Good afternoon, Mr. Chair and committee members.
I am here today to ask for your consideration of my experiences in dealing first-hand with the mental health system in the province of Ontario, specifically related to “not criminally responsible” and its designation. The background I have to give you on this is a minute or so long.
I have a brother who is currently in the mental health system, having been determined to be not criminally responsible on two counts of second-degree murder. First-degree murder was not substantiated to the court's definition. He was withdrawn by nature, being a paranoid schizophrenic. It was, however, undisputed that the murder weapon used to kill the victims was taken from his house, some three-eighths of a mile from where the index offence occurred, on June 19, 1997.
The victims were my parents, Fred and Agnes Shreeve, who were in their mid-seventies at the time. The murders were extremely heinous in nature, both involving multiple stabbings causing death, with blunt force trauma, and post-death, strangulation and drowning in both of them. My brother's stay in the maximum secure unit at Oak Ridge, in Penetang, Ontario, began in the late 1990s. He has been in the medium secure unit at Ontario Shores in Whitby for the last six years.
My sister and I were in daily contact with the police as they investigated, with up to 24 officers involved in the investigation in the days after the index offence. We remained in contact with the police throughout their investigation and report prior to legal proceedings. I attended my brother's trial, his not criminally responsible hearing, and all but one of his review boards, both at Oak Ridge and at Ontario Shores.
I have yet to speak to my brother. However, I have been and continue to be his guardian regarding medication. Where options were provided to me, I have consciously made decisions along the way that resulted in medications that were more kind to his body. I have consistently offered to be available as a resource to provide some background history. I have consistently voiced my very deep concerns for my family's safety and also have reiterated my willingness to assist where it may be helpful.
I have a number of experiences that I would like to share with you.
Neither I nor the parents I represent have any standing at review board hearings. The crown attorney has respectfully asked for my thoughts and issues that I would like them to bring up on my family's behalf. I sit behind the crown attorney, as I am not afforded a seat at the table. I have been politely recognized for my attendance at past review boards. At past review boards, the crown has been spoken to strongly when they have restated my family's deep concern for our own safety, the chair indicating to the crown that the review board members were capable of reading and therefore did not need to be reminded of the family's concern for their safety.
I ask for status at the review board hearing to be available to the victim or the family of the victim, to be part of the discussion at their option.
Second, I observed over the time that my brother has been in the system a dilution of the briefs of the index offence and the background. There is no one on his treatment team who could locate or speak about any of the facts of the court proceedings. The trial brief and in-depth police report of some 2,500 pages, including, of course, many pages of photographs, had not even been read by one member of his treatment team. Further, when I inquired about this recently, I was informed that the court documentation and the police synopsis and briefs are not part of his file, as “this is a hospital”.
I ask that in index offences, particularly involving murder, the treatment team have a representative assigned to be knowledgeable on the facts and the documentation of the case, particularly the time around the index offence, as a point of reference, if for no other reason. As I indicated earlier, there were 24 police officers involved in the investigation. There was an awful lot of good work that went into this.
Third, I recently asked for the brief as it was presented last year so I could offer corrections to it. I was told that my brother's permission would be necessary for me to obtain a copy of it.
I ask that victims or their families have the right to pertinent documents without requiring notification of the accused.
Fourth, at the end of the proceedings that included both the trial and the not criminally responsible hearing, the court ordered that the local police service and the landowners of the properties related to the index offence were to be notified in the event that my brother was to be transferred or moved. I asked about this after my brother was moved from the maximum secure unit at Oak Ridge to the medium secure unit at Ontario Shores. These are both in Ontario. I distinctly remember being told something to the effect that “it was not their business”.
I remember this only because it was in direct contradiction to what the court requirement was, as I had input into what the crown requested and was granted at the end of the trial and the NCR hearing.
I ask that court orders be given strength so that someone is responsible, with real consequences. The court order was made as a result of the trial and the NCR hearing, backed up by 18 months of police and crown attorney work. It was not made without due consideration of the facts.
Fifth, my brother had the consistency of having the same lawyer as counsel for eight to ten years. His early clinical reports at Oak Ridge indicated that he did not attend any group events or participate in any activities. Over the years, he began to participate in group events and undertake very limited participation, listening to his lawyer's advice. Every year my brother's compliant behaviour was championed, even though there was very little psychiatric progress to understand how his mind worked.
I ask that good behaviour be recognized in its proper context, that it is, in fact, a small part of the formula to be cascaded down to the next level, particularly in index offences involving murder.
Sixth, last year his psychologist had no background information on my brother's behaviour prior to the index offence that he had committed at 40 years of age. She seemed unaware that he had no record of involvement with the local police, or that no physical altercations had occurred with my parents, while she very strongly advocated that he was not a management risk. My point here is that there was no prior activity or no prior violence.
It appears she was unaware that the psychiatrist at Oak Ridge in 2008 pointed out very clearly that my brother was a very unique individual, displaying none of the common symptoms of paranoid schizophrenia, of which he has been diagnosed. He also made it clear that, in his opinion, Mr. Shreeve will require a long period of living in a medium secure hospital unit. As a result, perhaps his model patient status, which the psychologist championed so highly, should have been discounted substantially or viewed with the background information to have a proper perspective.
I ask that a clear understanding that there is real progress on psychiatric understanding be recognized in its proper context, that it is in fact a proportional part of the formula to be cascaded to the next level, particularly in index offences involving murder.
Seventh, he was asked by one of his team members a few years ago if he had any interest in his siblings. There was a list of names found during the police investigation, brought up at trial. His response was no. I'm in disbelief that this has formed part of the basis for the psychologist's reasoning for strongly advocating that he be moved on to minimum secure. My name was on that list. The names of my siblings were on that list.
