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37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Tuesday, April 16, 2002

0935

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

Ms. Julie Delaney (Counsel, Barreau du Québec)

0940

Mr. Giuseppe Battista (Counsel, Barreau du Québec)

The Chair

Mr. Tony Cerenzia (President, Schizophrenia Society of Canada)

0945

0950

The Chair

Ms. Lindsay Lyster (Policy Director, British Columbia Civil Liberties Association)

0955

1000

1005

The Chair

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

Ms. Lindsay Lyster

Mr. Chuck Cadman

The Chair

Mr. Tony Cerenzia

The Chair

Mr. Giuseppe Battista

1010

The Chair

Mr. Robert Lanctôt (Châteauguay, BQ)

1015

The Chair

Ms. Lindsay Lyster

Mr. Tony Cerenzia

The Chair

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

1020

Ms. Lindsay Lyster

1025

Mr. Peter MacKay

Ms. Lindsay Lyster

Mr. Peter MacKay

Ms. Lindsay Lyster

The Chair

Mr. Tony Cerenzia

The Chair

Mr. John McKay (Scarborough East, Lib.)

1030

Mr. Tony Cerenzia

Mr. John McKay

Mr. Tony Cerenzia

1035

Ms. Lindsay Lyster

Mr. John McKay

Ms. Lindsay Lyster

Mr. John McKay

Ms. Lindsay Lyster

Mr. John McKay

Ms. Lindsay Lyster

The Chair

Mr. Chuck Cadman

Mr. Tony Cerenzia

1040

Mr. Chuck Cadman

Mr. Tony Cerenzia

Mr. Chuck Cadman

Mr. Tony Cerenzia

Mr. Chuck Cadman

Mr. Tony Cerenzia

The Vice-Chair (Mr. John McKay)

Mr. Macklin

Mr. Giuseppe Battista

1045

The Chair

Ms. Lindsay Lyster

The Chair

Mr. Tony Cerenzia

The Chair

Mr. Robert Lanctôt

1050

The Chair

Mr. Giuseppe Battista

Mr. Robert Lanctôt

Mr. Giuseppe Battista

1055

The Chair

Mr. Ivan Grose (Oshawa, Lib.)

The Chair

Mr. Peter MacKay

1100

The Chair

Ms. Lindsay Lyster

The Chair

Mr. Tony Cerenzia

The Chairman

Mr. Giuseppe Battista

The Chair

Mr. Robert Cattrell (Assistant Crown Attorney for Simcoe, Ministry of the Attorney General of Ontario)

The Chair

Mr. Malcolm Jeffcock (Lawyer, Nova Scotia Legal Aid)

1110

1115

The Chair

Mr. Curt Flanagan (Crown Attorney for Leeds and Grenville, Ministry of the Attorney General of Ontario)

1120

1125

The Chair

Mr. Robert Cattrell

1130

The Chair

Mr. Jean-Yves Pronovost (Administrator, Association des groupes d'intervention en défense des droits en santé mentale du Québec)

1135

1140

The Chair

Mr. Chuck Cadman

1145

Mr. Malcolm Jeffcock

The Chair

Mr. Robert Cattrell

Mr. Chuck Cadman

Mr. Robert Cattrell

The Chair

Mr. Paul Morin (Coordinator, Collectif de défense des droits de la Montérégie, Association des groupes d'intervention en défense des droits en santé mentale du Québec)

1150

The Chair

Mr. Robert Lanctôt

Mr. Paul Morin

Mr. Robert Lanctôt

1155

The Chair

Mr. Curt Flanagan

The Chair

Mr. Paul Morin

The Chair

Mr. Peter MacKay

1200

Mr. Malcolm Jeffcock

Mr. Peter MacKay

Mr. Malcolm Jeffcock

1205

Mr. Peter MacKay

Mr. Malcolm Jeffcock

The Chair

Mr. Paul Harold Macklin

Mr. Curt Flanagan

1210

The Chair

Mr. Robert Cattrell

The Chair

Mr. Chuck Cadman

Mr. Curt Flanagan

Mr. Chuck Cadman

The Chair

Mr. Malcolm Jeffcock

Mr. Chuck Cadman

Mr. Malcolm Jeffcock

1215

The Chair

Mr. John McKay

Mr. Malcolm Jeffcock

Mr. Curt Flanagan

The Chair

Mr. Paul Morin

1220

The Chair

Mr. Robert Lanctôt

Mr. Paul Morin

The Chair

Mr. Peter MacKay

1225

The Chair

Mr. Robert Cattrell

1230

The Chair

Mr. Paul Morin

The Chair

Mr. Paul Morin

1235

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 076

1st SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, April 16, 2002

[Recorded by Electronic Apparatus]

¿ (0935)

[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): Welcome. Bienvenue

I call to order the 76th meeting of the Standing Committee on Justice and Human Rights. Pursuant to the order of reference of the House of February 26, 2002, we are undertaking a statutory review of the mental disorder provisions of the Criminal Code.

This morning, for our first panel we have, from the Barreau du Québec, Maître Giuseppe Battista et Maître Julie Delaney, both lawyers with the Barreau du Québec. From the Schizophrenia Society of Canada we have Tony Cerenzia, president; and from the British Columbia Civil Liberties Association we have Lindsay Lyster, policy director.

We have been blessed with many people from British Columbia in the course of the last little while, so I look forward to hearing all of our witnesses. I hope it has been explained that the regular order of business here is a ten-minute presentation by each organization. Then we'll have the opportunity for the members to put questions, and you can elaborate on your presentations.

Has there been any discussion about who will go first? If not, we'll go to the Barreau du Québec.

[Translation]

Ms. Julie Delaney (Counsel, Barreau du Québec): Mr. Chairman, members, good morning. My name is Julie Delaney. I am a lawyer with the Research and Legislation Section of the Barreau du Québec. With me is Mr. Giuseppe Battista. We would like to thank you, because it is a pleasure for us to be here this morning. Our presentation will be brief.

First of all, when the criminal law working committee of the Barreau du Québec considered whether section 16 of the Criminal Code caused any real problem, the answer was no. In the absence of any problem flowing from the test to determine whether an accused is fit to stand trial, we see no need to suggest any change to the test. The consultation document mentions the possibility of defining automatism in the Criminal Code. Once again, the Barreau is in favour of the status quo. Why change legislation that in practice causes no real problem? The Barreau also sees no need to give the courts the power to issue supervision orders in cases of non-insane automatism.

Along the same lines, the Barreau does not think it appropriate to give greater powers to the review boards so that they can discharge an unfit accused absolutely. However, we are in favour of the review boards having the power to order an assessment before holding a review hearing. That said, the Barreau would suggest than an independent doctor do those assessments, not only to avoid the situation in which the sole source of patient information is the treating physician, but also to maintain the relationship of trust between the treating physician and the patient. The review board would thus have the discretion to order an assessment by another psychiatrist, and that would make the process more respectful of the patient's rights.

Finally, with respect to capping, the Barreau strongly disagrees with those who call for minimum and maximum limits to be set. There is a danger the board would rely too heavily on this system and just let the clock run rather than discharge anyone before the time was up. So we advocate a patient-based approach and individualized treatment.

¿ (0940)

Mr. Giuseppe Battista (Counsel, Barreau du Québec): I would like to add something, if you don't mind.

At the Barreau, we are of the view that the statutory review that triggers the holding of these hearings is clearly useful. But, in our opinion, in-depth studies should be done in order to determine the number of times this defence is raised in criminal trials and accepted by juries. The impact of court decisions or review board decisions in these cases should also be monitored over the long-term. Allow me to explain.

There may be a popular perception or myth about people who are found not criminally responsible. Either this defence is too easily argued, or people found not responsible in fact have greater liability. Those verdicts or decisions are a danger to society. In our opinion, there are no problems or difficulties.

The Barreau du Québec's Standing Committee on Criminal Law is responsible for reviewing criminal legislation and bills; at one of our meetings we sat down with a psychiatrist who came to speak on behalf of several psychiatrists who regularly testify before Quebec courts. The general consensus was that, in their view, the legislation as it stands today is positive, in that they could not think of any cases of injustice. Those decisions are basically made by juries.

There are obviously some adjustments that could be made, for example, to the review boards, and perhaps we could discuss that in response to your questions. But in our view, you first need a long-term, in-depth study of the verdicts delivered, people's situations, the number of years over which these people are monitored, the results, and the recidivism rate. Those are all important factors. Once those studies are done, we can assess whether in fact changes should be made.

That is essentially all we wanted to present to you.

[English]

The Chair: Thank you very much.

Now we'll go to the Schizophrenia Society.

Mr. Tony Cerenzia (President, Schizophrenia Society of Canada): Thank you very much, Mr. Chair and members of the committee. I'm pleased to be given the opportunity to present our brief to you this morning.

The message I bring on behalf of families from across Canada may be a little different from others you have heard. We wish to ask that people stop treating our ill family members as criminals, and recognize that they are ill.

Many individuals in our population, through no fault of their own, have fallen through the cracks of the health care systems across Canada and now constitute a disproportionate percentage of our country's inmates.

The Schizophrenia Society of Canada is pleased with the changes that refer to individuals as disordered, rather than the arcane term “insane”. We urge the federal government to enter into a dialogue with the provinces, to ensure congruent understanding and strategies to respond to Canadians suffering from serious and persistent mental illnesses who offend, and more importantly, to develop appropriate measures to treat individuals before they come into contact with the law.

I have six points. The first four are recommendations that are of concern to us and were not covered by your brief. I think the focus of dealing with disordered individuals should be on ensuring treatment rather than punishment. We believe that ill people need to be in hospitals, rather than jails.

Court diversion is now coming into being, and mentally disordered individuals need to be treated in hospitals, rather than punished in jails. Diversion programs need to be expanded and available in all jurisdictions.

The justice system should provide funds to gather relevant data on the number of disordered individuals who offend, the number of disordered in jail, the associated costs, and what appropriate provisions can be made for these people.

We urge a public education system. A systematic extensive and continual education program needs to be provided for all involved in the judicial system, including police, crown attorneys, judges, and jail guards.

The last two recommendations are more to your brief. A 90-day assessment period would provide a more realistic period than the 60 days now provided. The time period should begin from when someone begins assessment and treatment, and not include time spent in jail while awaiting a bed.

On the last item, we need the ability to provide involuntary treatment for those found not criminally responsible, with all the appropriate safeguards. It serves neither justice nor the individual to allow someone to languish in jail, without providing the best opportunity to become free from an illness and incarceration.

The society serves over 300 families with schizophrenia across the country. It should be noted there's a wide variability in the degree and severity of the illness. New medical treatments discovered within the past 10 years have made significant positive impacts on many lives, and offer rays of hope for the future.

People with schizophrenia who commit crimes are of concern to us all. We are stigmatized by the screeching headlines that accompany any occurrence of violence perpetrated by someone with a serious mental illness. We are saddened twice over: once for the victim of the crime, and secondly by the lack of understanding and compassion extended to the other victim--the ill individual.

Most importantly, we are frustrated by this cycle of events that is allowed to repeat itself. It is punishment enough that our family member is ill, without having the added burden of dealing with the judicial system.

In the U.S., the number of mentally ill people behind bars is nearly five times the number in state hospitals. In the U.K., 0.7% of convicted men display some form of psychosis, whereas in the general population the figure is 0.4%. So it's nearly double.

The inescapable conclusion is that we have replaced psychiatric beds with prisons, treatment with punishment, and compassion with cruelty. We need to carefully examine how we are treating those in prison, and develop strategies to treat people before they offend. Following such tactics might even prove less costly, but without a doubt would reduce the pain and suffering of many families in Canada.

¿ (0945)

Dorothea Dix, 160 years ago, made the following plea to the Massachusetts legislature:

“I have come to present to you the strong claims of suffering humanity. I come as the advocate of the helpless, forgotten, insane men and women held in cages, closets, cellars, stalls, pens; chained, naked, beaten with rods, and lashed into obedience. I beg, I implore you to put away the spirit of selfishness and self-seeking. Lay off the armor of local strife and political ambition. Forget, I beg you, the earthly and perishable, the thought without mercy. Gentlemen, I commit you to a sacred cause!”

Today we seem to see the reversal of what she accomplished so many years ago, more humane treatment and the practice of placing people in hospitals rather than in jails.

I have a graph that I'm not able to show you because I don't have the French translation, but it shows that as the number of psychiatric beds went down in the U.K. between the years 1950 and 1987, the number of people in prison went up. The relationship is negative 0.95; that's an astounding correlation. Any graduate student or even scientist who was presenting a paper would be thrilled to get numbers of this magnitude. At the moment, Ontario is in the process of reducing the beds by 50% again over the next several years, and there are similar moves across Canada in other jurisdictions.

In summary, schizophrenia and other psychotic illnesses are brain diseases that impact upon the inflicted individual's ability to perceive the world as others do or make rational decisions. This sometimes results in an illegal act. The law protects the civil liberties of us all but fails to protect those unable to recognize they are ill and unable to appreciate the consequences of not seeking treatment. The law protects the right to be free, but not the right to treatment.

There are voices that claim there is no such thing as mental illness and that the medications used to treat people are noxious, mind-altering substances that should never be used, and in fact are only used to promote jobs for psychiatrists. These claims are so ridiculous I fear giving them credence by acknowledging them. An elected member, however, made such statements in the Ontario parliament as recently as four years ago in discussing changes to the Mental Health Act of that province.

All medications, no matter what illness you have, have potential side effects. We have to weigh the risks against the benefits. All we ask is that all parties examine the data associated with schizophrenia and other psychotic disorders related to disordered offenders, assist in gathering more data, and develop policies consistent with the data. It is morally repugnant and indefensible to grant sick people the freedom to commit crimes and then incarcerate them.

In a civilized nation such as Canada, we should, to the best of our ability, prevent people from committing crimes by treating them, rather than punishing them. I understand some of the things I have mentioned are not within your purview, but certainly you have some influence. I suggest to you that taking mentally ill people and putting them into prisons instead of psychiatric hospitals is like a reverse transfer of payments going from the provincial government to the federal government. Perhaps it's a way for a province to try to recoup some of those payments.

I thank you for the opportunity to appear before you today. I'd be pleased to answer, either verbally or in writing, any of your questions.

