2nd Session, 41st Parliament,

Volume 149, Issue 50

Tuesday, April 8, 2014

The Honourable Noël A. Kinsella, Speaker

Criminal Code

National Defence Act

Bill to Amend—Third Reading—Debate

On the Order:

Resuming debate on the motion of the Honourable Senator McIntyre, seconded by the Honourable Senator Dagenais, for the third reading of Bill C-14, An Act to amend the Criminal Code and the National Defence Act (mental disorder).

Hon. Mobina S. B. Jaffer: Honourable senators, I rise today at third reading of Bill C-14, An Act to amend the Criminal Code and the National Defence Act (mental disorder), better known by its short title, the “Not Criminally Responsible Act.”

Honourable senators, at this time I would first of all like to thank Senator McIntyre for his commitment to this issue and the hard work he has carried out in presenting the government’s point of view on Bill C-14. Senator McIntyre, you have worked very hard on this issue and I would like to thank you for the work you have done.

I would like to begin by reviewing the changes that would be brought about by Bill C-14. First, the legislation would explicitly make public safety the paramount consideration in the decision- making process of review boards with respect to accused persons found not criminally responsible.

The concern I have with this is that the government is qualifying what already exists. The review board presently takes public safety as a consideration.

The second main component of this bill is the creation of a high-risk designation for accused persons found to be not criminally responsible for serious personal injury offences and for cases where there is a substantial likelihood of further violence that would endanger the public. A high-risk designation could also be made in cases where the acts committed were of such a brutal nature as to indicate a risk of grave harm to the public.

Persons designated as high-risk, not criminally responsible accused would not be granted a conditional or absolute discharge. Upon being designated as high-risk by the court, a not criminally responsible person would be held in custody and would not be released by a review board until that designation was revoked by the court.

The third part of this pill seeks to enhance victims’ rights.

Honourable senators, I believe that we do not need to pass Bill C-14. What we need to do is spend our resources in prevention. Prevention is the best way to protect the public. Chief Justice Beverley McLachlin said, “Mental illness is a disability. It is not a sin, nor a moral wrong. It is just a disability.”

The Chief Justice of Canada began a lecture given in October 2010 with the following anecdote:

A couple of years ago I found myself at a dinner at Rideau Hall in honour of recipients of the Order of Canada. I was seated next to a police officer who was in charge of the police precinct in a downtown area of Toronto where people were poor and crime was high.

“What”, I asked the officer, “is the biggest challenge you face?”

I expected him to reply that his biggest problem were all those defense-oriented Charter rulings the Supreme Court of Canada kept handing down. But he surprised me. “Our biggest problem,” the officer answered, “is mental illness.”

My dinner companion went on to explain that a large proportion of the people arrested and brought into his police station were not true “criminals”, but people who were mentally ill. They were people who had committed some offence, usually minor, sometimes more major, for no other reason than the confusion their disoriented minds….

Whatever the reason for these individual actions, the officer told me that… the ordinary police processes did not fit well with their situation. How are the police, who are not doctors or nurses, to deal with continuing acts of derangement? How do they read a person their rights when they aren’t capable of listening or comprehending their situation?

How do they find them lawyers and arrange appearances before judges? In the end, where the initiating incident is not of great consequence, all that can often be done is to keep the mentally ill person for a few hours and then return him to the street, for the cycle to begin all over again.

Chief Justice McLachlin went on to say:

We don’t like to talk about mental illness, but as people like this police officer attest, it is a huge problem.

Honourable senators, just this morning a study asked for by the federal government found that as of today there are 30,000 people with mental disorders on our streets. These are 30,000 homeless people with mental disorders. This is a federal government study of Housing First. That is the situation we have.

The Criminal Lawyers’ Association states:

Most people living with mental health problems and illnesses are not violent or dangerous and do not commit criminal offences. In fact, they are more likely to be victims of violence than perpetrators. Nevertheless, these individuals are overrepresented in the criminal justice system. The reasons for the “huge problem” recounted by the officer to the Chief Justice are complex…

It seems clear, however, that it will not be solved or even ameliorated by the reforms of Bill C-14.

In the strategy document Changing Directions, Changing Lives, the Mental Health Commission of Canada states that overrepresentation in the criminal justice system has increased in the process of the deinstitutionalization of people living with mental health problems and illnesses, coupled with the inadequate reinvestment in community-based services that has unfolded. The Ontario government’s Select Committee on Mental Health and Addictions reached the same conclusion.