I ask that “least restrictive environment” be recognized proportionally to victims' rights, as well as the severity of the index offences, particularly index offences involving murder.
Eighth, in contemplating the move from Oak Ridge to Ontario Shores in 2007, no one in attendance could speak to how my brother's daily routine would be impacted. From what I gather, in many ways his daily routine is more restricted, not less. For example, now he has to be escorted off the unit to go to the cafeteria, as it is off the ward. At Oak Ridge he was free to go to the canteen on his own, as it and many other services and activities were all secure.
I ask that a member of the hospital team present at the review board hearing have a clear understanding of the setting that the patient may be moved into, and be available for the review board so that informed decisions can be made, rather than presuming, for example, that medium secure is less restrictive than maximum secure.
Ninth, the proposed legislation has discussion regarding the creation of a high-risk designation. It must be that the criteria for determining this designation be fairly designed, understanding that victims' rights also have a very significant place. This, considered with the risk to treatment teams, family members, and the general public, must also be given balanced consideration. Reliance on psychiatrists' professional opinions on the real rehabilitation progress of the accused must take precedence over good behaviour.
This process must also recognize that unique cases like those of my brother must have a different method of analysis—i.e., the above-noted reference to Oak Ridge diagnosis that my brother is a very unique individual, displaying none of the common symptoms of paranoid schizophrenia, of which he has been diagnosed. This is especially important when the standard testing scores are in the most acceptable range.
I ask that the development of criteria for determining a high-risk designation balance all of those affected both directly and indirectly, not just the accused, and accommodate properly unique circumstances.
Recently there has been press given to strengthening victims' rights. From my perspective, in the number of years that I have attended review board hearings, victims' rights have had precious little or no weight, while the term “least restrictive environment” has dominated every review board I have attended. Good behaviour has been recognized, while very little ground has been covered on the psychiatric side, resulting in constant pressure to cascade my brother along in the system.
I have been told to prepare for his eventual reintegration into society. The crown attorney has noted very clearly that my brother is an individual who just wants to be left alone.
Court orders regarding the whereabouts of my brother in order to notify the landowners and local police forces at the location of the index offence have been ignored, the implied recognition of my brother's rights deemed more important. There seems to be a real disconnect between the legal and policing systems and the health care system, whereas they should be working cooperatively.
In summary, I request your consideration of the above-noted things that I have observed in the mental health system. While they are specific to my experience, I expect that there are many commonalities. I would like to make it clear that the safety of my brother remains paramount, as well as the safety of our family, those who work in the health care system, and those who are in regular contact with him, as well as the public at large. While rehabilitation into society on some level is the goal for many of our citizens, it must be recognized when doing so will not be realistically attainable.
I thank you for the opportunity to be here today.
Good afternoon, Mr. Chair and esteemed committee members.
Thank you for inviting me here today to discuss Bill , which seeks to enhance public safety and better meet the needs of victims in cases where an accused is determined to be not criminally responsible, or NCR.
To begin, I would like to take the opportunity to provide a brief overview of our office's mandate.
As you may know, the Office of the Federal Ombudsman for Victims of Crime was created in 2007 to provide a voice for victims at the federal level. We do this through our mandate by receiving and reviewing complaints from victims; promoting and facilitating access to federal programs and services for victims of crime; providing information and referrals; promoting the basic principles of justice for victims of crime; raising awareness among criminal justice personnel and policy-makers about the needs and concerns of victims; and identifying systemic and emerging issues that negatively impact on victims of crime.
In other words, we help victims individually and collectively. We help the victims individually by speaking with victims every day, answering their questions, and addressing their complaints. We help victims collectively by reviewing important issues and making recommendations to the federal government on how to improve its laws, policies, or programs to better support victims of crime.
I am pleased to be here today to bring a victim's perspective to this bill. I thank you for your part in wanting to ensure that victims' voices are heard.
Our discussion today focuses on legislation specific to those found to be not criminally responsible for serious personal injury offences, those who, in light of their mental condition, should not be held to account for the crimes they have committed. It is important to keep in mind the distinction between a convicted offender and someone found to be NCR and to ensure that those with mental illnesses are treated appropriately.
I believe strongly in increased supports to help those with mental illness in our communities, and in the importance of support as prevention by helping to address these issues before they result in tragedy. However, I also want to offer you another point to consider throughout your study of this bill. Following any violent crime, regardless of whether the accused is found to be not criminally responsible or a convicted offender, the trauma a victim experiences is, in all cases, devastating. Regardless of the mental condition of an accused, victims' needs must be met and their treatment and rights should be equitable. We know that all victims will need to be treated with respect, to be informed on how the process works and their role within it, to have their needs and input considered, and to be protected from intimidation or harm.
My office has on several occasions spoken with victims and victim advocates, who have brought their concerns regarding this issue to our attention. Through these discussions, we have identified several significant gaps in legislation and policy that ultimately carry negative impacts, on both victims directly and more broadly on public safety.
Two years ago, in June 2011, I wrote to the recommending certain reforms in the not criminally responsible cases in order to ensure that the needs of victims of crime were met. These recommendations related to two items: the importance of considering both victim and public safety in all release decisions, and the lack of rights, policies, and support in place for victims of NCR cases.
In terms of public safety, my office recommended that review boards give paramount consideration to public safety and ensure that an inquiry is made about the whereabouts of the victims of the offence before making any release recommendations. With respect to the consideration of the victims, we recommended the provision of funding for victims to attend review board hearings and the implementation of notifications for victims regarding the transfer, release, or other status changes of the accused, as is currently available in the federal corrections system.