¿ (0950)

The Chair: Thank you very much.

Next we have Ms. Lyster.

Ms. Lindsay Lyster (Policy Director, British Columbia Civil Liberties Association): Good morning, Mr. Chairman and members of the committee. It's a pleasure to be here this morning to speak to you on behalf of the British Columbia Civil Liberties Association.

I've provided the committee with a lengthy written submission. I'm not going to go into that in detail this morning. Rather, I want to highlight three themes that underlie the Civil Liberties Association's submissions with respect to the mental disorder provisions.

The first of those themes is that it is essential that we not allow the basic principles of our criminal law to be run roughshod over due to fear of the hypothetical and largely illusory potential of automatistic people being acquitted or persons being held not criminally responsible in circumstances where they ought to be. It's essential that the basic principles of our criminal law be maintained; and the most basic of those principles is that those who cannot justly be held responsible for their acts not be convicted.

The second principle I wish to highlight--and here I echo the submissions made to you by Mr. Cerenzia--focuses on how essential it is that appropriate treatment be made accessible and available to mentally ill persons who are caught up in the criminal justice system. This is so regardless of what category they may fit into: persons who have been held to be unfit to stand trial; persons who have been held to be not criminally responsible on the basis of mental disorder; or persons who have in fact been held guilty but are mentally ill. Regardless of the category, it is essential that treatment be made available and accessible to them, where treatment is available for the condition from which they suffer.

The third principle is that, in our view, it's essential that mentally disordered persons not be detained or subject to restrictions on their liberty any longer or to any greater extent than is necessary to protect the public from significant risks of harm. The liberty interests of the mentally ill are as vital and as important as the liberty interests of any other member of this society. And those interests ought only to be overburdened in circumstances where it's provably and demonstrably necessary in order to protect the public from a significant risk of harm.

Now, there are three specific areas in which I want to just briefly explore how those principles may play out. The first of those is with respect to the treatment of persons who are held to be unfit to stand trial; the second is with respect to the proclamation of the capping provisions; and the third is with respect to the automatism defence.

First, with respect to the treatment of the unfit accused, it is currently the case under the mental disorder provisions that an unfit accused may be given a conditional discharge by a review board or detained in custody. The individual cannot be given an absolute discharge, pursuant to section 672.54 of the Criminal Code. So you could have an unfit accused who poses no threat to any member of society, and in respect of whom there is no reasonable likelihood that he or she will ever be rendered fit to stand trial, and this person cannot be given an absolute discharge under the Criminal Code as it's presently written.

Conversely, a person who's held to be not criminally responsible can be given an absolute discharge if it is held that the person does not pose a significant threat to the public. We say this is nonsensical, irrational, and unjust. There's a decision, R. v. T.J., that we refer to in our submission, which in fact says it's unconstitutional. We submit that this is in fact the case.

Persons who are held to be unfit to stand trial on the basis of mental disorder, if they can be rendered fit to stand trial, ought of course to be rendered fit to stand trial and stand trial. But where they cannot be rendered fit to stand trial--and that could be the case in respect of some persons for example who suffer from a brain injury or from fetal alcohol syndrome, persons for whom there is no treatment likely to render them fit--and where those persons don't pose any threat to society, we say justice demands that the review board be given the power to give an absolute discharge.

¿ (0955)

The second area I want to discuss is the proclamation of the capping provisions.

As you know, when the mental disorder provisions were enacted, they included the capping provisions, and under those provisions both unfit accused and persons held to be not criminally responsible were subject to maximum terms of detention--generally speaking, although not always, the same as the maximum amount of time they could have been put in prison had they been convicted for that offence.

Also at that time the dangerous mentally disordered accused provisions were enacted, which essentially permitted much longer caps or indeed an indefinite cap, a lifelong cap, to be placed upon the length of period that a person could be detained where they committed a serious violent criminal offence. None of those provisions have been proclaimed into force. It's the position of the B.C. Civil Liberties Association that those provisions, both the capping provisions and the dangerous mentally disordered accused provisions, need to be brought into force.

Why is that? It's essential in order to ensure that persons, whether they're unfit accused or not criminally responsible accused, do not languish in detention for indefinite periods that potentially could be much longer than how long they would have been held in jail had they been convicted of the crimes of which they were accused. Again, the liberty of mentally disordered persons is as important as the liberty of non-mentally-disordered persons.

We say it's fundamentally unjust that a person who is held to be not criminally responsible for their act could be held in detention or subject to other restrictions on their liberty potentially for their entire life when a person who's convicted of the same crime would be out of jail and free after some period of time.

Now, there may be some concerns in respect of whether we're going to be letting out onto the street mentally disordered persons who in fact are a significant threat. Well, recall again, there are the dangerous mentally disordered accused provisions, and we do call for their proclamation alongside the proclamation of the capping provisions.

Secondly, recall that persons who are convicted of crimes may pose a significant threat to society, yet we still let them out of jail once they've done their time.

And third, remember that there is provincial mental health legislation in place, which--at least in British Columbia, which I can speak to--certainly provides sufficient protection to the public to ensure that persons can be committed should they pose some risk to themselves or to the public. So we say it's essential that those capping provisions be proclaimed.

The third area I want to speak about briefly--and it was referred to in your issues paper--is the automatism defence. This is an extraordinarily rare defence. It's rarely brought into the criminal courts, and it's even more rarely successful. But there are cases, very rare cases, in which in our view and in the view of the Supreme Court of Canada it is the just and appropriate verdict to hold that a person is not actually responsible for their act because they didn't voluntarily engage in the act they engaged in, and as a result they ought to be acquitted.

We are, however, concerned that the automatism defence has been unreasonably narrowed by the Supreme Court of Canada in the case of the Queen v. Stone, which is the current ruling case on the automatism defence. It was a five-four split in the Supreme Court of Canada. In our view, the majority there unnecessarily and unreasonably narrowed the automatism defence, such that if this committee is going to look at the automatism defence, we say the minority view in Stone, as opposed to the majority, ought to be codified.

Specifically, we say that it's essential, again, due to the importance of maintaining our basic criminal law principles, to ensure that the legal burden will remain on the crown throughout to prove all elements of an offence, including voluntariness. So the accused will have the obligation of surmounting the evidentiary burden of putting the voluntariness of his or her act into question. Having done that, the crown continues to bear the burden of proving the act was a voluntary one.

Secondly, we say it's vital that there be no presumption that where a person commits an automatistic act, they were mentally disordered. That's for the trier of fact, the jury, in those cases to determine.

And thirdly, we say that in the proper case it ought to be open to the judge to leave with the trier of fact both mentally disordered and non-mentally-disordered automatism. It ought not to be the case that only one or the other of those possibilities would be left with the jury.

À (1000)

Sometimes it's argued that the automatism defence ought to be narrowed, as the majority did in the case of Stone, because of a fear of floodgates being opened, that hundreds of people would be successfully feigning automatism, thus getting off scot-free after committing violent acts.

We say that's an unjustifiable fear. As Mr. Justice Binney, for the minority in Stone, properly said:

“We can trust the common sense of Canadian juries. Anyone who doubts we can trust the common sense of Canadian juries hasn't spent enough time by office coffee machines and in buses talking to bus drivers”

Individual Canadians are going to be extremely skeptical where automatism defences are raised on behalf of accused persons. They will not lightly hold that persons should be acquitted on the basis of automatism. We can trust juries to deal appropriately with this defence. It must be retained. And we say if you're looking at that defence in terms of the possibility of codifying it, you ought to do so in line with the dissent rather than the majority in Stone.

By way of conclusion, I want to say that the manner in which a society chooses to treat the mentally ill, where mentally ill persons are accused of committing criminal acts, is a key litmus test of the humanity of a society and of the commitment a society has to the maintenance of civil liberties, not only for the mentally ill but for all persons.

We say the mentally disordered provisions as they currently exist in the Criminal Code are in large part a just and humane vision of the treatment of the mentally disordered where the mentally disordered are accused of committing criminal acts. But it is crucial--this is the most important point I want to make to you here today--that the mentally disordered provisions be proclaimed in their entirety, to ensure that the capping provisions are brought into effect. Equally, it's crucial, we say, that review boards be given the power to absolutely discharge unfit accused where those unfit accused do not pose any threat to society as a whole.

Thank you.

À (1005)

The Chair: Thank you very much.

Mr. Cadman, for seven minutes.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair. I'd also like to thank the witnesses for appearing this morning.

I will start off by saying it's usually Ivan who is confused at the end of these things. So I have to admit I'm a little bit confused on one. Maybe I've missed something here.

Ms. Lyster, at one point you said that people should not be held any longer once they have been determined not to be a risk or a danger to society. On the other hand, you said the capping provisions should be brought into play. I see a bit of a contradiction there. Maybe I'm missing something. What do you do with the person who has been charged with a relatively minor assault, yet two years later is still deemed to be a risk to society? If you're going to implement the capping provisions, aren't you suggesting that the person should be turned out?

Ms. Lindsay Lyster: Yes, I am. I am definitely suggesting that the person should be released. I don't see any contradiction in those positions.

With respect to persons not being detained any longer than is necessary, that is particularly applicable in the case of the unfit accused who doesn't pose any risk. But in the case of all persons--even persons who may pose some risk--once they have spent an amount of time in a forensic psychiatric institute equivalent to what they would have spent had they actually been convicted of the crime, then unless they actually fall under the dangerous mentally disordered accused provisions--which they would do if they had committed a sexual assault or something like that--we say they ought properly to be released.

Any concerns around safety, we say, can be successfully and appropriately addressed under provincial mental health legislation. To the extent they're not, I think we have to remember that convicted persons are allowed to be released at the end of their time, regardless of how dangerous they might be. Why should persons who happen to be mentally disordered be put in a worse position than those who aren't mentally disordered at the time they commit a crime?

Mr. Chuck Cadman: Does anybody else have any comment on that?

The Chair: Mr. Cerenzia.

Mr. Tony Cerenzia: I would have to agree with that, in that over the years there have been many cases where people, because they're ill, end up spending a much longer time in detention. There seems to be a predilection on the part of people not to release people because they're mentally ill, and there's a reluctance to conclude that they're not dangerous. People want to err on the side of caution and the protection of society, so they tend to keep them even more than they would if they were releasing someone from prison generally. Yes, I think it is a concern.

The Chair: Mr. Battista.

Mr. Giuseppe Battista: I share the concern, and the concern is well articulated. Let's take a very simple example. In other words, it is inappropriate for someone who causes mischief, breaks someone's window, and ends up being detained for ten years. It's something I think we all agree is not desirable. I understand the desire to want capping imposed so that sort of situation can't occur.

Our concern at the Québec Bar was the reverse. We fear that if capping provisions are applied we'll slowly start to assimilate the non-criminal responsibility to the actual conviction. In other words, our approach is one that favours treatment rather than punishment. It may mean someone may be subject to treatment for longer periods of time. We accept it as a premise. However, it need not be in a detention centre. It need not be in an environment where the person is deprived of daily liberty.

The review board has our view. In our view, it's where the decisions should be made with respect to the issues. It brings us back to the point we made earlier about the need for data in this domain.

Are people who are held not criminally responsible staying in a detention centre, albeit in a hospital facility, detained as prisoners longer than they should be? Is it a fact? If it is, it should be corrected.

Are the services the people are receiving adequate? It may also be the issue.

The concern we have is if it's mischief, it can't be punishable by more than two years. They have to be released within two years. They will stay there for two years and may not get the attention they need. It's a concern.

Do we treat people who are not criminally responsible according to their needs? It means it's a burden on society. Society has to assume the burden of taking care of the person's needs. Our concern is if we encourage capping, it might simply set a standard that a detention period will apply, and can apply, and will only set a limit for the detention period. It's not the approach we would favour.

We share the concern raised. The concern is very legitimate. We don't believe people should be forgotten and left to rot. The same applies for very violent crimes. Someone who commits a very violent crime may, six months after having committed the violent crime, not be a danger at all to society.

We're afraid that if capping is followed, for certain types of crimes a certain amount of time is allowable and therefore may be imposed in those cases. It's our concern. It's why we don't favour capping.

We think the assessment of the individual and the individual's needs is ultimately the best way for society to protect itself and to allow the individual to flourish within society.

À (1010)

The Chair: Thank you very much.

Monsieur Lanctôt, you have seven minutes.

[Translation]

Mr. Robert Lanctôt (Châteauguay, BQ): Thank you, Mr. Chairman. I thank the witnesses for their evidence. Once again, we have a panel where people are against capping and one member of the panel is in favour of it, but you are always in the minority. That is the way it has been, at least, with the groups of experts we have been hearing for the past month and a half or so. We almost always come back to the same questions so that committee members, among others, might understand better, because it's always black or white.

The problem, in my opinion, is between the legal and mental health systems, mental disorders versus prosecution. This is a diversion system of sorts. It involves people who lack treatment, people you find on the street and will continue to find there, in my opinion, if we have capping.

Surely diversion has its good points, but the current situation could be described as extreme. I do not know whether the situation is the same everywhere, but in Quebec, in any case, you find people on the streets.

You don't need to have serious crimes before you protect society. A theft or assault is as harmful to society as a murder or something else. You are trying to trivialize the fact that an accused is being released or given an absolute discharge when he should be taken care of by society or treated in hospital or at least given appropriate treatment. Those people are no longer being treated because of a lack of resources. We keep coming back to the issue of the lack of resources.

In Quebec, there is a lack of resources, and other provinces probably have to deal with the same problem. Transfers were mentioned. It is a significant problem. Because of the lack of resources, we are forced to try to make changes to the Criminal Code in an attempt to solve another problem. Do we really need to change the Criminal Code? Perhaps it will be better to take a political approach to the issue, to restore funding, to increase transfers to the provinces or to Quebec so that these people can at last be protected and treated.

We are attempting to do indirectly what we can no longer do directly, i.e. rehabilitate those people... Don't you think you will end up hurting them? They are almost lucky to get picked up and given appropriate treatment, rather than winding up back on the street in, say, a couple of years. I'll stop there. I'd like to hear your opinion on that.

À (1015)

[English]

The Chair: Ms. Lyster.

Ms. Lindsay Lyster: The distinction we're hearing between health and justice, or the concern my friends from the Quebec Bar are raising that if the capping provisions are brought into place they will become the de facto amount of time people are held in detention, is a false dichotomy. We can have health and justice; it's not an either/or proposition.

