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37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Wednesday, April 17, 2002

1535

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

Mr. Bernd Walter (Chair, British Columbia Review Board, Association of Canadian Review Board Chairs)

1540

Mr. Lucien Leblanc (Member and President, Quebec Review Board, Association of Canadian Review Board Chairs)

1545

The Chair

Ms. Lucie Joncas (Lawyer, Quebec Defence Attorneys Association)

1600

The Chair

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

Mr. Bernd Walter

Ms. Maureen Forestell (Counsel to Ontario Review Board; Alternate Chair of Ontario and Nunavut Review Boards)

Mr. Chuck Cadman

Ms. Lucie Joncas

Mr. Chuck Cadman

Mr. Lucien Leblanc

1605

Me Lucie Joncas

The Chair

Mr. Robert Lanctôt (Châteauguay, BQ)

Mr. Bernd Walter

1610

Mr. Robert Lanctôt

Mr. Bernd Walter

Mr. Lucien Leblanc

Mr. Robert Lanctôt

Mr. Lucien Leblanc

Mr. Robert Lanctôt

Me Lucie Joncas

The Chair

Me Lucie Joncas

1615

Mr. Robert Lanctôt

Me Lucie Joncas

Mr. Robert Lanctôt

The Chair

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

Mr. Bernd Walter

Mr. Peter MacKay

1620

The Chair

Mr. Peter MacKay

Mr. Bernd Walter

Ms. Maureen Forestell

Mr. Bernd Walter

1625

Mr. Lucien Leblanc

The Chair

Me Lucie Joncas

The Chair

Mr. John McKay (Scarborough East, Lib.)

Mr. Lucien Leblanc

1630

Ms. Maureen Forestell

Mr. John McKay

Ms. Maureen Forestell

Mr. John McKay

The Chair

Mr. Chuck Cadman

Mr. Bernd Walter

Mr. Chuck Cadman

Mr. Bernd Walter

Mr. Chuck Cadman

Mr. Bernd Walter

1635

Mr. Lucien Leblanc

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

Mr. Bernd Walter

1640

The Chair

Mrs. Maureen Forestell

The Chair

Mr. Robert Lanctôt

Mr. Lucien Leblanc

Mr. Robert Lanctôt

Mr. Lucien Leblanc

Mr. Robert Lanctôt

Mr. Lucien Leblanc

1645

The Chair

Me Lucie Joncas

Mr. Robert Lanctôt

Mr. Bernd Walter

Ms. Maureen Forestell

The Chair

Mr. Ivan Grose (Oshawa, Lib.)

Ms. Lucie Joncas

1650

The Chair

Ms. Maureen Forestell

The Chair

Ms. Lucie Joncas

The Chair

Mr. Chuck Cadman

Ms. Maureen Forestell

Mr. Bernd Walter

Ms. Maureen Forestell

Ms. Lucie Joncas

The Chair

Mr. John McKay

1655

Ms. Maureen Forestell

Mr. John McKay

Ms. Lucie Joncas

Mr. John McKay

Ms. Lucie Joncas

1700

The Chair

Mr. Robert Lanctôt

Mr. Lucien Leblanc

Mr. Robert Lanctôt

Mr. Lucien Leblanc

Mr. Robert Lanctôt

Mr. Lucien Leblanc

Mr. Robert Lanctôt

Mr. Lucien Leblanc

The Chair

Ms. Maureen Forestell

The Chair

Mr. Paul Harold Macklin

1705

Ms. Lucie Joncas

The Chair

Mr. Lucien Leblanc

The Chair

Ms. Maureen Forestell

The Chair

Mr. Chuck Cadman

Ms. Maureen Forestell

1710

The Chair

Mr. Paul Harold Macklin

Ms. Maureen Forestell

Mr. Paul Harold Macklin

The Chair

Mr. Bernd Walter

The Chair

Mr. Lucien Leblanc

Mr. Paul Harold Macklin

Ms. Lucie Joncas

The Chair

Mr. Bernd Walter

1715

Mr. Paul Harold Macklin

Ms. Maureen Forestell

The Chair

Mr. Robert Lanctôt

Mr. Lucien Leblanc

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 077

1st SESSION

37th PARLIAMENT

EVIDENCE

Wednesday, April 17, 2002

[Recorded by Electronic Apparatus]

¹ (1535)

[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): Bonjour, tout le monde. Welcome, everyone.

I call to order the 77th 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.

To help us to do that today, we have two groups of individuals. The Association of Canadian Review Board Chairs is represented here today by Bernd Walter, Maureen Forestell, and Lucien Leblanc. From the Quebec Defence Attorneys Association, we have Maître Lucie Joncas.

Before I turn to the witnesses, there has been some discussion about the time that's available. Generally speaking, an organization or individual has approximately ten minutes to make their presentation. I'm reasonably flexible on that. I'll signal you when we're getting close to time. Then we'll have an opportunity to have some dialogue with members of the committee.

With that, I'll go first to the Association of Canadian Review Board Chairs.

Mr. Bernd Walter (Chair, British Columbia Review Board, Association of Canadian Review Board Chairs): Thank you, Mr. Scott and members of the committee.

First of all, I want to thank you on behalf of the review board chairs from the provinces and territories for giving us the opportunity to appear before you today.

I also want to indicate that in my responses and comments I'll be joined by Mr. Leblanc, who is a long-time alternate chair of the Quebec review board, with much experience in this field; and of course Ms. Forestell, who is counsel for the Ontario review board and whose excellent submission is the basis for our remarks today.

I might mention that Ms. Forestell is also a member of the Nunavut review board, the newest member of our family, so she sits on hearings up in that part of the world.

From my reading of the blues, it's my sense that in the testimony you've heard to date in this committee there has appeared a consensus that the scheme we are working under and administering seems to be managing MDOs, mentally disordered offenders, fairly well. I think it's fair to say the chairs of the various review boards would echo that sentiment.

However, those of us who are responsible for implementing and administering this scheme on a day-to-day basis have encountered some issues in our daily work, and we come together on an annual basis to mutually discuss those issues and their resolution. Through that work we have identified a number of issues that are sometimes of a drafting nature, sometimes of an oversight nature, at times perhaps of a policy nature, and at times result from the interpretation of a particular section of the code from an appeal decision. The issues are both procedural and substantive in nature. We think addressing them will improve the overall functioning of the scheme and the process.

The issues are of course elaborated in the written submission that you have been provided with, so in the time allowed we do not propose to review them in detail. We want to highlight briefly a couple of the priority issues and then submit to your questions, and we'll entrust the issues identified in our submission to your committee and add the hope that you'll see fit to recommend that the chairs be involved and consulted in the development and drafting of any amendments that result from your deliberations.

I know from reading the transcripts of your committee proceedings that the committee has heard a great deal about the Supreme Court of Canada decision in the Winko case, and to some extent that will be my starting point.

On page 8 of our submission, Ms. Forestell has quoted extensively from the Winko decision, in the sense of elaborating what the Winko decision says about the review board's inquisitorial role and responsibilities in the exercise of its decision-making. We have some concern that the potential implications of this extensive duty to inquire could impose on the board some potentially problematic investigative or evidence-gathering functions that would almost entail the addition of resources separate and apart from our adjudicative function or role. We think, as a group, it makes more sense that, just as any other judicial process and very much like the court--we are, after all, a section 7 charter tribunal--we're able to rely on the parties before the tribunal to marshal the evidence we require to make an appropriate disposition, as I say, just as the courts do.

We would therefore recommend that the review boards have the clear authority in legislation to order the production and gathering of assessment information, as well as to ensure the appearance of parties and accused persons before the tribunal when it convenes a hearing.

We would also recommend the consideration of a corresponding authority to enforce the board's orders and directions. In our view, party status implies full participation, but it also implies that the persons before a hearing comply with and are bound by the tribunal's orders. I would leave with the thought that we need this kind of authority no less than a court does.

The other caveat or perhaps care that I want to mention is that our power to order up the assessment information we need to make an appropriate decision is in no way intended to entrench on that professional area of medical expertise or into the technical area of diagnosis or treatment.