I am encouraged to see that Bill addresses a number of our recommendations, and I strongly support these proposed changes. Specifically, I am pleased to see, and strongly support, the prioritization of public safety as the paramount consideration for court and review board decision-making and the increased information provided to victims.
In addition to these elements, Bill also makes additional changes by proposing a high-risk designation that could be applied to accused persons who meet certain criteria. This particular section of the bill pertains to the effective management and treatment of those determined to be not criminally responsible, which falls outside the scope of the expertise of my office, so I will limit my remarks to the elements of the bill that specifically relate to the victims—the other two issues.
Bill proposes to ensure that public safety is the paramount consideration in the decision-making process for not criminally responsible cases. I think that considering the safety of the public just makes sense to most Canadians. Public safety is without a doubt an issue of concern for all victims. Many, if not most, of the victims I talk to tell me that above all else they do not want what happened to them to happen to anyone else. This increased emphasis on public safety will provide assurance to the victims that their safety is being considered in decisions and may help to further reduce victimization.
Bill also proposes measures specific to victim safety; namely, that the court and review board consider whether it is desirable in the interests of the safety and security of any person, particularly a victim or witness, to impose a non-communication order or to require that the accused refrain from going to particular locations. While the option for non-communication orders already exists, mandating the requirement to consider this option puts a specific and important emphasis on the consideration of a victim's needs and safety.
Bill also proposes that victims who request it be notified of conditional or absolute discharges. This change helps to enhance victims' treatment in the system by increasing their access to information, which may further contribute to their sense of safety.
I support these measures entirely.
As I mentioned at the beginning of my remarks, regardless of the mental state of the accused, victims have certain basic needs: the need to be informed of the process, including their rights within it, and the need to have their safety considered. Providing victims with information about the accused's progress and release into the community can significantly increase their sense of safety and may increase their confidence that the accused is accessing supports to promote and maintain mental health. This information may also help victims to address general feelings of anxiety and isolation that come from finding themselves in an unknown and unfamiliar system, to prepare up-to-date relevant victim statements for review board hearings, and to plan for their safety.
Additionally, having this type of information may help victims on their healing journey. Experts state that:
||In addition to the victim's need to feel safe, information about the offender's treatment plan and movement within the correctional system may promote the psychological healing of some victims, and may directly increase victim satisfaction with the justice process.
Though we must be careful to note that this relates to victims of an offender who is sentenced and who moves through the criminal justice process, it's not difficult to imagine how the same types of information could also assist victims in NCR cases.
Despite these benefits, victims in NCR cases have significantly fewer entitlements to information than do those offenders who move through the corrections and conditional release system. To address this gap, I recommend that Bill be further enhanced to ultimately provide victims in NCR cases with rights similar to those of victims in the criminal justice system.
Please note that all of the recommendations I am going to provide should apply only in cases where they do not pose a safety risk to the accused, the facility, or an individual, and only in cases where the victim requests the information.
Specifically I recommend that the following rights be added to the bill: that victims be advised of the location of the forensic facility where the accused is detained; that victims be given advance notice of any scheduled absence, either escorted or unescorted, from the hospital, and the general destination, city or town, to which the accused will be travelling; that victims be given advance notice of the destination of release or conditional discharge, or if the accused, on conditional discharge, will be travelling to the vicinity of the victims; that victims be informed of any conditions of release for the accused when they are conditionally discharged into the community—this may include such things as mandated medication or treatment, non-communication with children or others, the requirement to attend treatment sessions, general mobility restrictions, and more—and that victims be given advance notice of any scheduled transfer to another facility or change in the level of security of their ward, or move by the accused to another province or territory, for the purpose of treatment.
In addition to these measures, I would also recommend that upon request, victims be given a chance to view, but not retain, a photo of the accused at time of release; that victims be notified when there are additional or increased restrictions on liberties placed on the accused, such as when the accused is brought back into the facility or has been transferred from a minimum to a medium or maximum security unit; and that victims be notified when non-communication orders are put in place.
Finally, though it relates to the administration of justice and is therefore a provincial matter, I would also submit for consideration the need to ensure that these rights are implemented effectively and that there are clear roles and processes in place in each province or territory to ensure victims receive the notifications they are entitled to. Having requested and received information from the Department of Justice's Policy Centre for Victim Issues, our office became aware that not all provinces and territories necessarily have a system in place to ensure victim notification. Without these systems in place to ensure that victims are, in fact, being notified, a codified right to notification becomes notional.
In conclusion, I strongly support Bill 's proposal to ensure that public safety is a paramount consideration in the decision-making related to the release of an accused as well as the inclusion of further measures to enhance victims' rights. If the further measures recommended are included, I believe that Bill C-54 will help ensure more equitable rights for victims of crime in cases where an accused is found to be not criminally responsible. All victims of crime deserve to be informed, considered, and protected, regardless of the mental state of the person who harmed them.
Thank you for the opportunity to bring the victim perspective to the study of this bill and for your consideration of the recommendations I have provided today to further strengthen this proposed legislation.
Thank you, Chair and honourable members of the committee, for the opportunity to come here today and speak to you.
Time is fleeting, so I'm going to speak very quickly. The synopsis of my remarks has been passed out. I want you to also hear from my colleague Justice Schneider, who is not only a respected jurist but also a psychologist. He has authored many of the leading texts in Canada in this field, so he is an expert indeed.
The review board chairs who do this work on a daily basis have no wish to be pitted against or to appear to be opposing the interests of victims. We're all on the same side here. But there are provisions in this bill that the justices and review board chairs do not support. As well, as there is a judicial role in the bill, I should say that at least five of the current justices or chairs of the review boards of Canada are in fact sitting justices.
