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Standing Committee on Justice and Human Rights


NUMBER 077 
l
1st SESSION 
l
41st PARLIAMENT 

EVIDENCE

Monday, June 10, 2013

[Recorded by Electronic Apparatus]

  (1550)  

[English]

     I call this meeting to order.
    Thank you, witnesses. We were voting, so we're a little late in starting. Welcome to the Standing Committee on Justice and Human Rights, meeting number 77. The orders of the day are, pursuant to the order of reference of Tuesday, May 28, Bill C-54, An Act to amend the Criminal Code and the National Defence Act (mental disorder).
    We have three panels today.
    My goal is to make sure that all the witnesses have an opportunity to get their 10 minutes to put their thoughts on the record, and then we'll go to as many questions as possible.
    There are likely going to be more votes this afternoon, so we may have to interrupt this meeting. To get started, I'll call your organization and you can introduce yourself. That will save time in our having to do it twice.
    As individuals we have Ms. Stacy Galt and Dave Teixeira.
    You're sharing the first five minutes, and the floor is yours, Ms. Galt.
    I'm sorry but I really must apologize. I'm so nervous being here, but I'm so thankful to be here and to be heard. Thank you very much.
    I've prepared something. I'm really being drawn to tell you the story. The actual story is very hard to put on paper. This is why I'm here to tell you why you should pass Bill C-54.
    As most of you know, the Allan Schoenborn case happened in Merritt about four years ago. Allan Schoenborn followed my cousin to Merritt.
    My cousin Darcie Clarke and her three children—10-year-old Kaitlynne, 8-year-old Max, and 5-year-old Cordon—went to Merritt happily. They had a good school to go to and a wonderful home. Darcie provided for them. She called me for a reference so she could actually start work and get her feet underneath her and get her life back and move on and move forward for her children, to make sure they had a healthy environment to grow up in.
    She was there. About two months went by. As I said, she phoned me and asked me for a reference so she could get a job because they were doing great in school. We thought the worst was over. Allan was leaving her alone.
    I can't remember if it was the Thursday or the Friday he showed up in town. My cousin Darcie was scared. She wouldn't let him in the house, but the kids wanted to see their father. So as a good parent would, she took them to the park and let them see their father. He kept saying he wanted to stay, he wanted to stay. My cousin Darcie was scared and she said, “No, you can't stay.”
    The kids wanted to see their father, so being a good parent, she wasn't going to begrudge her children the right to see their father. This is what's sticking with her. She didn't want her kids to resent her, and she let them see their father. She never in her wildest dreams thought he would do this to his own children. These were his children. She thought he was going to kill her. He'd always focused on her.
    Anyway, I remember my mom calling me and telling me that Allan was back in town and that my cousin Darcie left him alone with the children. She went to stay at her mother's house for the night so he could spend time with his kids.
    I can't remember if he phoned or she phoned, but he kept telling her to come home. She kept saying, “No, this is your time with the kids. Enjoy yourself with the children. All we do is argue and fight, and we don't want to keep arguing and fighting in front of the children.” He wouldn't let her get off the phone. He kept begging her to come home. It was maybe about two hours, she said, and she wanted to say goodnight to the kids and he wouldn't let her. He said, “No, they're sleeping already. They're fine. Don't worry. They're sleeping.” She said, “Okay.”
    She had to deal with this. This is what separated people do. She phoned in the morning, and there was no answer. She said, “Okay, phone again.” No answer. As soon as that happened, she just ran out the door, ran home, which was a long way. When she got there, it was every human being's nightmare.
    What happened was while 10-year-old Kaitlynne, who was the spitting image of her mother—blonde hair, blue eyes, just beautiful—was sleeping, he took a machete and slashed her face open. I was there when the testimony was read. Allan even said that Kaitlynne started saying, “Daddy, I'm sorry. I'm sorry. What did I do?” He just kept hitting her with a machete.
    Then, of course, with this going on, Max, who was eight years old, and Cordon, who was five years old, walked in to witness their father murdering their sister and they were not able to help. Of course, they were next. They had to watch each other brutally die at the hands of their own father.
    Eight-year-old Max was next. Allan Schoenborn grabbed a pillow and suffocated him, because the machete was too bloody. It didn't work fast enough and Kaitlynne could scream. For Max, he put a pillow over his head and suffocated him, and five-year-old Cordon had to watch. Then it was Cordon's turn.
     Max didn't die easily. He couldn't be suffocated quickly enough. It was too messy. So while five-year-old Cordon waited, he found a plastic bag to put over his head to suffocate him.
    Darcie wouldn't go home. He wanted her there because he wanted to kill her, too. She has always known that. He thought that if he killed everybody, they'd all be together in heaven.
    So what does he do? He leaves Kaitlynne in the bed, grabs Max and Cordon, props them on the couch to make it look like they're sleeping so that Darcie would have to get really close before she realized they were dead. He wrote “forever young”, which we thought was in blood but it was in soy sauce, above the kids' bodies. “Forever young” was Disney movies and stuff like that.
    Darcie explained to me how she felt when she walked in. “Oh, my gosh, the kids are there, but wait a minute. They're not moving.” She got close. She saw their little faces. Then she ran into the bedroom to see Kaitlynne, her face slashed open by a machete.
     Where did he get the machete? He brought it with him. She was up there for two months. He drove for hours. He had waited for days. He wanted to get her in the house. He premeditated it. He thought about it. It's unbelievably terrifying. If he gets out, I know she'll be dead. I'm helping Darcie. He's not going to let me go. He wanted to kill her children in front of her so she would suffer.
    After the court hearing, we thought for sure that it would be seen as being premeditated. That was going to happen, we thought, but there was a past history in his family of mental illness, and he was deemed to be not criminally responsible.
     My cousin Darcie can't live in Merritt any more. My heart goes out to her. I said, “Come live with me.” I wanted her to move in with me a long time ago. I wanted her to come and stay with me, but my mom was scared for my safety and told me I wasn't allowed. She went to Merritt to stay with her mother, and rightly so. But it was my turn to finally help her, to finally help my cousin. We grew up together. We were so close.
     She came to live with me. Just looking at her, I see what she is going through, not wanting to come out of her room. She's just a wisp of a person. It was a lot of hard work on my part to get her to the point where she would eat, where she would come out of her room, where she would leave the house, and then she has to do the yearly review.
     She comes home from going out. She got a pool pass. This is what kills me. He knows her so well. She got a pool pass. I was so proud of her, especially her wanting to be around children. How could she want to be around children so soon after hers have gone? She loves kids. She loves to be around children. I am feeling so proud of her, proud of her progress. She comes home with a newspaper article with Allan's face on it, saying that he is up early and wants to go to the pool, that he wants to go to Starbucks for coffee.
     He's in my area. Colony Farm is right down the street. What if he were to get out on a pass? I could walk into him. My cousin could walk into him, could see him. I shouldn't have to live like that, and neither should she.
     I thought I had called whoever I could call. I e-mailed whoever I could e-mail. The response was, “This is the way the law is laid out. There's nothing we can do. You'd have to change the law.” I said, “How do I do that? Help me. All I want is help.”
    Barry Penner, who was our attorney general at the time, said, “Stacy, what do you really want? Think reasonably. You're dealing with somebody who's mentally ill and needs care. You're dealing with a victim who has to go through a yearly review and can never heal. What would you like to see happen here?”
     My cousin and I talked. We knew that no matter what we did, even if we did change the law, it would never pertain to Allan. It would never pertain to me. It wasn't going to help us, but it would help someone else. It would help another family. It would help another mother or father not to have to go through the pain. We thought that was good enough. If we could help somebody else, it would be worth it.

  (1555)  

    I've fought long and hard. I've been on TV and radio shows talking about this. It's mind-boggling how my being here right now, speaking in front of you, has happened.
    Obviously the good people at the right time and in the right place and in the right situation are the reasons I am here. I'm really thankful for that because I get to speak and have my say, and not only that, but maybe pave the way for someone else to find some peace.
    My cousin Darcie cannot go to the yearly reviews. She can't stand up for herself. I'm the one who has to go. I'm the one who has to sit there and look into the eyes of the devil knowing what he did. I want him to get care and I need him to get care, but I also need my cousin to have time to heal.
    If Allan is in there for the next 30 years, I'll have to go to a review board hearing 30 times. How am I supposed to heal? Every time my cousin seems to get a little better, a yearly review comes up. She has three birthdays to deal with, Christmas, Easter, Mother's Day, Father's Day. Not only that, the review is held the same month the murders occurred. The pain....
    I'm sorry, I'm talking too much.
    The worst part about it, though, is that Allan was controlling and he still has control. He can stay a review. He doesn't have to show up for a review. He can ask for a transfer. My cousin doesn't want him moved. She wants to know where he is so I can take care of things for her, be there to speak for her.
    You may say that she doesn't have to speak, that it's common sense, and she doesn't have to write out this victim impact statement every year, that it's not necessary. But when you're a victim, it is necessary, it is very necessary.
    I'm sorry.
    Thank you very much.

  (1600)  

    Thank you, Ms. Galt, for that very difficult presentation.
    That is the 10 minutes. Is that okay? There may be questions today that you might be able to answer.
    Next, with the Mental Health Commission of Canada, are Louise Bradley and Patrick Baillie. You have 10 minutes.
    I am Louise Bradley, the president and CEO of the Mental Health Commission of Canada. I want to thank you for the opportunity to listen today to such a wide diversity of stakeholders, including yourselves.
    The commission has been asked by this government to develop Canada's first mental health strategy, which we developed and released last year.
    We were also asked to play a leading role in tackling stigma associated with mental illness, and for which we are targeting youth, health care professionals, the media, and the workplace. We were also given funding to undertake the largest study in North America looking at the issue of homelessness and the mentally ill. Last, we were asked to improve the capacity for sharing evidence, knowledge, and information about mental health in Canada.
    It is in this capacity that we are here today as a trusted adviser to government and stakeholders. Our role is to ensure that factual and pertinent information is provided to you as you deliberate on this very serious and important issue. There's the fact, for instance, that the vast majority of people with mental health problems and illnesses are not dangerous and violent. Indeed, they are more likely to be victims themselves.
    While unintended, there is a concern that these discussions may reverse some of the progress we've made thus far.
    The mental health strategy also states that assessment and treatment services are the way by which to prevent tragedies, like the one we've heard about here today, from ever happening, thereby ensuring public safety. This is an important component of discussions regarding mental illness and public safety and it cannot be ignored.
    The strategy also states that services are needed for all, and in the context of why we're here today, the mental health needs of victims and families are equally important. We want to ensure that the right kind and the right amount of support and services will be provided to victims.
    When it comes to specific issues like this one before you, we facilitate access to leading experts with the goal of giving Canadians the best evidence on which to make these important policy decisions. As such, the commission cannot take a position on the legislation per se, but we do rely on a very large network of experts and stakeholders to guide our three main areas of work.
    The focal point of this advice is currently through our advisory council. Dr. Patrick Baillie, who will take up the remaining portion of our time allocation, led one of our expert groups of individuals with expertise in mental health and the law. This included family members, persons living with mental health problems, professionals, and researchers.
    Dr. Baillie will present some facts and evidence based on his unique expertise as both a psychologist and a lawyer in Calgary. He contributes much to the commission. He is here today, however, to provide testimony as an individual expert.
    Dr. Baillie.