Quoting the worlds of former Senator Michael Kirby, who testified before the committee, “we have made the streets and prisons the asylums of the 21st century.”

This is one of our colleagues whom we admired greatly for the work he and Senator Marjory LeBreton did on the mental health study, and what did he say? “We have made the streets and prisons the asylums of the 21st century.”

Both the Mental Health Commission and the Select Committee on Mental Health and Addictions recommend that efforts to reduce the overrepresentation must focus on preventing mental health illnesses and providing timely access to services, treatment and support in the community when problems do arise.

Services for young people are particularly important. Seventy per cent of mental health problems and illnesses begin in childhood, and young people are more likely to report mental health disorders than any other group. Early intervention improves the quality of life for the individuals living with mental health issues and reduces the toll that mental health illness can have on the patient’s family and friends and on society at large by reducing the burden and cost of our health care, criminal justice and social services.

By definition, individuals not criminally responsible by reason of mental disorder have committed the offence because of their mental illness, because we know what we deal with is underlying mental health issues.

Bill C-14 would enhance the safety of victims by ensuring that they are specifically considered when decisions are being made about persons found not criminally responsible. I very much support that part of the bill, and, in fact, later on I will submit that we should do even more.

The Canadian Bar Association recognizes the delicate balance that must be struck between public safety and individual liberty when determining how best to handle a not criminally responsible accused who has committed a serious offence. Both goals are best achieved by treatment and reintegration into society. This balance, unlike in the sentencing context, must address public safety but still recognize that the accused has not been convicted of a crime and should not be punished as a result. A disposition of a not criminally responsible accused is not a sentence but rather management of mental disorder.

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The Canadian Bar Association further goes on to say that the safety of the public is served with state’s assistance, which may involve temporary or even indeterminate custody. In Winko, Chief Justice McLachlin wrote:

If society is to be protected on a long-term basis, it must address the cause of the offending behaviour — the mental illness.

In this context, there is no room for fear or blame, but rather, compassion and understanding of the harm done to victims and an awareness that the accused is not at fault in the traditional sense.

The Canadian Bar Association says that Bill C-14 does nothing to ensure that adequate mental health services are available before a person comes into contact with the criminal justice system. Persons with mental illness are much more likely to engage in criminal behaviour when the condition is poorly managed. Once contact is made with the criminal justice system, adequate services must be provided, either through the psychiatric system or mental health services in regular prisons, to reduce any threat to the public upon release.

Public protection and adequate treatment go hand in hand. According to Dr. Alexander Simpson, the Chief of Forensic Psychiatry at the Centre for Addiction and Mental Health in Toronto:

It is a moral judgment that we have made down through the ages that there are some people who we should not hold responsible for their actions and that legitimizes, from a moral and ethical basis, our right as a society to punish everybody else and hold them accountable for their actions.

It is not an acquittal, as we have heard already; rather, it is saying: “We cannot punish you for what you did because it was the illness that gave rise to that. But what we can do is hold you to account for the meticulous mental health well-being going forward that we now require you to maintain.”

Contrary to this regime, this bill ironically takes an entirely different approach. In point of fact, many witnesses said — and I agree with them — that this bill should be called “the Act Concerning the Responsibility of Not-Criminally-Responsible People.” The thrust of this legislation is to hold individuals responsible for their actions, albeit that the rule of law for many hundreds of years has recognized that we don’t do that when individuals are not responsible.

Before I go into the details of the bill, I want to again state that we are all in agreement on the need to enhance victims’ rights and to offer victims and their families not just our support, but also the opportunity to be heard in such processes.

But, honourable senators, I believe that’s not enough. All of that is on paper. If we were truly committed to victims’ rights, we should not download this all to the provinces. The federal government should be providing resources for victims’ rights to be protected.

I want to address now the issue of concern around the bill — public safety is paramount. The first of those concerns relates to the constitutionality of this bill. Will Bill C-14, An Act to amend the Criminal Code and the National Defence Act (mental disorders), better known by its title, the “Not Criminally Responsible Reform Act,” pass the test of the Charter?

