JUST Committee Meeting

37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Thursday, March 14, 2002

Á

1105

The Chair (Mr. Andy Scott (Fredericton, Lib.))

Ms. Carol Ann Letman (Director, Criminal Lawyers' Association)

The Chair

Ms. Carol Ann Letman

The Chair

Ms. Carol Ann Letman

Á

1110

Á

1115

Á

1120

The Chair

Mr. Julio Arboleda-Flórez (Individual Presentation)

Á

1125

The Chair

Mr. Cadman

Á

1130

Ms. Carol Ann Letman

Mr. Cadman

Mr. Julio Arboleda-Florez

Mr. Cadman

Ms. Carol Ann Letman

Á

1135

Mr. Cadman

Ms. Carol Ann Letman

The Chair

Mr. Julio Arboleda-Florez

Á

1140

The Chair

M. Lanctôt

Á

1145

Mr. Julio Arboleda-Florez

The Chair

Ms. Carol Ann Letman

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

Á

1150

Ms. Carol Ann Letman

Mr. Macklin

Ms. Carol Ann Letman

Mr. Macklin

Ms. Carol Ann Letman

Mr. Macklin

Ms. Carol Ann Letman

The Chair

Mr. Julio Arboleda-Florez

Á

1155

The Chair

Mr. Cadman

Ms. Carol Ann Letman

Â

1200

The Chair

Mr. Julio Arboleda-Florez

The Chair

Mr. John McKay (Scarborough East, Lib.)

Mr. Julio Arboleda-Florez

Â

1205

The Chair

Mr. Lanctôt

Ms. Carol Ann Letman

M. Lanctôt

Ms. Carol Ann Letman

Â

1210

The Chair

Mr. John McKay

Ms. Carol Ann Letman

Mr. John McKay

Ms. Carol Ann Letman

Mr. John McKay

Ms. Carol Ann Letman

The Chair

Mr. John McKay

Ms. Carol Ann Letman

Mr. John McKay

Ms. Carol Ann Letman

The Chair

Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC/DR)

Â

1215

Ms. Carol Ann Letman

Â

1220

The Chair

Mr. Macklin

Mr. Julio Arboleda-Florez

Ms. Carol Ann Letman

Â

1225

The Chair

Mr. Cadman

Mr. Cadman

Mr. Julio Arboleda-Florez

The Chair

Mr. Irwin Cotler (Mount Royal, Lib.)

The Chair

Mr. Paul Harold Macklin

Ms. Carol Ann Letman

Â

1230

The Chair

Mr. Peter MacKay

Ms. Carol Ann Letman

Mr. Peter MacKay

Ms. Carol Ann Letman

Mr. Peter MacKay

Ms. Carol Ann Letman

Mr. Peter MacKay

Ms. Carol Ann Letman

The Chair

M. Lanctôt

Â

1235

Ms. Carol Ann Letman

The Chair

Mr. Julio Arboleda-Florez

Ms. Carol Ann Letman

Mr. Julio Arboleda-Florez

Ms. Carol Ann Letman

The Chair

Ms. Carol Ann Letman

The Chair

Ms. Carol Ann Letman

The Chair

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CANADA

Standing Committee on Justice and Human Rights

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NUMBER 069

l

1st SESSION

l

37th PARLIAMENT

---

EVIDENCE

Thursday, March 14, 2002

[Recorded by Electronic Apparatus]

Á  (1105)  

[English]

    The Chair (Mr. Andy Scott (Fredericton, Lib.)): Good morning. Bienvenue, tout le monde.

    Welcome back, Mr. Cadman. We've missed you.

    Mr. Chuck Cadman (Surrey North, Canadian Alliance): I missed myself.

    The Chair: I call to order the 69th meeting of Standing Committee on Justice and Human Rights. Today, pursuant to Standing Order 108(2), our order of the day is a statutory review of the mental disorder provisions of the Criminal Code. This is the subject of our deliberations.

    We have as witnesses this morning the Criminal Lawyers' Association, as represented by Carol Ann Letman, director, Peel Region; and professor and head of the Department of Psychiatry at Queen's University, Dr. Julio Arboleda-Florez.

    As you probably have been advised, we will receive presentations of approximately ten minutes each, if you can do that. I think we're a little bit less rigid on these things in this exercise. Then we'll have questions and commentary from members of the committee.

    Have you discussed who might go first? Please proceed.

    Ms. Carol Ann Letman (Director, Criminal Lawyers' Association): Thank you very much, members, for inviting the Criminal Lawyers' Association to participate in this process and to appear before you and to make some submissions.

    I apologize for authoring on somewhat very brief notice the paper that was presented by the association. For a variety of reasons, I didn't receive the material until the day before I had to write the paper. If it seems rather sparse, I apologize for that. I did it very quickly, as I was about to leave on holidays. I think I covered what I wanted to cover, but it was somewhat brief.

    What I tried to make apparent were that there are certain issues from a practical--

    The Chair: Excuse me for just one second. We're having a little bit of a problem with the translation.

    Please proceed.

    Ms. Carol Ann Letman: I apologize, I submitted it in January and was told that it was being translated.

    The Chair: We are between clerks. I'm guessing that's the only explanation.

    Ms. Carol Ann Letman: Well, if it's of assistance, I have a copy here.

    The Chair: Please proceed.

    Ms. Carol Ann Letman: It's not, as I've indicated, terribly long. But if it hasn't been before you, then I will attempt to highlight what I presented as issues.

    I did review briefly the issues that were contained in the issues paper provided. I had the benefit as well of the material from the review board association. So I didn't expand on what I thought were the very excellent submissions they had made that covered many of the areas also of concern to the defence bar.

    What I attempted to look at, as far as issues that I think are of concern with the existing mental disorder provisions, are a couple of areas that are perhaps more practical, rather than theoretical, but certainly ones that continue to be a problem within the justice system, particularly in the province I come from, which is Ontario.

    To begin with, the question of fitness to stand trial, although clearly described in section 2, becomes troubling in dealing with individuals who have developmental delays. This is an area that is covered under the definition of mental disorder under section 2 as “a disease of the mind”, and also under section 16. But particularly in the issue of fitness, with the developmentally delayed individual, the structure in section 672 provisions are largely predicated on the assumption that an unfit person will become fit through some mechanism, usually some sort of treatment as allowed for under section 672.58. Those individuals are thus going to be able to be tried.

    There is, however, an increasing population of individuals currently before our criminal courts for whom no treatment will ever render them fit, due to their intellectual limitations. This has particularly become an issue in provinces where facilities and institutions have downsized and released intellectually impaired individuals into the community--and perhaps in many circumstances rightly so, given the move toward integration of this particular population group in society as a whole.

    Also, certainly in the opinion of many of us, increasing methods of dealing with fragile children, increased ability to provide for children who would never have survived infancy, has led to an increase in the population of individuals with intellectual limitations.

    These individuals still come in conflict with the law for a variety of reasons. It's obvious that the public is going to continue to be concerned about any actions that are committed by individuals, yet at the same time recognize that such limited individuals may not fit within the classic criminal justice model of rehabilitation, punishment--whatever you want to call the various sentencing aspects that are considered general deterrents, specific deterrents.

    The difficulty with people who are not fit is that they've never been adjudicated as guilty. Proceedings continue against these individuals if the crown can continue to meet what I would respectfully submit is the low standard of a prima facie case--a standard which at present is perhaps even below the current prosecutorial standard that exists in Ontario of “a reasonable prospect of conviction”. The prima facie standard, which is the standard provided for for preliminary hearings, does not allow for assessments of credibility, only some evidence, if believed, upon which a properly instructed jury could convict.