If we bring the capping provisions into effect, it is not necessarily the case that all persons who are then detained pursuant to these provisions will be held in forensic psychiatric institutions for the maximum amount of time the cap provides. The decision of the Supreme Court of Canada in the Winko case tells us that's not constitutionally permissible. Regardless of whether the capping provisions are in place or not, where a person no longer poses a significant threat constitutionally, that person, under Winko, must be released.

I appreciate where those fears of my friends from the Quebec Bar are coming from, that if the capping provisions were brought into place no one would ever be released prior to the end of the capped period, but I believe they are false fears. They are fears that Winko does away with.

The concern that somehow we must have either health or justice is a false dichotomy. As I said in my opening remarks, regardless of whether they're being held in psychiatric institutions or jails, it's crucial that people who are mentally ill are provided with the treatment they need to overcome their illnesses, where such treatment is available.

But the fact that it's crucial that we provide treatment does not mean we can ignore the demands of justice. The demands of justice include the notion that where people commit relatively minor crimes, such as mischief or stealing the proverbial loaf of bread, they don't languish in our criminal justice system, even if it's on the forensic psychiatric side of our criminal justice system, for the rest of their lives. Anecdotally, I can tell you that does occur, and it's not appropriate.

Where such people continue to actually pose some risk to society, provincial mental health legislation is the appropriate way to deal with them. It's not the case that once a person commits a criminal act while mentally disordered, the criminal justice system essentially gets its hooks into that person for life. That's not an appropriate use of the criminal law. At some point the criminal law's legitimate interest in that person ceases, and the appropriate arm of government to deal with them is the provincial mental health legislation. The criminal law can't do it forever.

Mr. Tony Cerenzia: I'd just like to add--I said it, and it was said by Mr. Battista--that there is the need for data gathering. When I went about searching for items, it was very difficult to find any data in Canada on the number of people in prison, how many were mentally ill and so on, and what goes on. There was more readily available data from other jurisdictions, other countries.

So it's imperative, in order to develop rational and reasonable policies that can be justified, that some effort be made and funds be made available to provide for hard data. Then we will know the hard numbers, instead of the anecdotal stories we all know about.

The Chair: Mr. MacKay.

Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC): Thank you, Mr. Chair.

I want to thank all the panelists. This is an extremely complex but critically important issue that we've been wrestling with. We have been hearing extensively from stakeholders and individuals who are providing that anecdotal information, but, again, it's difficult to glean from the evidence we've heard thus far if the anecdotal evidence is going to give us an accurate picture of whether the numbers are going up, whether that's just demographics, and whether it is in fact an increasing burden on the system. I for one think we are seeing more individuals winding up in our prison system with mental illnesses, as opposed to going that proper route of treatment.

One concern I have with respect to the treatment element of it is that I don't see in our criminal justice system--and perhaps there is no way to bring this about--individuals who, with the proper treatment, would not presumably be before the justice system. There is no way to mandate treatment. There is no way to mandate the taking of medication. I've both defended and prosecuted individuals who simply refused to take treatment. They said the side effects were too severe; they would rather live with the illness. As a result, because of their behaviour, be it schizophrenia or bipolar, they wound up time and time again in the criminal justice system.

I very much agree, Ms. Lyster, with the sentiment that incarcerating somebody for their illness beyond what a Criminal Code conviction could mete out or what a sentencing judge could give fundamentally offends the principles of justice. There's something perversely wrong with holding somebody beyond the maximum sentence they could have received for a conviction, albeit a summary conviction offence. Yet I'm far more comforted by the reality that a person in a forensic psychiatric unit would make the decision of when they're ready to be back in society and whether the public will be protected, rather than a judge, who is simply going to rely on the expert evidence, in any event. So I think your instruction or your suggestion that we should be empowering the boards to make these decisions is perhaps the direction we should be headed in.

Do you concur with that? Am I reading you correctly, that we should be giving the boards greater ability to grant these discharges, but perhaps with a more clearly enunciated direction that the provincial mental health provisions then kick in, so that we're not holding them by virtue of a criminal sanction, because going beyond warrant expiry in the criminal system seems to be wrong? But if it comes to a point, for example, where an individual is incarcerated for mischief, and after two years--and we can envision a scenario where their illness has worsened for one reason or another--clearly they're going to pose a danger to themselves and to society if they're released, we should be relying, then, on provincial, as opposed to criminal legislation...?

À (1020)

Ms. Lindsay Lyster: I think you are reading me accurately, in terms of the position of the Civil Liberties Association. We do believe that in the vast majority of cases it's appropriately the review board, rather than a court, that should be making these determinations. We don't say the court shouldn't have jurisdiction to do so, but in the vast majority of cases it's the review board that should be making these determinations. They have the expertise.

We also say--and here I echo something that was said by one of my colleagues in the panel earlier--the review board should be given greater authority to order assessments. We've agreed they should be able to order independent assessments when they're making their determinations with respect to discharge questions.

And we also agree that at some point--and at maximum, we say it's at the point the person would have necessarily been let out of jail had they been convicted--the authority properly passes over to the provincial mental health system. I don't believe, at least in British Columbia, any kind of legislative change or amendment is necessary to our Mental Health Act in order for that to be possible, because it's actually quite strict in terms of the kinds of persons it catches. It's probably a far lower level, actually, than what the criminal mental health system catches, in terms of the people who can be involuntarily committed. In fact, under that system there's the potential for involuntary treatment. We actually have some difficulties with how much potential for involuntary treatment there is under the provincial mental health system. But certainly it's there, and we say it's completely capable of catching persons who at the end of a maximum period of detention are released. And we say that's appropriately who ought to be dealing with it.

À (1025)

Mr. Peter MacKay: It's your understanding that if capping were proclaimed, it would in fact occur.

Ms. Lindsay Lyster: Yes. The provincial mental health legislation in British Columbia doesn't specifically say “where a person has served the maximum amount of time pursuant to capping”. I won't take you to the section; it's in my written submission.

Any person who continued to pose a significant threat, or pretty much any kind of threat, to himself or anyone else at the time when released from the forensic mental health system would be subject to committal under the provincial health system in British Columbia.

Mr. Peter MacKay: Right.

What about the issue of forcing treatment? This dichotomy is perhaps the most difficult underlying problem in the system.

Ms. Lindsay Lyster: It's a very difficult question from a civil liberties perspective. We do accept that there are situations where a person so lacks the competence to make decisions, it can be appropriate for someone else to be put in the place of making decisions, such as the director of a mental health institution.

Where it's the case, in our view, it's crucial that there be appropriate review mechanisms to ensure that the treating psychiatrist or other person responsible for making the decisions is appropriately subject to review. If the individual patient has some difficulty with the treatment regimen that has been imposed, there is someone else and a further authority to whom they can apply.

In British Columbia, it ought to be the review panel under the provincial mental health system that has the treatment regimen reviewed. We do accept that there are cases in which a person's psychiatric condition is such that he cannot make the decisions for himself.

The Chair: Mr. MacKay, I believe Mr. Cerenzia wants to respond.

Mr. Tony Cerenzia: Thank you.

You mentioned medications having horrendous side effects and so on. I think it's important to underline that in the last ten years there has been a newer generation of medication. Many of the side effects are reduced significantly. I think it's important to keep it in mind. Of course they're continuing to work on doing it. The medications today are more tolerable than they were, even as recently as ten years ago.

When I looked at the data, the data suggests 50% of people with serious mental illness have not received treatment over the last twelve months. This is a recent study. I mention it in my brief. It is also discovered that people who are untreated are more likely to commit crimes than those who are treated. I think it is a balance and is also quite correct. Fifty percent of the people who were untreated did so because they didn't understand they were ill, or would not admit or recognize they were ill.

I don't think any of us would agree with allowing someone with Alzheimer's to wander the streets naked in the middle of winter. I don't understand how we cannot do the same for a population that has some difficulty making rational judgments.

It's pretty clear, from talking to families across the country, that there are many occasions when, under the Mental Health Act of the various province, a person is not held. It is clear to the families that they need help. There has to be a way of determining it and getting it. I think it would reduce the population in prisons. It would be less costly and certainly more humane.

The Chair: Thank you very much.

John McKay.

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

Thank you, witnesses, for your testimony. Like other members, the more I listen, the less clear things become.

Mr. Cerenzia, I think you have hit on a significant point with regard to this inverse correlation between discharge from hospital and increased criminality. Certainly that's consistent with anecdotal evidence in my own riding, where an individual was discharged from the Queen Street mental health unit, didn't stay on her medication, and murdered a police officer. What bright light in public policy thinks this is a good idea escapes me entirely. Anecdotally, I think you're right. I'm interested in hearing you expand on your few brief comments on whether there are other illustrations of and statistical support for what seems to be an inverse correlation and that it in fact may be of far greater significance than any tinkering we might do with the Criminal Code. That's my first question.

My second question is to Ms. Lyster. It is your argument that the board should be able to grant an absolute discharge. The illustration used was someone with fetal alcohol syndrome. That has a certain ring of plausibility to it. It's not a very satisfactory disposition for the victim of the particular offence. Would you allow an absolute discharge for all offences, or would you limit it to jurisdiction offences or something of that nature? Does the board need additional powers to remand that individual into some sort of involuntary treatment, if you will, or additional powers whereby the safety of the public is somehow or other dealt with? All you're doing, essentially, is putting somebody back on the street who is not only unfit to stand trial but may be suffering from something fairly significant and may well be entering into criminality again.

Those are my two questions.

À (1030)

Mr. Tony Cerenzia: I think the first one was addressed to me. I have no more data, other than the study that was reported in Nature, which is referenced in my brief. Nature is one of the most prestigious scientific journals in the world.

I'm on a number of provincial task forces, and what we're finding in developing procedures is that as teams of professionals are responding to the needs of individuals who are ill and in the community, as long they're in touch, and with the newer medications they are keeping people in tune with them on a regular basis, they do reasonably well. Over the next three to five years there's again going to be a drop in the population of the hospitals, and I fear that correlation is so clear that it will happen again. But I have no such comparable data from Canada.

Mr. John McKay: A big flaw in the system is to stay on the medication. If the person doesn't do that....

Mr. Tony Cerenzia: That's right. But with cajoling, people developing positive relationships, the availability of services, reduced side effects, and so on, a greater percentage will stay on it. I know when someone needs medication or treatment. It's pretty clear.

In the study I quoted earlier, they found that 50% of the people did not seek treatment because they didn't believe there was any illness and they thought it would just go away.

À (1035)

Ms. Lindsay Lyster: I would like to address the question you posed to me, sir.

In the case of the unfit accused, which is the category of persons in respect of whom we're submitting that the review board needs to be given the additional power of absolute discharge, the review board already has the power to order that such persons be detained or to give them a conditional discharge. So they already have the power to do what you've suggested. For example, they have the power to discharge them, but with certain conditions or restrictions on their liberty, where the review board is of the view that that's the appropriate disposition.

We're saying that in the case where the unfit accused doesn't pose any risk to the public, and there are such cases, the review board ought to be given, in addition, the power to order an absolute discharge in that case. So we're not talking here of the person who does pose some threat. That person ought not to be given an absolute discharge. That person ought to be either detained or given a conditional discharge.

Mr. John McKay: Excuse me, but is the person who's already there posing some significant risk to the public because they're already coming out of a Criminal Code situation? That's how they got there.

Ms. Lindsay Lyster: An unfit accused is not declared unfit on the basis that they've posed any risk or threat to anyone. An unfit accused is declared an unfit accused on the basis that they don't understand the nature of the proceedings they're dealing with, and they can't communicate with their counsel.

Mr. John McKay: But they have been charged with something.

Ms. Lindsay Lyster: They may have been charged with theft.

Mr. John McKay: It may well be, but that's still a threat to society. Perhaps it's a vague threat, but it's still a threat to society.

Ms. Lindsay Lyster: With the unfit accused we have to recall that the offence with which they may have been charged may be something as minor as minor theft, mischief, public nuisance, something that poses nothing I, at least, would call a threat to society or a threat to public safety, which I believe was your concern.

They also actually haven't been convicted of anything. All that's been determined is that they're unfit to stand trial, because they can't communicate with their counsel or because they don't understand the nature of the proceedings that are being held against them.

So in my respectful view, it is wrong to presume or suppose that necessarily unfit accused do pose a risk to anyone. They may not. They may just be a person who doesn't understand what's going on, but who poses no risk whatsoever. And it's in those kinds of cases, where they don't pose any risk and where there's no treatment available to them to assist them to become fit so they can properly stand trial, that we say the review board ought to be given the power of absolute discharge.

You were concerned that this may not be satisfactory to the victim of the offence. It may or may not be, depending on the victim's understanding of mental illness and the reasons why an offence was committed, if one was committed. What we have to recall here, I think, is that the dual objectives of the mental disorder provisions, as the Supreme Court of Canada reminded us in the case of Winko, are to protect the public from mentally disordered persons who pose a significant threat to public safety and to safeguard the accused's liberty to the maximum extent possible. Those are the objectives that are significant here, not those with respect to whether or not it's satisfactory to the victim.

The Chair: Thank you very much.

Mr. Cadman.

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

Following on something that Mr. McKay brought up, you made a comment that a number of people did not seek help because they didn't realize they had a problem. I guess what most people would be concerned about, and certainly from a lay person's perspective, would be those people who knew they had the problem and then chose to go off medication for whatever reason and then committed an offence. Some would say that this person became responsible or took responsibility when they made a decision to go off the medication, knowing full well they had a problem and what it could lead to. Do you understand where I'm going? Would you care to comment on that?

Mr. Tony Cerenzia: I guess that depends on the perspective you want to put on that action. It's whether someone chose to go off or whether someone went off the medication because their judgment was impaired. So if you assume that they went off and made a choice and became subsequently ill.... Or the other thing to keep in mind is that simply because someone is on medication, it doesn't mean they have a nice, clean, free ride and everything's fine. People go through ups and downs. These illnesses are episodic. So someone can at one point make what we would say is an irrational decision to go off the medication and as a result get worse and worse and then have an event happen. So I guess it's the perspective from which you want to look at it.

À (1040)

Mr. Chuck Cadman: How should we approach that particular individual?