Honourable senators, when I was preparing for this third reading, I was very despondent and was really questioning my presence in the Senate. The only hope I have now is that the Supreme Court of Canada will hold once again, as it has with many other federal bills in the last few years, that this bill is not constitutionally valid.

The Canadian Bar Association, which represents 37,000 lawyers, notaries, law professors and law students, stated:

… subsection 672.64(1)(b) is likely unconstitutional as it violates s. 7 of the Charter….

The bill also proposes to eliminate the requirement that the disposition must be the least onerous and the least restrictive to the accused and replace it with a requirement that the disposition made must be the one that is necessary and appropriate in the circumstances.

Also, according to the Canadian Bar Association, not criminally responsible accused are not sentenced under criminal law in the traditional sense. Therefore, eliminating the “least onerous and least restrictive” requirement engages different considerations in this area, raising constitutional implications.

Again, according to the Canadian Bar Association, in Winko, the Supreme Court of Canada provided an in-depth analysis of Part XX.1 of the Criminal Code. Portions of this part, including section 672.54, were challenged on the basis that they violated section 7 of the Charter on several fronts, including by their ambiguous, vague and punitive character. In rejecting these assertions, the Honourable Chief Justice of the Supreme Court of Canada placed significant reliance on the fact that any disposition made pursuant to section 672.54 must be the least onerous and restrictive possible in the circumstances. Thus, it was understood that section 672.54 was unconstitutional in that it employed means broader than necessary to achieve the objective of public safety.

The Supreme Court of Canada has repeatedly held that the “least onerous and least restrictive” requirement is critical to the constitutional validity of section 672.54. Therefore, according to the Canadian Bar Association, if Parliament eliminates the “least onerous and least restrictive” requirement, as it proposes to do in Bill C-14, it may well expose the legislation to successful constitutional challenges, pursuant to section 7 of the Charter.

In the same vein, the Criminal Lawyers’ Association also voiced a position to the amendment stating:

… the liberty interest of the accused at every step of the game previously had to be considered, with the least onerous, least restrictive disposition to be made, and that’s being taken out of the bill, this time replaced with what is necessary and appropriate, a standard the Supreme Court of Canada has already struck down.

Honourable senators, under the present regime, review boards have to make a disposition that is least onerous and restrictive to the not criminally responsible. In the words of Chief Justice McLachlin in Winko:

… it [the regime] ensures that the NCR [not-criminally- responsible] accused’s liberty will be trammeled no more than is necessary to protect public safety.

The principles were identified in that case wherein the Supreme Court addressed the issue of public safety of people and the rights of people not criminally responsible. In Winko, the court stated as follows:

Part XX.1 protects society. If society is to be protected on a long-term basis, it must address the cause of the offending behaviour — the mental illness.

Honourable senators, we cannot be content with locking the ill offender up for a term of imprisonment and then releasing him or her into society without having provided any opportunities for psychiatric or other treatment. Public safety will only be ensured by stabilizing the mental condition of the dangerous not criminally responsible accused.

Part XX.1 also protects the NCR offender…. The NCR offender is not criminally responsible, but ill. Providing opportunities to receive treatment, not imposing punishment, is the just and appropriate response.

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This requirement of being least onerous and least restrictive is thus an important component of a balanced approach to the current regime.

The Supreme Court of Canada has on many occasions stated that the least onerous and restrictive principle is central to the constitutionality of the not-criminally-responsible regime. Over the last 15 years, the Supreme Court has stated that this standard is vital for compliance with the Charter of Rights and Freedoms.

The proposed changes to the language may bring the constitutional validity of the not-criminally-responsible regime into question.

In the light of these various arguments, I will repeat my initial question: Will Bill C-14, An Act to amend the Criminal Code, better known as the “Not Criminally Responsible Reform Act,” pass the test of the Charter? I respectfully and humbly submit to you, honourable senators, once again, this bill will go to the Supreme Court of Canada and it will be held not to be Charter compliant.

Under the proposed amendment to section 672.54, the paramount consideration will be the safety of the public, not the principle of the disposition least onerous and least restrictive to the accused. This does not address the situation of the person not criminally responsible.