The bill does seem to pit decision-makers and clinicians against victims. Bill diminishes opportunities for the current system of incremental, stable, and monitored reintegration into the community, which we all know is part of the system, and instead will encourage treatment avoidance, eventually followed by possibly untested and unsupervised release situations.
The bill does not, as currently framed, accord with treatment science, risk-prediction science, or fiscal prudence. It will see more mentally ill offenders in jail and untreated. It's based on no evidence.
I've been watching the committee's work with interest, on CPAC, and it seems to me that many of the speakers who you get in, many of the very compelling situations that you're confronted with, are actually dealing with how an offender gets into a system, with how he or she gets the NCRMD verdict, as opposed to any evidence of problems with the system once the offender is in. There is no evidence that there is premature release, or of recidivism, once the person is in the system under the very careful scrutiny of the review board, so we feel that the bill has the potential, at least, to make the community less safe.
I'm not going to quibble with the highlight on public safety. I could name at least five Supreme Court judgments since 1999 that make that absolutely clear, but I understand the codification argument.
The additional criteria of “necessary and appropriate in the circumstances” replacing the “least onerous and least restrictive” criterion really has no sensible meaning. It is vague and fraught with interpretation difficulties. I think it encourages detention and restriction disproportionate to the individual's actual assessed risk.
The definition of “significant threat” and the other criteria in the new provision have at least five different definitions of risk, from significant, to substantial, to risk simpliciter. I really think that is a real challenge to consistent interpretation. The definition of “significant threat”, which is of course the threshold determination that we have to make in every single case, converts probability, to possibility, to risk simpliciter. In other words, any risk whatsoever may serve to detain. I think that will impose detention in cases of minor or even speculative risk and will also encourage the utilization of costly thousand-dollar-a-day hospital beds beyond the point when they are actually required to manage an individual's actual presenting risk.
The “high-risk accused” designation must be applied for before absolute discharge. It applies in defined “serious personal injury” offences, which in my view would be indictable offences possibly requiring more jury trial, burdening our justice system. It also requires the “substantial likelihood” of future violence, endangering “life or safety”, and also considers the brutality of the index offence. Risk assessment literature will tell you that brutality or past behaviour is not a good predictor in terms of the severity of recidivism. It just doesn't capture the essence, we think, of what you're trying to achieve, or the kinds of outlier cases that are actually mobilizing this particular bill.
I won't speak to the 36-month provision. I do think the requirement to go back to court to stop the high-risk designation will mean that once a person comes back from the court with that designation revoked, it may actually mean he's entitled to an absolute discharge when he or she gets back to the board. I think that's problematic.
I should say that courts are not experts in risk prediction. Courts look back. They try to assess evidence to see if something happened, if an offence occurred beyond a reasonable doubt. The review boards, with psychiatrists and with community members already on them, are the experts in future risk prediction.
We have no quarrel with particularly the victim provisions, although I should say that those provisions have been around since 2005 in Ontario and B.C. Every victim is provided with notice initially, with an option to continue to receive notice of hearings or to waive that. Since 2005 not a single victim has asked to read a victim impact statement in B.C., even though they're constantly being provided with notice and a brochure of their rights.
Finally, we think there's no persuasive evidence that the current system is wanting.
We think it's charter challenge rich. It sacrifices proportionality. It drifts, unfortunately, from treatment to punishment, and the three-year term may actually decrease scrutiny of the most dangerous and most concerning individuals in the system. The bill is also, I should say, at odds with the Mental Health Commission's own study on recidivism by mentally disordered offenders.
I'd like Justice Schneider to have some time.
Thank you, Mr. Chair, for inviting me here to make submissions to the committee.
At the outset, I should indicate that I endorse fully and echo the submissions of my colleague Bernd Walter.
I'll speak very generally, in a broad fashion, about the three or four main areas of the bill.
With respect to the new enhanced notice provisions to victims, the review boards of Canada really take no position, but would note parenthetically that it seems to be antithetical to some of what's been in the media about victims' desire to be less engaged and not revictimized annually. This set of provisions, to our mind, drags the victims into the system and enmeshes them more fully. In Ontario we have a system where the victims can waive off future notices, and that is indeed where many of them, if not most, go. They do not wish to be further engaged or enmeshed in the system.
With respect to public safety as a paramount concern, as Bernd Walter has indicated, that has been the law for a decade or more. The review boards take no position with that.
With respect to the threshold of “least onerous and least restrictive” being replaced by “necessary and appropriate”, we note that it's a conjunctive test, which most of the academics find puzzling more than anything. When would something be necessary but not appropriate, or the opposite?
The real problem, to our mind, comes with the “high-risk accused” designation. It's with respect to this that there is grave potential for the amendments to actually, contrary to their purported aim, make the public much less safe rather than more safe.
One must remember that individuals who are prospective HRAs are individuals who have elected to avail themselves of the NCR defence. By putting into part XX.1 provisions that might, for a lack of a better way of putting it, appear frightening to the accused—for example, the prospect of being locked up in a hospital, where clinically contraindicated, for up to three years with no opportunity for review—you will inevitably find many accused not availing themselves of the NCR defence. The result of that, of course, is that they will take their chances, take their lumps, in the regular prosecutorial stream. That same individual who might otherwise have gone through part XX.1 in the review board system will one day be dropped out onto the street with no supervision, no gradual reintegration, no treatment.