Finally, I'd also like to recommend extending to the review board chair or the tribunal, in legislation, the necessary procedural authorities or flexibility so that, for example, we can, even if timelines are missed, not lose jurisdiction; we can extend orders on consent; we can adjourn perhaps beyond an anniversary date of an order; we can assign counsel and designate parties to the proceeding outside a full hearing; we can accept assessment information from psychologists, for example, where psychiatrists are in short supply, on such matters as fitness to stand trial and risk.

I think, subject to the timing, I will turn to my colleague Mr. Leblanc to add his comments.

¹ (1540)

[Translation]

Mr. Lucien Leblanc (Member and President, Quebec Review Board, Association of Canadian Review Board Chairs): Thank you. First off, I too would like to thank the committee for inviting us here to make representations this afternoon. I would quickly like to touch on three areas in particular: persons deemed permanently unfit, interprovincial transfers and capping.

Persons deemed permanently unfit are individuals who, either because of mental retardation, organic brain injury resulting from an accident or excess alcohol or drug use, or senility, do not have the capability to understand their situation, are not fit to stand trial and will never become fit to stand trial. According to the current provisions of the Criminal Code, these persons' case must be reviewed annually by the board. There is no reason for this review, other than the fact that the Code so orders, even when these persons do not represent any significant threat to the safety of the public. The process of reviewing their case every year is costly and time-consuming. It also acts as a source of stress for the accused who, more often than not, do not understand why they must appear before the board. They do not understand the proceedings.

We've observed that a number of briefs and recommendations have called for the board to have the authority to absolutely discharge these accused. The Association of Canadian Review Board Chairs has perhaps taken a more moderate stand. In the opinion of the Chairs, a mechanism should be created to allow the board to discharge the accused and refer their case back to the courts for follow-up action. This referral could be ordered on the review board's recommendation. It's important that the expertise of the board be weighed in such instances. I remind you that we are talking here about persons who no longer represent a significant threat to the safety of the public. The situation is entirely different in the case of an unfit accused who may not become fit for quite some time and who poses a significant threat to the safety of the public. In such instances, certain steps need to be taken. Often, the board is called upon to review on an annual basis cases of individuals who do not represent a significant threat. The Review Board Chairs are of the opinion that a mechanism should be created to discharge these accused from the board's jurisdiction and refer their cases back to the courts.

I would also like to touch briefly on interprovincial transfers. In the opinion of the Chairs, certain Criminal Code provisions need to be clarified, specifically section 672.86(3) because it gives rise to certain interpretation problems. Some are of the view that in order to be able to transfer an accused to another province, the consent of the attorneys general is required. However, the Criminal Code provision cited can be given a different interpretation and we believe it should be, at least in cases where these accused are not in custody and have been conditionally released. In such instances, the provision in question can be interpreted as allowing transfers without the consent of the attorneys general.

¹ (1545)

However, others have interpreted the same provision as meaning the consent of the attorneys general of both provinces is required, namely the attorney general of the province in which the accused is being detained and the attorney general of the province to which the accused is being transferred. Before the transfer can take place, the consent of both attorneys general is required.

The problem arises over the interpretation of this provision. If only for this reason, the provision should be clarified. Another point of contention is the application of the provision.

In some provinces, a person must be held in custody before a transfer can take place, the reason being that the person is considered dangerous. Even if that individual has been conditionally released and can remain in the community, some attorneys general demand that the accused be taken into custody again before a transfer can be carried out. The custody requirement is for administrative, not safety, reasons. To our minds, this runs counter to the provisions of the Criminal Code.

The intervention of an attorney general and his call for the review board that recommended the transfer of a person on parole to take the accused back into custody before the transfer can take place also flies in the face of the independence of the review board which is in fact a tribunal of sorts. This amounts to nothing more than imposing an administrative requirement on the review board. Clearly, this could also give rise to Charter challenges since in Canada, under the provisions of the Charter, persons are free to move from one province to the next. In this particular instance, certain conditions are being placed on the accused before his transfer can be authorized.

In closing, I'd like to touch briefly on capping.

The Review Board Chairs question the advisability of the provisions respecting capping. They are by no means convinced, for reasons I can list if members are interested in hearing them, that such provisions are necessary or advisable.

Thank you.

The Chair: Thank you very much.

Ms. Lucie Joncas.

[English]

Ms. Lucie Joncas (Lawyer, Quebec Defence Attorneys Association): I'm going to express myself to the committee in French, but first I wanted to mention that I have made a comparative study of all the Canadian mental health acts. It is unfortunately not available in French, but I have copies of it in English if anybody is interested in having a copy right now. I know that copies will be made available eventually, but if somebody wants a copy right now to follow the presentation, which is in English, I have them available.

[Translation]

The Association wishes to thank committee members for their invitation and hopes to be able to contribute in a worthwhile manner to the work of this committee.

First of all, the Quebec Defence Attorneys Association would like to call to mind the timely, essential reforms made to the Criminal Code in 1992. While the Swain decision served as a catalyst and spurred changes to the existing Criminal Code provisions, a reform had long been needed to revamp provisions that had remained unchanged for close to 100 years.

The curative, rather than punitive aspect of sections 672 et al is now more apparent. Obviously, one of the underlying problems associated with defending a person suffering from a mental disorder, a problem that existed when the former provisions were in place, is the co-existence of two fields which are essentially independent, namely medicine and law. Both fields have had difficulty providing coherent definitions of terms associated with mental disorders and their legal implications. Furthermore, the problem remains of linking federal criminal law provisions and various provincial laws designed to protect persons with a mental disorder who represent a danger to themselves and to others.

A number of factors have intervened to affect the way persons with mental disorders are perceived in Canadian society. The establishment of charters, advances in the field of psychopharmacology, disinstitutionalization and, admittedly, a certain rationalization of available services and resources are all factors that have come into play.

Bearing all of these facts in mind, the Quebec Defence Attorneys Association will attempt to address some of the questions raised by the committee, and, if unable to offer solutions, will at least try to identify some areas for consideration.

One of the principal concerns of Association members is the lack of legal representation for persons appearing before the Quebec Administrative Tribunal. Although section 672.5(7) of the Criminal Code stipulates that the accused or any other party has the right to be represented by counsel, the fact of the matter is that in Quebec, very few persons found not criminally responsible are so represented.

According to a study conducted by Richard Schneider and Maureen Forestell, only 25 per cent of persons declared not criminally responsible who appear before the Quebec Administrative Tribunal are represented by counsel. A process needs to be developed to ensure that adequate representation is given to this particularly vulnerable class of clients.

With respect to the amendment to section 16, in our opinion, the definition provided should not be amended. Moreover, we would like to see incorporated into section 16 the test set out in the Supreme Court ruling in Oomen. I believe this ruling was distributed in bilingual format to you this morning. The test is as follows: is a person suffering from a mental disorder capable of distinguishing in a rational manner the rightness or wrongness of any acts committed?

I refer you more specifically to paragraph g on page 516 of the decision, where the court makes it abundantly clear how section 16 of the Criminal Code should be interpreted. Indeed, the Court held

...that the inquiry focuses not on the general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances.

Mention is made in the last line of paragraph h of “the ability to apply the knowledge in a rational way to the alleged criminal act”. The Association would like to see this notion incorporated into section 16 so that is truly reflects the Supreme Court's interpretation of these provisions. We realize that this ruling came after Swain, as it was made in 1994.

Regarding the need to codify the defence of automatism, the Association sees no need to do so at this stage and concurs with the views expressed in the brief submitted to the committee by the Institut Philippe Pinel. A very clear definition has already been established in the Supreme Court ruling in Stone.

Furthermore, the Association maintains that there is no cause for the courts to make an order in cases where the defence is non-insane automatism. The clinical comments of Dr. Morissette in this regard are especially relevant to the matter.

As for the power of the review board to order a psychiatric assessment, the Association feels it would be entirely appropriate for the board to be able to order a psychiatric assessment for the purposes of applying section 672.54 of the Criminal Code. Moreover, the Association favours broadening the board's powers so that it can fully discharge from custody an accused deemed unfit to stand trial.

In some of the briefs which I have read, I've observed that one question addressed is the advisability of having the courts, rather than the review board, order a psychiatric assessment for sentencing purposes further to a guilty plea or guilty verdict, where neither a defence of not criminally responsible nor one of not responsible for reasons of mental disorder was raised.