Mr. Tony Cerenzia: The way I would approach it comes out of my bias that if the person is ill and is unable to make a rational and reasonable choice, we can't hold him or her responsible for whatever was done just because the medication has been discontinued.

Does that answer your question?

Mr. Chuck Cadman: Yes, it does, more or less. I'm still having difficulty getting my head around this word. I'm suggesting the person knows what the consequences are.

Mr. Tony Cerenzia: But that's what this is about. You're making the assumption that the person does know the consequences of going off the medication--and some people do.

Mr. Chuck Cadman: That's the situation I'm talking about.

Mr. Tony Cerenzia: For example, some people I've known who have gone off their medication for a few days recognize when symptoms start to develop and get back on it. Others go off the medication without recognizing the consequences of what they're doing. It's not black and white; there are shades of grey here.

The Vice-Chair (Mr. John McKay): Mr. Macklin.

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

With respect to the basic issue we're grappling with here, on at least one other occasion we've had an individual use the terms “level of needs” and “needs assessment”. I hear Mr. Battista mentioning this again today.

If we had a clean slate without any of our current procedures in place from the time of apprehension, could we go back and look at the individual to determine his or her level of need? Is there room in the system at some point for us to establish a process whereby the level of needs of an individual might be assessed at an early stage? This might allow us to remove from the system those who are dealing with a brain injury or FAS or other developmental situations where in fact there is no treatment, no resolution through our normal process of mental health treatment.

Could you comment on this idea?

Mr. Giuseppe Battista: I can try. It's anecdotal, just based on experience, but in the criminal courts the difficulty often is in trying to find a place for the person and trying to get the person the best possible care and help. Hospitals and other institutions lack resources. Many times these situations pose difficulties, even when there have been assessments or follow-up treatment is required.

I can tell you that in a very recent case that was intensely covered in the media, the psychiatrists involved insisted that the court render the order to send the person to a particular hospital. They were afraid that if the review board was asked to do it, it might feel that a serious enough crime had been committed that the person ought to be detained in a psychiatric forensic hospital, when in fact the person didn't require this any longer. All the psychiatrists, both crown and defence, agreed that the needs of this person would be better met by a community hospital.

That's what eventually happened. But funding is a problem. Hospitals often don't have the means. And this brings us back to another point--the concern over capping. When the funds aren't available, what happens? People say let's just send the person to the hospital and it will have to do something. That's the reality.

Street people who have mental illnesses sometimes get treatment when they're arrested; otherwise they don't get treatment. I'm not saying the solution is to arrest people, but this is the reality. People have to get help. When they're in the system they need to get help, and unfortunately it's not always there. These situations occur.

I don't know if I've answered your question. I'm trying to raise some of the concerns around this issue.

À (1045)

The Chair: Thank you very much.

Was there someone else I've...?

Ms. Lindsay Lyster: I would quickly respond to that, if I may.

We face the difficulty in British Columbia of judges expressing a desire from the bench that a particular individual be given an assessment, in particular for FAE or FAS, and of the provincial authorities refusing to put that individual into a facility for that kind of assessment on the basis that the judge didn't actually have the power to make that kind of order. We think that's wrong.

If it were possible through the criminal law to make it clear that judges have the specific power to order such assessments at an early stage in the process, in my view it would benefit everyone involved in the system.

The Chair: Mr. Cerenzia and then Mr. Lanctôt.

Mr. Tony Cerenzia: I stand to be corrected on this, but I understand that in Ontario, if a judge issues an order for treatment or assessment, he has to establish that it is available before exercising.... I guess it might depend on the case. Actually, I think it's more with the recent community treatment orders that were put in place a couple of years ago. The services have to be available before he exercises that, or that is done.

The problem, of course, is if people know they're not there, do they then just abandon...? Again, that's where data needs to come together. Also in reference to what you said about an assessment, I think what they're trying to do in diversion is just that. They have clinical people available to the courts to make assessments and try to render some information on what would be a proper disposition.

The Chair: Thank you very much.

Mr. Lanctôt, for three minutes.

[Translation]

Mr. Robert Lanctôt: Thank you, Mr. Chairman.

Mr. Battista, you said more or less what I said earlier, and that's what is too bad about all this. It is true that we should not have to send people through the criminal system for them to get treatment, but that's the reality that is staring us in the face. That is practically the only place a person can get the treatment he needs prescribed. It's incredible. We are reassessing a system, and you are completely right. Obviously, I think it's a shame.

I'm going to go back a bit to Mr. Macklin's question. I don't think you answered it. It is a very interesting question if we are to solve the exceptional cases Ms. Lyster referred to ie., people for whom there is no treatment and who may remain in the system for a long time. Surely those are exceptional cases. I think they should be exceptional. Once again, we are talking in hypotheticals because we have no data, as you all pointed out.

The question was whether, before a decision was made, there could be diversion or the board could advise a judge to grant an absolute discharge, a period of time, so that there could be an assessment order saying, in an exceptional case like Ms. Lyster mentioned, that there is no treatment. Before standing trial, a person in that situation could wait a long time without being given any treatment to enable him to stand trial. Surely these are very exceptional cases. Anyway, I hope science has made further progress and that we can help those people. But let's assume that this type of case exists.

Is it possible to develop a somewhat more thorough assessment process to determine that there will never be any treatment for that person?

I think that was the point of my colleague's question. By imposing an assessment system only to prepare a person to stand trial... We are not talking about non-responsibility and all that; we are talking about an accused who is fit to stand trial. Could there be a perhaps longer process that would provide us reliable results? A panel could be formed of two or three psychiatrists or other very responsible people who understand the problem. Could a process like that be established to help people in situations like the ones you mentioned earlier so that they do not wind up in the legal system when there is basically no treatment available to them?

À (1050)

[English]

The Chair: Mr. Battista.

[Translation]

Mr. Giuseppe Battista: I'm sorry, Sir, I don't understand what you're getting at.

Mr. Robert Lanctôt: I don't know if that is what the question was, but there you go.

Mr. Giuseppe Battista: We didn't really comment when the question was asked.

At the Barreau, we are not in favour of allowing the board, for example, to discharge a person absolutely in circumstances like those, because the person will be sent back to court. That is how it should be. The decision can be made by the court and the Crown.

[English]

The prosecutor's office have discretion. Crown attorneys have discretion.

[Translation]

There is a dilemma. I am a defence lawyer and my concern lies clearly with the accused in the justice system. If a Crown prosecutor were here, he or she would probably say that there is no statute of limitations on criminal offences involving serious crimes in Canada, except in the case of summary offences. If you say, for example, that a person will be released after one year or five years even if that person is unfit, that might respond to a very legitimate concern that a person who is ill needs help. I am of that opinion. It has often been said that the criminal system is an awkward tool in situations like that.

However, we still have to be objective. In Canada, we sometimes see offences being prosecuted 20 or 25 years after the fact. I am not saying people should be detained for 20 or 25 years. That is not what I am trying to say, but I think there are currently mechanisms in the legislation such that people do not have to be detained. When a person is under assessment or has to undergo psychiatric monitoring, that person does not need to be detained. Detention is exceptional. It should not be the rule; it should not be the standard. It is exceptional. It is for cases where we have no alternative. That is what I am really trying to say.

When there is a concern about the length of time between the point at which the board studies the case, the person is picked up and given necessary care and the realization that the person will quite likely never be fit, it seems to me it is up to the Crown prosecutor to assume the responsibilities inherent in his or her job and announce that he or she does not wish to proceed with the charges, for very appropriate reasons.

In our view, there is a possibility, and we may in fact agree with my colleague, Ms. Ulster. Regardless of whether it is a review board that decides or the Crown prosecutor, the decision can be made. It is a matter of appropriateness, and I think those things need to be assessed. If Crown attorneys do not use their discretion enough, that is another problem. At that point, the responsible departments, both federally and provincially—criminal prosecution is generally under provincial jurisdiction—can issue guidelines. There is a solution. A solution exists. It just has to be applied.

The biggest concern, in my humble opinion, is that people are not getting the care they need, as Ms. Ulster said earlier. She gave the example of people who are sent for tests. Very often, judges issue orders calling for tests or assessments or asking certain specific hospitals to admit people. The hospitals do not admit them because they do not have enough beds or the means to meet their needs. That is a fact.

The other fact is that judges order people sent to psychiatric institutions like the Institut Philippe Pinel in Montreal, for example. The institute does not have enough beds. If it is a woman, she gets sent to Maison Tanguay; if it is a man, he gets sent to the Rivière-des-Prairies detention centre. They see a psychiatrist a week later.

The needs are there. They are pressing and urgent. Something has to be done to meet those needs. The problem is not with the legislation, but with the resourcing.

À (1055)

[English]

The Chair: Merci beaucoup.

Mr. Grose and Mr. MacKay.

Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chairman.

I'm going to plow the same ground again, but I think it should be done.

We're here trying to fine-tune or fix a system but no matter what we do, no matter what conclusion we come to, we come to a screeching halt at the edge of a chasm, which is the provincial system, which is supposed to be part of the whole equation. It isn't there. We have an exercise in futility here. I'm not blaming the witnesses, incidentally; that's our problem. But we're not going anywhere because we have a missing part that we have very little control--in fact, no control--over. We keep coming back to that same thing. The answer always winds up that the provincial system isn't adequate. You put it very well, Mr. Battista; if the system can't handle them, shoot them back to the prison. That's not what we want, but that's what we're going to get.

Thank you, Mr. Chairman.

The Chair: Thank you, Mr. Grose.

I'm going to go to Mr. MacKay so he can get in his questions. If anybody wants to respond to Mr. Grose in responding to Mr. MacKay, you can have that chance.

Peter.

Mr. Peter MacKay: Thank you, Mr. Chair.

I find myself with much of the same sentiment expressed by Mr. Grose. Mr. Battista, you have very clearly enunciated some of the practical realities that time and time again come back to this resource situation. I've seen judges order mental health treatment, order anger management. I don't know whether they're being idealistic or whether they're sometimes pushing the envelope in making these pronouncements from the bench in the hopes that the province or the federal government will respond. Everybody who's working in the system--the crown, the legal aid lawyers, the court staff, the judges--knows that the convicted are going to walk out of the courtroom. They're not going to put them in a telephone booth, wave a magic wand, and make them better. It's just this black hole.

Much of it may be the sentiment that was expressed about the need for education and the need to highlight the fact that these programs are insufficient and the system is overburdened. Something I suspect many of you share is that not only are the forensic units overloaded and the mental health programs lacking, but the court system is too. The caseload of the crown and the defence who are often left to make these very tough decisions....

Mr. Battista mentioned some of the existing alternatives or options that are available to crowns to withdraw or stay cases in the non-fit category. Legal aid is in a really tough position. Legal aid lawyers have to sometimes try to glean instruction from a client who isn't capable of giving them instruction. They're left to play the role of psychologist or family member or parent if the person is lacking in that traditional support system.

I guess the specific question I come back to, not to be just agreeing with everything you've said, is this issue of mandatory treatment of some form. Ms. Lyster, you may have seen sentences in cases where drugs or alcohol are involved, where a person is mandated by the court to take Antibuse in the presence of a person, a family member or a court official. Again, I know that from a civil liberties point of view, it tries the souls of individuals to mandate a person to take treatment.

Bringing it back full circle and getting into an area where we can do something, is this an option we should be exploring? Is this something we should be potentially inserting into the provisions of the Criminal Code? We know the upshot of not taking treatment starts this whole ball rolling and continues to add to the problem. Is that an area we should be examining?

As a final comment, what do you as practitioners, as persons in the system, recommend we do to try to backfill this shortcoming from the provincial perspective? We're going to be hearing from provincial witnesses. What's the message you think they should be receiving from us?

Á (1100)

The Chair: Before the panel responds, we are into the time of our next panel, so try to be as brief as possible.

Ms. Lyster.

Ms. Lindsay Lyster: I'll be as brief as I can.

If there's one thing I would like to leave you with, it's that while I hear your frustration and I think anyone who's had any experience in this area will share that frustration, it's a mistake to use the criminal law to backfill inadequacies in provincial health resources or provincial health legislation. The criminal law is a fine thing, but it is not designed.... As my friend Maître Battista said, it's an awkward tool to try to use to ensure people's health, to try to ensure that they will look after themselves, to try to ensure that they be treated. I would, at all costs, caution you against falling into the understandable temptation of misshaping criminal law in order to fulfill provincial health objectives.

The Chair: Mr. Cerenzia.

Mr. Tony Cerenzia: As just a quick comment, I would agree that what Ms. Lyster has just said is correct, but at the same time, the Criminal Code or law itself should not impede or interfere with treatment. One of the problems, as we see it from our perspective, is that people are given the right to be free, but not the right to treatment. I think that's where maybe the law can come into play.

[Translation]

The Chairman: Mr. Battista.

[English]

Mr. Giuseppe Battista: As a comment, I would just reiterate something that we mentioned and Mr. Cerenzia had mentioned, the need for objective studies and data.

Thank you.

The Chair: Thank you very much. It has been illuminating. I can tell from the reaction of the members that you've advanced the cause of our understanding of this issue, and we appreciate that.

I'm going to suspend momentarily while this panel finds its way to the gallery, or perhaps away, and the next panel can find its way to the table.

Á (1102)

Á (1107)

The Chair: Before we get too far behind, I call back to order the 76th meeting of the Standing Committee on Justice and Human Rights.

Before I go to the panel, though, we have just one little piece of business. As members would be aware, we've received notice of a motion from Mr. MacKay, and I would like to entertain that motion at our meeting on Thursday. Generally it is our custom to do that at the end of our meeting because we don't want the invited panelists sitting around waiting and watching our debate. So if there's no objection, we'll be looking at that motion at the end of our day on Thursday. Thank you.

Now we'll go to our second panel of this day. First, I want to make sure that everyone who is on this list is actually here. Yes.

We have, from the Nova Scotia Legal Aid, Malcolm Jeffcock; from the Ministry of the Attorney General of Ontario, Curt Flanagan and Robert Cattrell--

Mr. Robert Cattrell (Assistant Crown Attorney for Simcoe, Ministry of the Attorney General of Ontario): Cattrell.

The Chair: Cattrell.