  (1605)  

    Thank you to the members of the committee for the invitation to be here.
    I want to emphasize that I am speaking as an individual, and in that capacity, I wear various hats. I'm a psychologist working in an outpatient forensic program in Calgary. I'm a member of the advisory council for the Mental Health Commission. I'm also a consulting psychologist with the Calgary Police Service. However, the views I'm expressing should not be taken as representative of any of those organizations, but only as being reflective of the experience I've had in these roles, the work I've done with my colleagues, and the patients I've seen over the years.
    I want to start by addressing the comments Ms. Galt made, first by expressing my condolences for her exceptional loss, and by agreeing with her that there are clear breaks in the existing system that need to be repaired. To be clear, to me this is a piece of legislation that comes in response to the kind of tragedy that Ms. Galt has described. There should be a response to it, but I do not think this is the forum in which that response should take place.
    The Mental Health Commission, funded by the health research foundation of Quebec, supervised a project looking at what happens to individuals who are found not criminally responsible. The survey looked at individuals in Quebec, Ontario, and British Columbia. Because of the tremendous data that was drawn from that project, we were contracted by the Department of Justice to provide some background information for this legislation.
    When we looked at individuals who had committed offences of homicide, attempted homicide, and designated sexual offences, they were found to comprise approximately 10% of all individuals who were found not criminally responsible. Certainly the proportions varied from province to province, but across those three areas the 10% figure was made up of those who had been engaged in these serious violent offences. That's out of a category of individuals who are very unlikely to be found not criminally responsible in the first place. By that I mean Canada experiences approximately 400,000 criminal charges per year, of which 1.8 per 1,000 or approximately 720 cases are resolved by way of a not criminally responsible verdict. Of those, 10% or about 72 cases a year are the cases involving serious violent offending.
    The nature of the offence tells us very little about the likelihood that the individual who's found NCR will benefit from treatment and will be successfully reintegrated into the community. By that I mean there are many variables that go into predicting recidivism. Those variables are addressed by review boards, which are given expert evidence and which make the decision about whether or not to grant release or to keep the individual detained.
    The recidivism rate for individuals granted an absolute discharge after a finding of not criminally responsible, over a three-year period, sits at 11%. Of those, 7% are for a new violent offence and 4% are for a new non-violent offence. If you do the math, 400,000 cases, 1.8 per 1,000 that result in an NCR outcome, 10% of those that involve serious violent offending and 7% of those that recidivate in a violent way, you end up with a piece of legislation that potentially affects four or five people per year. That is still a critically important number because of the information that Ms. Galt has presented to you today.
    I don't mean to dismiss that, but let's be clear. What the legislation intends to do is to change the parameters around NCR. If this is legislation that is intended to target Allan Schoenborn, Vincent Li, Guy Turcotte, and Richard Kachkar, none of those individuals had previously been found NCR, and each had been involved in his respective provincial mental health care system.
    When Louise talks about the need to support victims, I fervently advocate that in my own work. I see victims of crime, as well as the perpetrators. That gives me a unique perspective on what these people have experienced. This is legislation that does not affect the rate of recidivism, but in essence ends up being punitive towards individuals based on the nature of the offence.
     I encourage the committee to look at the information that has been provided in the research to the Department of Justice and to look at the supports that can be given to ensuring adequate services in the provinces so that individuals with mental health problems do not deteriorate to the point of committing serious violent offences and victims are given adequate supports so they can move on with their lives in a productive and meaningful way.

  (1610)  

    Thank you.
    Thank you for that presentation.
    Our next presenters, from the Barreau du Québec, are Monsieur Battista and Madame Joncas.
    The floors is yours, for 10 minutes.

[Translation]

    Mr. Chair, members of the committee, thank you for having us. I am here on behalf of the Barreau du Québec. I am joined by Lucie Joncas.
    The Barreau du Québec is a professional body that represents almost 24,000 lawyers in Quebec. Its positions are taken by elected bodies, following the studies and recommendations of its advisory committees.
    To fulfill its mission of protecting the public, the Barreau du Québec seeks to forge bonds of trust between lawyers, governments and the public. In the pursuit of that goal, the Barreau du Québec oversees professional legal practice, supports member practitioners, fosters a sense of belonging within the membership, and promotes the rule of law.
    The Barreau du Québec feels that this bill amends the mental disorder regime in the Criminal Code and the National Defence Act to specify that the paramount consideration in the decision-making process is the safety of the public. It creates a mechanism for ensuring that certain persons who have been found not criminally responsible on account of mental disorder can be designated as high-risk accused. It also enhances the involvement of victims in the regime and makes procedural and technical amendments.
    The Barreau du Québec feels that, when a court finds an individual not criminally responsible, but the individual poses a significant threat to the safety of the public, it is appropriate to take action to protect public safety.
    However, we think that it is important to refer to the principles identified by the courts. In Winko v. British Columbia (Forensic Psychiatric Institute), the Supreme Court addressed the issue of public safety in situations involving individuals found not criminally responsible. The court stated the following:
    Part XX.1 protects society. If society is to be protected on a long-term basis, it must address the cause of the offending behaviour—the mental illness. It cannot content itself with locking the ill offender up for a term of imprisonment and then releasing him or her into society, without having provided any opportunities for psychiatric or other treatment. Public safety will only be ensured by stabilizing the mental condition of dangerous NCR accused.
    Part XX.1 also protects the NCR offender. The assessment-treatment model introduced by Part XX.1 of the Criminal Code is fairer to the NCR offender than the traditional common law model. The NCR offender is not criminally responsible, but ill. Providing opportunities to receive treatment, not imposing punishment, is the just and appropriate response.
    The teachings of the Supreme Court indicate that providing treatment to mentally ill individuals is the most just and equitable approach to protecting the public. In addition, the court cites another ruling as follows:
    [T]he treatment of one unable to judge right from wrong is intended to cure the defect. It is not penal in purpose or effect. Where custody is imposed on such a person, the purpose is prevention of antisocial acts, not retribution.
    Section 672.54 of the Criminal Code is subject to a major amendment. The section currently states:
    672.54 Where a court or Review Board makes a disposition under subsection 672.45(2) or section 672.47 or 672.83, it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused:

    ...
    That is how public safety and the needs of the mentally ill person are taken into consideration. This is an important balance, a balance that we need to strike and strive for in a free and democratic society.

  (1615)  

    The proposed amendment creates the concept of high-risk individual. The wording of section 672.54, instead of talking about the “least onerous” disposition, places the “safety of the public” above any other criteria connected to the individual situation of the accused. In so doing, the amendments diminish the importance of the recognized objective of ensuring that the condition of the ill NCR person has improved as being the most just and equitable way to protect society.
    In addition, the proposed amendments amend the current assessment and treatment system set out in Part XX.1 of the Criminal Code, to be more similar to a punishment system than a system that provides treatment to someone suffering from an illness. To use the Right Honourable Beverley McLachlin's words, we believe that “the regime established in Part XX.1 of the Criminal Code”, meaning the part currently in force, “appropriately balances the need to protect the public from those mentally ill persons who are dangerous and the liberty, autonomy and dignity interests of mentally ill persons”, and we are afraid that some aspects of Bill C-54 will open up debate on the constitutionality of the new wording set out in the bill.
    Bill C-54 also sets out that a court martial may find the accused person to be a high-risk accused if:
    (a) the court martial is satisfied that there is a substantial likelihood that the accused person will use violence that could endanger the life or safety of another person; or
    (b) the court martial 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.
    This second criterion is concerning, since it does not take into account the person's condition. In our view, the second criterion presents constitutional weaknesses. The brutality of the acts that constitute the offence refers to the violent nature of the offence for which the accused was found not criminally responsible, not to the accused's mental health or how dangerous the individual may be.
    A basic principle of criminal law states that criminal responsibility requires an operating mind. We understand that victims of violent and brutal acts actually need active physical and emotional support from the government and society. Those issues need to be addressed.
    The Barreau du Québec has always promoted victim support and assistance services at every level. Their participation, their presence and their voices are important, but a democratic society also has a responsibility to create a fair balance. Punitive measures must be avoided, because the emphasis has to be on healing to protect society.
    My colleague Ms. Joncas and I are here to answer your questions, and we would be happy to do so.
    Thank you.
    Thank you very much.

[English]

    Our next presenter is from the Centre for Addiction and Mental Health.
    Mr. Simpson, you have 10 minutes, sir.

  (1620)  

    Good afternoon, Mr. Chair, members of the committee, and my fellow witnesses, most especially Ms. Galt. Her account to us this afternoon reminds us of the nature, the severity, and the magnitude of the issues we're talking about.
    I am Dr. Alexander Simpson. I'm a psychiatrist. I'm the chief of forensic psychiatry at the Centre for Addiction and Mental Health in Toronto, and I'm head of the division of forensic psychiatry at the University of Toronto.
    CAMH is Canada’s largest mental health and addictions academic health sciences centre. Our forensic program provides care to and supports individuals designated as NCR, or unfit to stand trial. We care for over 30% of Ontario’s NCR accused persons and accordingly have a keen interest in the amendments to the NCR legislation that will affect our patients and our ability to provide them the best possible mental health care.
    I would like to address three specific aspects of Bill C-54.
    The NCR regime has been in existence in its current form for 21 years. NCR is a rare disposition, though it has been more commonly applied in the last two decades. It is effective and successfully rehabilitates people with a mental illness that has caused them to offend. NCR accused persons present less risk to others than similar persons who are criminally responsible for their offending and are sent to prison.
    The current controversies that have given rise to the reasons for this legislation are a small number of high-profile offences of a grievous nature, as we've heard. The victims are understandably deeply traumatized and find the thought of community reintegration of perpetrators horrifying.
    This isn’t about the current risk, however; it is about the nature of the trauma that occurred over past incidents. This presents a real difficulty for Parliament and for those of us involved in the care of NCR accused persons: how to be sensitive to the needs of victims without punishing the illness. Thus, the factors driving this bill are real and difficult ones; however, in my view, two-thirds of the answers in this bill are the wrong ones.
    First, with regard to victim safety and involvement, CAMH supports Bill C-54's commitment to victim safety. Victim safety is always at the forefront of the decisions made by review boards and by forensic mental health programs and treatment planning. This part of the bill makes explicit powers that already exist.
     Victim involvement in the review board process is also very important, and we agree that victims should continue to be included in that process if they choose to be so. However, addressing victim needs must be broader than simply notification. New approaches, such as issues of restorative justice, may be of equal value.
    Second, on the creation of the “high risk” designation, Bill C-54 proposes a “high risk accused” designation. CAMH has concerns about how this new designation can be determined and its severe restrictions on those considered to be high risk.
    High risk is about the possibility that future violence may occur. Counterintuitive though it may seem, the brutality of the person's index offence is not an effective way of telling if somebody is going to be at high risk of future offending. Instead, it looks only at the past. Therefore, a high-risk regime built around a single severe act of violence alone is not evidence-based or scientifically based and may thus be seen as arbitrary in a non-punishment regime. If brutality is not to be used, one must ask, then, what the proposed “high risk” category adds.
    First, there are clearly some NCR accused persons who are of high risk. Currently, they may spend many years in conditions of high security, without community contact. One only gains access to the community if one's risk has fallen to such a degree that community contact is a safe option, so the available security proposed in the “high risk” category already exists for a significant number of NCR accused persons. Second, implementing the “high risk” category decreases the expert oversight of the person's care and limits therapeutic opportunities. This will delay progress or increase risk and will not assist public safety.
     For these reasons, it is both ill-designed and wrongly targeted, and CAMH recommends that the “high risk” designation be removed from the legislation.