The Association is formally opposed to this practice, since section 672.11 of the Criminal Code sets out the parameters for ordering a psychiatric assessment with a view to determining fitness to stand trial or responsibility, not for sentencing purposes. On this point, I refer you specifically to the rulings cited on page 9 of the document that you will be getting, that is a very recent decision in Quebec in R v Beauchamp. This ruling was handed down in February of this year. I also refer you to the 1992 Ontario ruling in R. v. Snow.

On the question of whether or not to expand or limit the definition of fitness to stand trial, I refer you to the definition of “unfit to stand trial” provided in section 2 of the Criminal Code and which reads as follows:

“unfit to stand trial” means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to:

(a) understand the nature of object of the proceedings,

(b) understand the possible consequences of the proceedings,

The courts seems to assign too much importance to paragraphs (a), (b) and (c), to the detriment of the introductory paragraph. The very essence of the concept “unfit to stand trial” is spelled out in the introductory paragraph. Basically, it means the inability of the accused to conduct a defence or to instruct counsel to do so.

One problem inherent to the fitness issue and to which no mention is made in this particular definition is the time factor. As a rule, the psychiatric report notes the extent to which the accused understands the legal proceedings that are unfolding and his ability to communicate with counsel. The assessment should also report on the ability of the accused to maintain this level of understanding over time. Based on this report, the accused faces two immediate outcomes: either he can be held in custody in a facility until a trial takes place, if releasing him would again result in his becoming unfit, or he can be the subject of a treatment order.

What happens, however, when a totally different outcome is possible, that is when the accused's mental state is such that despite the above-noted actions, he continues to have sufficient understanding of the consequences of the trial's outcome or is able to instruct counsel in his defence? What happens to an accused who suffers from a pernicious mental illness that affects many of his thought processes?

We contend that the ruling of the Ontario Court of Appeal in Taylor unduly restricts the notion of what constitutes the state of being unfit to stand trial and results in some major negative repercussions. A similar contention was made by the Institut Pinel representatives in their brief.

In conclusion, let me simply say that a person's fitness should be determined, among other things, on the basis of the charges, the anticipated duration of the trial and the true ability of the accused to communicate with counsel throughout the proceedings.

My final comments concern the need for bringing in capping provisions.

The Association is opposed to capping for two reasons: first, while a two-year cap may be a laudable aim in the case of so-called minor offences so as not to discourage accused persons who suffer from a mental disorder from raising this defence, we believe that the decision in Winko, which holds as a basic principle that the accused should be released if there is no evidence to show that he represents a danger, is in keeping with the spirit of Part XX of the Criminal Code. The real danger lies in moving away from providing a justification from a psychiatric standpoint and imposing artificial legal deadlines for release.

The second reason flows from the comparative study that you will be receiving shortly. This study brings to light the fact that Canada, given the current state of provincial legislation, is by no means ready to consider introducing capping provisions.

For these reasons, although as defence lawyers, we often would like to see our clients released as quickly as possible, as matters now stand, the Association is opposed to capping because it would not meet the real needs of our clients.

Thank you.

º (1600)

[English]

The Chair: Merci.

Mr. Cadman, for seven minutes.

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

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

I have a couple of brief questions. In your presentation, Mr. Walter, you suggested some kind of modification of the absolute discharge, depending on the dangerousness of the individual. Is that what I heard? Who would decide that?

Mr. Bernd Walter: Yes, without putting a fragile, highly vulnerable person through the system year after year and at the expense that it causes.

Ms. Maureen Forestell (Counsel to Ontario Review Board; Alternate Chair of Ontario and Nunavut Review Boards): If I could just add to that answer, it would only be considered in cases where the person was no longer a significant threat to the safety of the public. So it wouldn't be an issue merely on the basis that the person was permanently unfit. It would only be considered where the person would otherwise meet the requirements for an absolute discharge; that is, they are no longer a significant threat to the safety of the public. So it effectively puts them in the same position as an NCR accused who is no longer a significant threat to the safety of the public. I just wanted to make that clarification.

Mr. Chuck Cadman: Would the other association care to comment on that concept?

Ms. Lucie Joncas: As it was just defined, the association is in agreement with that.

Mr. Chuck Cadman: On another issue, you suggested you were having some difficulty with the capping provisions. I'd like to hear you expand on that, please.

[Translation]

Mr. Lucien Leblanc: Indeed, it is difficult to imagine a logical reason which would justify the application of capping provisions. This is especially true since the Winko decision which provides clear guidelines on the obligation to provide an unconditional discharge unless there is positive evidence to show that this person represents a danger to the safety of the public. As a rule, persons who do not represent a significant public danger should not be under the jurisdiction of the review board. If an accused is deemed to pose a significant threat, that determination doesn't change simply because a period of time has elapsed. If a person represents a serious threat to public safety today, it's almost a sure bet that the assessment will be the same tomorrow. The passage of time will not lessen the threat. Legislative provisions will.

In some respects, the treatment of persons found not criminally responsible is being equated with that of persons found guilty because the time factor is being taken into consideration. This runs counter to the principles stated in Part XX.1 of the Criminal Code. At issue is the safety of the public. As long as a particular individual represents a threat to the safety of the public, certain conditions must remain in place and provision must be made in legislation. For these reasons, I see no logical reason for capping provisions. That's my personal view, of course.

º (1605)

Me Lucie Joncas If I could just add to that, if capping provisions were introduced tomorrow, there is no question that the law is not ready to provide for these persons. They still represent a threat. I have prepared a comparative study. Each Canadian province has different, albeit similar criteria. Take Newfoundland, for example. A person who is considered to pose a threat to property may be detained in hospital and treated without his consent. This can only happen in this particular province. In British Columbia, for a person to be thus detained, the threat of physical or mental deterioration must be proven. Other provisions also apply. Thus, different systems would apply to all persons under federal jurisdiction. Persons found not criminally responsible would therefore be treated differently in different parts of Canada. While this may not necessarily be a bad thing, some adjustments are in order. Therefore, I don't think we're anywhere near ready for capping to be introduced, barring an in-depth study of these provisions.

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

Mr. Robert Lanctôt (Châteauguay, BQ): Thank you, Mr. Chairman. Thank you as well to the witness for the presentation.

You've come along at the right time because the initial discussion was rather confusing. I'm sorry, but I couldn't help myself, Mr. Grose. I'm sure you've now been enlightened. It's just a little inside joke.

You've come along at the right time because time limits are very important to this committee. We've spoken about this important matter. For the first time, the full panel is opposed to capping. Usually, one or two panelists are in favour of a particular provision, even though the majority may be opposed.

I'd like to follow up indirectly on something Mr. Walter's mentioned. Did I understand correctly that the review board could refer cases back to the court which could then grant an absolute discharge? Can review boards now do this?

[English]

Mr. Bernd Walter: No. Mr. Lanctôt, my comments were relegated to a person who is unfit to stand trial for extensive periods of time, who will never regain fitness, and about whom there is no particular risk to the public. I think capping is not really addressing that particular issue.

What you're hearing from us with respect to capping is bringing the amount of time that people can be held under our scheme, under this scheme, in line with the amount of time people can be sentenced in the mainstream criminal justice system. Our concern is the issue that psychiatric treatment being what it is, we cannot always guarantee that at the end of a fixed period of time, a person no longer poses a danger as a result of either his illness or the fact that he or she is not treatable for his behaviours.

What you're hearing is that there needs to be a safety valve for those people who remain dangerous after the expiration of that fixed period of time. As Ms. Joncas has been saying, that would require harmonization of provincial and civil mental health legislation, as well as the provision of resources to actually accommodate and deal with those persons who are thus discharged. For that reason, it's been the review board's position that we're not ready at this moment to go ahead with capping. It would cause risk, and we would need a considerable amount of lead time to deal with those persons who would be affected by capping.

º (1610)

[Translation]

Mr. Robert Lanctôt: Is it fair to say that since the Winko decision, the cases in this category would involve very minor offences? Consider for example the case of a person accused of shoplifting who may never be released because he or she is not treatable? Does the review board have any data on cases like this? Do you plan to compile any pertinent data?

[English]

Mr. Bernd Walter: I'll defer to my colleagues. But looking at those people who are in custody in British Columbia, and who would be affected by capping, most of those people are still in custody after a significant period of time. They are the people who have committed very serious offences--murder, attempted murder, and so on.