That, Mr. Chairman, is a much more dangerous situation. The potential here is that the amendments will scare individuals who are presently being very well looked after, and whose reintegration into the community is a very carefully monitored, titrated process, out of that system and into one that would simply have them out onto the street, with no controls in place whatsoever. As Mr. Walter indicated, this is in no way a contest between those who are for public safety as opposed to those who are for accused rights. All professionals engaged in the system recognize that public safety is the paramount concern. That is our collective objective. Our submission is that the amendments proposed in Bill will, however, take us the wrong way down that road.
The Chair: You have 10 minutes.
Ms. Christine Russell: Thank you.
Bonjour. My name is Christine Russell. Exactly two and a half years ago, my husband, Toronto police sergeant Ryan Russell, was murdered. At 34 years of age, I became a widow. Our two-year-old son Nolan lost his dad, perhaps the biggest crime of all. I'm going to show you a picture of my husband Ryan.
On January 12, 2011, Ryan was on duty, doing what he loved most: serving and protecting the people of Toronto. That morning, a man named Richard Kachkar stole a snowplow and went on a rampage. Richard Kachkar deliberately aimed the snowplow at Ryan and his police cruiser and drove into him. Ryan was dressed in full police uniform, and his police car was marked and had the lights flashing.
Ryan was killed in the line of duty. He was left to die alone on Avenue Road, while Kachkar drove off, continuing his acts of violence. When the snowplow was finally stopped by the emergency task force, Kachkar attempted to continue driving. Police tasers did not stop him. The only thing that stopped him that morning was being shot. This is how dangerous and violent Kachkar is.
Richard Kachkar's actions that day have led me here to speak to you about my loss and my experience, the impact this has had on me and my family, and the legal process concerning a verdict of not criminally responsible.
My husband Ryan was murdered. I was told this in the hospital, without any friends or family at my side. I was not allowed to touch Ryan, as his body was a crime scene. My family was immediately thrown into the public spotlight, and they continue to be. My life was in chaos, as I had to plan a funeral and handle all of the affairs. I did not return to work, as I had to care for my own well-being and for our two-year-old son, who is now growing up without a father. My life was put on hold in waiting for the trial to begin. It consumed me and caused me to grieve again.
On February 4, 2013, Richard Kachkar's first-degree murder trial began. Throughout the seven-week trial, the life of the accused was in the forefront. I had to endure hearing my husband's voice for the very last time. The last words he ever spoke were: “He's coming at me, hold on.” Painfully, I had to view the dashboard video of the crash, and I had to bear the graphic description of his severe injuries and relive these moments as they were replayed in the media.
On March 27, 2013, the jury found Richard Kachkar not criminally responsible for murdering my husband. Kachkar was 44 years old when he killed my husband. He had no history of mental illness and no diagnosis of mental health issues, yet there he was, not criminally responsible for murder.
Digesting this verdict has been very difficult. A verdict of not criminally responsible has far too many loose ends. There are no set guidelines or terms, no punishment, no accountability, and no criminal record.
Thirty days after Richard Kachkar was found not criminally responsible, he came before the Ontario Review Board for his first review board hearing. We were told that there was an agreement between the Attorney General of Ontario and the Kachkar defence attorney. The joint submission provided that Kachkar be detained pursuant to a detention order in the secure forensic unit at the Ontario Shores Centre for Mental Health Sciences in Whitby, with only hospital and hospital grounds privileges. There were to be no privileges to enter into the community.
The considered joint submission of the crown and the defence acknowledged and recognized that Richard Kachkar was dangerous and that he represented a significant threat to public safety and required a psychiatric assessment and treatment in a secure detention setting. That would occur over the next 12 months before a different disposition could be considered, if at all, at his next review board hearing.
We were quite concerned that Kachkar, having murdered my husband, was being sent to a medium secure facility rather than the maximum secure facility in Penetanguishene. We were powerless to influence this. We had to accept this joint submission. We thought that, at the very least, spending a year at a maximum secure facility until the true nature and the degree of his mental illness were assessed made sense.
At the hearing, I, along with my parents, Ryan's dad, and a representative of the Toronto Police Service, was finally given an opportunity to read a victim impact statement. We were not permitted to read victim impact statements at the trial because of the verdict of not criminally responsible. All of our statements were scrutinized and edited before the hearing, so as not to offend Mr. Kachkar. It just added insult to injury to not be able to truly voice our hurt and our pain.
I was appalled that the board was entirely unaware of and insensitive to the expectation that I had to actually sit next to my husband's murderer, only two feet away, while delivering my victim impact statement. Review boards should be alert to this painful and extremely uncomfortable dynamic.
On April 29, 2013, the Ontario Review Board delivered its disposition. I was stunned to learn that the board went beyond the joint submission without once questioning or challenging the joint submission and without ever alerting counsel for the Attorney General that the board intended to give privileges that Kachkar did not ask for. The Attorney General of Ontario did not have the opportunity to address the public safety issues and call evidence on the issue.
Notwithstanding that, the board agreed that Richard Kachkar was dangerous and represented a significant threat to public safety; he suffered from a major mental illness, namely psychosis not otherwise specified; he was paranoid and likely schizophrenic; and his major illness was complex, with much remaining unknown.
At the sole discretion of hospital staff, the board authorized Kachkar to enter the community of Whitby, either escorted by hospital staff one on one or escorted by hospital staff with one or two staff for five patients. These are hospital staff, not security guards or armed guards. If Kachkar takes off, all they can do is call 911, and this is a man who could only be brought down by bullets when tasering failed.
This is an absolute insult to my husband, an insult to me and my family, an insult to the police community, and an insult to our public. This is precisely the nonsense that creates public cynicism and disrespect towards the administration of justice.