Honourable senators, where is the balance between the interests of the public and the interests of the person who is ill? The amendments will dilute the importance of the acknowledged goal of ensuring that the mental state of the person not criminally responsible has improved, as is expected in a just and equitable society. More importantly, the amendments will change the current assessment and treatment system set out in Part XX.1 of the Criminal Code. This system will now focus more on punishment than on treatment. The Chief Justice has stated:

… the regime established in Part XX.1 of the Criminal Code appropriately balances the need to protect the public from those mentally ill persons who are dangerous and the liberty, autonomy and dignity interests of mentally ill persons.

The amendments to section 672.54 of the Criminal Code proposed in Bill C-14 remove the wording “… the disposition that is the least onerous and least restrictive” and place the “safety of the public” above any other criteria.

However, honourable senators, the Supreme Court of Canada has explicitly stated that these criteria should be equal. They should balance each other. The amendments, therefore, diminish the importance of the recognized objective of ensuring that the condition of the ill, not-criminally-responsible person has improved as being the most just and equitable way to protect society.

In a Department of Justice press release, the government states: “The legislation reinstated today will put public safety first….”

I find it very interesting that the government said that. With that statement, the government seems to be suggesting that the protection of the public was not a priority before. Yet, the Honourable Justice Schneider told our committee that protection of the public is a priority, and always has been a priority for review boards. I would like to restate what the Supreme Court of Canada said: “Providing treatment to mentally ill individuals is the most just and equitable approach to protecting the public.”

The Supreme Court is not alone in saying that treatment and rehabilitation are needed for protecting the public. In the House of Commons, the Honourable Irwin Cotler said:

Yet the best way of minimizing the potential that someone with a mental illness will commit a violent act, and therefore the best way of protecting the public, which appears to be the objective, as stated by the government, of this legislation, is to ensure effective treatment for the mentally ill.

The advantage of this approach is that it is demonstrated and proven by a number of professionals, and by research by the Canadian Psychiatric Association, for example.

My main concern with regard to the changes proposed by the government is that at no time is the government ensuring public protection over the long term. Indeed, over the short term, the public may be protected. However, stating on paper the importance of protecting the public is very different from a commitment to protect the public over a long time.

Honourable senators, I have been a senator for 14 years, but I have been involved in political processes for almost 40 years. When I was a young lawyer, I always thought that if you had the bill, the status quo would change. I worked very hard to have a bill on female genital mutilation. I worked very hard with others to work on a bill for sex tourism. Not one person has been convicted for FGM, and not one person has been convicted on sex tourism because of an investigation that our government has done. Five people have been convicted, but that was just by happenstance.

My point for saying that is if you want prevention, you have to put the resources into it. Just having a piece of paper to say it will protect the public is not good enough. You have to provide the resources.

Some Hon. Senators: Hear, hear.

Senator Jaffer: The Chief Justice of the Supreme Court of Canada once wrote: “If society is to be protected on a long-term basis, it must address the cause of the offending behaviour — the mental illness.”

I would say, as Justice Schneider said when he came before us, that Bill C-14 proposes a set of changes that has the potential to make things less safe rather than more safe. Dr. Simpson, the Chief of Forensic Psychiatry at the Centre for Addiction and Mental Health in Toronto, made the same argument and said that the best way to protect society was through treatment.

I also want to draw your attention to another problem that could arise from this bill. Honourable senators, I have, in my life, been a criminal lawyer, and I really understand what this lawyer is saying, because I would be out there protecting my client as well. Anita Szigeti told our committee:

… our streets will be less safe because we as criminal defence lawyers will be advising our clients not to advance a not- criminally-responsible defence if it means indefinite detention without review and with very few, if any, privileges. For that reason, individuals will end up imprisoned without treatment, without access to services and without rehabilitation. When they come back out, they will pose as great a danger, if not a greater danger, than when they went in.

These words are a great source of concern for me when it comes to the long-term safety of the public. If that is the case, more people will be detained in our prisons without treatment, and we already know what the statistics are for recidivism rates for these individuals versus individuals who have received treatment for mental disorders. There is no scientific evidence that taking a step backward and locking people up, as was done under the old system, will make our society any safer, and no evidence was shown to the committee, as well, that it would make our society any safer.

The problem with this government is that it is not taking the long-term safety of the public into consideration. At some point, these individuals will have to be released from custody.

When I was a young lawyer, my senior partner would always tell me, because he had been a Supreme Court justice: “When I used to send somebody to prison, I always used to say we don’t throw the key away when we send that person to jail. That person will come out and again be in society, and what kind of person will that person be?”