    There then remains in my submission a serious question of whether the standard that is provided for under 672.33, which allows for the continuation of proceedings for an unfit individual after a period of two years--in other words, there's a mandatory two-year review--is appropriate. Is the standard too low, and should it be allowed to continue, particularly if it is a summary conviction offence?

Á  (1110)  

    Persons in the category of unfit to stand trial, particularly those who are permanently unfit, continue to be bound by the provisions of section 672 and to be responsible to appear before review boards and courts every two years. So they are effectively being treated as though they are guilty and at the same time perhaps not criminally responsible. The distinction is not a clear one, even though it's clearly not the intent of the existing legislation that those unfit to stand trial should be treated as though they were guilty.

    The individuals I was categorizing as permanently unfit are never in a position to make full answer in defence. Yet their continued requirement to appear treats them as though they have been found guilty, which is a different standard from that for the individual who is not criminally responsible.

    I think what goes along with that is the fact that the failure to introduce the capping provisions makes this an indefinite process. While the Criminal Code was amended several years ago to do away with the concept of indefinite sentences, in this particular circumstance it in effect imposes an indefinite sentence on many individuals.

    The other aspect I talked about briefly in the paper is the difference in treatment between an individual who is unfit to stand trial and the individual who is not criminally responsible with regard to the availability of an absolute discharge. That has already been found by one court in this country to be an unconstitutional distinction. It is a troubling distinction, given that the individual who is unfit to stand trial has never been adjudicated as guilty and under the Charter of Rights and Freedoms is entitled to the presumption of innocence. Yet they are bound by the system as though they have been so adjudicated and they cannot be granted an absolute discharge, whereas someone who has been found guilty but not criminally responsible can be given an absolute discharge.

    So that differential is already considered to be unconstitutional by one court. I suggest that it may continue to be reviewed. The Winko case, which went before the Supreme Court, also dealt with the issue of not criminally responsible rather than unfit to stand trial. This again becomes a troubling aspect for the developmentally delayed population, because in many circumstances they are never going to be fit to stand trial.

    The question that was asked was whether the standard for unfit should be altered in some way. That is a very difficult one to answer, because the development of the definition is clearly as the result of case law over a period of time. At a superficial level it makes good sense. The developmentally delayed, and even the mentally ill, may have grasped certain concepts of why they are in the court system and what they are charged with, and they may be able to instruct counsel at some level as to guilt or innocence. Yet they may not entirely appreciate the various roles of the judicial officers and the crown, the potential outcome for the category of unfit to stand trial, other than bad thing and good thing, and this process that has no definite end.

Á  (1115)  

    From a practical standpoint, most defence counsel avoid, as much as possible, adjudications of “unfit to stand trial”, and I think in many circumstances avoid, particularly for minor offences, the “not criminally responsible” aspect of section 16.

    The end result of an NCR adjudication particularly is likely a more significant sanction of some kind for an individual who's been accused, in the sense of more onerous and long-standing terms. Again--and this is a serious concern, with the absence of the capping provisions--there are many offenders before the courts who are mentally ill and charged with very minor offences. The courts are ill-equipped to handle them. There is a serious problem with resources, certainly throughout Ontario. Obviously I can't speak too much for the other provinces.

    The reality is that if individuals assert as a defence that they are not criminally responsible, or there is an issue as to fitness, they are likely to remain in a custodial facility far longer for a minor offence than they ever would if they were able to make a plea and have the court adjudicate a sentence upon them, if they're pleading guilty--or even go to trial.

    I realize the allocation and the provision of resources is not a federal problem; it is a provincial one in many respects. But if the legislation is to accomplish what it's designed to do, it is not going to do it without some cooperation and the provision of adequate resources, because our jails are already overcrowded with individuals with mental health problems.

    If there is effort to be made in rewriting some of them, consideration--in my respectful submission to this committee--has to also be placed in reassessing the allocation of resources between the federal government and the provinces for hospital treatment or accommodation for individuals of this nature, rather than custodial facilities.

    Basically, that's what I wanted to say. I think I've said a little more in the paper, but somewhat along the same lines. I think I've probably fallen in your ten-minute category.

Á  (1120)  

    The Chair: Thank you. You did very well.

    Professor Arboleda-Florez.

    Mr. Julio Arboleda-Flórez (Individual Presentation): I would like to thank the committee for having accepted my brief and for having invited me to come here. Although I am the chairman of the Ontario Ministry of Health's Forensic Mental Health Services Expert Advisory Panel, in which we are reviewing many of these issues, I would like to indicate very clearly that I am not speaking on behalf of my panel, that this is my personal brief. So please consider that when this matter is being reviewed.

    My brief followed the pattern of the materials sent to me when the invitation to submit briefs came. Therefore I answered them as general issues and as specific issues. Ms. Letman has already referred to the matter of persons who are ending up in the justice and correctional system, where there is practically no treatment available. I refer to the same issue in my brief. Most of the issues in my brief are directed to the impact of Bill C-30, the changes in the law, on the mental patients and on the resources they have had through the provincial ministries of health.

    I indicated in my brief, in terms of general issues, that Bill C-30 has had the intended effects in many ways. It brought in the introduction of automatic reviews of persons found not fit to stand trial or not criminally responsible, and removed these matters from the lieutenant governor to the review boards. By so doing it has prevented people from getting lost or being there for a long period of time, although we have heard Ms. Letman's concern regarding the developmentally disabled.

    The boards also have increased the quality of forensic assessment in the forensic systems in regard not only to the assessments but to the clinical manifestations, the risk assessments, etc. In so doing it is my opinion that it possibly has elevated not only the quality of forensic psychiatry in the country but also the quality of treatment and hopefully the quality of life for these persons, although there is no empirical evidence to this effect.

    On the other hand, the law introduced has had untoward effects. You must know that psychiatry and mental health systems have gone through a period of health reform dating from about 30 to 50 years before the health system reform that we have seen paraded across the land over the past five or six years in the Romanow commission, the Mazankowski report, etc. Those are issues we have already done in psychiatry and mental health systems. We have already closed mental hospitals. There were about 72 mental hospitals in 1968, and we have only about eight at this time in all of the country. From having 35,000 to 40,000 mental patients, we have only about 4,000 now in mental hospitals, etc.

    This created a tremendous de-institutionalization of mental patients onto the streets and community systems when the communities themselves were not prepared to accept these individuals because they were no systems available there. Ergo , many of these patients end up being in the streets not accessing housing nor accessing services, and therefore are being criminalized and ending up in the court system.

    Bill C-30 has also contributed to the effect, because by virtue of the lack of services in the general mental health system many of these individuals then go the forensic route. Section 16 of the Criminal Code, by bringing the test from “beyond reasonable doubt” to “on the balance of probability”, has made it much easier to become or to be found criminally responsible.

    The number of these individuals appearing in the court systems has increased tremendously the number of persons being sent to the system for fitness to stand trial assessments. The result has been not only a criminalization of the mentally ill, but also a tremendous pressure on the assistance available.

Á  (1125)  

    As Ms. Letman has said, we can corroborate that many of these patients wait in the prison system to be transferred to a psychiatric facility of any sort.

    We have problems that are the results not only of policies of institutionalization, but also of Bill C-30 in its own intended effects. We consider there are problems in the matter of section 16 having become so easily accessed--mostly because of the lowering of the level of the test, but also because of the expectation of early release and because the treatment is supposed to be of better quality. This has increased the level of criminalization.

