. Prior to their being released into society, they have to satisfy not only the Mental Health Commission, but they also have to satisfy a second level of scrutiny from the judge of the superior court.
Don't you think that in the minds of average Canadians sitting at home, they would take some comfort knowing that prior to Vincent Li, prior to Allan Schoenborn, prior to Andre Denny, and prior to Guy Turcotte being released into their society, in their hometown, that there's been not one, but two levels of scrutiny to ensure that maybe—just maybe—the incidents that these perpetrators have caused will not recur in their community?
Thank you very much, Mr. Chair, and I thank the witnesses for being here today.
It's interesting that all of the witnesses today, whether they come from the medical side or as a victim, have mentioned the police in one sense or another. That's my background; I am retired from the RCMP. It's normally the police who have to deal with these individuals time and time again.
I've heard today that we don't want to stigmatize those who do the minor crime, and I completely agree with that. But the fact of the matter is that this is the only book the police can go by; they cannot go by any other book. The minor crimes don't allow them to do anything. If I arrest someone for theft under $5,000, I'm immediately going to release the person. I can't hold them; I have no authority to do it.
We talked about brutality. The police act on brutality. That's how they act. That's how it works. We in this room may not like it, but that's how it works. I heard Lori say that they've called the police many times, but the police were probably saying, “There's nothing we can do. Call a hospital; call a doctor; call someone.” The police get to the point at which they say, “You need to fix this so that we can do something.”
We get to section 670 of the code, which has been there for many a year. The police recognize there's something broken there, because it's a revolving door for these people, whether it's those in east Vancouver who have severe mental illnesses, who we all recognize shouldn't be where they are, who need to get help, or others. The only help they get is from the police. It's the only help they get.
My question to you is from the perspective of police. What do you expect them to do? There's so much expectation put on them, and yet there's nothing they can do, but they are the ones who will decide.... I had this happen so many times in my career. I have gone to the hospital and said, “Please, I hope there are two doctors who will commit this person, because if there's only one, the person is not going to be committed.” In British Columbia that's the rule.
You're hoping that two will commit, but they don't, and you're going.... You have to let them go. We know what is going to happen within 24 hours. We know.
I think personally that these proposed sections are what is needed. Otherwise people, such as me in my former position, are going to ask, “What are you guys doing?” This is not, with all due respect, a bleeding heart society. Sometimes we have to take the bull by the horns. Even though it's uncomfortable, we have to put them in there for their own safety, recognizing that they will come gradually back into society, but we need to get them there first.
What suggestions do you have for the police? Is it to do nothing?