So I guess that's one way of looking at it. Perhaps Winko is working and the review boards are working, in that the lesser offenders are moving through the system, getting their treatment, and being discharged back into the community with appropriate supports and resources. It's only the long-time offenders who are remaining in.

I defer to the experience of Lucien.

[Translation]

Mr. Lucien Leblanc: I'd just like to add that currently, there is no evidence to suggest that persons remain in the system any longer than is necessary to ensure public safety. This is true today, particularly since the Winko decision which clarified section 672.54 of the Criminal Code. I know for a fact that in Quebec, following the Winko decision, a number of persons were granted unconditional discharges.

Mr. Robert Lanctôt: By the court?

Mr. Lucien Leblanc: By the review board. Winko allowed us to do what we felt we couldn't do before. However, I believe that if a person remains under the review board's jurisdiction, it's because that person still represents a threat. Time has nothing to do with it. As long as the person continues to represent a threat, he or she cannot simply be released into the community without proper measures being put in place to deal with that individual. Right now, provincial legislation does not...

Mr. Robert Lanctôt: It isn't just the laws that would need to be harmonized. Resources would also be needed.

Mr. Lucien Leblanc: Don't get me started on resources...

Mr. Robert Lanctôt: All right then.

Now then, Ms. Joncas, I was interested to hear your comment about accused persons who were not represented by counsel. The Criminal Code specifically makes provision for representation by counsel. However, you mentioned that only in 25 per cent of cases do the accused have legal representation. Are you thinking about provincial legislation or some similar mechanism to provide more funding so that these accused are represented by counsel? Or, would you like to see changes to the Criminal Code? These are already being contemplated.

Me Lucie Joncas: The Criminal Code makes provision for...

The Chair: Go ahead, Ms. Joncas.

Me Lucie Joncas: Pursuant to the provisions of the Criminal Code, a person whose fitness has been questioned must be represented by counsel. In fact, all such persons are represented by counsel, often even against their will. However, in the case of persons found not criminally responsible, representation by counsel is a right, not an obligation.

We recognize that the mental state of these individuals is fragile - often they have been conditionally released and received a simple notice that they have the right to be represented by counsel. I have an example of one such notice with me. We recognize that there are no guarantees these persons understand what their rights are or that they are entitled to representation by counsel. Circumstances vary from region to region.

I've been told that here in the Hull area, such individuals are apparently automatically represented. The situation varies in the Montreal area. It takes funding and legal aid lawyers to provide such services, not to mention...

º (1615)

Mr. Robert Lanctôt: You're talking about matters under provincial jurisdiction. That's what I wanted to know. Is there a difference from a criminal law standpoint?

Me Lucie Joncas: Yes, but we're talking about applying the provisions of federal legislation.

Mr. Robert Lanctôt: Yes, but this falls under provincial jurisdiction.

The Chair: Thank you, Mr. Lanctôt and Ms. Joncas.

[English]

Peter MacKay for seven minutes.

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

Merci beaucoup à tous. Thank you very much.

I apologize for my late arrival. Please don't take offence. It's no disrespect to your testimony.

We've heard from a number of witnesses on this issue of capping, and many who advocate capping are the same ones who argue strenuously for greater autonomy and decision-making powers for the review board itself. I find this to be somewhat perverse, because suggesting that they should be given this power to grant absolute discharge and then imposing capping is basically saying that you don't trust their judgment. So I find an anomaly there.

I have a couple of specific questions related to the issue of capping. It appears that the mirror image of capping is to say that in the regular criminal justice system we should shy away from gradual release toward statutory release. The absolute discharge option would relinquish all controls, whereas currently with a conditional discharge there is at least some ability to monitor what would be seen as integration into the community. I wanted to canvas your opinions on that.

More specifically, though, are you satisfied with the community programs that are currently available? To me this appears to be the most crucial issue, which we are in danger of missing. Time and time again I've seen judges order anger management counselling and all sorts of mental health programs that simply don't exist, or medication. I'm sure this is something you would see quite often before the board. If a person with a bipolar condition isn't taking their medication, they enter into this cycle of coming back time and time again for what are often property-related or public disturbance types of offences.

Finally, I'm very interested in Mr. Walter's suggestion of what appears to be almost a third way, where the review board can in essence at any time--and I think it exists now to some extent--send back to the judge or perhaps more appropriately back to a crown prosecutor to exercise some... Is this what you were proposing?

Mr. Bernd Walter: Only with regard to unfit patients.

Mr. Peter MacKay: For the non-fit designation.

But when you have an individual--I think I'm following this--with a permanent brain injury or fetal alcohol syndrome where there isn't going to be any treatment and there's no expectation that the person will ever be fit, should we be contemplating Criminal Code amendments that would allow a review board to recommend that it go back for a discretionary dropping of the charge, a judicial stay? It's currently there, I think, for a crown prosecutor to do so.

Finally, are you getting before your board consistent appearances by crown attorneys and defence counsel? This is something that seems to be quite erratic, depending on the jurisdiction. In Toronto they seem always to appear. In other jurisdictions the crown and defence aren't always present. It has to do, of course, with unrepresented accused simply not having access to defence counsel.

º (1620)

The Chair: Before we begin the responses, Mr. MacKay has made a number of points and has asked a number of questions, and witnesses have responded with a shaking of heads, which isn't picked up in our transcript. I'd like to make sure that all of those thoughts find their way into the transcript. We all understand your position; unfortunately, history won't record it.

Mr. Peter MacKay: I apologize for that. I'm still struggling even after four years with the fact that you have seven minutes to do an entire direct and cross-examination of a person.

Mr. Bernd Walter: I'm probably a guilty nodder on that one, sir. I apologize.

Starting with your last part on legal representation and crown counsel, we in British Columbia are quite fortunate that at least in the lower mainland we have a dedicated crown counsel, and he's a standing party to all of our proceedings. I would say that he appears at 85% to 90% of our hearings. When he's not available, he sends an agent. So the crown is always there.

Similarly, so far our legal aid system has been spared with regard to those vulnerable mentally disordered who Ms. Joncas spoke about. We have a dedicated clinic system in our province that represents all of the mentally disordered accused in the lower mainland. So we have a very consistent bar and crown appearance before us.

With regard to some of your other issues, I'll defer to Maureen.

Ms. Maureen Forestell: Perhaps I'll go through them in order. I think that your first concern was with respect to statutory versus gradual release. Again, I want to draw the distinction between “capping” and “unfit” and also to make it quite clear, as I said earlier, that the only time an unfit person would be sent back to the court with a recommendation for a stay would be where they were no longer a significant threat to the safety of the public. What that implies is that they have gone through gradual release in most cases. They started in a hospital, they've been released to the community, they're doing well, they're no longer a threat, and if they are NCR, they will be absolutely discharged. But since they're unfit, we don't have that option. What we're suggesting is that we essentially discharge them from our jurisdiction and send it back to the court for consideration.

You're also quite correct that this exists on an informal basis. I think that in every province or territory you will find that a review board alternate chair will turn to a crown attorney who's present at the hearing and say, “Why are we continuing? Can't you do something with these charges?” It often appears in reasons, but there's no mechanism, so the defence counsel has nothing to go to the court with from that. If there were a provision that sent them back to the court--whatever the mechanism may be, an absolute discharge or a recommendation for a stay, something like that--it would give, I think, the defence bar something to work with when they take their person back to court and attempt to get them released.

In terms of being satisfied with community resources--and this goes back to gradual release--I think that's a consistent problem across the country. I don't necessarily speak for everyone, but it does appear in the survey we conducted. Two issues you were concerned about appear in the survey. One is representation by counsel, and the other is some dissatisfaction with community resources.

It's particularly pronounced with respect to people with developmental challenges. They don't fit well into the designated facilities. The hospitals can't treat them and are not sure what to do with them. While there are programs that might benefit them, they have difficulty accessing them.

This goes back again to releasing people who are no longer a significant threat from our jurisdiction and from the criminal justice system because it's an obstacle to them in accessing resources in the community if they have outstanding charges or ongoing review board proceedings. Many group homes are not willing to take them into their programs. If they were not a threat, it would benefit them greatly to be able to be like everyone else and access those resources. They're limited, but some resources are available.