[Translation]

Finally, from the Association des groupes d'intervention en défense de droits en santé mentale du Québec, Mr. Paul Morin and Mr. Jean-Yves Pronovost.

[English]

I will go first to Nova Scotia Legal Aid, and in doing so I would remind the panelists that generally we allow ten minutes for the opening remarks. I will motion discreetly at first, and then I'll start waving furiously at some point, so that we can get to as many questions as possible.

Mr. Jeffcock.

Mr. Malcolm Jeffcock (Lawyer, Nova Scotia Legal Aid): Thank you, Mr. Chairman. First, I would like to thank the committee for inviting me here today to address your group.

The subject matter is one that is near and dear to my heart, and obviously one that is really of significant thought as you look to review section 672.

I did present some written submissions on December 31. Keeping in mind the time limits you have outlined, I'll just touch upon four issues that I hope the committee will address as they review the legislation.

First, I want to talk about the concept of fitness to stand trial. At present, the criteria are very low. Many lawyers have a concern over the standard that is applied when determining the issue of fitness to stand trial. Of greatest importance to lawyers who are dealing with individuals who have questionable fitness is their ability to communicate with counsel.

Is a person really fit to instruct counsel when they lack any insight into how their choices impact upon their defence? Many times when dealing with persons who will likely be NCR should the trial proceed, the person is still delusional at the time of crucial decision-making. They are, however, fit to stand trial because they can communicate with counsel. What they are communicating really isn't relevant in the process of the decision as to whether or not they're fit to stand trial.

In view of the leading cases with respect to section 10(b) of the charter respecting the right to counsel, we are all aware that it's necessary that the individual exercising that right do so in a meaningful way. Yet when determining whether or not they're fit to stand trial, it's irrelevant whether they can instruct counsel or communicate in a meaningful way. We have, if you will, these two criteria, which are at odds with each other. The person may be able to speak with the lawyer to say it's a nice day but have absolutely no insight into the importance and relevance of what they have to say insofar as the conduct of their case, things that might seem simple to you or me.

The right to remain silent is a big right. They talk to their counsel. Their counsel may advise them that it's not in their best interest to testify because the crown hasn't presented a case that would satisfy the trier of fact. Yet the person, because they're mentally ill, wishes to get up and speak. So they can communicate, but they can't really instruct counsel.

That is something that, I would respectfully submit, ought to go into the mix when determining the criteria of what constitutes an individual's fitness to stand trial. Whether or not they can communicate sets the standard, in my respectful opinion, far too low. Surely it's whether they can communicate in a meaningful and insightful manner, a manner that will allow them to cooperate and in fact instruct their counsel in their defence, not just cooperate in their defence.

The second issue arising in relation to those who might be unfit to stand trial is the issue of absolute discharges. I heard the previous panel and some of the questions there. It strikes me that in considering this issue, everyone looks to the worst-case scenario: that the person who is unfit, if granted an absolute discharge, will go out and commit some horrendous criminal act. That seems to be a simplistic view of things.

I did have some statistics to present to this tribunal and something that may be of some assistance in helping to understand how things are in our province. They were produced by our provincial forensic psychiatry service in English only. I understand that I can't distribute them, but I will refer to them.

Over the last few years there has been a dramatic increase in the number of people who are NCR in Nova Scotia. That comes about directly as a result of the use of the criminal justice system to obtain mental health treatment, when you get right down to it. In the last fiscal year, there were 40 new individuals found to be NCR. What is alarming is looking at the types of offences. Disturbing the peace, uttering threats, and mischief make up over 40% of those individuals. The largest single offence was assault, with 12 individuals, 30%, followed closely by uttering threats, 27%. There were no major criminal offences. By that, I mean major personal injury offences, sexual assaults, anything of that nature--no attempted murders.

Á (1110)

There were offences. There was one arson, six mischief, two robbery--or break and enters, they were classed as, and I personally know that at least one of those was a forceful entry into his own family home--twelve assaults, eleven uttering threats, one dangerous driving, and two disturbances of the peace.

That's just generally looking at the type of person we're dealing with. We're not dealing with someone who is out there committing major criminal offences. But I digress.

To go back to the issue of the unfit accused, again I reiterate my comments that the typical offences--if there is such a thing--being committed by those who are mentally ill are not major criminal acts. Those are the ones that grab the headlines, but they are very few in number. In looking at an unfit accused, it's not typically the person committing a heinous act, but I would refer you to a popular movie for a fine example of what we sometimes run into.

You may recall a few years ago the movie Rain Man. Dustin Hoffman played an adult who had been, as a child, an autistic child who lived in his own little world in an institution. His brother took him out of that institution. There was a scene in the movie where the brother tried to take him onto an airplane. Dustin Hoffman's character reacted by shouting and screaming and slapping at his brother.

In Nova Scotia, particularly after September 11, if you do that at the airport, you're likely going to find the RCMP arresting you and charging you with causing a disturbance, at the very least, and perhaps an assault.

So we have a situation where that character gives a nice example of the type of conduct that brings people who are mentally ill often into conflict with the criminal justice system: something minor, something that does not significantly impact upon the safety of other Canadians, but does clearly bring the person within the auspices of the criminal justice system.

If you took that character through our system, he couldn't be treated, you may remember. He was an individual who had limited abilities to comprehend significant points of his life. He knew where he got his underwear; he knew batting averages; but he wasn't capable of giving any sort of informed instruction to counsel, I would suggest. His level was so bad I would think even in Canada he would be found unfit to stand trial. As a result, in Canada he would be within the forensic system, for lack of a better word, for the remainder of his life, because the tribunal does not have the capacity to grant an absolute discharge.

I would respectfully submit that to put a person such as that, whose character was portrayed as being rather gentle and non-violent, into a criminal justice system and require that he remain there--even though he presents no significant threat to anyone--is simply wrong. How can we have a system that allows an individual who is fit and has been adjudged not criminally responsible to be discharged absolutely, while a person who has not been found guilty, or has not had a court conclude that he has committed any criminal offence, can remain within the system indefinitely? I would respectfully submit that is something you must review.

The third issue I would briefly touch upon is that of capping. I think it's apparent, certainly from the comments I heard this morning from some members of this committee and some of the previous panel, that there are gaps in the provincial laws. Mr. Grose spoke about how we've come up to this black hole, as it were, of legislation. In Nova Scotia, there has been recent legislation drafted, but not proclaimed--it wasn't drafted, it was put forward by the Law Reform Commission--that would bring us closer to where Ontario is now. It was drafted by referring to the Ontario civil legislation.

I respectfully submit what you may wish to consider is the issue of the division between summary and indictable matters. Certainly those individuals who end up within the system on summary matters may not be dangerous, but might fit the criteria of “significant risk” on risk assessment tools. I don't think this committee should be blind to the fact that this is what is largely determining liberty issues in this country, at least in Nova Scotia today.

Á (1115)

The use of actuarial risk-assessment tools by psychologists is almost the same situation you have with individuals who are sixteen-year-old male drivers. They're a higher risk. They have similar mechanisms and instruments that psychologists are using to say an individual with this background falls into the risk category; therefore, he is a moderate risk or a significant threat. People are losing their liberty based on it.

Finally, since I have about a minute, I would draw your attention to subsection 672.24(1), which allows counsel to be appointed in cases where it appears the accused may not be fit. However, I would note there is no similar provision in the code in relation to those who are fit but may be NCR. You have individuals who are fit but likely NCR going to trial without counsel.

There is subsection 672.5(8), which allows the board to assign counsel where the interests of justice require it. Again, it's not the court for the purpose of trial. Again, it is something I would urge this committee to look at.

I understand my time is up, so I will be quiet.

The Chair: Thank you very much.

We now go to Mr. Flanagan and Mr. Cattrell.

Mr. Curt Flanagan (Crown Attorney for Leeds and Grenville, Ministry of the Attorney General of Ontario): Thank you very much. I'd like to thank the committee. It is a privilege to appear before you this morning with Mr. Cattrell.

By way of introduction, I can advise the committee that both Mr. Cattrell and I have extensive practical experience in relation to appearing at review boards and sitting on the advisory committee on mental disorders to the Attorney General of Ontario.

We have prepared written submissions--they've not been translated, and I apologize for that at this time--which address all of the questions that were raised as well as make some suggestions in relation to legislative amendments concerning certain procedures within part XX.1 of the Criminal Code. I have submitted six copies of that, as I indicated.

In the ten minutes allotted, what I plan to do is divide my time--and I'm into my five minutes already--between Mr. Cattrell and myself. We will look at two issues in those ten minutes: we will look at fitness to stand trial, and Mr. Cattrell will be looking at the capping issue.

To commence, in relation to the ability to create a legislative amendment to the Criminal Code to allow review boards to absolutely discharge unfit accused, it is the position of the Attorney General of Ontario that we are opposed to doing that.

May I say at the outset that the position in relation to us as crown prosecutors from reality and from a practical point of view is that we obviously in a lot of respects are the gatekeepers--we look after the safety of the public at large in relation to individuals who may be released into the community. Giving the review board the power to absolutely discharge, of course, focuses on only one aspect. That's the difficulty with it. It's looking through one lens as opposed to two.

I'm sure members have heard from other speakers that the test for a review board to grant an absolute discharge similar to an NCR accused would be whether the person poses a significant risk to the safety of the public. I would suggest that prosecutors, as opposed to review boards, are in a much better position first of all to assess whether or not a conviction should be sustained. I say that for two reasons.

First, we are often in possession of much more information than is presented at a review board, for example, when--as I understand it in some other provinces--a prosecutor may not be at the table. We have a plethora, if you like, of information relating to significant risk at our disposal that we can assess. We also assess various factors in addition to significant risk, such as the victim, such as the court's order to have the matter returned to court so that the matter can be properly tried, and the best interest of the accused persons themselves. In relation to that, it is our position that we should retain that jurisdiction, that we are in the best postilion to assess that.

Now, the question that has been posed is what about the mentally disordered accused, the unfit person who--I think this example was used this morning--steals the loaf of bread? The reality is we don't see that person at a review board, and that's for this reason. There are a number of safeguards that are both in the Criminal Code and at our discretion as prosecutors that will address the needs of that particular mentally disordered accused.

First and foremost, as prosecutors, we have the duty not only to have a reasonable prospect of conviction, but just as important, we have the duty that there also must be a public interest in the prosecution.

Consequently, for the mentally disordered accused who come to the courts who are declared unfit through an assessment, I have at my disposal various ways to divert that particular accused: through a screening process to various community agencies; to relatives with respect to monitoring; or put them on, for example, court orders that will on one hand monitor and supervise them, but on the other hand won't throw these individuals into the review board forensic setting or into detention.

Á (1120)

In addition to that, as was pointed out, the Criminal Code itself has a built-in framework, and that's under section 672.33. We have a mandatory requirement, as crown counsel, to review every unfit person within a two-year period to establish whether nor not we have a prima facie case. And I can tell you, as a crown prosecutor, we don't do it every two years; we do it more often than that. You do it every review board that comes up in relation to that accused person. We are constantly looking for the best interest of the accused.

As prosecutors, we don't want to keep the person who steals a loaf of bread languishing both in the review board and in jail. That system is built into the Criminal Code. Perhaps you have heard of mental disorder courts in the past, for example--these courts are springing up all over Ontario. They express the specific needs of those challenged individuals who don't belong in jails and don't belong in review boards and that we can certainly divert from the system.

The more difficult proposition--and it was raised in the earlier panel--is what about those other individuals who are before our review board and who may pose a significant risk? They may refuse to take medication; they may go out and pose a significant risk to the public. We of course are very concerned about that, representing the public. I can advise the committee that we look at all sorts of information to assess that as prosecutors.

It may be one day I call up a community agency and say “Can you tell me how so and so has been doing over the past few weeks?” Then we can follow up and bring the information to the review board. It's no accident, I'm sure, that psychiatrists you may have heard from, or other professionals, say “We welcome the presence of crown prosecutors at review boards.” I can tell you that's simply because we have the network available to bring relevant information. In relation to that, as I say, we do certain safeguards.

Finally, my last point is, to borrow from some cases, having the review board--I'm not going to use the word “turf”, but I am going to use the word “remove”--remove an unfit simply for absolute discharge effectively acquits that person. There is no stamp of guilt on the person, first of all. It isn't punishment; it's treatment. But the difficulty that arises is this. Suppose that person needs the network of family, of relatives out there. When the review board grants an absolute discharge, the person leaves the system. What if the person doesn't take his treatment? As a crown prosecutor, I have had relatives, I've had friends, I've had accused themselves come to me and say they welcome the fact they are on some sort of order so that they are getting the constant monitoring.

I think finally--and this will be the final point--it's not a situation where you're putting them in detention. Review boards can give conditional discharges. They can also give detention orders, but very flexible detention orders. It may be a person is living out in the community with his family and has to report once a year, or once a month, and is taking medication. I just don't want the committee to get the impression that because someone's unfit, they're locked away in a hospital or in detention.

Last but not least, there is a caveat. Someone could commit a mischief, for example, that on its face doesn't appear serious. But in our business we deal with, for example, people with sexual paraphilias, so a mischief or a trespass at night in a backyard of some home or a mischief or a break-in where they want to address their particular disorder in relation to sexual paraphelia may not on its face appear serious, but when you start looking into the history of that particular accused, it can be very serious. You have to watch the offence as well. It's not just the murders and the robberies we watch.

Thank you. I'm sorry for going over the five minutes.

Á (1125)

The Chair: Well, you might speak to Mr. Cattrell. You have thirty seconds.

Some hon. members: Oh, oh!

The Chair: I'm teasing, but try to bring it in as briefly as you can.

Mr. Robert Cattrell: Thank you.

Let me just echo Curt's comments that it's a pleasure to be here to address this committee, even if I have to do it more quickly than I had planned.

I'm here to address the capping issue. We've tried to address a number of issues in writing, and we thought we'd just pick the two main ones for our oral submissions to this committee. Obviously, you're hearing a lot about capping, and I think that speaks to the fact that it's a very significant issue. Perhaps it's the most significant issue, as far as the risk to the public that would flow from it goes, if you were to proclaim it. It clearly outweighs the risk that could flow from any other potential amendments, as far as public danger goes.