    I'm passing now to issues on a specific point. In the matter of “fitness to stand trial”, I think there is not much to be said, although we know very well that fitness to stand trial is a very easy assessment to do. The Taylor decision in Ontario made it very narrow as to what the issues are a person has to show for rightful determination of fitness to stand trial. We would say these assessments could be done mostly on an out-patient basis, instead of the judge sending the person to psychiatric facilities for assessment.

    In some data we have reviewed, we can see that in many of these forensic institutions up to 60% of the beds are taken by “fitness to stand trial” assessments, and these “fitness to stand trial assessments” go over and over again. It's a merry-go-round, in which the person gets an assessment, gets treatment, spends two or three months there, goes to the court, gets released because the offence was a minor offence, gets to the street, doesn't get treatment, and waits another six months and has another fitness assessment. We are on a merry-go-round, utilizing resources--not only justice resources, but mental health resources--inadequately. We consider these assessments could be done differently.

    The material sent to us asks about the question of automatism. I clearly say there is no psychological, psychiatric, or neurological basis for a defence of automatism. Say no to automatism. There are automatisms; they all pertain to issues of mental conditions--personality disorders, etc.--affecting the way a person functions, and in a particular moment there is a disintegration of behaviour. But that is mental illness, and those issues therefore fall under insane automatism.

    We have concerns about the boards of review, because their use has increased the overutilization of health resources in the provinces--mental health resources. Boards of review are utilizers of services with absolutely no responsibility as to who pays the bill. The bill is paid by the health system.

    We have heard about how strapped for cash the health system is--that we, as Canadians, may not have health services available to us at certain points, mostly because there is no more cash coming into the system. Here is a perfect example of misutilization of health resources by virtual determinations of the law. Boards of review order resources, and the ministries of health have to pay for those resources. Boards of review have no knowledge whatsoever how much it costs to do this. In that regard, we have many concerns about extending the authority of the boards without their being made responsible for the finances, or who pays the bill.

    We also, for the same reason, have concerns about capping provisions, dangerous mental disorder appeals, and hospital orders. The question is, who pays the bill? The health system doesn't have the funds available so easily any more. I conclude that although these things may appear to be logically acceptable and possibly socially acceptable, some further arrangements for financing of these legally mandated systems have to be entered into between the Minister of Justice federal and the ministers of health provincial.

    Thank you.

    The Chair: Thank you very much.

    Mr. Cadman, for seven minutes.

    Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chairman.

    If you talk to the “average Canadian”, there are certain issues that crop up, and I think capping would be one that would certainly cause some consternation among the public. I certainly appreciate the concerns about indefinite sentences without a conviction and that sort of thing, but where do we strike the balance? How do we find the balance when it comes to the issue of public safety--which, when we're all dealing with our constituents, is among the things that come up?

Á  (1130)  

    Ms. Carol Ann Letman: One element of very serious concern is the number of very minor offences. Many individuals with mental disorders come before the courts and are charged, but obviously the high-profile situations are the ones that get the media attention. The vast majority of individuals are before the courts for very minor offences, such as mischief, uttering threats--which may not seem minor in some respects, but is often merely words uttered by someone whose mental state is in question, and there's no action to go along with it--thefts, and property damage types of offences. They're very minor.

    The capping provision is designed to set the maximum time period a person can be sentenced for the same offence. In dealing with the public, it is important to stress this limits the power over an individual for an offence to the same limit they could be sentenced for if they went to trial and were found guilty, in terms of dealing with the person who wasn't fit.

    Correspondingly, a person who was guilty but not criminally responsible would be limited to the same time period of control and supervision they would be limited to if they had been sentenced to either a custodial facility or a probationary term. It's important to stress that the time periods would be the same as they would be otherwise.

    In terms of talking to the public, it needs to be made clear that indefinite periods of time may not accomplish any more public safety if resources don't exist to adequately assist the individuals who need some sort of community-based supervision. But our mental health acts also may come into play in certain circumstances, on a provincial level, to assist in “public safety” aspects.

    Mr. Chuck Cadman: Doctor.

    Mr. Julio Arboleda-Florez: I think the issue of the indeterminacy of people in the psychiatric forensic units is one of the problems that has been alluded to. In that regard, capping could help because these people will possibly never be fixed because you cannot put more neurons in a brain that is already damaged.

    So these individuals are reviewed by the review boards and then remanded again and again. At some point one has to ask how long we can have a bed to be used for life. Many times that is happening. That's also happening with pedophiliacs. We do not know when to discharge these individuals, and they are simply being warehoused, occupying more and more space as it goes.

    Mr. Chuck Cadman: So if I understand you correctly, regardless of whether it were first- or second-degree murder, the capping essentially would be life, if it were in effect.

    We have bizarre situations where break and enter can carry a life sentence too. Can I assume that manslaughter would be considered a life sentence, because it can draw a life sentence?

    Ms. Carol Ann Letman: The provisions were put in but never enacted. They still need to be fine-tuned if they're going to be enacted, because as you quite correctly pointed out, there are many offences where the maximum is life.

    Under the Youth Criminal Justice Act, or the Young Offenders Act, by analogy, certain offences were specified--murder, manslaughter, aggravated sexual assault--as ones that fit a special category. It might be appropriate to categorize the same way, so offences that have life imprisonment under the code, such as break-and-enter or robbery, don't necessarily fall into the same category as the peculiarly seriously violent offences that really concern the public more than anything else.

    I think that's why the Young Offenders Act and the Youth Criminal Justice Act designated those offences particularly. It may be something that should also be done with the Criminal Code.

Á  (1135)  

    Mr. Chuck Cadman: Thank you.

    On another topic, how do we deal with a person who is on medication and decides, whether because of side effects--I think you know where I'm going here--to stop medication willingly, then commits a violent offence? We've seen a couple of cases like this. I believe there was one not too long ago in Vancouver again where someone was pushed into the side of a train. How do we deal with this?

    The defence is always put forward that such a person is off medication and therefore not competent. Some would argue that responsibility was taken at the point when the decision to stop taking medication was made. How do we approach this?

    The Chair: Ms. Letman.

    Ms. Carol Ann Letman: First of all, are you talking about someone who has been previously under some sort of order?

    Mr. Chuck Cadman: No.

    Ms. Carol Ann Letman: You mean just some individual in general.

    You're referring to the circumstance where someone who has a psychiatric disorder, who has been medicated, stops taking medication. This certainly happens quite a bit and does lead to offences.

    Given that we, presumably, as a society only believe we should be criminally sanctioning those who have an operating mind when they commit an offence--and this is why we have a section 16 defence for those who aren't governed by an “operating mind”--then if someone commits an offence of this nature and is found not criminally responsible, under the existing framework, such a person is still subject to being detained in hospital, or at some point perhaps being conditionally discharged.

    This very scenario, where someone becomes conditionally discharged perhaps after being hospitalized and maintained on a basis of treatment, is one where, for a long period of time, continual compliance with the conditions of a review board will be required or the person will face being rearrested.

    I'm not sure there's a significant distinction between someone who is continually bound by those types of conditions and someone who serves a sentence and is then placed on a term of probation that will eventually be finished...or is certainly sentenced to a period of time in a penitentiary and isn't treated. I'm not sure we don't accomplish just as much through the existing provisions in terms of preventing the commission of further offences by this individual.

    The Chair: Thank you very much.

    The chair recognizes Dr. Arboleda-Florez.

    Mr. Julio Arboleda-Florez: The issue is what we can do to prevent these lapses and what systems are available. Yes, there are some systems. Some of them are quasi-legal, and the others are clinical interventions. It doesn't matter whether the person comes from the legal system or is just a regular mental patient.