I think those were the points you raised.

Mr. Bernd Walter: I would just echo Mr. MacKay... In B.C., if we had additional group homes that were appropriately supervised and treatment services in the community available... I think that there are still a core number of individuals whose risk is not such that they require detention in a secure psychiatric forensic facility. With respect to the availability of those community beds, they are occupying $700-a-day beds, and their quality of life is probably not optimal.

Perhaps Mr. Leblanc could add the Quebec experience.

º (1625)

[Translation]

Mr. Lucien Leblanc: Although I don't have much more to add to that, I was going to say something, as I've been told that the record doesn't show when people nod their heads.

We do indeed encounter the same problem in Quebec in terms of a shortage of resources. Often, people remain hospitalized much longer than is necessary simply because the resources to release them are lacking. I think all provinces are experiencing problems of this nature.

The Chair: Ms. Joncas.

Me Lucie Joncas: If I could just add to that, defence counsel who represent persons suffering from a mental disorder often end up, in many cases, playing the role of social workers. They must take the person by the hand and find the necessary resources. Heaven only knows how many hours we spend on the phone with agencies in an effort to find resources for our clients.

Getting back to the first question raised by Ms. Forestell, I totally agree with the proposal that persons declared permanently unfit should be returned to the court's jurisdiction. We do not have the tools or resources to deal with these individuals. Informally, of course, this happens. It would really be helpful to all stakeholders if these persons could be taken out of the system and if the appropriate resources could be found to help them.

[English]

The Chair: Mr. Lanctôt, we'll be back.

John McKay, seven minutes.

Mr. John McKay (Scarborough East, Lib.): Thank you, Chair, and thank you, witnesses, for coming.

The position is essentially that you want the review boards to have the power to be able to discharge unfit accused when they no longer represent a threat to public safety.

We had a crown attorney in here yesterday. He was pretty vociferous in his opposition to that position. His argument, according to my notes, was that his primary worry was for community safety. He held that prosecutors are in fact the gateway to public safety and have a lot more information than the board does on individuals who come before the board, that minor offence people don't get into the system and prosecutors in fact have a duty to divert people from the criminal justice system. He felt that in some respects this would be the usurping by the board of what is otherwise a legitimate criminal law function. I think that's a fair summary of his position.

I'd be interested in what you would say to the representative of the Ministry of the Attorney General of Ontario on that point.

My second question has to do with your point that the Criminal Code be amended to reflect that the accused must be fit to stand trial after verdict and throughout the sentencing process. I must confess, I didn't quite realize that the interpretation was you only have to be fit for the purposes of the trial. But it does also lead to another bizarre anomaly where you could be fit for the purposes of the trial but unfit for the purposes of the sentencing, and that leaves the no longer accused but not convicted in a legal limbo land, which might be worse than the current situation.

I'd be interested in your comments on both of those points.

[Translation]

Mr. Lucien Leblanc: I'll try to answer the portion of your question concerning the release of persons deemed permanently unfit to stand trial.

The Review Board Chairs do not support the idea of granting the accused an unconditional discharge. They maintain that a mechanism needs to be established to remove the accused from the jurisdiction of the review board and transfer him to the authority of a judicial tribunal. This wouldn't mean the charges against the accused would be dropped. It would be up to the court or to the attorney general to decide if there are grounds to continue the proceedings.

We'd like to see a mechanism in place whereby persons who no longer represent a public threat - this is another very important aspect of our position - would be removed from the jurisdiction of the review board, that is they would no longer be required to appear on a regular basis before the board, and would be transferred to the authority of a judicial tribunal which would then deal with their case.

Clearly, we do not claim to have the authority to render a decision that would result in the charges against that individual being dropped. We do not have the power to do that. That would be the responsibility of the court and of the criminal justice system.

As for the second part of your question, I will let...

º (1630)

[English]

Ms. Maureen Forestell: I would just add, with respect to the other comment by the crown attorney who appeared here, that I think it's a bit disturbing for us to hear that there would be a crown attorney who is in possession of information as to the dangerousness of an accused but chooses not to present it to the review board. Since we are making a disposition to protect the public, I think a crown attorney who is not presenting that information to the review board at the annual reviews is not doing his or her job.

I think that the crown attorneys who appear before the Ontario board, certainly, and the Nunavut board don't withhold information from the board. They give us any information they have that goes to the dangerousness of the accused. So I'm not sure that's a particularly valid argument, but I would also echo what Mr. Leblanc said.

With respect to fitness after verdict, this is an anomaly and it is an issue that has come up in at least two cases in Ontario--and I haven't done a complete survey across Canada. One of the reasons it's coming up more often, I believe, is the increase in dangerous offender applications. The dangerous offender proceedings are considered sentencing proceedings. So after the verdict the accused is generally sent for a fairly in-depth assessment, and fitness arises during the course of that in-depth assessment. It does create a procedural nightmare for everyone involved, and it's the position of the review board chairs that it would be best cleared up by requiring that someone be fit to be sentenced as well as fit for trial.

Mr. John McKay: It's almost like an anomaly on top of an anomaly.

Ms. Maureen Forestell: Yes.

Mr. John McKay: I'm really glad I asked that question.

Thank you, Mr. Chair.

The Chair: Aren't we all?

Next we go to Mr. Cadman for three minutes.

Mr. Chuck Cadman: Thank you, Chair.

This is a question for the review board chairs. I suspect you have experience with victims on these issues, and I just wondered if you care to comment on the proposal we've had to allow oral victim impact statements at hearings.

Mr. Bernd Walter: I'll speak for British Columbia. Since the recent amendments directing our receipt of victim impact statements, we do get them and consider them to the extent they're relevant to our risk assessment at the first hearing. We also have--I think from your jurisdiction, Mr. Cadman--victims often who attend hearings. Those are usually arranged and supported through victim services and through the crown attorney, who regularly appears at our hearings. They keep the liaison going; they keep the victims informed when a hearing is approaching.

We have never had the crown lead evidence orally through a victim, but there's certainly no barrier to doing that. If the crown wishes to call that victim to give testimony at our hearings, there would be absolutely no obstacle to so doing. We do not call and have not generally called persons to speak orally who are victims, but we certainly consider their written statements. Again, there's no particular barrier, other than I would expect the defence might object.

Mr. Chuck Cadman: The proposal, I believe, is before us, if I recall correctly, to actually give the victim the right to deliver an oral impact statement. It wouldn't be a question of being called; it would actually be a right that would be extended to them to make the choice whether to make an oral statement.

Mr. Bernd Walter: I would think, again, leaving the discretion to the crown--

Mr. Chuck Cadman: That would reflect the Criminal Code.

Mr. Bernd Walter: Yes. I would think leaving the discretion to the crown--who is, after all, at this hearing, the guardian of public safety and the invigilator of public safety--would suffice. I do not think there would be much added by mandating the board to hear from the victim, beyond the victim impact statement and to the extent the information is relevant to our assessment of risk to the public safety.

The Chair: Mr. Leblanc.

º (1635)

[Translation]

Mr. Lucien Leblanc: In Quebec, some victims testify in person before the board, but that always poses a problem because the board needs to hear evidence to determine whether the accused represents a serious threat to the safety of the public. Often, the victims who testify recounts how scarred they have been by the incident, how afraid they are and at times, how they feel about the accused. Such testimony can make it rather difficult to administer or conduct a hearing.

Victims have trouble understanding that the role of the review board is not to punish the accused, but rather to assess the danger he represents. Quite often, victims would like to see the accused punished for his actions. I'm not saying that's always the case, but we do see this fairly often.

However, let me say again that in Quebec, some victims relate their experiences and fears in person to the board. Recently, the board ordered an accused not to travel to the city where the victim lived and where the assault occurred. The board can so order, but I think some caution is in order before we provide a right for the victim to address the board in person.

The Chair: Thank you.

You have three minutes, Mr. Macklin.

[English]

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

Thank you all for appearing today.

What prompted the discussion yesterday with a crown attorney was an issue as to whether certain people who came before the criminal process, in particular those who are developmentally limited--FAS, FAE--while having those difficulties, did not in fact constitute a concern to public safety. The crown attorney suggested that through their facilities of diversion they were able to take these individuals from the criminal system and send them elsewhere.