  (1625)  

    Tightening of the criteria for all NCR accused is third. Of great concern to CAMH is the Bill C-54 recommendation to change section 672.54 of the Criminal Code. This will tighten the criteria for progress and release for all NCR individuals. Bill C-54 makes safety the paramount consideration when a disposition order is made. While similar wording already exists in case law, changing the wording in the Criminal Code clearly signals the desire to shift the emphasis of the entire NCR regime. The original intent of the NCR legislation was to balance public safety with the treatment of rehabilitation needs of the mentally ill offender. Shifting this balance will prevent the NCR individuals from receiving the best possible mental health care while cognizant of public safety.
    The bill also amends the current NCR legislation requiring review boards to make disposition orders that are the “least onerous and least restrictive”, to make orders that instead are “necessary and appropriate in the circumstances”. Given the context of Bill C-54 and its primary focus on public safety, it is likely the necessary and appropriate dispositions will be more restrictive, and that more NCR individuals will be detained in forensic units for longer periods and in higher-security units than is actually necessary. Not only will this compromise rehabilitation and community reintegration for any NCR individuals, but the widespread application of this amendment will lead to increased pressure on forensic mental health programs which are already operating over capacity.
    Clause 10 of Bill C-54 introduces a new statutory regime of significant threat. It no longer requires the word “real” in relation to potential harm or violence, therefore lowering the risk threshold necessary to maintain the jurisdiction of the NCR over individuals. Given the impact of these changes on the NCR regime as a whole, CAMH recommends that section 672.54 remain as it currently stands in the legislation.
    We fear significant unintended consequences of this legislation. We fear that the shift to increasing security and restrictions over treatment of rehabilitation will make the NRC regime much less attractive as a regime to go down. We fear defence counsel will argue to potential NCR accused not to go down this pathway, and instead plead guilty and go to prison. We think this will place increasing pressure on provincial and federal correctional services by having more mentally ill persons in prison, who will be released from custody at higher risk of reoffending than those people under the NCR regime. Thus paradoxically we fear that public safety will actually be compromised by this bill.
    I thank you for your attention and will be happy to take questions.
    Thank you, sir, for that.
    Those are the presentations from our groups today. As you may know, there will be a bell in about five or six minutes. I need unanimous consent to go through the bell. I'll call it at the time that the bell goes, because who knows what's happening in the House.
    To get us back sort of on time we'll go a little bit past 4:30, one round of five minutes per party. Share your time if you need to. The first round means there are two Conservative slots, one NDP, and one Liberal. We'll deal with this panel, and we'll see if we can get started on the next one before we have to recess.
    With that, the first questioner is Mr. Mai from the New Democratic Party. Mr. Mai, and I'm going to hold you to your five minutes.

[Translation]

    Thank you, Mr. Chair.
    My thanks to the witnesses for joining us today.

[English]

    More particularly, thank you, Ms. Galt, for your testimony. I'm sure I speak on behalf of everyone when I say that we really heard what you said, and we really admire your courage in coming here today and sharing your story.

[Translation]

    My question is for the representatives from the Mental Health Commission of Canada.
    We asked the government questions about the consultations. A number of witnesses, including those from the Canadian Psychiatric Association, told us that there have not been any consultations.
    Yet the minister keeps telling us that this situation is problematic. This issue, where the recidivism rate is 38%, has become politicized to an extent.
    Have there been consultations, yes or no? And could you give us the exact numbers on recidivism?

[English]

    I'll speak to the first part of that question, and then Dr. Baillie will speak to the second part.
    We asked for a meeting with the minister back in November as soon as the press reports came out. We indeed were granted a meeting very soon thereafter. So we did offer to have experts present to the minister. I'm not sure whether or not those did occur. Very recently we had Dr. Baillie in particular meet with some folks here, but whether or not the minister went beyond that, I'm not sure, but certainly he had a meeting with me and we offered the experts to be available to him.

  (1630)  

     I would add that in terms of the meetings that I had at the beginning of March, I very much appreciated the openness of members of all parties to some of the suggestions that I was bringing forward. I also circulated an e-mail earlier today to all the members of the committee regarding some possible amendments for your consideration. I hope that they have been received.
    Regarding the recidivism statistic, there was an unfortunate error that occurred in the initial draft of the report that was provided to the Department of Justice in November 2012. That is the source of the figure of 38%.
    There was an error in the coding of some of the data. That error was discovered on March 14 and immediately communicated to the minister's office, and a revised report was provided on March 18 with that data corrected. That five-day period was quite laborious because we had to go back to the original files to see what had happened. Frankly, what had happened was that individuals who had a previous criminal conviction were lumped together with individuals who had a previous finding of NCRMD leading to the number that you've quoted. That number is an error.
    Clearly, the number of individuals who had a criminal conviction was substantially higher than the number of individuals who had a previous finding of NCR. A new report was submitted to the minister's office on March 18 regarding that data. It shows that among the homicide offenders, 5.2% had a previous finding of NCR; among the attempted murder offenders, 4.6% had a previous finding of NCR; and among the sexual offences, 9.5% had a previous finding of NCR.
    I emphasize that those are findings for any type of offence on an NCR. In each of the categories, there was one person with a related offence. So one previous homicide became a homicide NCR, one previous attempted murder, and one previous sexual offence.
    Thank you very much.

[Translation]

    My question is for Mr. Battista from the Barreau du Québec.
    The Canadian Bar Association also expressed its concerns with respect to the potential problems of constitutionality, especially in terms of a less onerous decision. The fact that the term “brutality” is not actually defined and the situations in which the accused would be considered to be high-risk have also been raised.
    You briefly told us about potential constitutional problems. Could you elaborate on that?
    You have 30 seconds left.

[English]

    Yes, I'll try.

[Translation]

    Basically, it is a matter of finding a balance between protecting the society and protecting the individual. As experts will tell you, it is always very difficult to assess how dangerous an individual is based on the one act the person committed. The act is definitely a major factor, but that is not what tells us whether the person will reoffend or not.
    As an aside, the Barreau du Québec is happy that the judges will be responsible for assessing those issues. That is a good thing. However, we feel that, if a person is designated because of the offence committed and the brutality of the offence—which is a rather broad concept—and if the legislation sets out very strict rules for the process, it will create a straitjacket. In which case, the freedom of the person is at stake, when sometimes that is not necessary.
    When it is necessary, the courts act accordingly. That happens every day. Dangerous people are sent to hospitals and are deprived of their freedom to a certain extent. At any rate, our concern is that it will create a straitjacket.

  (1635)  

[English]

    Our next questioner is Mr. Wilks from the Conservative Party.
    Thank you very much, Chair, and thank you to the witnesses for being here today.
    My questions are for Stacy and Dave.
    You did very well, Stacy. As a retired police officer, you provided very good evidence as well.
    You had mentioned within your statement that each year you would need to go for a review based on the fact that Mr. Schoenborn would be in for an extended period of time. I want to know, how do you feel about the opportunity for a review board to extend the period for review up to 36 months, from the perspective of the victim and the healing opportunity for the victim?
    After you answer, I will turn my time over to Mr. Seeback.
     I apologize. You're asking me....
    How does it make you and Darcie feel that it goes to three years instead of one year?
    How does it make us feel that it'll be three years instead of one year?
    From the perspective of the victim, the ability for healing of the victim and giving the victim that much more time to be able to heal, do you believe that three years is a better form for the review board to go down than what it is now, which is every year?
    Before you answer, Ms. Galt, the bells are ringing. I need unanimous consent to continue until the end of this round.
    Some hon. members: Agreed.
    The Chair: The floor is yours, Ms. Galt.
    Yes, actually. The amount of pain that goes along with the yearly review, having to write the statement and having to think about it coming up, is something that we just dread. We know every April that this is what's going to happen. If it were every three years instead of every year, it would give my cousin Darcie a chance to get her feet underneath her, to maybe even think about some sort of happiness, if she could ever find that again. Just to be able to get out of the house, feel normal and a part of society would be wonderful for her. But to live in constant fear of him being released.... I know there are people taking care of him, and they're very good people. They're not going to release somebody who shouldn't be released, but he should be....
    My cousin's rights should be taken into account as much as his. Right now, the victims don't seem to have any say in anything. It would mean the world to Darcie not to have to do it every year, to have to do it every three years. Maybe I might be able to get my life back too, because it takes everything out of you.
    Thank you very much.
    Mr. Seeback.
    Mr. Battista, you're one of a number of people who have come to this committee to say that we're putting in this section that says all you have to show is the crime was brutal, and that's very subjective and it might infringe on rights.
    The problem I have with that statement is it's actually not very accurate. If you look at the section, it says quite clearly, “the court 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.” It's not just brutal. That's actually not factual in the statements that are being made.
    Also, when making that decision, the court has to look at a variety of factors, not just the brutality. Those factors would include opinions of experts who have examined the accused, the accused's mental condition, and the pattern of repetitive behaviour. So it is not in fact brutal; there are many more factors that are considered.
    Would you not agree with me?
    I agree with you that.... As I said in my previous intervention, what we are glad about is that the courts are nonetheless given the discretion to evaluate these factors, and we certainly trust the courts to do the right thing. However, our concern is that because of the language of the legislation.... The principle is that legislators don't speak for no reason and therefore, when the legislator speaks, there is an intent there.
    What we feel is that by referring to concepts such as the brutality of the action.... Because that's the question, there are factors to consider, but what the court will have to decide is the brutality and the impact that the action can have on other people psychologically. This is a very broad question to answer, and it may not in fact have any bearing on the reality of the risk for reoffending.

  (1640)  

    But that's not the only factor. You also have to look at the opinions of experts, for example. I don't find it genuous to say that we're saying it's brutal and that's it.
    Mr. Simpson, you made the allegation others have made that because of these changes people might choose not to be NCR accused to avoid the regime. I find that hard to believe because when you look at the section with respect to when somebody would be NCR accused, it refers to “a substantial likelihood that the accused will use violence that could endanger the life or safety of another person”. This is going to be someone who perhaps is very dangerous. It could be people like Mr. Turcotte, or the person we heard about from Ms. Galt, or even the person in the Tim McLean case. I highly doubt those people would choose to go through the regular court proceedings rather than NCR accused and face 25 years to life. I don't understand where you're coming up with saying that people would avoid that.
     I'm sorry, Mr. Battista, you're not going to have a chance to answer. It's well over time.
    Our next questioner is Mr. Cotler from the Liberal Party.
    Thank you, Mr. Chairman. I want to send my appreciation to the witnesses. Ms. Galt, I know the pain that's engaged in your testimony today.
    I have a question for Dr. Baillie.

[Translation]

    If I still have time, I will ask Mr. Battista a question as well.

[English]

     Dr. Baillie, you referred to the two drafts of a research report that was led by Dr. Anne Crocker from McGill University. As you indicated, there were significant differences between the two reports resulting from an error in the coding of the data.
    To your knowledge, was the government made aware of the errors in the November draft of the report?
    If I may clarify, sir, I want to quibble with the term “significant errors”. There was one primary error that related to the coding of previous NCR cases. When we looked at research on recidivism, or the number of individuals found NCR, or the nature of the offences that led to the NCR, all that data remained the same.
    We became aware of the error on March 14 and communicated that to the minister's office that day. The amended report was then provided to the research division on March 18 with an acknowledgement seeking clarification of the nature of the coding error. So the office was aware of that in March.
    Would it surprise you to know that the incorrect data was subsequently cited by a government minister as late as May 27 and again last Wednesday by Mr. Armstrong in this committee?
    I think it is important for the committee to have accurate and up-to-date information on such a serious issue, and I hope that the report that was provided to the office in March can be made available to the members of this committee for their deliberations on this topic.
    My position is the review boards are typically doing a very good job of making these decisions. They already have judicial oversight by virtue of the court of appeal provisions that are in the existing legislation, and the recidivism data as now corrected show, by and large, that review boards are making the right decisions.
    Thank you, Dr. Baillie.

[Translation]

    Mr. Battista, could some parts of this bill be problematic from the perspective of the Canadian Charter of Rights and Freedoms?
    As I said earlier, this is about the paramount consideration given to the deprivation of liberty in the case of someone who is clearly responsible for committing a serious crime, but is not responsible criminally.
    The paramount consideration given to the deprivation of liberty is problematic. The concern for public safety must also include the individual's rehabilitation and reintegration into society. We must strive for that balance. But this bill does not do that. Instead, it gives precedence to public safety, without giving enough consideration to rehabilitation and reintegration. That is what we think. In some cases, reintegration is the best way to enable someone to become rehabilitated and to heal.
    My colleague will add to my answer.

  (1645)  

    One point is being missed in this debate. Someone found not criminally responsible today would normally be detained three to 30 times longer than someone who pleaded guilty. We must not ignore that fact. It is absolutely false that someone found not criminally responsible suffers fewer consequences.
    The protection of society depends on rehabilitation and treatment. We have provided you with numbers on this. People with mental disorders who go to jail have a higher recidivism rate than those found not criminally responsible who stay in hospitals.
    Thank you.