Honourable senators, we don’t throw the key away. We don’t put these people in jail forever. They will come out, and it is our duty to make sure that they get treatment. If these people had any other illness, we would be giving them exceptional services, but because they have mental disorders, we are throwing them into prisons. But we don’t throw the key away; they will come out again.

Honourable senators, we have to think of our future generations. They are the ones who will have to live with the situation that we are creating. It is these future generations of Canadians who will have to deal with the release of offenders who do not receive treatment they need. It is in this sense that this government is failing to put the long-term safety of the public in the forefront.

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My final concern regarding this bill is that there is a lack of research and empirical data. There was nothing in front of us to say that this bill will keep us safe. When the Minister of Justice, the Honourable Peter MacKay, appeared before our committee, he did not at any time mention the research or factual evidence supporting these drastic measures. Instead, the minister said: “I personally believe…” or “I believe that….”

Honourable senators, I find it disconcerting that the minister would use his personal or ideological beliefs as the basis for deciding the fate of the very marginalized and ill people in our society — people with mental disorders. A bill of this magnitude should not be supported by words like “I believe” or “I think” but, rather, by arguments like “research has shown,” “statistics prove” and “we know from experience and fact that,” — not “I believe” or “I think.”

A broad range of professionals in the legal and health sectors appeared before the Legal and Constitutional Affairs Committee and they expressed their concerns about their disagreement with some of the provisions of this bill. I would remind you that the law should not be based on feelings and ideologies but, rather, on proven facts and case law. The government is not listening to the experts on the subject who are opposed to this bill. In fact, here is a list of key organizations whose experts have expressed concerns about Bill C-14. I will read it to you. The Canadian Bar Association —

Hon. Joan Fraser (Deputy Leader of the Opposition): On a point of order, Your Honour, rule 2-8 says that when the Senate is sitting it is not permitted for senators to engage in private conversation inside the bar and, if they do, the Speaker shall order them to go outside the bar.

There are many private conversations going on in this chamber as we speak, or as Senator Jaffer was speaking.

The Hon. the Speaker pro tempore: Thank you, Senator Fraser. I am hearing voices on both sides. Colleagues, for the next 15 minutes, we should hear the rest of Senator Jaffer’s Speech.

Of course, the time taken on the point of order will not be counted as part of her 45 minutes.

Senator Jaffer: I thank my deputy leader for letting me be heard.

The list of the people are: the Canadian Bar Association; the Canadian Psychiatric Association; an alliance of groups in the mental health sector of mental health service providers, including the Canadian Association for Suicide Prevention, the Canadian Association of Social Workers, the Canadian Mental Health Association, the Mood Disorder Society of Canada, the National Network for Mental Health and the Schizophrenia Society of Canada, the John Howard Society and the Elizabeth Fry Society. They are the professionals in the field. I may be wrong, but I didn’t hear one professional supporting this bill.

Together, these expert organizations represent more than 100,000 interested professionals who are opposed to some of the provisions of this bill. They are the true experts, the professionals who are familiar with the subject and with the consequences of mental illness based on actual facts and research. Our role is to listen to them, question them and take their knowledge into account as we forge our opinions on the basis of research and facts, not on personal beliefs and ideological considerations.

The committees of the House of Commons and the Senate heard testimony from members of review boards, members of the bar and medical/legal experts, all of whom expressed concerns that the passage of this bill might lead to difficulties with the Charter.

I would now like to raise another issue which is really troubling for me. It is the issue that, in this act, is called the high-risk designation. Is it just and necessary? To be considered high-risk, an individual must meet the following conditions: the accused must be 18 years of age; be not criminally responsible; has committed a serious personal injury offence as defined in section 672.81; and the court either is satisfied that there is a substantial likelihood the accused will use violence that could endanger the life or safety of another person, or is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.

Prior to the 1992 Criminal Code changes, defendants successfully raising the not criminally responsible defence were automatically and indefinitely confined in an institution. In R v. Swain, the Supreme Court of Canada struck down the previous regime accepting that the mentally ill have historically been subject to abuse, neglect and discrimination in our society. The changes made to Part XX.1 of the Criminal Code have had an important effect on the possessing and detention of individuals suffering from serious mental illness at the time of the offence.