    On the clinical intervention side, we have a system called ACTTs, assertive community treatment teams. These teams use a very basic type of intervention in a very assertive way to make sure this person complies with the treatment conditions and also to catch the person who happens to stop the treatment or medication and to get them to start again.

    From the point of view of the quasi-legal systems, in certain provinces we have community treatment orders. Saskatchewan has had them for many years, and in Ontario we just started them last year. These orders simply try to have the same effect, in that they enjoin the mental patient to accept responsibility for his or her problems and to accept treatment under certain conditions, without going against the will of the person. It's supposed to be an empowering of the mental patient to accept the responsibility you mentioned. So there are those systems available.

    We do have problems with the mental patients who come from the legal system, though, and that is what I just referred to as the criminalization of the mentally ill. It does produce a double stigma. No matter what we do for our mental patients and how much we advocate for them, there is a stigma against them just by virtue of being mentally ill. If you add that you are also a criminal, then you have a double whammy on your life and you get both criminalized and stigmatized. By virtue of having the label called forensic, many of the regular mental health systems refuse to take that person. That person then drifts out of the system, and the forensic systems are not there with the facilities, the funds, or the means to take that person back. So that causes major problems because of the stigmatization.

    As these individuals require more and more services, more funds are being transferred from the regular mental health system to the forensic system. Back in 1998 a group of researchers in Ontario made a prediction that if this trend continues, by 2004 100% of the systems for mental health services in the province will be forensic systems. That will be the tail wagging the dog. Is this strange? No. There are countries where in fact that is the case.

Á  (1140)  

[Translation]

    The Chair: Mr. Lanctôt, you have seven minutes.

    Mr. Robert Lanctôt (Châteauguay, BQ): Thank you, Mr. Chairman. I will continue along the same lines as Dr. Florez. I think that every one is aware of the problem that we have with resources, and contrary to what Ms. Letman said, the resources are, of course, contributed by the provinces, in particular by Quebec.

    When you say that the problem is not federal because the resources belong to the provinces, the problem remains the same. There are not enough resources in the provinces because there are no longer any transfers. I agree with what you say in your document, that I have received this morning and that I am reading, that we might have created a system… The problem lies in the fact that there are no resources available because there are no longer any federal transfers. It isn’t right to say that the federal government is not involved. The government created a system, which might be good, since the Criminal Code has become a medical-legal code, but the figures you have quoted are quite substantial. You say that only 4,000 people remain institutionalized, when there used to be 35,000 or 40,000 in institutions. Those people are now on the street.

    This is the problem. How can we improve the act, whether it has been included in the Criminal Code or not, if we don’t have the resources, if the provinces are no longer getting transfer payments? There are people in the street. If the system is such that only those who have a criminal past are being institutionalized, we will never solve the problem. You were right in saying that it is a vicious circle, and it is so vicious that we will never see the end of it.

    So we must stop saying that the provinces are at the root of the problem when it comes to mental health. The fact is that there is no money available. I think that you have expressed this quite clearly and we must take it into account. In our report, we should tell the federal government that if the money is not available and if it is not forthcoming, then it will be extremely difficult to have a medical-legal system for those who are mentally ill. There is no other way around it.

    It quite obvious, we are not lying when we say there is a fiscal imbalance. If it does exist and if reports are tabled in Quebec, if the federal government ignores what is being said and feels that it does not exist, that it is untrue and that enough money is being contributed for health care, then I would ask Dr. Florez what can be done with this money, and how do we make up for the shortfall, if there are no transfers.

Á  (1145)  

    Mr. Julio Arboleda-Florez: I think something can be done. One of those things is what Mr. Klein and his friends in Alberta are considering. They want to discontinue the health care services that they feel should be paid for by someone else, by some other systems.

[English]

    I have to say that with this system, one of the things to do is to take things out of the system and make them private affairs so there is continuation of some of the health systems. That is one of the issues.

    The other thing, as we say here in the medical legal system, is to ask whether we, in the health system, have to pay for investigations that are clearly criminal investigations, such as fitness to stand trial or dangerousness assessments or criminal responsibility assessments. Are they the responsibility of the legal system, or should it be the responsibility of the justice system to pay for them? If we did say that, then we say health kicks in when we know for sure that a person suffers a mental condition. That is our responsibility in health. Up to that point, it is a justice investigation, a criminal investigation that should be paid for by justice. So it's a realignment of the fiscal responsibility of the operation that we do not have at this stage.

    As to the transfer of funds, etc., I am in agreement. I don't know exactly how much the federal government transfers to the provinces, but you have to think about what has not come into the Romanow audiences or the Mazankowski report. If we know for sure that very seldom is a government capable of running a business operation, how come the federal government runs a business operation as massive as health? You have to consider that.

    The Chair: Ms. Letman.

    Ms. Carol Ann Letman: I would echo the comments Dr. Florez has made. As I tried to stress before, there is obviously a clear problem with allocation between the provinces and the federal government in terms of providing adequate resources.

    I was somewhat astonished when Dr. Florez mentioned that the report from Ontario indicated that one expectation might be that 100% of the patients involved would be forensic. That takes me by surprise, but it is obviously a very real concern that the population is a growing one and the closing of institutions has led to a massive number of individuals who are not being adequately provided for in the mental health systems in general. Whether they actually come in conflict with the law--and many of them do, as I indicated before, in very minor offences--brings into play the need to provide adequate resources in some fashion or another. It is probably quite appropriate that the actual assessment level be handled by justice until there actually is an assessment of a mental disorder.

    Having said that, it still brings in the population I referred to before that is clearly already, for want of a better way to put it, mentally disordered by an intellectual limitation that is not treatable. Again, those individuals are also on the street, coming into conflict with the system. Yet they're not necessarily adequately handled through mental health facilities, nor do they need to be, because that's not the resource that needs to be made available to them.

    The Chair: Thank you very much.

    Mr. Macklin.

    Mr. Paul Harold Macklin (Northumberland, Lib.): Thank you.

    Clearly, one of the problems you are addressing is whether the law is taking into consideration appropriately those who are permanently developmentally delayed. I'm getting a sense that there is a gigantic crevasse into which these people are falling, which we don't seem to be addressing in an appropriate manner. In fact, they may even be more victimized than we're dealing with within our society. Maybe the criminal law ought to be looking at areas of what one might call victimization of those who...

    I'm presuming that when we talk about people who are permanently developmentally delayed, we mean those with a mental age of 13 or 12 or less or something like that and with a physical age of 20 or more, or any number of that nature. In other words, there's no concurrence between those two.

    Can you comment on what your experience is? Are we missing a major segment of the population who would fall into that category, who need protection? Are we not appropriately dealing with them in our criminal law system?

Á  (1150)  

    Ms. Carol Ann Letman: Very much so. Actually, I do a fair bit of work with individuals who are developmentally delayed and caught in the criminal justice system. Unfortunately, some of them are before courts because of sexually related offences, which obviously brings out a huge public reaction. But very much, there is a crevice and a problem with individuals who...in fact, many of those individuals who may commit sexual offences yet have that significant mental limitation have been sexually abused themselves. So they're both victims and potentially offenders.

    You talked about mental age aspects versus physical age. It's not something that is as easily quantified as we used to think with respect to mental retardation. In my practice, as much as possible, because of the potential ramifications and because I know there are community-based treatment programs for many of these types of offenders in the community in which I practise, I do my best to try to make sure they are fit and go through the process, rather than go through the unfit or the not criminally responsible, to be perfectly blunt.