[English]

    You have one more minute.
    Okay.
     Dr. Simpson, are the facilities that treat the NCR accused able to accommodate an increase in the number of patients, and what might be the consequences of overfilling these institutions?
    I can only speak directly from my own organization, but I'm also co-chair of the Canadian Forensic Mental Health Network, so I'm familiar with some pressures across the country.
    Most forensic services nationally are at or near capacity. If you look at Ontario, most of us are running over capacity. Clearly, if one gets overcrowding within secure mental health facilities, the risk of violent behaviour, both patient to patient and patient to staff, rises and those environments become more dangerous and less therapeutic.
    We then get further problems of people waiting to gain access to forensic beds having to wait in remand in provincial prisons, and that results in other negative outcomes for both the offenders and the prisons they're in.
    An increase in demand for forensic beds coming from people taking longer to rehabilitate would require an increase in forensic in-patient capacity. They are the most expensive beds in the mental health system.
    Thank you for those questions and answers.
    Our final questioner is Mr. Albas from the Conservative Party.
    Thank you, Mr. Chair.
    I want to thank all of our witnesses for being here today, particularly Ms. Galt. Your testimony today was very captivating. These are things that legislators need to hear. We have all these laws we keep in place, but we don't always keep in mind the people who suffer because of some of these acts, so I appreciate your being here today.
    Among other things, Bill C-54 would create a new scheme for the courts to designate certain not criminally responsible individuals as high-risk mentally disordered accused. This order would then be made on application by the crown in cases in which mentally disordered individuals were found to have committed a serious personal injury offence. When one of these designations is made by the court, provincial review boards would be required to order a custodial disposition, with the condition that the person not be granted unescorted passes in the community. The existing mandatory review period of 12 months could—and I believe in the legislation it says “may”—be extended by the review board up to 36 months for those designated as high-risk MDA.
    First of all, Ms. Galt, I believe you mentioned to Mr. Wilks that you're in support of that. I'd also like Mr. Teixeira to answer that.
    By way of introduction, I've been working with the family for about two and a half years. I saw this in the newspaper in my local community, and I volunteered my time, my company's time, to do government relations, public relations, and media relations, because I saw the travesty going on within the system.
    We've also worked on not only this part of the legislation, but we also worked to correct some of the domestic violence laws that are in British Columbia. In fact, we had Premier Christy Clark present an apology to the family last year, and also to provide a report to ensure this doesn't happen again. We're looking at all sides of the spectrum.
    With regard to the up to 36 months provision, I can tell you I've seen the pain this family goes through. The other thing this committee may or may not be aware of is that on a whim, the NCR accused can change the date of the hearing. For example, in April 2011, Mr. Schoenborn set the date, wanted to change it, then did not show up for his own hearing. In 2012 he decided he didn't want his date.
    By the way, the family has been trying to move the date from the anniversary of the murders. They were told no, that the patient has to agree.
    In March 2012, he wanted to move it to Christmas. Of course, we put up a fight. The crown agreed. He moved it to November. In November, four days before the hearing, he decided he didn't feel like that date was sufficient, so he moved it to Valentine's Day. That was convenient for the NCR accused.
    This is the pain the family goes through. If it were every three years, the family could heal. Between hearings, it's like an election. Once you win your election, you're gearing up for the next election. Once they finish a hearing, they're gearing up for the next hearing. There's no time to heal. Three years would give the accused an opportunity to get better, and it would give the family an opportunity to heal as well.

  (1650)  

    Your opinion right now, then, is that the system actually allows, in this case, the person who's held not criminally responsible to actually use the system in a way that victimizes the victims again and again.
    Absolutely it does. In fact, the current system.... When I hear from experts that this bill stigmatizes the mentally ill, I'm shocked. The current system stigmatizes the mentally ill, because there's one classification: there's NCR. Whether you throw a brick through a window or you murder three defenceless children, you're NCR. This new legislation destigmatizes and says to everyone, reaffirms, that the mentally ill are not dangerous, that NCR people are not dangerous.
    However, we need to get rid of the political correctness. There is a subsection of society that is dangerous, and this legislation acknowledges that and gives protection to society, gives victims time to heal, and allows the NCR accused to get the help they want, so up to 36 months is excellent.
    The crown would therefore be making this application to have someone given this designation of high-risk mentally disordered accused.
    If I look at the actual legislation proposed paragraph 672.64(1)(a) says, “the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person...”. It sounds very much like what your cousin has gone through. Then proposed paragraph 672.64(1)(b) says, “the court 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”.
    There are other factors the court has to consider. To me it only makes sense, as Dr. Baillie has mentioned, that these are a small number of cases, but the fact is the crown would only seek it if it was in the public interest.
    Yes.
    Thank you.
    Thank you very much.
    Thank you, witnesses, for coming today. It was very difficult for everybody being on the same panel. I really appreciate your contribution.
    The bells are ringing and we do need to vote. We will come right back after the vote.
    Just so my colleagues on committee know, so far we have 55 amendments, at least 22 of which are in order. Be prepared for a long evening on Wednesday night when we do clause-by-clause study.
    Thank you very much. I'll talk about it more when we get back.
    We're suspending the meeting now.

  (1650)  


  (1720)  

    We're going to call meeting number 77 back to order.
     I want to thank our witnesses for waiting for us. We have three witnesses for this panel. Ladies and gentlemen, we'll have 10 minutes per witness and then we'll do a round of questions. Then we have another panel, another three witnesses. We have to be out of this room at seven o'clock, because someone else has it then. I'm trying to get us back on track as fast as we can, so we'll limit the rounds of questions.
    We have one person on a teleconference from Victoriaville, Quebec. André Samson, can you hear me?

[Translation]

    Yes, I can hear you very well.

[English]

    You have 10 minutes for your presentation. The floor is yours.

[Translation]

    Good afternoon. My name is André Samson. I live in Victoriaville, in the province of Quebec. I am 51 years old and I am unable to work. I live on my disability pension.
    On August 1, 2002, my brother Martin Samson and his spouse Marie-France Foucault were murdered in their home in Victoriaville. The person who murdered my brother and his spouse was found not criminally responsible.
    The accused was arrested. He was in the Hôtel-Dieu d'Arthabaska hospital for a few hours, then he ran away. The Sûreté du Québec helicopter and the response team spared no efforts to track him down. After several days of searching, he was finally caught. He was selling things to make some money and leave the city. The day after his arrest, he was charged with two counts of murder. The trial lasted a year and a half. We were very surprised to hear that the murderer was found not criminally responsible, because he was a very intelligent person studying at a school for adults.
    Since then, we have not received much help. My family and I support Bill C-54, which will provide more information to victims and help them feel safer. Access to information with help families feel safer, because part of the fear and insecurity experienced by families of murdered persons stems from a lack of information in this NCR system.
    My family would very much have liked to know what was happening at the mental health review board hearings. We were never kept informed of the proceedings. We were never invited to the review board hearings. We were never given an opportunity to speak. We were cast aside. We were in a vacuum and we had no documents. For four or five years, we did not know where he was living. Had my girlfriend not been a court clerk, my family and I would not have known which hospital he was staying at. Had she not been my girlfriend, she would have never told me.
    My family was not informed. We had no idea whether the attacker was taking his medication and whether he responded to treatment. We had no idea whether the attacker had any rights to leave the hospital or when he would be able to leave. We had no idea whether he was accompanied when he went out. We were never told when he was discharged from the hospital. I found out two weeks later. My girlfriend told me and I told my family.

  (1725)  

    My parents had to take steps to keep themselves safe because they were afraid that the attacker might go to their house and threaten them. We were not aware of the conditions of his release.
    One day in January 2011, I was in the shopping centre and saw the attacker who had killed my brother and his wife. When I saw him, I was frustrated and afraid. I was under stress. I was at a loss.
    Victims like us deserve to be part of the legal process. But we have been completely excluded. I often wonder whether we, as victims and as human beings, also have a right to security and to information. We have been denied our rights under the Canadian Charter of Rights and Freedoms. We should be respected as victims because the Canadian Charter of Rights and Freedoms states that Canadians have the right to life and security.
    My brother and his wife were deprived of that right and, to make matters worse, the members of my family and I had no right to security, as we were never informed about his release. Security goes hand in hand with the information provided to victims. How can we feel secure if we do not know when a murderer will be let out of prison and when he can roam the streets and come into our neighbourhood?
    This bill gives the right to security back to victims. At the moment, the aggressors have better protection than the victims. This legislation will provide more supervision to those declared not criminally responsible. By remaining under supervision longer, and by having more access to medical resources, the aggressors will be able to stay in their rehabilitation programs longer.
    Having information would have made us safer. This bill will let victims be informed and feel safe. It restores dignity to the families of those who have been murdered.
    Thank you.

  (1730)  

    Thank you, sir.

[English]

    Next we have two witnesses from the Canadian Civil Liberties Association.
    Introduce yourselves, and we'll give you 10 minutes.
    Thank you very much.

[Translation]

    Good afternoon. My name is Nathalie Des Rosiers. I am general counsel for the Canadian Civil Liberties Association. I am accompanied by Michelle Thomarat, a student in our office.

  (1735)  

    Okay.
    I will speak in French first and then in English. Basically, I want to make three points.
    Yes.
    First, it is the association's position that we need an approach that fully meets the needs of the victims; the need of the victims for information is certainly recognized here. It also recognizes that there are major gaps in support and financial assistance for victims and also in the access to mental health services that can prevent the tragedies we are hearing about today.
    Yes, yes.
    As our first point, to a certain extent, we feel that it would be preferable for this bill to have been set in a broader context of support, and to have as a strategy the protection of and support for people who are victims of crime and, specifically, a broader strategy of fighting mental illness and its effects on society.
    My second point essentially deals with some food for thought, with a criticism. The key point in this bill is the definition of “high-risk accused”. The minister wants to make a distinction here. We have to decide whether, in so doing, he has used the right language and the right concept.
    Yes.
    We have to ask ourselves if we are not, in a way, changing the therapeutic approach that is necessary to treat mental illness and confusing it with a more punitive approach where punishment is the main thrust and the aspect of therapy, in the sense of managing the mental illness, comes second.
    My third and final point deals with the need to evaluate the bill if it goes into effect, because experts differ greatly on the real effect that the bill will have on public security.
    Yes, yes, yes.

[English]

    My three points are essentially these.
    Number one is the necessity that this act should be framed in the context of a larger strategy on mental health.

[Translation]

    Yes.

[English]

    In a way, although it does aim to respond to the informational needs of victims, it does not respond to other needs, for example, financial help and support. It certainly addresses very little the need for prevention and the lack of access to mental services in Canada, a problem that we are particularly aware of, since many people call us.

[Translation]

    Yes, yes.

[English]

    Are you trying to...?

[Translation]

    That's good.

[English]

    Monsieur Samson, when somebody else is doing their presentation, we don't need any comments from you.
    There'll be questions for you in a few minutes. We'll let you know.

[Translation]

    Yes.

[English]

    We can hear you say “oui”.

[Translation]

    That's great.
    Glad you agree. Ha, ha!