The Canadian Bar Association believes the high-risk designation is not only unnecessary, but is in fact self-defeating and counterproductive. Indeed, this bill represents a step backward to another era in that it seeks to impose an ideology dating from the old regime. The Canadian Bar Association also mentioned that under Bill C-14 a high-risk accused would be subject to a different form of custody than a regular not- criminally-responsible accused.

My concern, honourable senators, with regard to this new provision, is that the not-criminally-responsible accused will not be eligible for unescorted temporary absences and could be denied an assessment of their condition for a period of up to three years.

I would like to digress for a moment to consider the three-year period recommended by the government. Honourable Justice Schneider, Chair of the Ontario Review Board and Review Boards of Canada, indicated there is no research to support this proposed period. I wish to tell you, senators, I did not hear in committee any research to support the three-year period. Why would you hold back a person whom we find not criminally responsible for three years?

Similarly, Dr. Alexander Simpson, Chief of Forensic Psychiatry at the Centre for Addiction and Mental Health in Toronto, noted that this period during which individuals have less access to an assessment does not correlate with any clinical process in the field of mental health.

Dr. John Bradford, Professor of Psychiatry at the University of Ottawa, stated that the period of three years was not essential to measure the level of risk that a not-criminally-responsible individual might represent. The treatment, the evolution of a patient, can change from day to day and from week to week.

Honourable senators, I urge you to consider the following question: Why a long period of as much as three years to assess the progress of an individual?

Let us now turn to the subject of high-risk designation. According to Ms. Serradori, an officer with the Association des groupes d’intervention en défense des droits en santé mentale du Québec, this amendment verges on the arbitrary. In Ms. Serradori’s view, there is no research or factual evidence to support the change proposed by the government. That being said, the scope of the means brought in by this amendment will be broader than necessary.

Several witnesses who appeared before the Legal and Constitutional Affairs Committee felt this measure was in response to public pressure and did not take research and facts into consideration. Indeed, several witnesses voiced their concern that this bill was based on two or three cases that had become prominent in the headlines rather than research and facts.

What will be the consequences of a high-risk designation for an individual? I will speak about this later, but Senator Runciman kindly arranged for us to go to the Brockville Mental Health Centre. One of the things that will always stay with me is when the head of that institution said that he was really against the high- risk designation because, first, a person who was found to be not criminally responsible had two stigmas against them: that they had a mental disorder and that they had committed a crime. Now, they will have a third stigma against them: that they will be found to be a high-risk person. Who is going to employ them when they get out? Who will want to live in their neighbourhood? Who will want to be near them? This is what we are doing to a person who is mentally disordered.

In fact, this label will be applied not only to the individual but also to Canadians suffering from mental disorders. The government’s response to this assertion is that less than 1 per cent of not-criminally-responsible individuals will be receiving a high-risk designation. To me, every Canadian is special. As senators we are there to protect minorities. We can’t just say, “Oh, don’t worry about it. It only applies to 1 per cent of the people. That’s not a lot of people.” Honourable senators, that’s not our job. If it affects one person’s way of living, it is our duty to protect them.

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This raises the following question: If fewer than 1 per cent of individuals will be designated high risk, why are we so acutely aware of the details surrounding the stories of Mr. Li and Dr. Turcotte? The answer is this: Even though these cases account for fewer than 1 per cent of the individuals involved, they are the ones that primarily receive media attention because they are the stories that elicit public reaction.

Honourable senators, the beauty of being a senator is that we are not elected, so we can take the risk for what is right; but we would not take the risk if we had to be elected. That’s why, honourable senators, it is our duty to stop this bill.

A few days ago the Supreme Court of Canada upheld the Quebec Court of Appeal’s decision in the Turcotte case. One journalist conducted man-in-the-street interviews. These were among the comments reported:

He has to suffer the consequences of what he did” and “Justice was not served. He has to be held responsible.

That’s what the public says about people who are not criminally responsible. These statements indicate clearly the extent to which public opinion is shaped through the media. This also demonstrates that the public does not understand our present regime for the not criminally responsible. Therefore, there is a greater onus on us to explain this regime to the public. In the words of the Honourable Justice Schneider:

It is a moral judgment that we have made down through the ages that there are some people who we should not hold responsible for their actions and that legitimatizes, from a moral and ethical basis, our right as a society and to punish everybody else and to hold them accountable for their action.