The crown is appealing the decision, but it does serve to illustrate a serious and systematic problem. There is no public trust or confidence in this review board system when the board feels free and unrestrained to do as it pleases. After only 30 days post-verdict for Richard Kachkar, the man who brutally murdered my husband, left my son without his dad, and shattered our lives forever, this review board put him on a fast track to being discharged without proper diagnosis or any understanding of his mental illness.
You all need to understand how critical and essential it is for victims to attend review board hearings and read our victim impact statements at each annual hearing, year after year. To do otherwise is to abandon our loved ones and risk that the review board process becomes an academic exercise.
Victim impact statements provide for a critical reality check. Perhaps my family will be spared the trauma of annual review board hearings, because the board may be intent on only a short period of detention—an injustice in and of itself—but the issue of yearly reviews needs to be addressed. The victims of these violent and destructive acts need to have rights, and need to stop being revictimized. Changes are necessary to restore a level of trust and confidence in our justice system.
Bill C-54 is a necessary step in the right direction, particularly with the new designation of a high-risk offender. As you know, not all offenders are the same. People who murder police officers are not your typical “not criminally responsible” offenders. They need to be treated differently. A heightened level of security and scrutiny is necessary. The time they spend in secure detention for assessment, evaluation, and treatment for their own good and for public safety must be proportionate to the severity and brutality of their crime.
My husband is dead, and my child is fatherless. Whether Richard Kachkar was sane or insane does not matter; it will never change that fact. Either way, he is dangerous. The public has the right to be protected and feel that it is being protected. Without these changes, the public confidence and respect for this process evaporates, and the system continues to fail.
Good afternoon, everybody.
My name is Mike McCormack. I'm the president of the Toronto Police Association, where I represent 8,000 members of the Toronto Police Service.
First of all, I'd like to thank the Standing Committee on Justice and Human Rights for the opportunity to address the committee and to voice my association's and my membership's support for the proposed amendments to Bill .
Before I start, I'd just like to put into context some of my comments regarding my support and my association's support for this bill. I'm just giving you a little bit about my background so you understand where I'm coming from.
I've been a police officer for almost 30 years. I've worked in the most difficult communities in downtown Toronto. A large percentage of the people living in these communities are living with mental disorders. I know first-hand the difficulties that the mentally ill deal with on a day-to-day basis and the challenges that police officers face when we are responding to persons who have mental illness issues.
I worked in 51 Division for most of my policing career. I've worked closely with the community, responding to crime issues, including drug trafficking, prostitution, gang activity, violent street crime offences. As I said, this area is home to a large transient population, families living below the poverty line, and individuals and their families dealing with problems created by substance abuse and treated and untreated mental illnesses. We have numerous halfway houses, hostels, shelters, and the police work closely with this community and with our partners in responding to the community's needs.
As a police officer, I have been directly involved in responding to the needs of the mentally ill. My experiences range from assisting mentally ill people in acquiring basic needs, such as food or shelter, to arresting or being in violent confrontations with people who are mentally ill simply because they had no access to medication and have committed violent criminal offences in a psychotic rage.
I share this information with you just to give you some context of my support and my association's support for the proposed amendments to Bill . I'm going to reiterate some of the stuff that Christine spoke about involving one of our members, Sergeant Ryan Russell, and an offence committed against him by a person suffering from a major mental disorder. This is the case of Richard Kachkar, and as I said, Sergeant Ryan Russell.
As you heard, on January 12, 2011, Ryan died in the line of duty. He was standing in uniform beside his police vehicle, emergency lights flashing, when Richard Kachkar murdered him. Mr. Kachkar was arrested, charged, as you heard, with first-degree murder in Sergeant Ryan Russell's death. During a highly publicized trial, the jury found Mr. Kachkar neither had the mental capacity to appreciate the nature of the act, nor did he know that the act was wrong, and he was found not criminally responsible.
The evidence that we heard at the trial confirmed that Mr. Kachkar suffered from a major mental illness at the time of Sergeant Russell's death and that he suffered from depression, schizophrenia, and he may have suffered from a personality disorder.
In February 2013, Prime Minister Stephen Harper announced the introduction of Bill , the not criminally responsible reform act. It appeared to us that the primary objective of this bill is to ensure that public safety is and should be a priority in the decision-making process with respect to accused persons who are found not criminally responsible. This would be a way to enhance victim safety and promote greater victim involvement in the Criminal Code mental disorder process.
First of all, I'd like to say the police association supports the reforms that Bill will make and agrees that public safety is and should be the overriding consideration when decisions are made about persons found not criminally responsible by the courts. The public has a right to feel safe in their communities and to be protected against dangerous and violent offenders like Mr. Kachkar.
Second, the association supports a new high-risk “not criminally responsible” designation introduced by Bill , which proposes to allow the courts to designate the most violent not criminally responsible offenders as high risk. The NCR defence is rarely used. It appears only in two out of every 1,000 criminal cases and is less commonly linked to violent offenders, who account for an estimated 10% of all NCR cases. The high-risk NCR designation would only apply to the small number of accused who have been found not criminally responsible and who pose a higher threat to public safety.
The provided some interesting facts in the House of Commons debate on March 1, 2013, about persons found not criminally responsible, when he stated that:
||A little over 27% of individuals found not criminally responsible have had a past finding of not criminally responsible; 38% of those found not criminally responsible and accused of a sex offence had at least one prior NCR finding; 27% of those accused of attempted murder had at least one NCR finding; and, 19% of those accused of murder or homicide had at least one prior finding of not criminally responsible.
Under the proposed amendments to Bill , high-risk offenders would not be discharged unless a court agreed to lift their high-risk designation, which we agree with; would be ineligible for unescorted passes into the community; and their mandatory review period could be extended from one year up to three years.