I presume this is somewhat limited, in terms of the diversion capacity, because it sounds like many jurisdictions do not have that capacity in the first instance. Secondly, do we know how many people you see who would get past this potential gatekeeper, if it were available, and get into your system where you have to deal with it? In other words, the individual is not a problem to the safety of the public but has these very limiting physical disabilities. Do you have any way of giving us a snapshot of the numbers so we can get a concept of the problem and difficulty?

You were talking about referring these individuals back to the courts for a discharge at some point, if they go through your system; in other words, the gatekeeper isn't there. When you refer them back to the system, were you suggesting that at some point you would prefer to be able to grant an absolute discharge? Or do you see a problem with that?

Mr. Bernd Walter: I think the gist of our position is that we would recommend the court take a look at that individual and consider, given all of the information it has then, a stay of proceedings, or some other form of dealing with that person, rather than keeping him or her under the sort of umbrella or sceptre of the criminal justice system.

With respect to the diversion issue, I think it's part and parcel of the crown's role to divert, when that is appropriate. When we see an individual before our tribunal, that process has obviously not been employed or it's much later, because the person is subject to a court verdict. So the diversion has already gone by the board. The person has come before the court and been made the subject of a verdict of not criminally responsible, or unfit to stand trial.

In terms of the kinds of individuals with developmental handicaps--FAS, FAE--I have seen this phenomenon. That is to say, we probably have 16 or so people in British Columbia who are very delayed as a result of those kinds of conditions. They are probably, for the most part, in psychiatric hospitals where there's no curative treatment available to them. Yet they are there because they may still be a risk.

I've seen communities where all efforts have been tried--sometimes in first nations communities--where everyone has tried to keep this person under control, either away from substances, with family, where the court has finally thrown up its hands and said we can't control this person safely in the community again, and we know he's going to get good service in the forensic system, and for that reason then finds the person unfit to stand trial on a set of not terribly grave charges and gets him into our system, where he or she is guaranteed some relevant services. But those people then often stay with us for a very, very long time.

º (1640)

The Chair: Mr. Macklin, I think Ms. Forestell wants to...

Mrs. Maureen Forestell: Yes, in terms of the numbers, I think the numbers are very small. I don't think we're talking about a large part of our population. There are very few of these people. On the other hand, the hardship to them is very great and their vulnerability is great. That's why it's of such concern to us.

The Chair: Thank you very much.

Monsieur Lanctôt.

[Translation]

Mr. Robert Lanctôt: I see the discussion is under way and that we are making the rounds. If I may continue, I'd like to focus in on this issue to clarify my understanding of the problem and to enlighten the committee as well. I want assurances that I understood you correctly and I'd like to focus on the particular cases you mentioned.

You spoke of 16 individuals who were still considered to be risks. That means they continue to be detained either in a hospital or some similar facility. In the case of persons who are no longer considered a threat, you are proposing a new mechanism of some kind. In other words, what you're saying is that the board cannot at this time send a person back to the courts for a determination of whether to release the accused or grant an absolute discharge. If I understand correctly, that's not possible at this time. From the very beginning, efforts are being made to release these persons, and you're telling us that if some mechanism can be included in the legislation, some progress could be made on this front. For the moment, however, no such mechanism exists.

Mr. Lucien Leblanc: No such mechanism exists. All we can do right now is make recommendations, and we do that occasionally. In stating the reasons for our decision, we note that the person in question does not represent a significant threat to public security and that perhaps it would be advisable to consider withdrawing the charges. All the board can do is make the recommendation. No one is bound by our decision. Let me also say that the recommendation is not made to the court. Rather, the board recommends to counsel that they endeavour anyway they can to have the charges against the accused withdrawn.

Mr. Robert Lanctôt: Therefore, counsel presents the case to the court.

Mr. Lucien Leblanc: The Crown Attorney is the person who decides whether the charges can be withdrawn. He can advise the court that he no longer has any evidence to present. He can do as he likes.

Mr. Robert Lanctôt: You've stated that only a very few people remain in custody or are hospitalized because they are dangerous. Have all the others been released? If so few individuals remain in custody, is it because the others have been released?

Mr. Lucien Leblanc: Many were declared fit to stand trial and referred to the court. Generally speaking, those who have been declared unfit, aside from those who are permanently unfit, are referred back to the court fairly quickly. We're talking about persons deemed permanently unfit. A certain number of them are released and remain in the community. Those who cannot be released remain hospitalized.

Mr. Robert Lanctôt: Thank you very much.

º (1645)

[English]

The Chair: We have a lineup. Madame Joncas, Madame Forestell, and Mr. Walter.

[Translation]

Me Lucie Joncas: I'll try to answer that question quickly. The accused is sent back to the court's jurisdiction only if the board determines that the person is fit to stand trial. Until such time, referral is not possible. That's the problem.

Mr. Robert Lanctôt: I see.

[English]

Mr. Bernd Walter: Ironically, the individuals you're talking about, that small number, are the hardest to serve. They end up staying in the hospital much longer, in beds that cannot assist them greatly, because psychiatric treatment in a hospital is generally medication-based and pharmaceutical-based. These are the developmentally delayed people who really don't have psychoses and perhaps don't respond to medication, but for whom there are no resources in the community to even get them out of the hospitals, so they're kind of lodged there.

Ms. Maureen Forestell: The other issue is what I mentioned earlier, which is that the very existence of the unfitness verdict can block their access to group homes. A hospital may be reluctant to release them, not because they're a threat to public safety, but because they can't cope on their own in the community. But they can't get them into a group home because they're designated forensic, and group homes are reluctant to serve them. So it creates a real catch-22 for this small population.

The Chair: Thank you very much.

Mr. Grose.

Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chair, for giving me the chance to expound on my now nearly famous chasm theory.

I understood Ms. Joncas to say that if we were to proclaim a capping provision, some people would come out of that needing further assistance. This would be a provincial responsibility, and the facilities are not available.

I'm not trying to lambaste the provinces. What I'm trying to do is establish that I like the equation, the whole equation we have. I'm new to this, and I'm not a lawyer, so I didn't understand anything about this before I came here, but from what I've heard, the equation looks good to me, except part of it is missing. No matter what question we ask, we come to this part where there's a missing part. People can be referred to other care, but it's provincial care, and the provincial care isn't there. Am I correct?

Ms. Lucie Joncas: Yes, but there's also the issue that it's completely counterintuitive to attribute a period that corresponds to punishment to people who need treatment. I think section 20 is about getting help and treatment rather than about punishment. If we put a certain number of years to an infraction, then we're basically going back to the old system. Obviously, defence attorneys would all be in favour of capping for small offences, but we don't think that at this point in time, with the application of the Winko decision, it serves the clientele or serves the purpose of the law.

I think Dr. Morissette's opinion on pages 7 and 8 of his submission has very good points on why capping should not come into force. There are more clinical points than there are legal issues about why capping should not come into force at this stage of the game, if I can put it this way. The Winko decision deals with liberation as soon as possible, and we need to harmonize a provincial.... Obviously there's a problem in resources, but there's also a problem in the different philosophies of the provinces.

I think there are two issues. Yes, there are the resources, but there's also the spirit of the law, and I think it doesn't serve the spirit of the law at this point.

º (1650)

The Chair: Ms. Forestell.

Ms. Maureen Forestell: One of the other things that would be missing in capping, something we do have the ability to do, is the conditional discharge. Under our system someone who doesn't need to be detained in a hospital any more but does require ongoing supervision...we can do that. In many provinces that's not an option under their mental health acts. Either they're ill enough to be in a hospital or they're discharged.

Community treatment orders are relatively new, certainly in Ontario, and don't exist everywhere, and there are issues with them. There's a risk you might find people detained in a hospital when they could be in a less restrictive setting. In my view, that's another risk of capping.

The Chair: Madame Joncas.

Ms. Lucie Joncas: If I could add to that, I think that's a very important point. Sometimes the provincial legislation is even more restrictive because under the Criminal Code you cannot treat somebody against their will unless it's under section 672.58 for a period of 60 days to make them fit. At any other stage of the game the person cannot be treated against their will.