It's the Attorney General of Ontario's position that not only should capping not be proclaimed, but in fact these unproclaimed provisions should be repealed from the Criminal Code. Let's just put this to rest. It's a matter that's been litigated, ruled upon, and has not only passed constitutional muster from the Supreme Court of Canada in the Winko case and the LePage case, but they gave it their blessing, if you read the cases.

The argument in favour of capping, in my respectful opinion--and it's the position of the Attorney General of Ontario--is based on a fundamental misconception that there's some kind of discrimination here. Again, the Supreme Court of Canada in Winko looked at that issue head-on and said it was not discrimination, because discrimination was obviously when you distinguished between two groups of people and you didn't have a valid basis to do that. Here, there is a valid basis.

In fact, you have a regime where the attempt is to be sensitive to the mentally disordered offender, give them the treatment they deserve, and treat them in a special way, befitting the fact that they have not been found criminally responsible. So people get filtered out and put into that system. The idea you then get the benefit of both worlds doesn't work--the world where you're found responsible and the world where you're not found responsible.

The whole idea of maximum sentences is a doctrine that evolved, as I understand it, in the 18th or 19th century, based on the fact that you have a rational person who committed the offence and you can address the issues of deterrence and denunciation within a certain timeframe, so you put a ceiling on it. It premises a rational thinking person who will draw some inferences from punishment and deterrence. It doesn't work if you have an irrational actor, an irrational person, and that's why there's this different regime to deal with that.

The people who are reaching their cap or have surpassed their cap and are still within the system, by definition, especially in the world after Winko, are still significant risks to the safety of the public. If they were not, they would have been discharged by the review board, certainly in Ontario.

I think the statistics in Ontario speak very clearly to the fact that after Winko the number of absolute discharges has gone up, so they are taking the Winko case seriously; they are applying it. If they're not satisfied that an accused is a significant risk to the safety of the public, that person is discharged.

The idea that the Mental Health Act will address the issue is not borne out in the consensus opinions of forensic psychiatrists. That was addressed even in LePage at the trial level. You would effectively be asking the province to fill a gap created by the federal government, essentially abdicating responsibility in a criminal law area.

The very fact that people who advocate capping say we can deal with it under the Mental Health Act and the dangerous mentally disordered offender provisions speaks to the fact that even they, deep down in a visceral gut level, recognize you can't just cut these people loose. Denis LePage--that was the companion case to Winko--is still an extremely dangerous man.

I began doing review board hearings at Oak Ridge in 1998. I've done many of them, including Mr. LePage's hearings. He's one of many untreated psychopaths, people with antisocial personality disorders and so on, in Ontario in a maximum secure setting--the only one in Ontario. It's interesting that not only have these people not been discharged, but the review board, which also looks at least onerous and least restrictive when it looks at these people and tries to shift them to less secure settings and get them into the community, has kept these people in the most maximum secure setting there is. Capping would open the door and let them out.

I'm urging this committee to recommend that capping be put to rest. It should be repealed.

Á (1130)

The other thing is that it creates false hope for people who are NCR or NGRI. Some of them are from that era. They look at the capping provision and it gives them false hope that these things will be proclaimed. It's anti-therapeutic for them.

Thank you.

The Chair: Thank you very much.

We'll now go to Mr. Morin and Mr. Pronovost.

[Translation]

Mr. Jean-Yves Pronovost (Administrator, Association des groupes d'intervention en défense des droits en santé mentale du Québec): The Association des groupes d'intervention en défense des droits en santé mentale du Québec, the AGIDD-SMQ, would first like to thank you for expressing this interest in hearing us in the context of your detailed examination of the Criminal Code provisions concerning mental disorders. Our provincial association represents 15 regional organizations devoted to the promotion and defence of the rights of those suffering from mental disorders, four rights, committees of psychiatric hospital users and some 20 self-help groups mandated to promote rights. Our thoughts and recommendations stem directly from the findings and practices of our member groups working with people who have mental disorder problems.

The respect of the right to equitable treatment before the law, which contributes in a major fashion to real community integration, is at the centre of our concerns, especially in a context where, because of a lack of adequate mental health services, more and more people with mental health problems are subject to judicial control while being mistreated by the penal system and the health system. Here are two examples of mistreatment.

On April 27, 2000, Mr. Brian Bédard died in the infirmary at the Rivière-des-Prairies Detention Centre. While right in the middle of a psychotic crisis, he suffocated to death because of the way he was handled by staff. Coroner A. Kronström's investigation report on the causes and circumstances of Mr. Bédard's death explained that the memorandum of understanding concerning the sharing of responsibilities between the Quebec Department of Health and Social Services and the Quebec Public Security Department in matter's pertaining to adult offer offenders were never implemented. They date back to 1989.

Coroner Kronström stated that:

Inmates of defendants with mental health problem had the right to the same care as all other inmates under the Health and Social Services Act and the different charters. He also said that, at the present time, they do not enjoy this.

In February 2001, Mr. Laszlo Szabo, a 74-year-old man with serious physical health problems, threatened suicide. After police action, he was accused of negligent use of a weapon rather than hospitalized. Found to be not criminally responsible because of mental problems, and despite the court order that he be admitted to Charles-Lemoyne hospital, Mr. Szabo was detained 60 days in the Rivière-des-Prairies Detention Centre before being freed unconditionally released by the Tribunal administratif du Québec, commonly called the TAQ.

The legislative changes introduced in the new clauses of the Criminal Code indubitably reinforced the rights of the accused, but those rights are still being exercised in a service vacuum leading to many people being locked into an endless spiral: psychiatry-justice. This vacuum, or void, was even the subject of a Quebec Appeal Court ruling in January 2001. In Her Majesty v.s. R.P., Institut Philippe Pinel, respondent, the Appeal Court reversed a TAQ decision that had given an individual an absolute discharge. One of the three Appeal Court justices, Justice Pelletier, said:

...that he could not conceive that government compartimentalization could justify a governement agency [...] agreeing to endanger public safety on the grounds that it was up to another government organization to implement the means required to solve a problem adequately. In his view, the population had no reason to be involved in the internal differences of the government system.

As regards whether or not an individual is fit to stand trial, we agree with the proposal of the Canadian Association for Community Living and the Criminal Lawyers Association to give the provincial review boards the power to give an absolute discharge to anyone who is found to be unfit to stand trial. Those people deserve better treatment thant to be perpetually held under the thumb of the court. Moreover, that would help to lighten the load of the judiciary.

Capping of dispositions. We would like to see provisions concerning capping. The absence of any limits, at the present time, means that many people accused of minor infractions remain under the jurisdiction of the TAQ for periods longer than if they had been found guilty. Even though this has been denounced many times, this situation endures and leads to absurd situations.

Á (1135)

For example, in April 1997, after being charged with uttering threats and assault, a woman from Saint-Hyacinthe was found not criminally responsible by reason of mental disorder. This woman, who is under the jurisdiction of the public curator of Quebec, poses a problem for the health care system. Does she belong in the mental health network or in the network for the mentally impaired? One thing is for sure, it is hard work treating her, because she is resistant to treatment. But what treatment is proposed for her? Basically, psychiatric drugs and behaviour modification to change her attitude. A treatment order was issued by the Superior Court at the request of the hospital in February 1999. At that point, she was in her 22nd month of confinement.

This spiral of conflict was finally unravelled through the involvement of the new public curator, who went to the hospital in person. An ensuing decision of the Quebec Administrative Tribunal put things in order. The ombudsman also had to get involved in this matter, as reflected in the latest annual report.

The issue of capping should not be confused with the right to treatment. The role of the Quebec Administrative Tribunal is primarily to protect society, not to ensure that a person gets the best treatment. In Quebec, unless it gets a treatment order from the Superior Court, a hospital cannot force a person to undergo treatment, even a person under the jurisdiction of the Quebec Administrative Tribunal. A recent legal opinion of the Quebec Hospital Association stated clearly:

That in practice, it was noted that that the Review Board or court frequently required an individual being given an absolute discharge to comply with the treating physician's instructions with respect to the treatment plan. Some of these orders even included, as a condition, that the accused be given the prescribed drugs (by injection or otherwise).

We strongly object to the Review Board having the power to impose drug treatment at the request of the treating physician, as requested by the Institut Philippe Pinel de Montréal. In his brief, Dr. Arboleda-Florez rightly criticized such an extension of forensic psychiatry, which has become a parallel mental health system that ghettoizes patients.

With respect to dangerous mentally disordered accuseds, we see nothing to be gained by enacting such a provision. The current provisions of the Criminal Code are adequate in our opinion. Psychiatric opinions are unreliable when it comes to dangerousness. Justice Leggat's 1984 report on habitual criminals in Canada was rightly critical of the weight given to psychiatric and psychological opinions in the criminal system.

Other considerations. We cannot help noticing that a number of lawyers suggest to their clients that they plead not criminally responsible by right of mental disorder, even for minor offences. This diversion to the forensic system often occurs without the person understanding the consequences, i.e., potentially spending years under the jurisdiction of an administrative tribunal, and in practical terms, being forced to undergo psychiatric treatment, something the accused is often reluctant to do. The Barreau du Québec should deal with this issue and provide its members with suitable training.

To sum up, the Association des groupes d'intervention en défense de droit en santé mentale du Québec makes the following recommendations.

That the federal government invest new moneys in health and social services, moneys that could greatly contribute to the provision of adequate mental health services in the provinces.

That the Quebec Administrative Tribunal, or the Review Board in other provinces, have the power to discharge absolutely an accused who is found unfit to stand trial.

That the Criminal Code provisions on capping be enacted.

That the provisions on “dangerous mentally disordered accuseds” not be enacted.

That suitable training be provided to members of the bar on the consequences of falling under the forensic system for a person who is accused of a minor offence.

Thank you.

Á (1140)

[English]

The Chair: Thank you. Merci beaucoup.

Mr. Cadman, for seven minutes.

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

I'd like to thank the witnesses for coming today.

For those of you who may have been present during the last panel, I want to go back to something that was raised by them. The comment was made about a large number of people not seeking help, and therefore not receiving medication, because they didn't realize they had a problem. I suggested that there are concerns with those folks who know they have a problem and are on medication and then consciously go off for whatever reason, perhaps because of the side effects. There are concerns about how we should deal with those people when they go out and commit a criminal offence or reoffend, in that case, after making a conscious decision to stop their medication. This is certainly a concern that's expressed to me by lay people. So I'd like to get some comments on that.

Á (1145)

Mr. Malcolm Jeffcock: I'll comment on that.

Oftentimes, by the nature of the illnesses, there are fluctuations in their need for a certain quantity of medication. The medications have to be adjusted periodically. What sometimes happens is that the individual may be taking the medication as prescribed and they start to become ill, lose insight into their illness, and therefore believe they don't need the medication at all. So when you say “make a conscious decision”, it's the same type of conscious decision, if you will, that causes them to commit a criminal act and be found not criminally responsible. It isn't the conscious decision of an operating mind.

The second thing I sometimes find with people that causes them to remain before the review board for longer than one might anticipate normally is that they're on the medication for a long time and they feel good, and their thought process often becomes, “Well, I don't need it any more. I feel good.” So they stop taking it because it causes side effects.

When a person knows they're sick and they have to take this to remain well, so they put up with the side effect, that's one thing. But when the person deludes himself, for lack of a better word, to believe, “Well, I haven't been ill. I haven't had an episode now in 14 months. I don't think I need that any more and I have to put up with this side effect. Well, I'll stop.”--sometimes the stopping has a dramatic and immediate effect on their mental health. So it's not a situation where they stop on Monday and then six months later they're delusional. For some people, it's quite quick that the medication leaves their system and they quickly become delusional, quickly lose insight, quickly fail to recognize the warning signs.

I don't think you often have a situation where a person simply decides they're not taking the medication and does so, for lack of a better word, with a good, sound operating mind behind that reasoning. When you say they make a conscious choice, I suggest that it's not often that they do make a conscious choice, insofar as an understanding or insightful choice, to stop their medication. Clearly they often do, but I'm not sure if it's insightful.

The Chair: I think Mr. Cattrell wanted to speak to this.

Mr. Robert Cattrell: Well, it's not one of the issues we contemplated when we came here. Is the suggestion that they should be found criminally responsible when the matter then goes back before the courts?

Mr. Chuck Cadman: Some people would say that, yes. The responsibility occurs if it can be shown that they made the decision knowing what the consequences were going to be.

Mr. Robert Cattrell: Right. I think on a practical level, as a prosecutor having to try to prove that, you have to prove the crime, you have to litigate what was the mental state of the person at the time they committed the crime. Presumably, in this scenario they would be entitled to the mental disorder defence because presumably they're now psychotic. To then litigate what led up to the non-compliance with the medication would be very problematic. I think what you're going to see is that they'll be found NCR again.

At any review board hearing, when you're looking at risk, compliance is always a major consideration, whether a person has a history of non-compliance. That's one of the reasons people sometimes don't get discharged: they have a history of non-compliance and the boards don't accept that they will comply unless there's an order in place. I don't know if that addresses your concern.

[Translation]

The Chair: Mr. Morin.

Mr. Paul Morin (Coordinator, Collectif de défense des droits de la Montérégie, Association des groupes d'intervention en défense des droits en santé mentale du Québec): On compliance, I think in our brief we tried to highlight the confusion between treatment and public safety. Understandably, sometimes when people do not take their drugs, they may indeed have a relapse. But are they going to be a danger to the public? In Quebec, in our experience, that of the AGIDD and other mental health advocacy groups, many of these people commit only minor offences. I think Mr. MacKay from Nova Scotia put it well: they are not serious offences.

Once again, you have to understand the mental health system in Quebec and elsewhere. With deinstitutionalization and the lack of services in the community, there are more and more people being prosecuted. The Criminal Code is being used to treat individuals. That makes no sense. You cannot use coercion as the cornerstone of a treatment system. In our opinion, that is unconstitutional. Coercion is no way to build a treatment network.

Á (1150)

The Chair: Mr. Lanctôt.

Mr. Robert Lanctôt: You are probably tired of listening to me, but I completely agree with what you say. I keep talking about the lack of resources and transfers for social services. You are probably bored with hearing me talk about it, but that is the situation in Quebec.