Having seen first-hand the revictimization of our victims going through this process year after year, we support all these amendments. The association endorses the enhancement of victim safety and victim involvement in the mental disorder process. This bill gives victims of crime a greater role by requiring that the courts and review boards consider the safety of the victim when they make decisions with respect to persons found NCR, and require the review board to notify the victim, upon request, if the accused person is to be released into the community.
I recently attended the ORB hearing with Christine and her family. I sat there for hours wondering what weight the victim impact statement currently had in this process, and I couldn't find any.
On April 29, 2013, after hearing his case, the review board ordered Mr. Kachkar to be sent to Ontario Shores Centre for Mental Health Sciences. This exposed serious systemic problems and serious flaws in the current review board system. The board was unanimous that Richard Kachkar suffered from serious mental illness and represented a significant threat to public safety. During the course of the hearing, a board psychiatrist asked Dr. Klassen, vice-president of medical affairs at Ontario Shores, why he was recommending putting Mr. Kachkar on anti-psychotic drugs at this time, 30 days after the NCR verdict, keeping in mind that this was not done in the previous two years that Mr. Kachkar was in custody, pending trial for Sergeant Russell's death.
In the absence of proper assessment, the review board gave the hospital—and this is key—the power to give Mr. Kachkar privileges in the community, escorted and accompanied by hospital staff. The hospital medical staff were going to be escorting this gentleman into the community if they felt they should do that—not security, not police.
The proposed legislation outlines that a high-risk NCR person would not be allowed to go into the community in this instance, and that they would not be able to go either unescorted or escorted, and only would be allowed in narrow circumstances, and subject—and this is key to us—to sufficient conditions to protect public safety.
What we found absolutely shocking was that these were conditions that Mr. Kachkar's counsel had not asked for, and they were granted without the understanding of the depth of his mental illness. He had not even been fully diagnosed. His mental health issues were major and he represented a significant threat to public safety, yet the ORB was going to allow him into the community.
Our concerns are that without discussion and without evidence, this is the way the board was behaving. He was going to be allowed back into the community in 30 days. In considering Bill , we urge you to look at providing further statutory guidelines to the review board—the issues of public safety as well—guidelines that establish proper evidence-based balance between the need to protect the public and the requirement to treat people with mental illness who commit criminal offences.
The Toronto Police Association supports the initiatives reflected in Bill. We are not insensitive to the difficulties of persons living with mental illnesses. We understand first-hand the devastating impact that mental illness has on the mentally ill, their families, their communities, and in this tragic case, Sergeant Ryan Russell, Christine, and her family, who became unwitting victims in this struggle with mental illness.
This bill does not target persons with mental disorders, those whose illnesses are non-threatening to others, nor does it seek to impose punitive consequences on persons found to be NCR due to mental illness. This bill speaks to the people who commit horrendous heinous crimes and who, like Mr. Kachkar, are found to be NCR.
We in the policing community are committed to protecting our communities. Our challenge is to find a way of reducing the potential for those found NCR to reoffend as well as to protect future victims.
As key stakeholders in the mental disorder regime, we want to ensure that people are taking their medications, that they do not have contact with victims, and that there is a support system in place to monitor mental health and reduce the likelihood of reoffending.
At least through the core process there should be an ability to impose conditions to assist in these protections—conditions that may include boundaries, living arrangements, participation in treatment plans, abstinence from illegal drugs and alcohol, and conditions to stay away from victims to prevent their revictimization.
I represent the Canadian Resource Centre for Victims of Crime and I'm grateful for the opportunity to appear before you this afternoon.
The CRCVC is a national, non-profit, non-government advocacy group for persons impacted by serious crime. We provide resources and emotional support to victims across the country, as well as advocating for public safety and improved services and rights for crime victims.
We are pleased to support Bill today. Our clientele includes families and individuals impacted by persons who have been found not criminally responsible. We remain very concerned about serious acts of violence committed by this small population of offenders and their lasting impacts on victims.
We believe mental illness should be treated as a medical and health issue outside of the criminal justice system, so that patients are stabilized and no longer suffer from symptoms. But we are particularly concerned with medication compliance and the ongoing community supervision of forensic mental health patients.
We support the amendment that would make public safety the paramount consideration by review boards in their decision-making process. Although there have been Supreme Court rulings in this matter, we understand the current approach basically balances four factors, namely the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society, and other needs of the accused.
We support the proposed reforms to codify the meaning of the phrase “significant threat to the safety of the public”, which is the test stated by the Criminal Code to determine whether the review board can maintain jurisdiction and continue to supervise a mentally disordered accused. Consistent with the Supreme Court of Canada’s interpretation, the phrase means a risk of physical or psychological harm to members of the public resulting from conduct that is criminal in nature, but not necessarily violent. The codification aims to ensure more consistency in the application of this test.
We are very supportive of the measures that will enhance victim safety and provide victims with opportunities for greater involvement under the Criminal Code mental disorder regime, namely, ensuring that they are notified, upon request, when the accused is discharged; allowing non-communication orders between the accused and the victim; and ensuring that the safety of the victims be considered when decisions are being made about an accused person.
We understand that currently there is not always consistent interpretation and application of the law across the country. We particularly want to ensure that the information needs of victims are met. This means that they are informed about the accused if they wish, as well as having their personal safety concerns heard and understood by review boards.
Given our work with family members across the country who've been impacted by NCR rulings, we want to reiterate what we hear from the victims themselves, which is that they do not want what happened to them or to their loved one to happen to anyone else. Public safety is their primary concern.