    If they have some comprehension--and a lot of individuals who have developmental handicaps do have some comprehension that they did something wrong--and they can instruct me in some fashion or another to enter a plea or to go to trial, I would much rather go through the process, because of what happens to them if they are found unfit or they're found not criminally responsible. There are no adequate resources available for them. They may be hospitalized or intended to be detained in hospital, but in reality end up in penal facilities because there are no hospital beds.

    It is a problem that the existing provisions do not adequately address. We have, as I said before, an increasing number of individuals who fit in this category, and their access to resources is largely through ministries of community and social services, even more so than health. Again, that's a resource problem in most of the provinces.

    Mr. Paul Harold Macklin: When you refer to inadequacy of beds, it implies that we're going to “put them somewhere”.

    Ms. Carol Ann Letman: In many cases, that's exactly what people try to do, to put them in facilities because of the concern of public safety that an individual who's intellectually impaired might be sexually abusing someone else, even though they may have also been sexually abused and may not fully appreciate their actions.

    I've had to fight to keep people with developmental limitations out of penal facilities, and it has been a hard fight. I have actually had some really good cases where I've been able to succeed in that, even to the extent of conditional sentences. It is a huge issue, with public safety concerns represented by crown attorneys.

    Mr. Paul Harold Macklin: You suggest conditional sentences. Do you see that as an area of where there might be more room to deal with issues of that nature?

    Ms. Carol Ann Letman: I think there is more room to deal with it.

    Mr. Paul Harold Macklin: Would that require us to do anything further with respect to our existing code?

    Ms. Carol Ann Letman: I suppose there is the question of whether conditional sentences might be appropriate in certain circumstances for longer than two years. In certain circumstances, that would be the only issue that I could see, because there are certain offenders and offences that might benefit from longer conditional sentences, and where that is available in circumstances where the only other option would have been a penitentiary sentence.

    The Chair: Dr. Arboleda-Florez.

    Mr. Julio Arboleda-Florez: I think that the use of the justice system sometimes is too big of a blunt weapon to deal with the problem of misconduct in the community, because, as I was indicating, anybody who works through the system gets the label “forensic”, etc. But the label forensic does not differentiate between a person who has just committed a very minor offence and the person who has killed their father in the middle of a psychotic condition. The label is the same for all.

    The law does not differentiate between the level of need of that person. The first person who just committed a minor offence has a very low level of need--possibly is not dangerous at all--whereas the other one requires a tremendous amount of resources. The law does not make any difference in that regard when it comes to putting the label on.

    The problem then is that once the person enters into the forensic system, it's very difficult to get out of it. It's like a ghetto, and very few people actually get shifted onto the general health system, or mental health system, because of that label.

    One of the things we think the legislation could do is to demand assessments of levels of need, as opposed to criminal responsibility, or the legal issue. It would be more humane and it would be more appropriate. It would also help decide when a case ceases to be a forensic case, because what we know is the definition of when somebody enters and becomes forensic; we don't have a definition of when somebody ceases to be forensic, and that person remains in the ghetto for ages, having the problems that Ms. Letman indicated.

Á  (1155)  

    The Chair: Thank you very much.

    We'll be back, Mr. Macklin.

    Mr. Cadman, three minutes.

    Mr. Chuck Cadman: Thank you, Mr. Chair.

    It has been suggested that the mental disorder defence be extended to include persons who voluntarily abuse illegal substances, or substance abuse--alcohol, drugs. I have a problem with that myself. I want to know how you feel about that.

    Ms. Carol Ann Letman: It's an interesting one, given that, for example, intoxication is a defence to specific intent offences, but not to general intent, and efforts have gone on to reduce the numbers of specific intent offences to a very small category.

    I share your concern, but counterbalance it with the fact that we've gone so far to reduce the availability of intoxication as a defence to very limited numbers of offences, because it's quite clear that under certain states of intoxication you're not dealing with an operating mind.

    I return to what I said before, that the logic of the criminal sanctioning system--the criminal law system--is to punish both the action and the mental state. If the mental state you're punishing is the voluntary intoxication of a substance that led to disinhibition and commission of an action that's illegal, are you really punishing the conscious intent to commit that offence, or are you simply punishing the individual? I use the word “punishing”, because that's in many ways what the public looks at. Are you merely punishing the consumption of the intoxicating substance? It's troubling from the perception of the public in terms of expanding it into section 16, because you don't want people using it as an excuse. Is there some sort of middle ground where we perhaps... I think to some extent it does exist, in that we do often treat voluntary intoxication as a mitigating factor in terms of liability for any sanction that flows from it.

    I don't know if that entirely answers the question. I'm not sure. I'm gung-ho for the idea of lumping that into section 16, although I also recognize the logic of not sanctioning a non-operating mind. It depends, I think, to some extent on how far the consumption has gone.

    One of the issues that sometimes arises, and I've argued this in a case, is if someone takes the wrong medication by mistake, should they be entitled to more benefit of a defence such as section 16.

  (1200)  

    The Chair: Dr. Arboleda-Florez, did you want to comment?

    Mr. Julio Arboleda-Florez: I would ask you to think of the epidemiology of the question. Epidemiology is the science that looks at physical or mental illnesses in the population. As opposed to the medical doctor, who is concerned about one person, an epidemiologist is concerned about the illnesses among everybody.

    Think of the epidemiology of the situation, or the prevalence--prevalence is the number of individuals who suffer from a particular condition at a particular time in a social group--of alcoholism. That runs between 5% and 10%. That means 1.5 million to 3 million Canadians suffer from alcoholism. If you add the other drug conditions, add another 1% or 2%. Of those, about 2% to 3% are acutely, severely damaged by these substances.

    That simply means that at that level, a good number of almost one million Canadians will be liable to commit serious offences, which in fact they do. The prisons are filled with alcoholics--60% to 70% of crimes are committed by individuals in intoxication. About 50% of the victims are themselves intoxicated. Now, would you build all the mental health facilities to hold all of these individuals who are going to be found not criminally responsible because of substances--1.5 million to possibly 3 million? That's the epidemiology. It's still a matter of being realistic.

    The Chair: Mr. McKay, you have three minutes.

    Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chair.

    I'm referencing page 6 of Ms. Letman's paper, with respect to capping and dangerous mentally disordered accused. You support the proclamation of capping provisions for understandable reasons; you articulated that very well.

    The previous witness who was here, Dr. Bradford, was against the proclamation of capping provisions. He understood the difference between an indefinite and a definite sentence, but said if it was to be proclaimed, the “dangerously mentally disordered” accused provision should be revisited. So curiously, you and he agree that those provisions should be revisited.

    First of all, to Dr. Arboleda-Florez, what is your position on the proclamation of the capping provisions? And whether you support the provisions or don't support the proclamation of the provisions, what is your opinion with respect to revisiting the “dangerously mentally disordered” accused?

    Mr. Julio Arboleda-Florez: My opinion on the matter is that at the present time, if the person is capped--capping as defined means the person should have obtained the sentence or is out--there is not going to be just simply “out”. There will be major obligations, on the health system, on the street, to provide for these individuals.

    With all due respect to the review boards, a great majority of the persons who get released don't get treatment simply because the treatments are not available. Think of the risk to the community--you have a problem there already. The review boards don't even have, at times, the facility to track these persons. They get released under conditions; nobody tracks them. Nobody knows at times where they go or what they do. That's because there are no systems out there. Capping would produce more pressures on facilities and resources that do not exist in the community as it is.