As far as members of the public are concerned, to the best of their knowledge, individuals found not criminally responsible must suffer the consequences of their actions.

That is not our regime. We get it that they are sick. Why are we punishing sick people? These remarks merely demonstrate the extent to which mental illness is stereotyped and stigmatized by the population that is not well versed on the subject. Canadians with mental disorders will thus be labelled violent and dangerous. An individual with a mental disorder is already stigmatized by the rest of society because that individual is not part of what is considered the norm.

People who read newspapers or watch the news will naturally be more attracted to a story about someone who killed his wife on account of a mental disorder than a story about someone who has been cured of mental illness. Stigmatization and labelling are concepts used in the psychological study on the structure of social problems, and it is mainly at this level that the stigma and labels are shaped. In this instance, the stigma will be reinforced, as I’ve already said, by the high-risk label.

The public will not only draw a direct link between mental disorders and dangerousness but also between mental disorders and violence. The effect of this bill will be the opposite of the desired destigmatization. The Minister of Justice, the Honourable Peter MacKay, for whom I have the utmost respect, said concerning cases of individuals found not criminally responsible:

I believe we have a very mature, informed public. These cases inevitably receive a tremendous amount of attention through the media and other forms of communication. When it is properly presented, when people are properly informed, when you examine the desire to protect the public and look at the very rigorous process that one goes through to arrive at that point of an NCR high-risk accused, it doesn’t further stigmatization.

We have a duty not to exacerbate the situation by passing Bill C-14.

The second harmful consequence of the high-risk designation will be the fact of being locked up. An accused given a high-risk designation by the court will be detained in custody in a hospital. The high-risk individual will not be permitted escorted absences other than for medical reasons or treatment. Criminal lawyer Anita Szigeti summed up the problem well when she said:

Really, the most offensive provision, if I can say that with great respect, is this business about no escorted passes off of a ward, except for compassionate purposes. We really are talking about locking people into the back wards and throwing away the key for significant periods of time.

The third consequence of the high-risk designation is the idea that such behaviour foreshadows future behaviour. Honourable senators, allow me to quote once again the Minister of Justice, who said:

I believe that previous behaviour is one of, if not perhaps the most prevalent, indicator of future behaviour.

I would respond to that statement with the words of Chief Justice McLachlin, who said:

A past offence committed while the NCR accused suffered from a mental illness is not, by itself, evidence that the NCR accused continues to pose a significant risk to the safety of the public.

Along the same lines, both Dr. Simpson and Justice Schneider told our committee that there was no correlation between the severity and the frequency of the acts.

These experts in this matter work with mental disorder cases on a daily basis. The opinions put forward by these experts are based on experience, research and, in particular, facts.

May I have five more minutes, please?

Hon. Senators: Agreed.

Senator Jaffer: They are not based on ideological considerations or personal beliefs. To support this argument, I would also point out that the recidivism rates for not criminally responsible individuals are extremely low. In fact, many of the witnesses who appeared in connection with the study of Bill C-14 stated that recidivism rates for these individuals were considerably lower than for individuals who had been, for example, freed on parole, on probation or on court-ordered release pending trial.

Chris Summerville, Chief Executive Officer of the Schizophrenia Society of Canada said:

The Mental Health Commission of Canada submitted to the Department of Justice, through Dr. Anne Crocker of McGill University, this very information, that there is no correlation between brutality and recidivism rates, and that recidivism rates are about 7.5 per cent for people released from forensic units as opposed to recidivism rates being 45 per cent for people released from the federal correctional system.

Ms. Szigeti also pointed out that according to research, actuarial risk assessment instruments, such as the Violence Risk Appraisal Guide, demonstrate an inverse correlation between the brutality of an index offence and the risk that the individual poses in terms of recidivism.

In light of these various research-based arguments, let me repeat my question: Is the high-risk designation just and necessary? To justify these drastic measures the government has brought before us, this government has used the strategy to build up a problem that is already under control. Why tamper with or break something that is already working well?

I am certain honourable senators will agree with me that victims’ rights need to be protected. We heard from Ms. O’Sullivan, who always does a thorough job explaining victims’ rights and how we can protect them. I would respectfully suggest that we ensure that every review board has those recommendations before them.