[English]

    You agree and that's nice, but we don't care.
    Voices: Oh, oh!
    The Chair: Go ahead, Madame Des Rosiers.
    One of the issues here is to avoid any changes in the message that will raise the danger of continuing to have misinformation about mental disorders. Particularly, the act does use the words “mental disorder” without specification, and I think that has contributed to the criticism that the act unfortunately perpetuates some of the stigmatization that identifies all persons suffering from mental illness as being dangerous or incurable.
    Indeed, I think it's very important that the government take this step, because we know that to the extent there is increased stigmatization about mental illness, it decreases public safety because it decreases self-awareness, decreases self-referral, and it certainly increases discrimination and stereotyping, which is not a good thing.
    I want to focus on the pièce maîtresse of this legislation, which is the definition of the “high-risk accused”. I will make a couple of points here. The language that is used has two flaws, in our view. The first is that if you look at the definition, it's one of either proposed new paragraphs 672.64(1)(a) or 672.64(1)(b).
    The first is essentially whether “the court is satisfied that there is a substantial likelihood that the accused will use violence...”. It's inviting the court to do a prospective assessment of the potential for violence. I think this is the wrong place to do this, because the treatment has not begun. It's a little bit like putting the cart before the horse.
    I think 672.64(1)(b) is the place where we have more concerns. It states, “the court is of the opinion that the acts that constitute the offence were of such a brutal nature...”.
    I think the flaw here is that it will be very difficult to identify what the acts are that the minister wants to address here. I think it's a little bit of an “I'll know it when I see it” type of approach. Many of the tragedies that have been referred to evoke such a deep emotional response from all of us that we think we know. Our concern is that it will be very hard for any victim not to think they have been brutally aggressed. I could not ever imagine a victim of sexual assault or a family of a murder victim who would not say, “There was brutality here”.
     Indeed, in trying to assess why this is the right word, we looked around the world to try to assess whether there were other uses of the word “brutal”. What does “brutal” mean? Is that the right word? In our view it's not the right word. We would suggest that proposed new paragraph 672.64(1)(b) be deleted because of the possibility of an unworkable definition that is unfairly vague and may lead to too many people being caught in this web.
    In our view, the second part of the criticism is that the concept of “high-risk accused” may present a confusion between the approaches that are necessary. I think we have to remember that the reason there is "not criminally responsible” is when it has been deemed—and there could be mistakes at times—that the person is incapable of distinguishing between right and wrong, and therefore it's the illness that caused the crime and not the person. In that context we have a therapeutic approach that looks to correct the illness, as opposed to punishing the person. Focusing on the acts as opposed to the illness is a slippage in the way in which we should approach this problem.
    Finally, I think it is absolutely crucial that there be a form of evaluation. I would suggest that this would be an appropriate amendment for this committee to make, to ensure that in five years there is a proper evaluation.

  (1740)  

    We've heard today that there are some differences of opinion as to whether or not this will have the perverse effect of diminishing the number of people who will opt for NCR and they end up in prison and all the problems increase. A prison is not the right place to treat serious mental illness. We know that. It creates tremendous problems for the prison system, and for the offenders and the guards. It's not the right place.
    As we are assessing in our evaluation, the way in which the legislation is framed does not accomplish the goal. The use of the word “brutal” will not serve the victims well either. They will feel slighted if the acts that have been committed are deemed not to be brutal enough. In our view the intent will not be carried through by the concepts and language used in the bill.
    In conclusion, we think, one, the government owes it to the Canadian public to counteract some of the messages with respect to mental health illness associated with this bill. Second, it should review the use of the word “brutal”, despite all the other examples. Third, an evaluation framework must be put in the legislation.

[Translation]

    Thank you.
    Thank you very much.

[English]

    Our final presenter for this panel is Madame Malo. The floor is yours for 10 minutes.

[Translation]

    Good afternoon. My name is Isabelle Malo. I am appearing today on behalf of the entire Malo family. My mother, Nicole Malo, and my brother, Sylvain Malo, are sitting behind me. We are in full support of Bill C-54. My family's story is a perfect example of why it is urgent to change the law. As I talk to you today, my heart is full of sadness.
    On January 13, 2012, our peaceful community was shaken by a terrible tragedy. My stepfather, Ronald Malo was savagely murdered, stabbed 29 times by his neighbour, Rolland Belzil, who had been harassing him for 15 years.
    My mother was also a target, but, luckily, she was spared because she did not answer the door that Rolland Belzil was trying to open. In Belzil's computer was a list of people to be killed and my mother's name was on it. After killing Ronald Malo, Rolland Belzil went to the town hall in Verchères, where he stabbed Luc Fortier, the town manager, in the head and neck. His assistant, Martin Massicotte, suffered wounds to the hands as he tried to help. They owe their lives to the fire chief.
    This sordid story began in 1997 when the neighbour, Rolland Belzil, assaulted my mother by saying that he wanted her twice a week. My mother rebuffed him immediately, demanding that he leave her alone. He then looked her in the eyes and said: “you do not know what I am capable of, my dear; you have not heard the last of me.”
    For 15 years, my mother and Ronald's life was pure hell, and I do not use the word lightly. They were constantly harassed, sworn at, provoked, honked at up to 150 times in a row. They received death threats for the three years before the murder.
    In April 2010, Rolland Belzil told a case worker that he had a weapon and was going to kill his neighbour, Ronald Malo. In July 2010, Rolland Belzil was arrested for violating the conditions of a permanent order. Under that order, he was not supposed to come near my family. Nevertheless, he did approach us, with a can of gas, paper, beer and wine, staring right into our eyes all the time. Rolland Belzil was found guilty on four criminal charges out of five. He walked away with a discharge and a laughable $400 fine. We begged the judge not to release him again. The people at the CAVAC told us that he was like a big dog who barked a lot but did not bite and that the probability that he would do what he threatened to do was zero.
    As you can see, our story has a number of missing elements. Primary prevention, in Dr. Isabelle Gaston's words, was a failure. Our family wholeheartedly supports Bill C-54. The bill will make public safety a priority and will create the definition of “high-risk”.
    I would like to discuss two improvements with you. It is urgent for public safety to be the priority. Have you thought for just one moment about what would happen if this man were to be released? If we found our mother murdered, we could not survive it. Victims must have a more prominent place. Fortunately, Bill C-54 will make public safety a major concern in coming to decisions about people deemed not criminally responsible. When public safety is paramount, it will be a victory for our rights.
    Currently, if Rolland Belzil is released, three lives will certainly be in danger. It is agonizing to think that we are at the mercy of that decision. Our trust in the justice system has vanished. That man represents a real danger for society. He must be kept under strict supervision, primarily to protect him from himself.

  (1745)  

    People are living in terror simply thinking about the day when Rolland Belzil will be released, without even mentioning our seven children, aged from 14 to 24, who have lost their grandfather. The word “justice” does not exist for them. They are terrorized. One night, a little while ago, my 22-year-old daughter came to me shaking, because she had dreamt that Rolland Belzil had escaped from the Institut Philippe-Pinel in Montreal and wanted to kill us all. My brother's 20-year-old son sleeps with a bat under his bed, and his 16-year-old daughter has never gone back to where the tragedy happened. These children have had a hugely traumatic experience. How will we go about reassuring them? The burden our family has to bear is a very heavy one.
    I have a business in Verchères and not a day goes by without someone talking to me about it. I am often asked what is happening to him and whether he is out. My heart races each time. In December 2012, I had to go to hospital. My heart rate went up to 170 beats per minute when I heard that Guy Turcotte had been released. I thought I was going to die. The number of victims goes beyond the family; the entire community is affected.
    People are afraid when sick people like those are released. Their illness is not an excuse. From now on, with Bill C-54, public safety will be paramount. We cannot wait for that change.
    Bill C-54 provides for the creation of a “high-risk” designation intended for the most dangerous cases. They should be detained in hospital under guard. A high-risk offender must not be allowed to leave without an escort. He must be able to get a pass to leave, with or without an escort, only in rare circumstances and with public safety in mind.
    We support the fact that a judge, not a board, will determine who is to be designated high-risk. We are very happy to learn that judges will have to base their decisions on the risk of grave physical and psychological harm, and on the offences committed. That is very important for us. We cannot wait for those changes to go into effect. We are convinced that there is no higher-risk situation than the one we are living in.
    In Rolland Belzil's computer, the police found a list of several potential victims. When one murder and two attempted murders have been committed, the murderer becomes a serious case and must be under strict medical supervision. That is what Bill C-54 will make possible, and I ask you to pass it as quickly as possible.
    Having a respite of up to three years between assessments, depending of the gravity of each case is, of course, a real relief for victims. You know as well as I do that a year goes by quickly. Rolland Belzil has mentioned that he has only killed one out of four and that he has to finish what he set out to do.
    At no time have we been motivated by revenge. These proposed reforms will have no effect at all on the access to treatment for those deemed not criminally responsible. On the contrary, those needing special care will be able to have it tailored to their own specific needs.They will be better supervised. Providing more structured medical supervision for people suffering from a mental illness is not stigmatizing them. The concept of rehabilitating the offender remains in the act. So it is wrong to say that ill people will be losing their rights.
    By lengthening the period of care, the risk of reoffending is reduced, but, above all, lives will be saved. We cannot sit on our hands and wait. We have to save our mother's life.
    As victims, we have no place in all these interminable procedures. We will certainly not be the last to live through a similar event. In Verchères, with a population of 5,000, three people have confided in us and told us that they are living in a situation similar to our own and are terrorized.
    We are supposed to have the right to security. At the moment, the only people with rights are those who have been charged and found not criminally responsible. Ronald wore his heart on his sleeve; he was always smiling, gentle and ready to help others. His murder was an enormous shock. The public is completely outraged by this heinous action that has gone unpunished.
    We have lost a second father, a grandfather, a husband. But above all, we have lost an exceptional human being whom we loved more than anything in the world. We will never be able to forgive the action, but now we have to learn to live with it. Ronald's death must not be one among many. It must serve to advance the cause of victims. This bill is extremely important for our security and our quality of life.

  (1750)  

    Thank you all so much for giving me your valuable time and for letting me express to you my thirst for justice. We are behind you in supporting this urgent and vital bill.
    Thank you, Ms. Malo

[English]

    Thank you, witnesses. We'll go to questions. I hope Mr. Samson is still on the line for us.
    Our first questioner is Mr. Marston from the New Democratic Party.
    Thank you, Chair. I presume Mr. Samson is on the line, but I would like to address my first comments to Ms. Malo and Mr. Samson.
    Fear is a very real thing, particularly in the dramatic situations you both have suffered. I want to put on record that one of the amendments the NDP is putting forward will be to have family notified, if they wish, of the residency of a person released back into the community. Both of your testimonies are heart-wrenching, but you both have been very clear, so at this point I'll move my questioning to Ms. Des Rosiers. Did I pronounce that right?

  (1755)  

[Translation]

    Great.

[English]

     I've never been accused of being perfect when it comes to French.
    We've had expert witness after expert witness come before us. There is clearly a gap between what the community feels they should have for protection and understanding of circumstances, and what the courts have ruled in the past on the so-called rights of the accused person. From my standpoint, the witnesses called into question the approach of the government with this particular bill. I've said before at this committee that our responsibility is to write the best piece of legislation we possibly can.
    The testimony I've heard here today, as well as previous testimony we've heard, including Mr. Battista's, leads me to believe there's a high risk this will be challenged in court, because of previous statements and positions taken by the Supreme Court of Canada. You spoke of the overloading of the system. There's a variety of things. I'd like you to comment on that.
    I think everybody wants to have a system that has the right balance and reflects the need for public safety. Everybody is in agreement with this. Our position is that the bill responds to some of the victim's needs, but not all of them. It gives information rights, but it does not give rights to financial aid, services, or support. That's a mistake.
    The second part has to do with a mental health strategy that looks at the way in which you could prevent some of the...to improve the way access to services and identification is done, and that those are done in the appropriate way. I think that's what we are hearing. We are concerned that the use of the word “brutal” in proposed paragraph 672.64 (1)(b) regarding high-risk accused is unworkable. It is vague enough and arbitrary enough that it will not do what the government wants it to, and it has the potential to raise some constitutional challenges.
    Finally, I want to reinforce how important it would be to have a proper evaluation framework to see what the effect of this bill is on the ground. Experts have feared it would have the reverse effect. I think the responsible way, if you're going to go forward, is at least to ensure that you're putting yourself on notice that in three to five years, you will be able to see whether it worked, whether it did the things the government said it was going to do.
    One of the things that comes to mind in listening to Ms. Galt, Ms. Malo, and Mr. Samson is consultation and support for their mental health, the kind of pressures that are put on families, the horrendous pressures of the unknown. One of the biggest fears of all of us is the unknown. I spent a night in a house with an NCR patient who had murdered my sister 10 years before. I didn't sleep. I was 12 years old. My imagination ran wild that whole weekend. As to the word “brutal” in the bill, if a parent takes the life of their own child, no matter the brutality of the act, the fact that they've done it in itself is brutal. It just strikes me that we need to do more with this bill. There's more that can be done for victims' rights than what this bill does. If we got expert consultation, we could work to develop it even further.
     I presume that's my time.
     That is your time, my friend. Thank you for those questions and answers.
    Our next questioner is Monsieur Goguen from the Conservative Party.