In the most horrific cases, where serious personal injury or death has occurred, victims are often very upset by the fact that the accused person was free in the community prior to their offence and had not received proper help and treatment for their mental illness. They deteriorated. They were unable to recognize the early symptoms of their deterioration, and they caused serious harm or took a life. Victims are fearful that this cycle will repeat itself, especially when it comes to ensuring that the offender will remain on their medication for the rest of their life.
We support the proposed high-risk designation, which would be applied where the accused person has been found NCR and there is substantial likelihood for further violence that would endanger the public, or in cases in which the acts are of such brutal nature as to indicate a risk of grave harm.
We support the fact that they would not be granted a conditional or absolute discharge, and that the designation could be revoked only by the court, following a recommendation by the review board. We understand that this would apply only to those found NCR and not to persons found unfit to stand trial.
Lastly, we feel this amendment would only apply in a very small handful of very serious cases across the country every year, and that is our interest in supporting it as well.
We furthermore agree with the proposed amendment that the review board may decide to extend. We support this. It's not that they must extend the review period for up to three years, but they can choose to.
Again, we're pleased to be here. We're pleased that this high-risk designation would not affect access to treatment by the accused, as has already been discussed.
To your point, the motion that we had states:
||the Chair may call upon the member
—not the party, but the member—
||who filed the proposed amendment to offer brief remarks in support of it.
That's why I called on the member, on Madam May, to make brief remarks to her piece.
Now, to your second point, I am making a ruling on PV-1. I'm going to call them “PV” because that's the way they are now, and that's the way they will be for the rest of the evening. In future, they may change them to independents, I don't know; that's not my doing.
The goal of Bill in clause 9 aims to remove from the Criminal Code the concept of a disposition that is “the least onerous and least restrictive to the accused” person.
The goal of the proposed amendment PV-1 is to bring that concept back, which is against the principle of the bill.
House of Commons Procedure and Practice, second edition, states on page 766 that:
||An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.
In the opinion of the chair, the amendment attempts to revert to what was in the parent act, which is contrary to the principle of Bill C-54, and is therefore inadmissible. This ruling will apply to amendments NDP-2, Liberal-3, PV-12, NDP-11, PV-13, NDP-12, and Liberal-22.
Does anybody need that repeated?
Are you challenging the chair, Mr. Cotler?
On a parenthetical note, wouldn't it be fun if I could vote and then you'd have to break every tie?
In any case, moving on to PV-4, I think it's very clear that as a matter of statutory interpretation, lists are difficult. Lists can be viewed later on by a court as suggesting an exclusivity because certain elements are listed and others are left out.
In this case, what I'm proposing in PV-4 is that we delete, in clause 12, proposed paragraphs (a) through (e) under proposed subsection 672.64(2), which are the specifics to try, I suppose, to set out for a court what all relevant evidence would be.
My position on this is that a court will know what “all relevant evidence” is, and by listing, we might accidentally leave out other factors that I think even Conservative members of this committee would want the court to consider, such as the concerns of victims, which aren't part of this list.
They cannot suggest here that there might be mitigating factors. There might be other evidence that would be open to a court if it merely said “all relevant evidence”, but by listing (a) through (e), we have suggested and prejudged for a court what's relevant. It could give rise to an appeal because the court might be seen to have gone beyond what was an exclusive list for consideration when, in fact, the term “all relevant evidence” is all one needs to ensure that the judiciary can, in the light of all the other sections of the act, make the determination of which accused is a high-risk accused.
In other words, we shouldn't put forward a list that could be seen later as exclusive of other factors.
All those in favour of Liberal amendment 13?
(Amendment agreed to)
The Chair: We now have a new clause 20.1, which is what we just passed, so NDP-9 is withdrawn.
On clause 21, PV-11 was defeated as a part of PV-2. NDP-10 was defeated as part of PV-2.
(Clause 21 agreed to )
The Chair: Under clause 22, PV-12 was ruled inadmissible, so there's nothing happening there. NDP-11 was also ruled inadmissible.
(Clause 22 agreed to)
(Clause 23 agreed to)
The Chair: On clause 24, we had Liberal-14 but it was defeated consequential to the defeat of Liberal-1. PV-13 was inadmissible. NDP-12 was inadmissible.
(Clause 24 agreed to)
The Chair: Liberal-15 is removed because of the defeat of Liberal-5. Liberal-16 is removed because of the defeat of Liberal-6. PV-14 is defeated because of Liberal-6. NDP-13 is removed because of the defeat of NDP-5. Liberal-17 is removed because of the defeat of Liberal-7. PV-15 is defeated because of PV-4 being defeated. Liberal-18 is defeated because of the defeat of Liberal-8. Liberal-19 is defeated because of the defeat of Liberal-9. Liberal-20 was withdrawn by the Liberal Party. Liberal-21 was defeated because Liberal-10 was defeated. Liberal-22 was inadmissible due to the PV-1 ruling. Liberal-23 was inadmissible due to the Liberal-11 ruling. That will bring us to the actual clause 25.
Shall clause 25 carry?
(Clause 25 agreed to)
The Chair: On clause 26, we had NDP-14, which is tied to NDP-1 being inadmissible. NDP-1 has not been dealt with yet. We're standing it down, so all of clause 26 is stood down.
(Clause 26 allowed to stand)
(Clauses 27 to 31 inclusive agreed to)
The Chair: We now have a new clause 31.1 because the Liberal-25 passed. So NDP-15 has been withdrawn.
(Clause 32 allowed to stand)
(Clause 33 agreed to)
The Chair: We're down to the short title already.
Let's go back to NDP-1 and then all the clauses that it affects. My clerk will help me with that.
I'm going to turn the floor over to you, Mr. Mai, because this is on your subamendment to the amendments.