However, I am going to put the ball back in your court, even though I fully agree with you on this. I do not know whether you were here earlier, but the Barreau du Québec told us what was really going on. I always say we should not change things in the Criminal Code to try to remedy something when the problem lies elsewhere. We know the lack of resources is the problem. We have a problem when we try to fix that by amending the Criminal Code. I am not sure that capping provisions or things like that are the way to solve the problem. What you need to ask for is more money and resources in the right place, so that patients get treatment and are not discharged to go back to life on the streets. It is a vicious circle: once they are on the streets, they get caught up in the legal system when they commit a crime.

I think we are trying to do two things at once. If there is capping with the way things stand today, those people will be “lucky” to get treatment.

Mr. Paul Morin: Our organizations act as advocates for mental health. This is something that applies only to Quebec and does not exist in other Canadian provinces. Quebec has recognized that advocacy is important. There are regional organizations. We have no power to redress, but only to help people. We are present in the field.

When these people refuse treatment, I think they are making a rational choice. I agree that psychotic delirium does exist, but quite often the therapy is excessive. The consideration of public risk and safety can often be called haphazard, at best. That is why we are in favour of a ceiling. When you cannot determine whether a person is suffering from some mental problem or is, rather, intellectually challenged, is it really necessary to wait four or five years for Quebec's administrative court to settle the case? In the end, Mr. Pierre Gabriel, the new Public Curator, had to step in; he is now a deputy minister. He went to Saint-Hyacinthe himself.

When you are caught in an endless spiral of conflict, nobody wins. In any case, if there is a cap and there are still dangerous individuals, the civil system can take over. Psychiatry is not an exact science. A great deal has been said about medication and the improvements that have been made, but when you are familiar with the subject, you realize that things may not be as clear as they seem. For example, the new anti-psychotic drugs do not always work as well as they are supposed to.

Read the brief that was submitted by the Philippe Pinel Institute. They want to use the criminal justice system to treat individuals. Some have gone so far as to say that the main purpose of the Review Board is to treat individuals without any concern for public safety. There is no end in sight. I understand your concern, but our mission is to defend the rights of individuals.

We feel that the best way to defend individuals' rights would be to change certain parts of the Criminal Code or to apply certain provisions. But we will only be successful if, at the same time, we work on developing mental health services.

Mr. Robert Lanctôt: I know that this is a complex issue, and I can tell you that it is even more complex for us.

The same applies to Ontario. You work in the field. Do you have any data? I was told that, in Ontario, you had information on unconditional discharge, after Winko, and that unconditional discharge is happening more and more frequently. When those people are released with an unconditional discharge, do they end up back in the system, and if so, are the charges even more serious?

Á (1155)

[English]

The Chair: Mr. Flanagan.

Mr. Curt Flanagan: Thank you.

I don't have the data you're seeking with me today. I can advise you--and I agree with Mr. Jeffcock--that since the Winko decision setting the test, if you like, in relation to significant risk, there has been a great increase in the number of individuals who are removed from the system. That's not to say--and I'm just picking up on earlier comments--that you necessarily need a whole legislative amendment to that provision of the Criminal Code.

I think what's important--and we're doing it in Ontario--is education and training, and sharing of information. I think that's very important in relation to addressing some of the concerns. For example, I know there was an inquest in Ontario that you may be familiar with called the Kerr inquest that resulted from a very serious incident outside the grounds of the Brockville Psychiatric Hospital. In that inquest one of the jury's recommendations was in fact sharing of information, having crown attorneys present at the hearing, and setting up a system.

That's what we've done in Ontario. We have specialized training courses for crown attorneys, not just to address significant risk and take actuarial assessments, which some psychiatrists will tell you are the best methods today to assess risk, but also to assess mentally disordered individuals and get them out of the system where they should not be in the system.

I think it's the sharing of information and education. I think the parameters are there in the Criminal Code, and those don't necessarily have to be amended on this specific issue. It's more sharing of information and education.

I was going to say more money, but I don't want to say that. It's been said enough.

The Chair: Thank you very much.

Mr. Morin.

[Translation]

Mr. Paul Morin: We have no statistics for the Administrative Tribunal in Quebec. There are comprehensive statistics, but I am told that we do not have the financial resources that would allow us to go into greater detail in order to see how the system has evolved. We don't have the detailed statistics that you are asking about.

[English]

The Chair: Thank you.

Peter MacKay, for seven minutes.

Mr. Peter MacKay: Thank you, Mr. Chairman.

I'd like to thank all of the panelists for their insights.

I'm left with a couple of what seem to be inescapable conclusions about the resource allocation. One that of course inevitably drives provinces, particularly Quebec, wild is when we talk about perhaps the federal government's needing to earmark certain resources within the health care system, which of course opens a whole floodgate of arguments.

There's one issue that seems to be posing a bit of an anomaly, at least in my mind. We've heard a number of witnesses, including members of this panel, say that we should empower the review board to grant absolute discharges and we should give the review board more ability to do what they do and to make judgment calls with respect to the suitability of an accused in their custody to be released. In giving them that power to do so, we're also hearing about the need for capping, which to me poses a bit of an anomaly. I find it inconsistent to say you have to be mandated to release a person within a certain period of time because we don't trust your judgment to do so otherwise.The capping provisions are basically signalling that improper decisions are being made by the review board to hold them beyond what would be called warrant expiry in the normal sense of criminal parlance.

I also want to give Mr. Jeffcock an opportunity to respond to what Mr. Flanagan said about the controls that are placed on individuals when they find themselves in a forensic unit. This idea that by releasing somebody, by cutting them loose, to use that expression...we should have absolute discharges because then you simply relinquish all control.

If, under the current system, we can put some restrictions in place and proper discretion is being exercised, it seems logical to me, particularly when you hear the testimony of Mr. Flanagan. He said family members and even the accused on occasion say, “We need those controls. We would prefer to have some degree of control, some safeguard that will, in essence, allow us to make a smoother transition.”

At least that support system is there. It is mandated by a review board. By out and out granting an absolute discharge, the state relinquishes any control, and some would argue, from the flip side, any interest, which I think they cannot do. I think that would be irresponsible.

So I want to ask the panel to address that. Mr. Jeffcock gave a very apt example.

I happened to see part of Rain Man the other day on television. Certainly that type of mental disorder poses real threats. Anyone who's worked with autistic individuals, anyone who's worked in this type of system with individuals who have those types of mental disorders...Teret syndrome is another one that poses very difficult bipolar circumstances. It seems the diagnoses are getting better, but the treatments don't seem to be keeping up with the diagnoses in some instances.

I wonder if we could get your response to those statements.

Â (1200)

Mr. Malcolm Jeffcock: Me first?

Mr. Peter MacKay: Mr. Jeffcock.

Mr. Malcolm Jeffcock: I have certainly borne witness to some academy performances that you have given over the past....

Mr. Peter MacKay: Thank you.

Mr. Malcolm Jeffcock: That's in your former life.

Mr. Peter MacKay: That's right.

The Chair: We've seen some of them.

Mr. Malcolm Jeffcock: I was just going to say, I caught him on television yesterday myself. I was going to be polite, but thank you for bringing that up. Especially when he spoke about amateur sport and participating...that was the best I've seen. Anyway, we digress.

There seems to be a lot of concern about the issue of the absolute discharge for those who are unfit. I am sure that the panel has heard repeatedly, and I am sure my friends on this panel would agree, that we're not dealing with a large number of people who fall in the unfit category. It's a small percentage of individuals who are charged with offences and are sent off.

Again, that comes back in part to my earlier comments about it being a relatively low threshold to be fit to stand trial. Of course, the first thing you have to say is, well, with everybody who is NCR, they are all mentally disordered; they all fail to appreciate the nature and quality of their act, but they were all fit to stand trial. So you can see right away that it is a very low threshold. We're not talking about a large number of people, but we are talking about some.

On your comment, Mr. MacKay, about there being a need not to just cut the person loose, I would suggest that it might be a bit of a misrepresentation, because before the person would receive an absolute discharge from the board, the board may have already taken the accused person through the steps of being reintegrated into the community. They may have already provided the family with the education and help to deal with the accused person's disorder, to help the accused person function within the community, and the person may be living in the community on a conditional discharge.

I guess what really prompts the concern is, for how long? An individual has been found to be unfit and has been living in the community on a conditional discharge for years. Why should the board not be able to grant the person the absolute discharge? I am not sure that in granting an absolute discharge that necessarily would preclude the crown, at a later point, from pursuing the original criminal charge. I don't know that it would be precluded at all.

Â (1205)

Mr. Peter MacKay: On that point, whether it's a conditional or an absolute discharge, you can follow that gradual plan that you speak of. In taking the conditional option out of play and saying there should be the absolute discharge, isn't that sort of a disincentive to use this gradual release? “Conditional”, by virtue of that phrase, means you comply with these conditions and you will be given the absolute discharge that we feel will be appropriate, at the appropriate time.

Mr. Malcolm Jeffcock: Certainly. And as Mr. Cattrell said, often before the board one of the considerations, as we heard from the honourable member at the table--I can't see your name--in relation to the issue of non-compliance, one of the gravest concerns the board often has is does the accused have insight into his or her illness, and if their illness is one that requires medication, do they have insight into the correlation between their wellness and their continued medication?

So I don't see a scenario where people are going to simply go from being within the hospital to all of a sudden being given absolute discharges and out, because there will be a residual concern of the board on the issue of risk. That is really what we're talking about in relation to an absolute discharge. If they're not satisfied that the person presents a significant risk and they were NCR, they would be granted a conditional discharge, but if the accused is a person who has demonstrated that he or she is a non-compliance risk, the board will typically have a concern.

In fact, when one reads the original decisions up through B.C., it seems that Mr. Winko is an individual who was a compliance risk, and that is why he had not been granted the discharge. The whole reason for the case going to the Supreme Court of Canada was who should bear the burden of showing whether or not Mr. Winko was a significant threat.

The Chair: Thank you, Mr. Jeffcock.

I am going to go to Mr. Macklin, for seven minutes.

Mr. Paul Harold Macklin: Thank you.

I would like to go back to my question in the previous panel. I think Mr. Flanagan came at me directly on that, if I read you right, and this was with respect to individuals who fall into the category of FAS and FAE, developmentally limited or brain injury.

When they get into the system--that is, come before the criminal justice system--is there a way in which we can eliminate the necessity of the criminal justice system pursuing them? As I gather from your remarks, you're saying that within the province of Ontario you've taken the standard and laid it out before the crown attorneys as to what discretion they should exercise in dealing with individuals of this nature. That would be my first point.

Secondly, if in fact you're saying it's coming from training that has been done in Ontario, who should be doing the training? Who should be setting the standards? Where should be we be going with this education and training process that might lead to a system that would automatically remove someone from this criminal process?

I think we need to get an understanding. First of all, because we're dealing with a small group of people, I don't necessarily believe that's a reason for us to ignore it. I think if it's something that needs to be corrected or there is a solution that we can offer, we need to go forward and bring forward that solution and make our criminal law as effective as possible.

So I would like to hear your comments if I could, and those of any other panel members who would like to respond to this issue of taking out of the criminal system as quickly as possible those people who really ought not to be there.

The Chair: Mr. Flanagan.

Mr. Curt Flanagan: Thank you.

In answer to your question, I obviously agree, as I stated, that persons who should be taken out of the criminal justice system for certain reasons should be taken out of the criminal justice system.

In part, it has to do with training and education, and, if I can use the expression, getting to the person as early as possible. That means getting trained professionals to look at the person and make an assessment, which they can do on a fitness assessment, and bringing in other trained professionals to be able to address the situation. And if in fact the developmentally delayed person who doesn't pose a significant risk can be diverted out of the criminal justice system, I don't have difficulty with that. But it's checks and balances, if you like, and the difficulty is that there are developmentally delayed persons and persons who suffer from those other mental illnesses who in fact do pose a significant risk. I've had a number of examples of developmentally delayed where the offence that brings them into the criminal justice system, for example, is a sexual assault. So it is a challenge.

In answer to your question, yes, I think we have to look at them early, and yes, it's training and education. But I think the checks and balances are very important.

Getting back to Mr. MacKay's comment in relation to this gradual process, I think that's very important. Once you tell a review board you can absolutely discharge holus-bolus, that is in effect the same as an acquittal and you're placing the person--and in a larger sense to the detriment of the person--out in the community without the treatment or the safety net or the reassurance that person needs.

So I think a system has to be developed where we start to look at those things early. That's why in our written submission one of the things we did acknowledge and propose was with respect to the review board having the ability to conduct assessments, because you want current information.

Â (1210)

The Chair: Thank you.

Monsieur Pronovost or Monsieur Morin?

Mr. Jean-Yves Pronovost: No.

Mr. Paul Morin: No.

The Chair: Mr. Jeffcock?

Mr. Malcolm Jeffcock: No.

The Chair: Mr. Cattrell?

Mr. Robert Cattrell: The member covered a couple of things, but I think we spoke to one and not the other. I believe you said this capping suggests there's a feeling out there that the review boards aren't capable of doing their job.

I think what it suggests is that when these provisions were drafted, there was a fear of the charter. The fear was that for a potentially indefinite hospital stay for people who continue to be a risk, some court may look at the maximum sentences and say that's the kind of discrimination that violates section 15 of the charter. We know that it has now been scrutinized, and the Supreme Court of Canada has said that it's not discrimination as they define it in the charter because we're looking at two groups that are distinguishable; they have different features, and that's why they're being treated differently--we're not arbitrarily treating members of the same group differently. So I think it was driven by charter concerns that no longer exist.

What it's really saying to the review boards is if the person is not a risk, let them go. They're free and clear. If they're still a danger to the public, then capping would cut them loose, regardless of that fact.

I think that again it's taking a punishment paradigm, where people go into the correctional system because they're being held responsible and accountable, and a treatment paradigm, where people are not held responsible and are put into a hospital system so that we can try to treat them. We look at them from the point of view of risk, as opposed to punishment. It's mixing apples and oranges, and logically it doesn't work.

I think capping isn't suggesting anything about the boards' ability to do their job. I think they are doing their job, from what we can see in Ontario.

The Chair: Thank you.

I'm now going to go to Mr. Cadman.

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

Shifting gears to something completely different, I understand that under the current provisions psychologists are precluded from making assessments. We had some of those folks in last week making the case that they should be allowed to make assessments. I'm not suggesting they be part of the process. I don't know whether we witnessed some turf protection here last week on the part of psychiatrists, but that's what it seemed like. I'm sure you gentlemen have worked with both groups. I'd like to hear your opinions on that.