[Translation]

    Thank you for your testimony. It is very much appreciated. The matter is really complex.
    Ms. Malo, as I listened to your testimony, I understood that you are very much in favour of this bill. You stated that, when a verdict of not criminally responsible is handed down, the protection of the public is the first concern. It is paramount.
    On June 5, Dr. Isabelle Gaston testified before this committee. She stressed the fact that our Bill C-54 would provide better protection for victims and for society in general. She said: “…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.” She also said: “I have the impression that people are playing Russian roulette with my life. I don't feel protected, really, at this time.”
    We also heard the testimony of another grieving mother, which echoed Dr. Gaston's. Her name was Carol de Delley, the mother of Tim McLean, who was killed in his sleep on a Greyhound bus. The murderer, Vince Li, got a verdict of not criminally responsible. We all know how barbaric the act was.
    Ms. Malo and Mr. Samson, I would like you both to answer. Do you believe that Bill C-54 will provide better protection for victims, and for society in general?

  (1800)  

    Yes.
    Well, there's a quick answer.
    What do you think, Ms. Malo?
    The bill certainly will provide better protection. Primary prevention failed completely in our case. Just a year and a half after the murder, Rolland Belzil was already before a review board. It is terrifying to know that the decision as to his release is in the hands of people like that. The man has spent his life manipulating others to his advantage. We are not reassured at all.
    He said that his work was not finished and that he had only killed one out of four people. Just imagine what will happen if he gets out. My life will be over. Even if he had an escort, I would not have any kind of reassurance, because you never know what can happen. We have had issues with him for 12 years, both civil and criminal, and there has never been any question of mental illness in his case.
    He was always well dressed, with his briefcase and everything. They said that Ronald's murder was the result of a psychotic episode, but, for years, he threatened him and said he was going to kill him. We do not understand any more; we are confused. At no time did we have the right to say a single word. Only the accused's own statements counted for anything. No psychiatrist questioned us; no one from the Institut Philippe-Pinel in Montreal and no one to provide another opinion. We sat in the room like statues. We never had a chance to say a word; we were never able to share our opinion. Only the day of the murder counted.
    For us, the “high-risk” designation and the fact that people have to wait three years before they can go before the board again, that's a lot, it's a big step. This bill will give us trust in justice again.

[English]

    Monsieur Samson, would you like to add to that answer?

[Translation]

    Yes, that's it. This bill will give us a lot of safety. Before this, we had absolutely none, we were aware of nothing. It will give us more safety. In fact, my family and I support this bill.
    Thank you very much for listening to me.

[English]

    Thank you very much for that.
    Our next questioner is Monsieur Cotler from the Liberal Party.
    Thank you, Mr. Chairman.
    My first question is for Nathalie Des Rosiers.
    First of all, if I may, I'd like to congratulate you on becoming the dean of the common law program of the faculty of law at the University of Ottawa. Welcome back here.
    I'd like to put a question to you that will draw on your legal expertise.
    If you were to present your students with an assignment that asked them to develop reforms to the NCR regime, but reforms that would have to be constitutionally compliant, and they came up with Bill C-54, would you regard that as being a regime that, in fact, is constitutionally compliant?
     As I've indicated, there are some provisions in it that are vulnerable. The use of the word “brutal” is not one that commands sufficient definitional certitude for it to pass an arbitrariness test. That's the first part.
    The second part is there's some difficulty in reconciling the way in which the framework is limiting the therapeutic approach, which limits the way you treat the disease. That also may raise some concern on the security of the person, fundamental justice....
    In our view, that's where le bât blesse, in the malleability of the terms that are used. It's not going to be sufficient to say that we know what we mean because those were the tragedies that were dealt by Parliament at the time. That's our concern. The wording just does not do justice to what's being sought.
    It's quite possible to give good informational rights to victims, which should be present throughout the system, and they are. They should continue to be forcefully advocated for. The other needs should be looked after as well.
    There's a nice argument now that section 7 also provides some ways in which to reconcile these rights.

  (1805)  

    On a related matter, the bill removes the requirement that the conditions imposed on the NCR accused be “the least onerous and least restrictive” possible, while elevating, if you will, the requirement to protect the public, which we all agree needs to be in there, and you've made reference to it.
    The language I quoted was drawn directly from the ruling by the Supreme Court. Can you speak to the consequences, both practically and constitutionally, of deleting this particular criteria?
    The reality is that because of this removal of the least onerous burden, which we should always want for morality reasons, we should always want because it's cheaper for the system, because it's the right thing to do.... The way to better protect society is by ensuring that you adequately supervise people as they progress throughout their treatment.
    There is a vulnerability there as well on the constitutionality. It was covered previously by many speakers, so I didn't touch on it. The Barreau du Québec has been quite explicit about this vulnerability as well.

[Translation]

    My question is for Isabelle Malo and André Samson.
    As you know, a number of mental health and rights groups have said when they've testified that they oppose this bill. They quoted figures and studies that seem to show that the measures under this bill will not be effective or fair.
    How do you explain this difference of opinion? Do you question these figures or interpret them differently?
    I think that it would already be a big step forward. Nothing is perfect, of course, but you need to start somewhere. These people need special care. After experiencing this relentlessness for so many years, I don't think one year is enough.
    We have not yet appeared before the mental disorder review board. We have no idea how it works. We haven't been given any information about that. All we know is that we are allowed to read a letter to explain why we oppose the person's release. I imagine that this is really a high-risk case. The fact that we can have a three-year reprieve before another assessment takes place is really important for us.
    Life is important. Ronald did not have the right to defend himself. He doesn't have any rights anymore. It's up to us to take action. Protecting our lives and saving our mother's is what counts for us. Safety is paramount. We were really in the dark. We are doing what we can with what we have.

[English]

    Thank you, Madame.
    Our final questioner is Mr. Seeback from the Conservative Party.

  (1810)  

    Thank you, Chair.
    Nathalie, it's nice to see you. I was commenting that I was at Western law school when you were a professor there.
    I find it interesting that I now get to ask the questions, which of course is very different from what happens in law school.
    Voices: Oh, oh!
    Mr. Kyle Seeback: I want to pick up on one of the comments you made in your opening address. You were talking about proposed subsection 672.64(1), which is the designation of a high-risk accused. You were saying that the assessment that's going to be made is in the wrong place because this is before treatment is done.
    I have to say that I don't believe that's accurate. In fact, I believe it's completely false.
    When you look at the proposed subsection, what it says is, “On application made by the prosecutor before any disposition to discharge an accused absolutely...”. This is before a review board; this is when it might be going to the review board. The person has been found not criminally responsible by a court. They've gone to have treatment at a hospital. When you look at the sections, people who are NCR go to a hospital for treatment. It's when the review board is going to absolutely discharge the person the crown may bring the application.
    So your statement that there hasn't been treatment is false, actually, because there has been treatment, and sufficient treatment, to where a board is saying they think it's time to absolutely discharge the person.
    I'm giving you the opportunity to maybe correct your evidence.
    I think the point I was trying to make was about the way in which it forces the court to make an assessment on the basis of probabilities and so on.
    We will disagree on whether proposed paragraph 672.64(1)(a) is the appropriate test. In my view, proposed paragraph (b) is the one which we're particularly concerned about.
    We can disagree about whether the test is semantically perfect, but you'd agree with me that the statement that it's before treatment occurs wasn't accurate.
    Yes. I meant to say that it's outside the framework of therapeutic.... You're correct.
    Right.
    A number of people have come to the committee and said that they have a problem with this assessment being that the act that took place was brutal and that's what they're going to use to determine whether or not a person should be released, but as I point out to many people, that's not actually what the sections says. It says as follows:
the acts that constitute the offence were of such a brutal nature
—this is the key part—
as to indicate a risk of grave physical or psychological harm to another person
    It's more like a twofold test, but it doesn't stop there. The section then goes on to give a range of things that a judge can look at to determine whether or not it's going to meet that twofold test. Included among them are the opinions of experts who have examined the accused.
    So it's actually not.... I mean, just saying that this crime was brutal, and that crime wasn't is not how the assessment is made. Is that correct?
    You are correct that the section goes on and is a full assessment—hopefully; otherwise it would be completely unconstitutional.
    I think we have to say that obviously, it has to be a full assessment that does not disregard completely the therapeutic aspect or the concern for the illness. My concern is that it will be very difficult to use the criterion of “brutal” no matter how much it is modified here—
    It's not just “brutal”; it's “of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person”.
    That's true, and in my view, “brutal nature as to indicate a risk of grave physical or psychological harm” does not make it less ambiguous. That's my point.
    I think you could remove the word “brutal”. You could raise the level. I think that proposed paragraph 672.64(1)(b) is problematic.
    Okay.
    There's one final thing I want to comment on. A number of people seem to say there's a problem with the term “paramount consideration”, that public safety is the paramount consideration. A lot of people are saying that's a big problem with this legislation.
    But as far as I know, in R. v. Conway—
    It's already the case.
    —the Supreme Court of Canada , as recently as 2010, said quite clearly that public safety is the “paramount consideration”.
    We're only codifying an existing Supreme Court of Canada decision. Is that correct?
    Well, somebody would say that it is not necessary, that your legislation is not necessary, because the case law has already said that public safety is paramount.

  (1815)  

    But that's not the argument that's being made at this committee. They're saying it shouldn't be there.
    What it does, though, is it adds this new concept of a high-risk offender with the difficulty of interpretation that I've just pointed out. I think that's the key difference. This is not creating a new category of offenders, this is not codifying the Supreme Court of Canada's—
    Okay, but the Supreme Court of Canada clearly said that—
    I'm sorry, but you can't argue with the professor any longer.
    Thank you to the witnesses.

[Translation]

    Thank you very much, Mr. Samson.

[English]

    I hope you can hear me. Thank you very much.
    We're going to suspend while we switch over.

  (1815)  


  (1815)  

    I call this meeting back to order.
    Before we begin with our witnesses in this final panel, we have to be out of this room at seven o'clock, so we may not have a lot of time for questions, unfortunately.
    Just so you know, as I said, we will have two more panels on Wednesday. Then from 5:30 to 6:30, it will be the clause-by-clause study. It may take us longer than that.
     We are going to be in this room. We were able to change the room, so that's good news, in a sense. We will be providing nourishment also.
    If we are back next week, which we're scheduled to be, I will be calling James Bezan's bill. I forget the number, but it's the next one in reference to this committee. We will start with him as a witness and we'll see how far we get with that. That's what we'll start with next week, if we're back.
    Thank you, ladies and gentlemen, for your patience. We're behind schedule so we'll do this as quickly as possible, but I'll make sure you all get your 10 minutes.
    First, as an individual, is Mr. Ben Bedarf. The floor is yours for 10 minutes.