    The same goes for the double dangerousness situation, because it increases the pressures on mental health beds that do not exist any more. In my own community, we had a mental hospital that eight years ago had 440 beds, reduced then to 220, and it will be reduced over the next two years to 104. This goes all across the country. We do not have the facilities to hold these people for long periods of time. The average length of stay in the acute psychiatric units in the country--those are the psychiatric units in the general hospitals--is between 11 and 15 days, meaning the person presents with symptoms, medications are given, and out you go. That's all they can hold. The per diem cost per patient is about $510. This is a major difficulty.

    Producing this capping, having the double dangerousness issue, or having hospital orders will produce pressures on the system, and that's the prediction that was given. If we continue this trend, we will have a massive forensic system. We will have no mental health system.

  (1205)  

    The Chair: Thank you very much.

    Monsieur Lanctôt, three minutes.

[Translation]

    Mr. Robert Lanctôt: On the same topic, it is obvious that Dr. Bradford advised us that we should maintain the status quo, partly for the reason that you have just given us, but also because if there is no follow-up at this time, it is not because of the act, but rather because of the lack of resources.

    He told us that we should take care if we want to change the act which, according to him, is acceptable. There is no need for a ceiling if, at this time, since we don't have the necessary funds, it might still be at least possible to find some place to care for those who are mentally ill. As he told us, even with a five or ten-year ceiling, there is no guarantee that a person will no longer be affected by mental health problems. The aim is to ensure public safety. If we forget that public safety is the main objective, then we will have a problem.

    He told us that if we had a five or ten-year ceiling, the problem would be the following. The Quebec act or other provincial acts would then apply. However, we know it would be much more difficult to put these people in an institution against their will under the different provincial acts, including Quebec's. He went even further by saying that it might be a good idea to have one unified act. We don't need to go into a discussion on the Constitution, although we know full well that jurisdiction over health and social services belongs to the provinces. We would never be able to have that type of legislation. In any case, Quebec would never be willing to become involved in that type of system.

    Therefore, considering all of the problems inherent in capping, Dr. Bradford tells us not to go there, but to maintain the status quo. How do the two of you feel about this?

[English]

    Ms. Carol Ann Letman: It's exactly the opposite. The reality is, if you don't have a cap, you end up with people in the system longer than you do with a cap.

    So if you're talking about the drain on resources, the potential is for resources to be drained longer in the absence of a cap. This is particularly true for the more minor offenders. If for example they've been found not criminally responsible, under the conditional discharge provisions or the detention provisions, they may end up continuing to be bound under the review board conditions for a longer period than they would have faced had they in fact been adjudicated guilty and placed on a period of probation.

    With the absence of capping, the reality is that people can be caught in this system for far longer than they would be if there was a cap. Frankly, I see the effect on the resources as more serious if there isn't capping.

[Translation]

    M. Robert Lanctôt: We are in favour of security. I understand that, but the reverse does not apply. The aim is to ensure public safety. I understand what you are saying. It is obvious that if we keep them in a hospital or in an institution, then we will need more resources. And that is what we are asking for: more money. I'm sorry.

[English]

    Ms. Carol Ann Letman: I don't disagree with the logic for more resources. But if you're talking about safety, you're talking about someone who may have a mental disorder committing a violent crime, depending upon whether you're using the unfit to stand trial or the NCR defence, as opposed to the sane individual who commits a violent offence and is released on the street. You're saying the person who fits into this category, who may have a mental disorder, should be subject to control for a longer period of time than an individual who commits a violent offence knowingly, serves a sentence, and is released into the community.

    Again, if you're talking public safety, I'm not sure I get the distinction between an indefinite sentence for the NCR or unfit to stand trial person, versus a definite sentence for the sane individual who commits a violent offence.

  (1210)  

    The Chair: Thank you.

    Next it's Mr. John McKay, and then over to Peter.

    Mr. John McKay: This is kind of a critical point, and Mr. Lanctôt has extended it a bit.

    I hear Dr. Arboleda-Florez saying that if we don't have capping, it's a good thing. You want capping, and your argument is exactly the opposite of his. Your argument is that it reduces the strain on the system, and his argument is that it will overwhelm the system. There doesn't seem to quite be a meeting of minds here.

    Let me pursue your argument just a little further here. If there is capping, it will eventually push the person back out on the street, or somewhere else. All you've really done is shifted the problem out of the criminal justice system onto society at large, then, haven't you?

    Ms. Carol Ann Letman: What you've done by not capping is shifted the problem from the justice system onto the health system--

    Mr. John McKay: No, it's the reverse.

    Ms. Carol Ann Letman: --by keeping them in hospital.

    Mr. John McKay: By not capping, we're increasing criminalization and keeping people in the system longer. So the individual is dealt with by the criminal justice system rather than being dealt with by the hospitals.

    Ms. Carol Ann Letman: Well, except that they're not. When they're confined to hospital, they're still confined to a hospital and draining health care resources, which I thought was Dr. Arboleda-Florez's point.

    Even if they are under a conditional discharge, they are draining some community resources, although not nearly to the same extent. If you don't cap, in theory you could continue on an annual basis to drain the hospital resources for an indefinite time period.

    The Chair: This is your last question.

    Mr. John McKay: Yes.

    With respect, if there's no capping, they are under an indefinite sentence. If this is so, they're under the criminal justice system and the costs of their care come out of this system, whether they are physically located in a hospital or in a criminal facility, where hopefully they are receiving some treatment.

    Isn't this the nub of the argument, though--whether you want screening to be done in the criminal justice system or in the health care system?

    Ms. Carol Ann Letman: To that extent you're right. But if the resources aren't there and you've left them in the criminal justice system for an indefinite time period, where do we find the resources to keep them there? Do we burden the provinces with the provision of hospital facilities? Or is the federal government going to pick up the tab, which, given what you've been hearing, it isn't really doing?

    I'm still concerned that these people are sanctioned for a longer period of time than they would be if they had an operating mind and committed the offence.

    Mr. John McKay: That's a rights argument, I understand.

    Ms. Carol Ann Letman: From a human rights and a charter point of view, it's offensive to sanction people longer than they would have been sanctioned if they had known what they were doing.

    The Chair: Please don't indicate that John McKay is right to whatever extent. It encourages him.

    I'm going to Peter MacKay.

    Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC/DR): Thank you for being here.

    I guess this issue of whether it's the health care system or the justice system is really the crux of this for us, and everyone is coming at it from their own personal perspective, clearly.

    Ms. Letman, I recall very well, as a crown attorney, occasions when individuals were picked up for literally public mischief types of offences, and they wound up--you're absolutely right--in essence, in closed custody, be it in a forensic hospital, for terms that far exceeded those for much more serious offences, that far exceeded what they would have received if they had gone the traditional route. They lost their freedoms.

    However, I was also of the view, in some cases--and they're always factually based and personal--that there was very much a preventative aspect to this. Those individuals, at that time, upon a finding of not criminally responsible, or in some cases unfit to stand trial, were taken off the street in hopes of treatment, but also in hopes of the criminal justice objective of protection of the public.

    We can certainly talk about who bears the responsibility of funding and what the objective is. Is it the wellness of the person? Clearly, yes, but the justice system still has this overriding obligation to say this person cannot function safely in society and poses a threat.

    One case that I recall very clearly involved a low-income residence where the owner had been stabbed twice, the same victim, on two separate occasions, by individuals who were both found not criminally responsible, two individuals who had been in the justice system and the mental health system. This sort of game of ping-pong with people's lives was really not only financially costly, but put people at risk.

    It seems that the idea of removing an individual for the purposes of keeping them from escalating in behaviour that would result in harm to themselves or harm to individuals is a system that right now is not perfect by any means, by any stretch of the imagination, because of this anomaly of losing your freedom for extended periods of time, sometimes indefinitely. It's almost tantamount to a dangerous offender designation, to take it to the extreme. However, for me, it keeps coming back to the issue of how do we keep society safe from such an unpredictable individual?