In many provinces the mental health act provides for treatment against the will of the person. You might end up taking somebody from the less restrictive Criminal Code to a more restrictive civil commitment arena, which is very interesting, but I don't think that would serve the interests of the client either. Obviously, at least he doesn't have the stigmatization of being under the Criminal Code, and it doesn't give him the same types of rights, but I think the provincial legislation needs to be looked at very closely before we think it's in our client's best interests.

The Chair: Thank you very much.

I'm going to go to Mr. Cadman.

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

We have this little issue that crops up occasionally, and it deals with who is authorized to perform the assessments. Currently, I believe it's restricted to the psychiatric profession, and the psychologists have come here among others and suggested that they should be allowed in on it. I'd just be interested in the opinion of the board chairs.

Ms. Maureen Forestell: If I may, I'll address that.

It's very important for our colleagues, particularly in the territories and in other underserviced areas, that psychologists be permitted to do these assessments. In the Yukon particularly there's essentially one full-time forensic psychiatrist available to do assessments. If that person is not available, it creates huge problems. Similarly, in Nunavut there's no full-time psychiatrist; there's a team that comes up from the Clarke Institute periodically.

Again, the ability to use a psychologist for assessments would really assist people in underserviced areas. In my view, they're equally competent to do fitness assessments in particular, and a great many other aspects of assessment as well.

Mr. Bernd Walter: I would just add a note of agreement to that. Now, given that they're the ones who do a lot of capacity testing and so on, a psychologist is eminently able to do a fitness assessment, which is essentially a test of whether you're able to instruct counsel and whether you understand the nature and consequences of a court hearing. In addition, I think that psychologists could perform risk assessments. We're not talking about very technical diagnostic or prescription of medication issues, but we're talking about risk assessment, which deals with behaviour and with the person's adjustment in community and in society. I think a psychologist is well able to undertake those tasks.

Ms. Maureen Forestell: In terms of actuarial assessment of risk, it's psychologists who provide us with that evidence at the moment. They generally do the testing that leads to an actuarial assessment of risk, which can be quite useful for our purposes.

Ms. Lucie Joncas: I don't have a specific mandate from my association on the issue, but what I can say is, at least in the mental health acts of the Northwest Territories and the Yukon, and also Newfoundland, this possibility also exists, where in all other provinces it's psychiatrists who do the civil commitment. So maybe there should be provisions regarding different areas and where the resources are, if it poses a problem in other areas. This discrepancy already exists in the civil commitment laws.

Mr. Chuck Cadman: Thank you.

The Chair: John McKay, for three minutes.

Mr. John McKay: I want to go back to my first question, to which I found Mr. Leblanc's answer somewhat confusing. Help me again if I haven't understood correctly.

It is the submission of the review boards that there's no public interest to maintaining supervision over individuals who are not a danger to anyone, and that the review boards should be given the jurisdiction to absolutely discharge such accused, or to grant a remedy such as a stay of the review board proceedings.

As I understood Mr. Leblanc's answer, that's not what you were asking for. You were asking for the ability to send this person back to a criminal court to be dealt with, when this person was deemed unfit and will never be fit.

º (1655)

Ms. Maureen Forestell: If I could respond to that, having drafted the submissions, it may not be as clear as it ought to have been. One of the difficulties is that we use the term “absolute discharge” in many different contexts in the Criminal Code.

There is an absolute discharge that can be granted by the court after a finding of guilt. There is an absolute discharge from the review board on an NCR when he or she is no longer a significant threat. Our intention was to convey that we would like to no longer have the person within the jurisdiction of the review board, but not to affect in any way the existence of the criminal charges. So the criminal charges would still be there.

Mr. John McKay: Yes. That's what Mr. Leblanc said in his initial response. So the point is taken that possibly there is some clarification required.

My second question is to Ms. Joncas, on your representation to us that subsection 16(1) should be clarified, and you quote in support the findings in the Oommen file, which says that Mr. Oommen's mental disorder deprived him of “the capacity to know his act was wrong by the standards of the ordinary person.” It refers to subsection 16(1) as embracing not only the intellectual ability to know right from wrong, but the capacity to apply that knowledge to the situation at hand. Then I look at the section itself, which says the person is “incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.”

So the right and wrong seems to be there. I don't quite understand what the difference is between rationality and “appreciating the nature and quality”. You invited us to incorporate the Oommen decision into subsection 16(1), but I'm hard pressed to know what that adds to.

Ms. Lucie Joncas: It adds to, especially, I would say, in jury cases, the obligation of the judge to incorporate in his directives—I don't know if that's the proper word—

Mr. Lucien Leblanc: Charge.

Ms. Lucie Joncas: —charge, this interpretation of section 16, which the Supreme Court says is how it should be interpreted. So what we would like to see is--and I have the proposition from my association in French...

[Translation]

—“the person is incapable of distinguishing right from wrong and of applying that knowledge in a rational way to the acts committed.”

[English]

I think that definition from the Oommen decision is clearer than the current one in the Criminal Code, or more easily understandable for a person sitting on a jury. It is in essence what the Criminal Code says already, but I believe it's clearer than what stems from the Oommen decision.

Mr. John McKay: The right and wrong part seems to be about the same. The question is whether using “rationally appreciating right and wrong” adds anything to or is clearer in your address to the jury than “appreciating the nature and quality of the act or omission”. In some respects, that is a more expansive idea.

Ms. Lucie Joncas: The problem is a lot of our clients are able to understand right from wrong in the abstract, but they cannot bring that knowledge to their action.

Mr. John McKay: So a mental disorder interferes with that connection?

Ms. Lucie Joncas: Yes. It's like in the case of Mr. Oommen: he understood that killing was wrong, but he felt compelled that he had no choice but to protect himself because of his paranoid delusion. It needs to be clear that it's not only somebody who in the abstract can understand right from wrong, but, again, that they can also rationally apply that to reality. We would see that the incorporation of that Supreme Court decision would clarify the interpretation of the code.

» (1700)

The Chair: Thank you very much.

I'm going to go to Mr. Lanctôt for three minutes.

[Translation]

Mr. Robert Lanctôt: Still on the same subject, I find this all rather disconcerting. I understand that a mechanism of some kind is needed. That would at least solve part of the problem. However, even if these individuals do not represent a threat to the public, I still find it disconcerting. Why is that? Well, we're taking someone with a mental disorder, a person that the medical community cannot heal or treat, and we're putting the problem into the hands of the justice system, which is even more ill equipped to provide a solution, in my opinion. The person who is given an absolute discharge is released and with disinstitutionalization, likely will end up on the streets.

Shouldn't there be some kind of mechanism in place so that cases like this are covered under provincial mental health legislation? While the person may be happy that he is no longer under the authority of the review board, he is now in a situation where the justice system will decide his fate, when in fact much more than medical intervention is needed. I hope an appropriate mechanism will be created to address this dangerous situation.

Mr. Lucien Leblanc: When the person is before the review board, that person is also before a tribunal of sorts.

Mr. Robert Lanctôt: Often, however, the accused is hospitalized.

Mr. Lucien Leblanc: Correct.

Mr. Robert Lanctôt: In this case, though, that person would be out on the street.

Mr. Lucien Leblanc: The question we need to ask ourselves is this: do we have the means to care for persons with these types of problems and who will never be able to get by on their own? Should we be dealing with them through the criminal justice system? I think not.

Mr. Robert Lanctôt: No, but the reality is that when released, that individual will be out on the street. That's a distinct possibility.

Mr. Lucien Leblanc: In some cases, quite the opposite would be true. The person would fall under the jurisdiction of the court which would decide whether or not to prosecute further. However, just because the charges against that person would be dropped or that the person would be released doesn't mean that he would not longer receive the required care. It's just that another mechanism would kick in. The accused would not necessarily be left to fend for himself in society just because the charges against him have been withdrawn.

Furthermore, as my colleague was saying, in some cases, the fact that criminal charges have been laid makes it difficult to find resources in the community. When a person is labelled a criminal, because of the stigma attached, it's difficult to find help in the community. Many people in the community are reluctant to rent to persons with a criminal record. Under the Criminal Code, the accused in these cases don't actually have a criminal record, but they carry the stigma of being a criminal.

It's important to understand that we're not suggesting that these persons be released into society and be free to do whatever they want. We're simply saying that their care and treatment shouldn't be consigned to the criminal justice system.