  (1820)  

     Mr. Chairman, and members of the Standing Committee on Justice and Human Rights, my name is Ben Bedarf. I am here today to give you my opinion of proposed new legislation, and answer any questions you have.
    I am a victim. My seven-year-old grandson was violently killed by his father with a knife on July 27, 2011. My daughter tried to stop him and in the process was badly cut up on both hands and forearms.
    We received a call from the Campbell River Hospital at about 3 a.m. to come to the hospital. Nothing else was said and no information was given. As we drove past our daughter's house, which we also own, we noticed a considerable RCMP presence. We stopped and asked what had happened. No information was given to us except to go to the hospital.
    On our arrival at the hospital emergency ward we were guided into the room where my daughter was being stitched up. Upon seeing me she said, “I'm sorry, Dad, I tried to stop him.” I gave her a hug and told the doctor to finish stitching her up. I then asked, “Where is my grandson?”, the joy of my life. Nobody said anything. Then I saw a nurse going by and I asked her, “Where is my grandson?”, and she said, “I'm sorry, he did not make it”, and she walked away. There was nobody in the hospital to turn to: no victims services, no victims counsellor, no priest, no help of any kind.
    The doctor then appeared and said that we could take our daughter home. He gave her a couple of pain pills and a few prescriptions for pain and anti-depressants, and said goodbye.
    Because this accident happened while my daughter was sleeping, she had on only a nightgown, which was soaked in blood. The hospital gave my daughter a clean gown and discharged her from the hospital. She had no shoes; only plastic slip-on covers were supplied. I had to take off my own coat so she could have something to wear going home.
    Upon leaving, I asked to see my grandson's body, but was refused.
     The next day we had to take our daughter shopping for clothing and toiletries. We couldn't go into her house and get any supplies because of forensics. The RCMP said that the house could not be entered until forensic services were done, which would take about four days. If it weren't for us, she wouldn't have had anywhere to go.
     Forensics completed their work, and we were given approval to enter the house, but we were told not to go there until restoration services were called and had the house cleaned up and repainted because of the extreme severity of the blood splatter. Most everything in the house was disposed of, leaving the house completely empty of all furniture and of all clothing.
    The next day RCMP victim services contacted us. This was vital because this gave us information on facts. The RCMP, because they are first responders, should be able to give all immediately needed assistance to secure the victim, including financial help through their victim assistance program.
    Mr. Brent Warren was charged with first degree murder. He was found not guilty by reason of a mental disorder.
    The situation now is that he is no longer in the criminal system but is a patient in a mental hospital and will be discharged when he gets better. This is in the opinion of the psychiatric board. The issue has gone from if he gets released to when he will be released. According to some learned professionals in that field, it could be as soon as two to five years.
    So where do we go from here?
    I recommend immediate funding for victims for expenses incurred and secure shelter supplied; access to the bank account in case the account is only in the spouse's name; immediate funding, in some cases, for travel to their parents' and/or grandparents' home, even if the family lives out of the province. There should be a fund available for long-term assistance for people in need, either through employment insurance, the Canada pension plan, disability insurance, or any fund that is appropriate for the long-term survival of the victim and possibly children, including teenagers.
    Crown counsel should proceed in a timely fashion and not drag the case on, which could result in more anguish for the victims and their families.
    In my opinion, when he is released, charges should be laid for injuries incurred by my daughter. None was filed. There should not be an expiry date for criminal charges under this scenario. There should be a minimum sentence of 10 years spent in custody in a mental hospital or any institution deemed necessary for anyone who has committed murder and was found not guilty by reason of a mental disorder.

  (1825)  

    There should be a do-not-contact order for anyone, if so requested. He should not be released in the province where the violent act occurred. I do not wish to meet him face to face on my daily walks. He knows what would happen.
    I've submitted this for your consideration on June 10, 2013.
    Thank you, Mr. Chair.
    Thank you, sir, for your presentation.
    Our next presenters are from the Canadian Mental Health Association. Please introduce yourselves. You have 10 minutes.
     Good afternoon, Mr. Chair, members of the committee, and fellow witnesses. These victims' stories are very tragic and heart-wrenching, and quite frankly, point to challenges in the system well beyond the amendments to the Criminal Code we're discussing today.
    My name is Peter Coleridge. I am the national CEO of the Canadian Mental Health Association, also known as CMHA. With me today is Mark Ferdinand, our national director of public policy.
    CMHA is the largest and oldest provider of mental health services in communities across Canada. We were founded in 1918, and we serve thousands of people every day in hundreds of communities across the country. We rely on the work of staff and thousands of volunteers to facilitate access to the resources people require to maintain and improve their mental health, reintegrate into the community, build resilience, and support recovery from mental illness.
    In addition to being a front-line provider of community mental health services, we're also a champion for mental health for all Canadians. We actively promote positive mental health, ways in which people can focus on strengths, well-being, and functioning in the community, at home, at school, and at work. We provide advice on the development of good public policies that support positive mental health as well as improve access to the quality of mental health services and community supports, which is why we're here today. We share many of the concerns of some of our other mental health partners that spoke earlier: the Schizophrenia Society of Canada, the Centre for Addiction and Mental Health, and many others.
    We also work hard to increase the understanding in our society about mental illness. Unfortunately, our society holds many misperceptions about mental illness. Depictions in the media and labels used in our society create an impression that high-profile violent crimes are committed by people with a mental disorder, and that these things are common, when such occurrences are infrequent. The majority of people who are violent do not suffer from mental illness. Mentally ill people are no more violent than any other group in our society; in fact, people with mental illness are more likely to be victims of violence. It's also important to understand that some people who become involved with the criminal justice system had not been diagnosed with a mental illness, but were diagnosed upon connecting with the criminal system because of a crime.
     These people need treatment and care. Punishment does not lead to recovery for individuals who are found not criminally responsible. This might explain in part why the relapse rate for individuals who are NCR on account of mental disorder is three to four times lower than the general criminal offender population. By all accounts, mental illness is complex. I think that is clear from all the witnesses you've heard from. However, with the appropriate supports and access to care, people with mental illness, including those with severe mental illness, can be helped. Today there's more hope than ever before that we can effectively treat these illnesses and improve the chances of recovery.
    Long-term research has shown that many people with severe mental illness are able to lead productive lives. As you know, Canada has made important strides in reducing discrimination and stigma associated with mental illness. CMHA looks forward to continuing this progress with all Canadians, the federal government, the Mental Health Commission of Canada, and our many other mental health partners across Canada. However, we are concerned that the proposed changes to the not criminally responsible provisions of the Criminal Code will negatively impact the lives of people found NCR, and unjustifiably increase the stigma toward people with mental illness that is pervasive in our society at the systemic, community, and individual levels.
    For example, we're concerned the provisions aimed at creating a high-risk accused category, and restricting unescorted passes may have unintended consequences on the ability of mental health professionals to appropriately monitor and evaluate people who have been found NCR. We're also concerned that the creation of a high-risk accused category reinforces the stigma associated with mental illness, such as connecting mental illness with danger to the public and violence.

  (1830)  

    We know from studies that many people who would otherwise benefit from mental health services or care will not seek or fully participate in their care in order to avoid the labels that have the potential to diminish their self-esteem or social opportunities.
    Finally, with regard to the public safety paramount provision, we are unaware of evidence to suggest that review boards are not already taking public safety into consideration when making dispositions. As such it's not clear that the proposed amendments will make any real difference to protecting the public. Such an amendment would appear only to fuel stigma by creating an impression that all individuals who are found NCR are likely to reoffend.
    We understand that the federal government in proposing this bill is seeking better consistency and coherence in the application of the Criminal Code across Canada. To ensure the realization of this dual goal of consistency and coherence, we recommend that parliamentarians seek input on how the proposed provisions will impact victims, NCR accused, public safety, and health and mental health service providers across the country.
    Measuring these impacts is even more important when we consider that mental health is an intersectoral issue involving several different sectors. These issues are very complex.
    Given that we do not know today—and it was said earlier by many witnesses in their different perspectives—the possible impact of these changes on people or on our systems, we would strongly recommend that Bill C-54 include a provision that would create a flexible yet rigorous evaluation framework to better understand the implications of the proposed criminal law changes on a victim's ability to access meaningful and pertinent information regarding NCR accused, capacity issues in the forensic mental health system, actual impact on public safety, actual impact on treatment, reoffence rates and health outcomes of NCR accused.
    A simple provision, as we've seen in other federal and provincial laws, would suffice to ensure regular review of the impacts of the law on people and to determine whether or not the expected outcomes are being achieved.
    In closing, we believe it is appropriate that the government undertake periodic reviews of mental health disorder provisions of the Criminal Code. We equally believe that even if we were able to arrive at the perfect balance between individual rights and public interest through criminal law provisions, we would still fall woefully short of what is needed to address the part of the iceberg that we cannot or sometimes refuse to see.
    Ultimately better cooperation and coordination between the levels of government are desperately needed to improve how we treat mentally ill offenders in the criminal justice system. We would welcome the opportunity to work on this pressing agenda. This agenda should include reducing stigma, improving recovery, continuity of care, reintegration into society, and improving public safety.
    We know care has been taken in developing this bill, and that the individuals who worked on its development have carefully considered the legal and even constitutional aspects of the bill. However, more meaningful consultation and greater policy coherence are needed.
    Specifically, we need to know that victims are involved appropriately in the review board system, that public safety is truly being enhanced, that the rights of the accused are not infringed, and that recovery and access to effective treatment is not unintentionally made more difficult or limited as a result of these amendments.
    Mr. Chair, thank you for the opportunity to appear before the committee today. We're happy to answer any questions the committee may have.

  (1835)  

    Thank you very much for that presentation.
    Our next presenter is from the Association of Families of Persons Assassinated or Disappeared.
    Please introduce yourself.

[Translation]

    Good evening. My name is Michel Surprenant, and I am the president of the AFPAD, or the Association of Families of Persons Assassinated or Disappeared.
    I would like to thank the members of the House of Commons Standing Committee on Justice and Human Rights for having me here today for the study of Bill C-54.
    I would like to share a few examples of not criminally responsible cases that have been of concern to member families of the association in recent years and that justify the AFPAD's support of this bill.
    Allow me to start by telling you a little bit about the AFPAD, which I represent. It was founded by victims' families for victims' families. The main mission of the Association of the Families of Persons Assassinated or Disappeared is to support, advise and defend the interests of families affected by a homicide or disappearance under apparently criminal circumstances. The AFPAD has over 500 member families.
    In recent years, a number of cases have attracted the attention of victims in Quebec. I would like to tell you about some of these cases.
    I would like to start with the case of Pascal Morin. On February 10, 2012, a little over a year ago, in a murderous fit and affected by a mental illness, Pascal Morin in turn killed his mother, Ginette Roy-Morin, 70 years of age, and his two nieces, Laurence and Juliette Fillion. At the end of his trial, Pascal Morin was found not criminally responsible for his actions under section 16 of the Criminal Code.
    No one is questioning the fact that he was sick. He is currently in hospital under the responsibility of the mental health commission. However, the idea of Pascal Morin's being released causes enormous fear on the part of the family and the community, which knows Pascal Morin well.
    The idea of releasing such people makes the families of victims and the authorities fear the worst. I would like to quote Francis Fillion, the father of the victims, “Our other daughter, who is five years old, still wonders if her uncle will come and see her and kill her. All I want now is to take care of my family without the fear that he can visit her!”
    Furthermore, the mayors of the Saint-Roman region have asked the government to intervene to prevent this type of case. On December 8, 2012, the council of mayors of the Granit RCM expressed that it was urgent to find solutions so that tragedies like this wouldn't happen in the future.
    According to the AFPAD, in addition to strengthening medical resources for people with mental health issues, Bill C-54 is an essential solution.
    As Dr. Gaston said during her testimony before the committee on June 5, 2013, a distinction needs to be made between primary and secondary prevention. Primary prevention means providing resources to treat individuals with mental health issues before their case become so severe that they are a danger to other members of society. The provincial government is responsible for taking care of this because it comes under the responsibility of health care authorities.
    Furthermore, when a crime has been committed and it involves serious personal injury, the AFPAD believes it is reasonable and fair to take preventive measures so that an individual who committed a crime, but who was deemed not criminally responsible, cannot commit another one. To achieve that, the person needs to remain very closely monitored for a certain number of years.
    Bill C-54 will ensure that the most serious cases cannot be quickly released from hospital. That doesn't mean putting them in prison, but rather giving them the care they need.
    Bill C-54 is a reasonable and fair response that could have enabled Ronald Malo's family to feel respected as victims. Remember that Ronald Malo was murdered in cold blood by Rolland Belzil at the Verchères city hall. Rolland Belzil was found not criminally responsible after he was charged with attempted murder in 2012 of two City of Verchères employees in Montérégie. A third charge, for the murder of his 80-year-old neighbour, Ronald Malo, was brought later.