    Forensic science, like criminal justice, is hardly an exact science. There have been instances of people released from psychiatric units who almost immediately walk into the next public place and commit an offence. It's never going to be predictable, and it will never be perfect. But in your view--and I'm sure this has been discussed in detail here today--is it the funding problem, the resource shortage in the forensic unit itself to try to bring about greater efforts toward rehabilitation, or is it in this very real shortfall in our criminal justice system?

    Particularly, I'm thinking right now of the legal aid crisis that we're seeing in the country today. Forget about getting into the mainstream, if you will, of young offenders and adults who are entitled to counsel. It seems there's a real anomaly and a real shortfall right now in terms of individuals with psychiatric illnesses who do not avail themselves of those defences, who are in jail. They're in penitentiaries or provincial institutions and not in psychiatric units getting treatment, because nobody identified the problem as being one of a mental illness, because they didn't have counsel.

    I don't know if you've spoken to that issue directly today. In my view, the legal aid shortfall has drastic implications on this issue as well, because they're not identified early on as being not criminal behaviour, but a psychiatric problem that is emancipated in the criminal justice system.

  (1215)  

    Ms. Carol Ann Letman: I think you're right in many ways about the problems with legal aid and the problems with education of all parties within this system. There is the serious problem of actually understanding section 16 and the issue of “unfit to stand trial”. A lot of people don't understand it, frankly, in the defence bar, the judiciary, or the crown's office.

    However, it is also a very real concern that many counsel, myself included, in many circumstances will attempt to avoid either the “unfit to stand trial” route or the NCR-MD route because of the resource problem. Your client is more likely to stay in a penal facility far longer because there are no treatment beds than if they were able to enter a plea and be sentenced. Many counsel will not go that route because it will punish somebody more than they'd be punished if they had an operating mind and pled guilty. So the resource problem is a huge factor--the fact that somebody can't be assessed.

    In our region there are no assessment beds for fitness. If you want to be assessed in Peel Region, you have to go to METFORS in Toronto. Because of the huge catchment area involved, you could wait 60 days to be assessed for fitness, beyond the very brief assessment that could take place in a courthouse. The code mandates 30 days, but there are no beds.

    Someone charged with mischief, as you talked about--you said public mischief, but I think what you mean is mischief to public property--for example, isn't going to get sentenced to that, so why would you direct your client that route unless it were so patently obvious you didn't have a choice? That's not so much a legal aid issue, although it is also a problem. Legal aid doesn't train individuals terribly well to deal with that.

  (1220)  

    The Chair: Mr. Macklin, three minutes.

    Mr. Paul Harold Macklin: Thank you.

    I want to come back to the idea I was trying to develop on the permanently developmentally delayed, and your concept, Doctor, of levels of need. Are you advancing this idea primarily from a sentencing perspective or how to sanction one within society? Are you advancing this idea on the basis of how we might actually have a section within the code that would approach that particular issue by an assessment, in the first instance, of the level of need of that individual?

    Ms. Letman, I would also like to get some response from you. Have you ever put your mind to something of this nature, as the doctor advances, so we might consider it as a different way of approaching the permanently developmentally delayed case? I see that as an incredible problem.

    Mr. Julio Arboleda-Florez: My thought is that apart from the clinical obligation to do this kind of assessment, there seems to be lacking in the legislation some kind of obligation to do the assessment under these guidelines.

    The assessments are black or white, not criminally responsible or criminally responsible, and that's it. There is nothing in between.

    I think the legislation could help by indicating that the dispositions have to be related to the level of need. In the case of the person having committed a very minor offence, certainly that person hardly needs to be in a forensic system; they are different from the person who has committed a very serious dangerous offence.

    My feeling is that if there were something in the legislation that not only permits but obliges us to do the assessment under those levels, then it would be much easier to deal with the issues.

    However, let's hear from Ms. Letman.

    Ms. Carol Ann Letman: I think the aspect of an assessment of level of need has some merit, particularly dealing with that particular population, although it ties into the fact that there is no absolute discharge available for that level of individual under the current scheme. So you can have an individual who is developmentally delayed who commits a very minor offence, and there's really no public safety issue involved--say it was a mischief, for example, or a theft, where there's no public safety issue--yet you can't give them an absolute discharge if they're permanently unfit to stand trial. They remain in the forensic system in some way or another, because we don't have that ability to make this decision, in any event, and also because we're not assessing that public safety aspect.

  (1225)  

    The Chair: I'd like to go to Mr. Cadman, then Mr. Cotler. We have five minutes left.

    Mr. Chuck Cadman: Thank you, Mr. Chair.

    I'd like to return to the issue of this being extended to the substance abuser. Let me start by saying I would assume that if we're dealing with what is, for want of a better term, a classic mental disorder, there would be some documented history of the person's state of mind. How do we avoid a situation where the substance abuser decides, “I want to go do this, and I know if I do the cocaine I'm going to be able to get away with it because I'll just say I went psychotic”? Because at that point now you're dealing with, with all due respect, a battle of psychiatrists for the defence and the prosecution.

    I've seen that happen, where the person who claimed to have gone psychotic was the only one who knew what he actually did because he was the only one left. He knew how much cocaine he had done, and nobody else knew. How do we avoid that?

    The Chair: Dr. Arboleda-Florez.

    Mr. Julio Arboleda-Florez: Let's look again at the issue of epidemioliogy. Those persons who are both addicted--or substance abusers--and mentally ill we call persons who suffer from concurrent disorders. The prevalence of those persons who have both concurrent disorders is about 40%. Again, we are talking about a large number of individuals who will fall under that category. Even if we don't take all the individuals who suffer or who have addictions or abuse substances, but only those, we are still talking about a large number of individuals.

    It is calculated that at any time about 25% of Canadians in a year have some kind of mental problem--25% of us. It is calculated that about 8% of us in a year require some kind of intensive focal therapy, and it is calculated that about 2% to 3% of Canadians require intensive treatment to the point of needing a bed. If we put that to the 40% who also have concurrent disorders, we are talking about a sea of people here to whom we would have to extend those recognitions.

    The question then is a double-edged question, because apart from the epidemiological bulk we will have to deal with we will also have to deal with the other problem that you bring about, and that is the quality of the testimony. On that, much has been written as to what the court really wants from experts, and what constraints the court places on experts. And by the way, apart from common law, like the Regina v. Mohan, there is not too much that is there in legislation as to how far an expert can go and cook up a defence. That has not been discussed.

    The Chair: Thank you very much.

    Mr. Cotler, I believe you had a question.

    Mr. Irwin Cotler (Mount Royal, Lib.): I'm going to cede it to Mr. Macklin.

    The Chair: So Mr. Macklin can finish his thoughts? You're very gracious, Mr. Cotler.

    Mr. Paul Harold Macklin: Thank you.

    The Chair: Which is not to say that you aren't.

    Mr. Paul Harold Macklin: Well, we always have to worry about words in a place like this.

    I just wanted to finish off my thought, Ms. Letman. Again, pursuing my theme, at one point we said conditional sentences that would extend for more than two years might be one way of dealing with those individuals.

    Secondly, I just heard you mention no possibility of absolute discharge. What would you summarize as the areas we should canvass in terms of looking at options? Assuming this person is not a personal safety threat to society, what options should we be considering?