[English]

The Chair: Merci, Monsieur Leblanc.

Ms. Forestell, and then I'm going to Mr. Macklin.

Ms. Maureen Forestell: I think Mr. Leblanc covered the points I wanted to cover. Thank you very much.

The Chair: Mr. Macklin.

Mr. Paul Harold Macklin: Thank you very much.

I wanted to go back to a point that was made by Madame Joncas, and that is with respect to counsel. Obviously you represent counsel. I also notice that there is a reference to counsel brought forward by the review board in their recommendations issues. You mentioned that in fact 25%, roughly, of individuals are represented before review boards. Do you believe that counsel need to be encouraged in a greater way to be present at these review board hearings? Is that the point you're trying to make, or are you simply trying to clarify that this is the ratio that currently appears, without any particular implications as to whether counsel is important and whether we should be making some recommendations with respect to the way in which counsel are appointed or assigned as set out in the code?

» (1705)

Ms. Lucie Joncas: I believe that definitely counsel are not necessarily informed, because if a person has been not responsible--obviously he's no longer inept, but not responsible--he's a vulnerable person, and he might need some more information than just a little notice at the bottom of a convocation, “you have the right to counsel”. So they don't call counsel. They don't know. Sometimes they don't show up to the review board hearings. We're talking about a vulnerable population, which needs to be better informed of their right to counsel, and maybe there should be somebody appointed to be there.

I have assisted review boards in Quebec before the Tribunal administratif du Québec appeared, and they were given pamphlets the morning of the hearing--“you have the right to counsel”. Well, the hearing is now. You know, it is a problem, and it's not for lack of them being informed. They are being formally or legally informed, but there seems to be a problem in getting that organized. The government is not appointing a lawyer to be there and help these people out.

The Chair: Monsieur Leblanc.

[Translation]

Mr. Lucien Leblanc: Let me just clarify that the figure of 25 per cent applies to Quebec. The situation differs in other provinces where many more individuals in this category are represented by counsel. Having chaired many review board hearings, I maintain that efforts should be made to ensure that many more individuals are represented by counsel. Often, the accused are not capable of adequately representing themselves before the review board so that the latter will rule in their favour. It would be to their advantage to have such representation.

The board would also benefit, in that it would be able to weigh evidence presented in a more appropriate fashion.

Finally, in some cases, we find that unfortunately, the accused are not well informed. They've been told they don't need a lawyer, that their psychiatrist is with them and that he will present the case on their behalf. There's no guarantee that the accused will get the representation to which they are entitled.

[English]

The Chair: Ms. Forestell wants to speak to this as well.

Ms. Maureen Forestell: If I could just point out, it may be worth looking at the system that's in place in England, in the United Kingdom right now, where they recently amended their legislation to provide counsel in every case before the comparable board. So there's an automatic appointment of counsel and there's a specialized panel of counsel who have expertise in the area.

The Chair: I'd like to go to Mr. Cadman.

Mr. Chuck Cadman: I'd like to return very quickly to the issue of victims' impact statements, for the simple reason that on my last round I heard from Quebec and from B.C., but I didn't hear from Ontario. Ms. Forestell, do you have a comment on the oral impact statements?

Ms. Maureen Forestell: I agree with my colleagues with regard to victim impact statements. We do receive them. In some cases we have received statements from victims when the witness has been called by the crown specifically to show what harm was caused to the victim because that was seen as relevant to our assessment of whether or not the person was likely to cause physical or psychological harm in the future, and it can clarify that point.

I would be hesitant, however, to have a mandatory term, because the evidence is not always relevant. What exists now is the ability to call the evidence through the victim when it's relevant, but also the ability to control the process when it's not. I think it's working reasonably well. I do think that perhaps more resources could be put into victim services so that support can be given to victims who appear at hearings.

Crown attorneys should be present almost all the time. That happens in Ontario at the moment. It's rare for a crown attorney not to be at our hearings. We've made a blanket order that the crown be a party to every hearing we conduct. We've been fortunate in the quality of representation we've had at our hearings, but I don't think that's uniform across the country.

» (1710)

The Chair: Mr. Macklin.

Mr. Paul Harold Macklin: Thank you.

I'd just like to follow up on where I was going with the concept of counsel and potentially mandatory counsel. In the document that you as the review boards have presented to us it states “Assignment of counsel is governed by section 672.5(8). This section permits the Review Board to assign counsel wherever the interests of justice so require.” If I accept Madame Joncas' statement that in fact these are vulnerable people who need representation, why are review boards choosing not to assign counsel in each case?

Ms. Maureen Forestell: In Ontario we assign counsel in virtually every case if the accused hasn't already retained their own counsel.

Mr. Paul Harold Macklin: Then why do we have a problem in Quebec?

The Chair: Mr. Walter.

Mr. Bernd Walter: In B.C. the accused who appears without the representation of counsel is actually the exception. It's usually at his or her request, because they don't want a lawyer. Even then sometimes we'll have the lawyer there acting in a friend-of-the-court or amicus curiae capacity. But by and large, where they want to be represented, the representation right is upheld and supported, even to the extent that our staff in a case management way help them to make application to legal aid or under the power given in 1997 under section 672.5(8.1) we assign counsel from a roster. Then the attorney general of the province funds that assignment.

The Chair: Monsieur Leblanc.

[Translation]

Mr. Lucien Leblanc: There have been cases where a lawyer is appointed to represent the accused, but this isn't standard practice. Rather, it's been more a matter of letting the accused know that he is entitled to counsel. In fact, the accused often receive a little more information about their right to counsel than they need to. In Quebec, however, until now, after the accused is advised of his right to retain counsel, whether or not counsel is actually appointed is left to the system.

[English]

Mr. Paul Harold Macklin: If you listen to Madame Joncas, the suggestion is that in fact they only find out about their rights on the day of the hearing. Surely, that is an inappropriate way to inform a vulnerable person.

Ms. Lucie Joncas: I have a copy of a notice here, which is sent to them a certain number of days in advance, and on the notice it is written that they have a right to be represented by counsel. It's like when an accused is going to make a declaration, they have to understand their right to counsel. That's where I have a concern because of the vulnerability of this population. I don't want to mislead the committee that the review board doesn't inform. The review board does inform the person of the right to counsel on their notice every single time, and I know that there is also a pamphlet available as to what the rights are. I just think that for some of these people who may or may not be taking their medication, more needs to be done

The Chair: Mr. Walter.

Mr. Bernd Walter: I think what we're asking for specifically in this submission, which it might be relevant to highlight again, is that the assignment of counsel--in the interest of justice--be something the chair can do before the hearing is even convened, so we don't find ourselves in the situation at nine o'clock in the morning of sitting there with an accused who has just now found out he has a right to counsel. That would then necessitate an adjournment, at great expense, perhaps in a remote part of the province, to let that person find a lawyer and have that lawyer prepare. I routinely, even though it's not specific in the code, assign counsel well before the date for the hearing.

» (1715)

Mr. Paul Harold Macklin: Could I just get a clarification? Since your association is a broad association that goes across this country and is representative thereof, are there other jurisdictions that would fall into the category of Quebec in this regard?

Ms. Maureen Forestell: In the statistical survey we compiled there are tables showing the number of cases. Then on the last page there's a series of questions that have been answered by each review board, which includes “Are the parties represented by counsel?” It varies somewhat. I think there are certainly some maritime provinces where the representation is say 50% of the time or in that range. There's some variation across the country. For Nunavut, we always have counsel.

The Chair: Thank you very much.

Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: Are some persons represented by their guardian? Does their guardian receive anything? Nothing at all?

Mr. Lucien Leblanc: If the accused has a guardian, the latter is notified about the hearing.

[English]

The Chair: Thank you very much to the panel and to the committee members.

Ms. Joncas, I'm sympathetic to your observation about the notices. As the chair, I'm responsible for sending out our notices, and from time to time I have trouble with members of the committee. Consequently, we're quite sympathetic to the fact that the sending of notices doesn't necessarily mean the message has been received.

The exercise we're going through is an important one to the country. In the spirit of the review that was mandated in 1991-92, when the legislation was originally introduced, we're taking this very seriously. It is a subject of great complexity, and we thank you very much for your assistance in helping us understand it. Thank you.

The meeting is adjourned.