  (1840)  

    The justice system needs Bill C-54 to restore public confidence in institutions of the judicial system. When citizens lose confidence in the justice system, not only does it lead to distrust of judges, defence lawyers and Crown attorneys, but it also causes mistrust and fear within families and the community. These fears are not unjustified.
    Rolland Belzil stabbed his neighbour, Ronald Malo, to death following a dispute over a fence that had gone on for 12 years. He then went to city hall, where he allegedly attacked Luc Fortier, the city manager, and Martin Massicotte, his assistant, at knifepoint. Allow me to quote the lawyer of the victims, who had the opportunity to be represented. These comments by Christine Dubreuil-Duchaine appeared in an article:
    “At what point do we declare a person dangerous or not? How far can we go without there being any true consequences? As far as I'm concerned, this situation mirrors that of Guy Turcotte...,” said Ms. Dubreuil-Duchaine.
    According to the lawyer, the Quebec justice system needs to ask the right questions, so that there are no more situations like Ronald Malo's. Should justice be harsher? Should we step in more quickly?
    “Someone paid with their life for these questions to be asked,” lamented Ms. Dubreuil-Duchaine....
    I would also like to tell you about the case of Alain Piché, an accountant who lived in Cap-de-la-Madeleine and who had no prior criminal record. However, on March 19, 2007, Alain Piché killed his parents. He cut off their heads with an axe and a blunt object before hiding their bodies in a freezer. In July 2008, the court rendered its verdict and found him not criminally responsible on account of mental disorder. In June 2009, Piché was admitted to the Institut Philippe-Pinel.
    The mental disorder review board had granted Piché unescorted absences. I repeat: they were unescorted absences. The only condition imposed on him was that he not communicate with members of his family. The attending medical team was even given the power to determine the terms, duration and frequency of his absences based on his clinical state and his behaviour.
    This raised the indignation of the criminal and penal prosecuting attorney responsible for the case, Jean-François Bouvette. He had deplored the fact that it was up to the board to monitor Alain Piché's absences and to issue conditions to ensure the public's safety. This example clearly reveals the fear that this type of permission can lead to in the community. This example also shows the risks of giving the mental disorder review board too much leeway.
    Thanks to Bill C-54, the most serious cases of personal injury can be better monitored. It will be up to judges to determine when a person will be at high risk and when that person is no longer at high risk. High-risk individuals will not be able to go out into the community. They will have to receive intensive medical care, surrounded by trained medical personnel. Some might say that it is stigmatizing toward individuals with mental illness. The AFPAD feels that it is a secondary prevention measure that will protect the lives and safety of community members, including families and individuals with a mental illness who have not committed any serious offences.

  (1845)  

    I will close by reminding you that these cases of being not criminally responsible, including the case of Guy Turcotte, who killed his two children, affected the population. A mother from Sherbrooke, Fanny Denoncourt, who was quite shocked by the outcome of the Guy Turcotte trial, took the initiative of organizing a march to denounce violence against children. The protest took place on March 2, 2013, in the streets of Sherbrooke, and other similar protests were held at the same time elsewhere in Quebec to demand tougher criminal legislation.
    On behalf of victims, on behalf of future victims who will have to experience tragedies, on behalf of the population, we ask you to support Bill C-54 and pass it as quickly as possible; otherwise, the justice system will lose even more of its legitimacy.
    Thank you.
    Thank you, Mr. Surprenant.
    The next group of witnesses represents the Association des groupes d'intervention en défense des droits en santé mentale du Québec.
    Mr. Chair, Mr. Vice-Chair and members of the committee, thank you for inviting us to present our brief.
    The Association des groupes d’intervention en défense des droits en santé mentale du Québec, or the AGIDD-SMQ, was founded in 1990. It advocates for the recognition and rights of individuals who have or have had mental health issues. We are a non-profit organization, a community organization.
    Since our foundation, we have gained recognized expertise in the rights of individuals who have or have had a mental health issue. We look critically at mental health practices and get involved in improving those practices.
    First off, I would like to say that the AGIDD-SMQ has never supported violence of any kind and never will. Having a mental health issue is no excuse for violence. I want to mention that right off the bat. However, we feel that pitting the rights of victims against the rights of criminals does not guarantee justice. On the contrary, implementing punitive measures will relieve neither the loss nor the suffering.
    The Government of Canada needs to put in place measures to give victims access to justice, psychosocial services, direct assistance, support services and financial compensation, as mentioned by many people today.
    I will turn things over to my colleague, Ms. Serradori.
    We will talk about the following provisions in particular: clause 9, regarding the preponderance of the safety of the public; clause 10, concerning the definition of a significant threat to the safety of the public; and clause 12, which adds the notion of a high-risk accused to the Criminal Code, and all the provisions consistent with that notion.
    We feel that these provisions reduce the exercise of the rights of people who are living or have lived with mental health issues. We also feel that they reinforce the stigmatization of those people, foster prejudice and restrict access to credible, transparent and impartial recourse respectful of rights.
    Although we are not legal experts, we feel that those three provisions greatly undermine the principles of fundamental justice and the very spirit of the Canadian Charter of Rights and Freedoms.
    This bill proposes returning to the past. You probably all remember that some of those provisions were repealed in 2005, only to be reintroduced in 2013. There are some slight differences, but the idea is the same.
    In addition, this bill reinforces disinformation. It establishes a link between mental health and violence, even though, most of the time, people who are living with or have lived with mental health issues are victims of violence and are only subject to the coercive system of medicine.
    We will not talk to you about research. You have had a tremendous amount of time and have heard about Anne Crocker's research results.
    People think that individuals who have been found not criminally responsible go home free, but that is totally untrue. They often remain incarcerated longer than they would had they been found criminally responsible for their actions.
    Moreover, people believe that mental health issues are due to a chemical imbalance in the brain or are hereditary. No research currently exists that can prove that. Unfortunately, this bill will not prevent unreasonable actions.
    The AGIDD-SMQ thinks that these measures restrict human rights because they are unreasonable and cannot be justified in a free and democratic society, as set out in section 1 of the Canadian Charter of Rights and Freedoms.
    In addition, these measures violate the principles of fundamental justice—human dignity, freedom and the respect for autonomy, pursuant to section 7 of the Canadian Charter of Rights and Freedoms.
    For all the above-stated reasons, we ask that clauses 9, 10 and 12 be repealed, along with any relevant provisions.

  (1850)  

    The work done, the research, the process and the jurisprudence have so far made it possible to reduce arbitrariness, comply with sections 1, 7, 9 and 15 of the Canadian Charter of Rights and Freedoms, create section XX.1 of the Criminal Code and prioritize release.
    The introduction of the “high-risk accused” notion and the amendment of the procedure to include that notion are more consistent with a punitive process, especially when it comes to various provisions.
    The first provision has to do with the high-risk designation. That measure could become the usual procedure for any accused individual and result in their being automatically deprived of their freedom and detained in a hospital. As my colleague was saying, this measure establishes a link between mental health and dangerousness by elevating the likelihood of recidivism as it relates to the brutality of the action.
    The second provision has to do with the possibility of amending the review time frames, and thereby extending the detention period from one year to three years.
    The automatic deprivation of freedom and detention in a hospital constitute a third provision.
    As we said, it is also a matter of the following: the addition of the definition of “significant threat to the safety of the public”; the inclusion of the past and expected course of the accused’s treatment, including the accused’s willingness to follow treatment; and the impossibility of the high-risk accused being absent from the hospital, whereby detention becomes the norm.
    Legislation—and even less so the Criminal Code—cannot be arbitrary and move away from the rule of law and the spirit of the Canadian Charter on Rights and Freedoms. This legislation is excessively broad in its scope and directly threatens the spirit and the scope of part XX.1 of the Criminal Code.
    These measures reflect a certain inaccuracy, especially in terms of the factors that need to be taken into consideration to designate someone as a high-risk accused. Mental health is based solely on a series of symptoms and behaviours. Therefore, we are talking about a field conducive to subjectivity.
    These measures will increase the vulnerability of people who are living with or have lived with a mental health issue by stigmatizing them.
    Finally, some consistency would be appropriate with the spirit of the Canadian strategy presented to us this afternoon by the Mental Health Commission of Canada, which was created in 2007 by the current government.
    In closing, we will suggest two prerequisites that should be met before any legislative amendments are considered.
    The first prerequisite would consist in countering systemic disinformation and educating the public, various stakeholders and the media about rights, recourse, mental health and psychotropic drugs.
    To achieve that, it would be important to provide education on mental health by using such publications as the Diagnostic and Statistical Manual of Mental Disorders, DSM. We also suggest providing critical training on the effects of psychotropic drugs. In addition, we are trying to extend the vision of mental health to stakeholders other than psychiatrists, such as sociologists, neurologists and other specialists, including, of course, individuals who are living with or have lived with mental health issues. This is also a matter of respecting human rights.
    There is another prerequisite, which is also very important. The government should try to affect social determinants before proposing any amendments to the law.
    WHO defines social determinants of health as follows:
The social determinants of health are the circumstances in which people are born, grow up, live, work and age, and the systems put in place to deal with illness.
    We think that dealing with causes is often more effective than dealing with symptoms. For instance, changes to employment insurance will have certain effects on the workers' mental health. We think that the government should try to affect social determinants.

  (1855)  

[English]

     Thank you very much.
    We're going to go to one question per party, so you have a minute to two minutes to talk to this.
     Monsieur Jacob is our first questioner.

[Translation]

    Thank you, Mr. Chair.
    I want to thank our guests for being here this evening.
    My first question is for the representatives of the Association des groupes d'intervention en défense des droits en santé mentale du Québec and the Canadian Mental Health Association. They can take turns answering it.
    Were your two associations consulted about Bill C-54? If so, in what way?
    My answer will be very short. We were never consulted.
    What about you?

[English]

    Yes, this is also very brief. We had one meeting with some staff in the minister's office, and that was it.
    That's it.
    The next questioner is Mr. Armstrong from the Conservative Party.
    I'll ask one question due to limited time, and I'll go down the line.
    Bill C-54 would provide the authority for a non-communication order between an NCR individual and the victim, and an order that the accused not attend a specific place upon the request of the victim.
    Mr. Bedarf, you brought that up in one of your comments, so I'm assuming you support those two pieces in this legislation.
    Most certainly. It's a must for the peace of the victim.
    Thank you.
    Mr. Coleridge, do you support those two pieces of the legislation?
    A voice: [Inaudible—Editor]
    Mr. .

[Translation]

    Sorry, but I did not quite understand your question.

[English]

    I'm asking if you support the part of Bill C-54 that allows a victim to request that the accused, if released, not be in a specific place, and also a non-communication order.

[Translation]

    Yes, I agree.

[English]

    Mrs. Provencher.

[Translation]

    I don't know what to say in response to that question.

[English]

    I'm asking, if an accused is about to get out, do you support the fact that the victim can request that the accused not be in a specific place at a specific time? Would you give the victims at least that right?

[Translation]

    Listen....

[English]

    Okay, thank you, Mr. Chair.
    Thank you.
    The last minute goes to Mr. Cotler from the Liberal Party.
    Thank you, Mr. Chairman.
    The question is for Mr. Coleridge and Mr. Ferdinand.
     During these hearings we've heard from a number of people, both those who support the bill and those who oppose the bill. We've spoken of the importance of making preventive treatment available to individuals with severe mental health problems before they commit a violent act. Is there anything in this legislation that would facilitate such preventive treatment? Is there anything in the legislation that would make it easier for law enforcement personnel, for medical personnel, or the friends and family of an individual with a mental illness, to ensure that they receive such treatment?
    No, there is nothing in there related to that, and I wouldn't expect there to be because it's the Criminal Code and its issue is outside of that. That was one of my first points as well. The problems and challenges for many of the victims, which again are very heart-wrenching, will not be dealt with through these changes to the Criminal Code.
    Thank you to all of our witnesses. We have your submissions and testimony with us, so I want to thank you for coming today.
    To the committee members, we'll be dealing with this again at 3:30 p.m. on Wednesday. Hopefully, we will continue on until we finish clause-by-clause study sometime Wednesday evening.
    Thanks very much.
    With that, the meeting is adjourned.
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