    Ms. Carol Ann Letman: To start with, the absolute discharge provisions. The inequity of having that available for the person who's been adjudicated guilty but not criminally responsible versus not having it available for the individual who's unfit to stand trial and may be permanently unfit to stand trial stands out as an obvious problem in the code. Recognizing the difficulty with this particular population, that needs to enacted. That should be available for those circumstances where you have someone who is unfit to stand trial, who's never going to be fit, and who is not posing a threat to society. They should be eligible for an absolute discharge.

    That's at the lowest end, obviously. What we talked about briefly before was also perhaps in some way recognizing individuals who suffer from an intellectual impairment as opposed to a mental disorder that is treatable. The sentencing provisions under the other sections of the code might better reflect some form of recognition that these are individuals who do not necessarily belong in penal facilities. They can be dealt with through community-based sentences, such as conditional sentences for perhaps longer periods of time, depending on the offence and depending on the applicability of certain risk assessments taking place, which obviously come to some extent under the 672 sections. It may require amendments to the sentencing sections to allow for perhaps more detailed risk assessments being made available before those provisions could be made available to individuals in that type of category.

    It is not a large population, but it is a population that you and I both correctly identified. They may be victims as well, and maybe ones that the public at large would not necessarily want to see locked in penal facilities.

  (1230)  

    The Chair: Thank you very much.

    Mr. MacKay has one brief question, if that's possible.

    Mr. Peter MacKay: It's just a supplement. Yes, it is possible, Mr. Chair.

    I wanted to follow up on Mr. Macklin's question about your assertion that an unfit finding would be or should be subject to an absolute discharge. I just wonder what merit there would be in the granting of an absolute discharge where in essence the unfit determination by the court can be, in some cases, almost held in perpetuity.

    Ms. Carol Ann Letman: That's right.

    Mr. Peter MacKay: But if the person is ever determined to be fit to stand trial, then and only then would they truly benefit from having the record expunged through an absolute discharge, or any discharge, for that matter. Where is the actual benefit to a person who is deemed to be unfit? They don't have a finding of an adjudicated determination of guilt at any point on the continuum.

    Ms. Carol Ann Letman: They have an absolute discharge, which is still treated the same way, as I understand it. There's no record.

    Mr. Peter MacKay: It's treated as having never been before the court?

    Ms. Carol Ann Letman: That's my understanding, unless you're going to tell me differently.

    The other part of that is that in the absence of the availability of an absolute discharge, the individual I'm talking about, who is intellectually impaired, is permanently before the court so long as the crown can make out a prima facie case. This was my earlier comment. That individual never escapes the justice system, although he or she may never be fit.

    Mr. Peter MacKay: So you're in a state where they're charged, they're found unfit, and if the crown decides never to proceed, it's just an outstanding matter. The court never determines the outcome.

    Ms. Carol Ann Letman: That's right.

    But if they're granted an absolute discharge, I'm saying that's the same as... Let's put it this way: under section 672.33, if the crown doesn't decide to proceed further, it's treated as an acquittal. I'm assuming, perhaps incorrectly, that granting an absolute discharge should be treated the same way as an acquittal.

    The Chair: Mr. Lanctôt, one very brief question.

[Translation]

    Mr. Robert Lanctôt: My question is very brief. I am a little apprehensive because it is not only a case of not being fit to stand trial. He has already committed a crime. Even if it is minor in nature, it has already been done. If no treatment is given, then there will be a problem. The cap frightens me a little because there will not only be problems with resources but legal problems as well. If the individual is released too quickly and if the treatment... Would it be better to cure him—he will probably not re-offend—or is it better to release him before he is ready, by granting him a conditional or absolute discharge, and have him commit another crime? It seems to me that in asking the question we have already answered it.

  (1235)  

[English]

    Ms. Carol Ann Letman: First of all, we're talking about two different things here. Someone who is unfit to stand trial has never been adjudicated as being guilty. All that has been before the court is at most a prima facie case, which isn't even subject to, necessarily, assessments to credibility. So they're still entitled under the charter to the presumption that they're innocent.

    You're talking also about treatment. But you don't treat someone who is intellectually impaired to make them better. They're not going to become fit to stand trial. If they're at that level of functioning, presumably what you're getting to is that the only solution then, if they're a danger to society, is we should just put them in a facility so that they're not a danger to society.

    With respect, across the country, we've moved to de-institutionalize the intellectually impaired. Unless you want to change that whole trend with that particular population group, because there might be a public safety concern for people who haven't even been adjudicated as guilty, you're adding again another resource problem. You're also, in effect, turning the table to say we're going to treat you as though you are guilty, even though you've not been found that way, and we're going to try to find methods to prevent you from committing further offences even though those methods probably don't exist because of your intellectual impairment.

    The Chair: Thank you very much.

    Dr. Arboleda-Florez.

[Translation]

    Mr. Julio Arboleda-Florez: I think that I agree with Mr. Lanctôt. I think that the proposal to erase the record is dangerous. It is there for a reason.

[English]

     The mental hospital personnel would like to know when a person has been charged with something. To simply say that in light of this person being found not fit to stand trial, we are going to completely erase the thing and there is absolutely no record for this person, then when this person goes to some kind of facility there is absolutely no indication to the staff of that psychiatric facility that they previously made attacks on other people. And I'm sorry, but attacks on psychiatric staff and on emergency staff is a major problem we have to deal with.

    I am not saying that the person has to be kept in a mental hospital. I am entirely with you on the institutionalization issue. But some record has to be kept that this person has already committed offences.

    Ms. Carol Ann Letman: But they haven't been found guilty of committing an offence. I'm talking about the person who is not fit to stand trial. They haven't been found guilty of committing an offence.

    Mr. Julio Arboleda-Florez: If I may answer that, I think--

    Ms. Carol Ann Letman: The one comment I didn't finish...

    The Chair: Could I ask that you at least look in this direction--

    Ms. Carol Ann Letman: Sorry.

    The Chair: --and I'll try to keep this...

    Ms. Carol Ann Letman: The one thing I didn't finish saying before was that an absolute discharge is only granted in extremely limited circumstances where somebody's not at risk. That's why my response back, which I didn't finish properly, was that what I'm talking about are very limited circumstances, very minor offences, where a person might have had an absolute discharge at trial or on a plea.

    The Chair: I felt compelled at the last meeting to make the distinction or at least recognize the distinction between pedophilia and mental disorder, which at some time during the debate was becoming blurred--not here; this was at an earlier meeting. Now I have to make a distinction between “unfit” and “danger to public safety”. These are not necessarily... It's important to distinguish between people being found by the courts to be unfit to be held responsible for their actions and the notion that somehow that would equate with a danger to public safety. That is not an equation I think anybody would want us to necessarily make.

    What I would like to do, by way of bringing Mr. Lee in, but thanking the witnesses, is to make a comment for the benefit of the people who will be drafting our report. We have an interesting opportunity we don't normally have when dealing specifically with legislation, because when we're dealing specifically with legislation we have a tendency to look at it only in the context of the legal regime within which we're working.

    Much of the testimony today forces us to be very practical in that exercise, in the context that we can put legal regimes in place. In fact, we can place rights in law. But when it's a right to a service that is not available, what really are we doing?

    In this case, because we're preparing a report rather than simply looking at the legislation, I think that's a point we can make. I make it now for the purpose of the people who will be drafting this. I think it's consistent with the interventions of both Mr. Lanctôt, Mr. McKay, and members on the government side.

    I thank you for bringing this to our attention. I hope when you see our report you'll see yourselves in it. Thank you very much.

    Mr. Julio Arboleda-Flórez: Thank you, Mr. Chair.

    The Chair: Likewise, Ms. Letman.

    [Editor's Note: Proceedings continue in camera]