Mr. Curt Flanagan: The position of the Attorney General of Ontario is that we would include psychologists in making those assessments.

Mr. Chuck Cadman: Does anyone else have any comments?

The Chair: Mr. Jeffcock.

Mr. Malcolm Jeffcock: Do you mean an assessment in relation to fitness or NCR?

Mr. Chuck Cadman: I believe it was fitness that they were concerned about.

Mr. Malcolm Jeffcock: Speaking for myself, I would have no problem with psychologists.

I can indicate that in Nova Scotia the assessment may not be authored by a psychiatric nurse, but much of the assessment process is in fact completed by a psychiatric nurse. The psychiatrist may only see the accused person briefly in relation to fitness. They usually do that relatively quickly.

In Nova Scotia they have community workers who supervise people who are on conditional discharge, etc. In order to expedite matters, there has been some talk about adding to their duties making assessments of people while they're in the holding cells at the courthouse, rather than having the people sent off to a hospital. But again, that's nothing official.

Â (1215)

The Chair: Thank you very much.

Mr. John McKay.

Mr. John McKay: I have two questions. The first one is addressed to Mr. Pronovost. I understood you to say that you are in favour of capping but that you didn't want the DMDA provisions to be proclaimed. I didn't quite understand that point.

My second question is addressed to Mr. Jeffcock and Mr. Flanagan. Mr. Jeffcock's argument is that it's a contradiction to have an unfit person in a system for life but a fit person given an absolute discharge. Mr. Flanagan's position, as I understand it, is don't worry about that, because there's so much crown discretion along the way, that could never happen. So I thought I should give Mr. Jeffcock an opportunity to respond to the blandishments of a crown counsel.

Mr. Malcolm Jeffcock: I would simply say that Mr. Flanagan lives in a far gentler and kinder society than I live in. Certainly our department of public prosecution could benefit from implementing some of the educational programs Mr. Flanagan has spoken of. I'm certainly impressed with what I've heard is happening in Ontario.

I would comment that Nova Scotia has taken the step of allowing crown counsel at virtually every review board appearance. The only time the crown doesn't appear seems to be when an absolute discharge is a foregone conclusion, and the crown wouldn't oppose it but doesn't want to be on the record as endorsing an absolute discharge for a person who is NCR.

Nova Scotia has taken a quasi-educational step, in that it has a single crown who does all of the review board hearings now. This certainly gives some continuity; you can say that he's become specialized--for lack of a better word--in that field. Without any formal program in Nova Scotia, the crown has taken some steps to get consistency.

I would certainly welcome implementation in Nova Scotia of a program such as the one Mr. Flanagan spoke of. Perhaps he could share this information with his brethren in that province.

Mr. Curt Flanagan: Actually it is shared on an ongoing basis. We were fortunate when we ran the course last year--we run it every summer--in that we had two prosecutors from the east come down and audit it in relation to the issues surrounding mentally disordered accused.

There are two things I wanted to mention, though. In addition to the safeguards I indicated with respect to crown counsel, there is also the provision that an accused person can at any time bring the matter before the court under section 672.33 of the Criminal Code. This is an existing provision in the Criminal Code. For example, if a prima facie case isn't felt to exist, a full-blown hearing in relation to this issue can be called for. And that's not after two years; it's at any time. This provision exists now.

Secondly--and this is not done that infrequently--notwithstanding the reviews it may get along the way, I've sometimes had review boards provide comment in their reasons to the effect that the accused remains unfit due to a specific mental disorder and that the board does not see the necessity of having him or her continue in relation to a hospital order. They have asked the crown to please look into these cases and address these issues on the next hearing.

I can tell you that such comments are obviously treated very seriously, and this is yet another situation where the matter is reviewed.

The Chair: Thank you, Mr. McKay.

Mr. Morin.

[Translation]

Mr. Paul Morin: I would like to answer the question about people with dangerous mental problems. Our association, the AGIDD, is against the implementation of this provision because we feel that it gives too much weight to psychiatric or psychological expertise in determining the level of danger. When you talk about danger, you are on slippery ground. It is all well and good to introduce actuarial measurement, but psychiatry and psychology cannot yet clearly determine whether a given person might be dangerous in order to give a long-term prognosis. We don't think that this measure can be justified. That is why, in our brief, we refer to the inquiry by Justice Leggatt, in 1984, where a great deal of research was undertaken. It was said that too much use was made of psychiatric and psychological expertise in criminal cases. Therefore, we think that this expertise should be reined in and we certainly don't want to give it greater recognition in a code or an act.

Â (1220)

[English]

The Chair: Thank you.

Monsieur Lanctôt.

[Translation]

Mr. Robert Lanctôt: I have one question. Mr. Jeffcock said that the number of people who are determined to be unfit to stand trial and who will therefore have to be treated is very, very limited. Therefore, we are discussing the exception rather than the rule.

We are discussing psychiatrists' associations. Some psychiatrists appeared before us and said that they were advocating treatment for those people. Your group, the AGIDD, also wants to work for the benefit of these people, but the two groups are completely opposed. We must not hide from the truth: there is a lack of resources and that might be a good thing for these people, especially if they are few in number. Unfortunately, it is within the legal system, but at least treatment will be available. We would have liked to have them treated in another system, namely health and social services, but financial constraint may not allow it. It would be wonderful if we could care for that small group. It's unfortunate that this will have to be done within a legal framework, but at least, they will have access to treatment.

Is that why there are different opinions between these two groups? Is it simply a question of semantics, or is it really a matter of what is best for these people and what their rights are? It might be beneficial for them.

Mr. Paul Morin: We are driven by our own circumstances and those of the people that we seek to help. Everyone is acting in good faith. I have no doubt as to the good faith of our colleagues in the psychiatric or psychological professions. They have their way of seeing things and we have ours. Our mandate is to defend the rights of these people, with whom we have been working for at least 10 years. Yes, they are few in number, but their number is growing. The Schneider report is very clear: there are more and more of them. In Quebec, proportionately, there are even more than in the other provinces. It is a marginal phenomenon, I agree, but a phenomenon that has not been closely examined.

I am working with other researchers on a research project involving the practices of the Review Board, and perhaps even what Quebec does in this area. There is nothing. No research has been done. There are random statistics. We do have a few, but they are still quite general.

The Pinel report recommends giving the Review Board the power to order treatment. We feel that this would only lead to a spiral of conflict. You must realize that in Quebec there are psychiatrists who are against it, because in Quebec we have the Civil Code. We have a distinct society and a Civil Code. Under the Civil Code, since 1994 the courts have been responsible for determining the level of dangerousness. Psychiatrists must sometimes appear in court and they don't like to do that. They would like to see the system changed. Since the legal system is being used more frequently for treatment, then, why don't we just go ahead and do it right: let's give more power to the criminal medical-psychiatric system.

That's what Dr. Florez spoke out against. Must we consolidate the parallel network or further develop our general health care system? We feel that the psychiatric and legal stigma can be harmful to the health of individuals. Once you have been in Penetanguishene or Pinel, you are marked for life. We know that there is a great deal of prejudice against those who have been diagnosed as suffering from schizophrenia, or something similar. When, on top of that you are bad and mad, it can't get much worse. So we have to do our utmost to prevent that system from being developed.

That is why we are steadfastly against certain psychiatrists or associations who want to take this parallel system even further. We don't need a more developed parallel system; the general system needs to be further developed.

[English]

The Chair: Thank you very much.

We'll go to Peter MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

I have a couple of specific questions, particularly to Mr. Cattrell and Monsieur Morin, or Monsieur Pronovost, with respect to the number of review board hearings where the crown does make the appearance. Mr. Jeffcock referred to the Nova Scotia example, where I think most times the crown is present, unless they want to distance themselves from the final disposition, which was my experience a few times in Nova Scotia as well.

I'm wondering, based particularly on what Mr. Flanagan said about the unique perspective that the crown brings to those hearings, not the least of which is the victim's interest in the final disposition, what is the example of Quebec and Ontario that you're aware of?

Just to go back to this one point of who makes the final disposition with respect to this absolute or conditional discharge, Mr. Cattrell, you spoke of the need for some ability for follow up. It occurs to me that what we're really talking about doing if we change the Criminal Code provisions is reassigning who's going to be most accountable at the end of this process. As it currently stands, yes, we're putting a lot of faith in experts in the area of psychiatry and treatment. Do we shift all of that discretion into their hands to make the final disposition, or should we have some criminal justice mechanism that allows it to go back to the court?

I for one still believe our criminal justice system does afford the crown, the defence, judges, and psychiatrists a fair bit of discretion. We have to have that discretion there because of the individual circumstances in every case. So who's best suited to make the right call, in the final analysis?

The last point or comment I want to make is supported by what Mr. Cattrell said about this low-end disposition or sentence versus the high-end type of offence, where a murderer, potentially, or someone convicted of rape can, by virtue of affording themselves the mental health disposition, be out in a relatively short time, versus the statutory release time they might have in the normal prison system. The flip side of that equation, of course, is this anomaly we're all struggling with wherein a low-end offence can result in a huge, disproportionate amount of time incarcerated, for lack of a better term, even though the treatment provisions are supposed to kick in.

So there are two ends to this paradigm--this risk to the public versus the risk to the individual who could spend a great deal of time locked away in a psychiatric forensic unit. I think Mr. Jeffcock has articulated that very well, that there is this horrible potential for a person who's sick to wind up serving time, whether it be for a theft or a public mischief type of offence, and be cast into this iron mask type of scenario where they're just locked away and forgotten. But who's best situated to make the final call? If we put it all in the hands of the review board, I'm just concerned about who reviews the review board, if it isn't the judge.

Â (1225)

The Chair: Mr. Cattrell.

Mr. Robert Cattrell: I think there are a number of questions there.

You start out by just asking about the practice. In Ontario it's the policy, ever since the Kerr inquest in 1992, that crowns attended all review board hearings.

I think Kerr just highlighted the fact that sometimes if you don't have a party like the crown there, the public interest may not get fully argued, because otherwise what you have is somebody arguing on behalf of the patient and then the hospital presenting evidence to the review board, and the hospital may well be in a conflict of interest in a sense that hospital witnesses don't always like to say bad things about their patients, for understandable reasons, because they have to work with these people. They're trying to treat these people. They're in a healing profession. Sometimes you need a third party there maybe to bring some of that stuff out. So ever since Kerr, the policy in Ontario has been that we attend all of the hearings.

I think there's this idea that people get locked away, and maybe like they're Hannibal Lecter; they're tied up and bound and put in a seclusion room somewhere. In fact, quite a lot of the people make their way out into the community, even though they may be unfit and under some kind of order. I think the review board statistic is that almost half the people under review board supervision in Ontario are actually in the community in some way, shape or form, either through a hospital order or a conditional discharge.

So it's not necessarily the scenario that's conjured up when it comes to mind that they are kind of locked away in a hospital. They can get as much freedom as possible, and for a long-term unfit, every amount of freedom short of absolute discharge can be granted by the board.

It's the position of the Attorney General that, as far as who's in the best position to make a decision is concerned, whether the prosecution should be maintained or whether it should be halted at a certain point, it still comes down to the prosecutor, that it's an area of prosecutorial discretion, and that the danger is that if you give that part to the review board, you're putting them in the area where they are then being asked to exercise what is essentially prosecutorial discretion.

Are they going to start meeting with the police officers who investigated the crime? Are they going to meet the victims? Are they going to interview those people? Do they have a sense of what impact this particular crime may have had on this particular community, the various factors that may be balanced in addition to whether this person presents a future risk? It would be giving the review board a power that the courts don't even have at this point, short of charter-type relief.

Hopefully I've addressed some of the issues you've raised.

Â (1230)

The Chair: Thank you very much.

[Translation]

Mr. Paul Morin: Are prosecuters present whenever Quebec's Administrative Tribunal meets? Not to my knowledge. Quebec's Crown prosecutors are never present. In fact, in the decision by the Quebec Court of Appeal to which I referred, the Administrative Tribunal had released an individual into the community, and the Crown appealed. One of the Quebec Appeal Court justices said that he had disposed of the case, but that he would have liked to have had more information on the murder attempt. Therefore, it is obvious that even the Appeal Court judges in Quebec admit that information was lacking in this case, which means there was no involvement by the Crown. That is another way of doing things.

[English]

The Chair: Thank you very much, members of the committee. I'll take advantage of the opportunity for one quick question.

The first recommendation from the organization of advocates for people with mental illness in Quebec is that the government invest more money. We heard from a lot of places that this is a resource issue, and in fact we shouldn't be using the criminal justice system to somehow fix a problem that is really a resource problem. The recommendation is quite specific that the federal investment be in health and social services. But as you know, and Mr. MacKay alluded to this earlier, that's not easy for the federal government to do.

As we write our report, this is going to be a subject that's going to seize us all, because I think it would be silly for us to suggest that we wouldn't at least be debating this in the context of writing the report.

So what's your view on that question? How does the federal government give money to health and social services directly, with assurances that it's going to deal with the problem we're addressing right now?

[Translation]

Mr. Paul Morin: Of course, that is a sensitive issue. We agree that this is an area of provincial jurisdiction. We can't change the Constitution. It's up to the provinces to decide if the money will go to health and social services. It is up to the provinces, be it Quebec or one of the others, to decide where it will be spent. However, we should try to determine how we can ensure that, if there is extra funding for the provinces, some of it will go to mental health, and specifically to this particular subgroup.

There is a federal-provincial forum where all provinces meet with the federal government and discuss the provincial health systems. I think that may be one possible avenue. It means that the provinces as a whole would make recommendations requesting more funding and targeting a particular subgroup, while respecting the jurisdictional boundaries. We think this would take into account provincial jurisdictions, but at the same time we must be sure that it can work. There has to be pressure exerted through the system. If a federal-provincial forum says that it wants to emphasize a subgroup, this will exert some pressure, and you can count on groups like ours to ensure that there will be a follow-up in Quebec and, I hope, in other provinces.

Â (1235)

[English]

The Chair: I welcome the contribution of the panels today as we struggle with a very complicated file. Your contribution has helped us in that. Thank you very much.

The meeting is adjourned.