I want to take a minute to talk about our visit to the Brockville Mental Health Centre for the treatment of people suffering from mental health disorders. It was one of the highlights of my career as a senator. It is the best facility in North America. The facility exists in Ontario, and I would be remiss if I didn’t recognize the great work that Senator Runciman has done to establish this institution.

Some Hon. Senators: Hear, hear.

Senator Jaffer: Do you know what the sad part is? It’s only for men. Women in our country do not have an institution like that. Only men have the best facility in North America to treat them. At the moment there are two women in the institution, while the rest are men.

There is work that we have to do, honourable senators. The one mantra that I heard over and over when we went to that institution was this: The day they arrive, we have to look at ways to reintegrate. But they will not be able to consider a reintegration plan if the person is stuck in jail for three years.

Honourable senators, you have heard from me and how I feel about this bill. Public safety paramountcy already exists. I agree that victims’ rights should be protected.

I have asked every psychiatrist that I know, because I worked in this area of law for a long time, and every psychiatrist that came before the committee: What does a brutal attack mean? It’s not defined in any books on mental disorders.

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In the one book that I use, the Diagnostic and Statistical Manual of Mental Disorders, fifth edition, DSM-5, there is no definition of a brutal attack. There is no definition. I asked the psychiatrists, “How is the judge going to decide this is a brutal attack?” They said, “That won’t be in our report because we do not recognize ‘brutal attack’.” There isn’t a definition of “brutal attack” in the legal books, so we will start again.

Honourable senators, I truly believe this bill is not what Canada is all about. I ask my friends who are going to support this bill tonight to truly think about it. Think about all the people, one in five in our communities, who suffer from mental disorders. Is this what we want for Canadians? We who are supposed to protect the minorities, is this what we are all about? We are bigger than this, and I ask you all to not support this bill.

Thank you very much.

The Hon. the Speaker: Continuing debate.

Senator McIntyre: Senator Jaffer, will you take a question?

The Hon. the Speaker: Senator Cordy, on debate.

Hon. Jane Cordy: I’m assuming the time is up. I had been going to ask a question, but I would make a few comments instead of asking a question.

Senator Fraser: Senator McIntyre had a question.

Senator Cordy: The time is up, but if he wants to speak first, go ahead.

Senator McIntyre: Thank you, Senator Jaffer, for accepting to take a question from me.

Senator Cordy: The time is up.

The Hon. the Speaker: Honourable senators, I’m obliged to advise that Senator McIntyre has spoken on this bill. Should he speak, it has the effect of closing the debate. The time for asking questions of Senator Jaffer has expired. We are on debate.

Senator Cordy: In light of the fact that I can’t ask a question, I will make a few comments. I’m making these comments because this was one of the best speeches that I’ve heard in the Senate in almost 14 years. It was superb, and I congratulate you on your comments.

Hon. Senators: Hear, hear!

Senator Cordy: I was a member of the Social Affairs Committee when Senator Kirby chaired the committee and we did our study on mental health, mental illness and addictions. The deputy chair at that time was Senator LeBreton, and Senator Callbeck was also a member of that committee. We had just finished doing a study on the health care system in Canada, and we recognized that a number of issues related to health care really deserved more than a couple of paragraphs or even more than a chapter in our report on the health care system. One of them was women’s health, one was Aboriginal health, and one was mental health.

Senator Kirby went around the table and said, “Out of all of these issues related to health, what would you like to do as your next study, as a follow-up to our study on the health care system?” Every senator on that committee — every senator, Conservative, Liberal, independent — spoke about a family member or a very close friend who suffered from poor mental health, so therefore we all said that this was the study that we had to do next, mental health and mental illness.

I wonder, if we went around the Senate Chamber as a whole, to each and every one of us, how many people in this chamber could say that they have a relative or a close friend who suffers from poor mental health? I know that my husband’s sister has schizophrenia. This is a very bright woman who has her master’s degree and who, in the 1970s, actually opened up one of the first family resource centres on a military base in Dartmouth and then another one in the Halifax area. In her late twenties she developed schizophrenia. She is a very kind and very gentle woman. I shudder to think of what would happen if she broke the law and what would happen to her under this new bill that is coming forward. She would be found not criminally responsible, and then would she be given a high-risk designation?

We’ve already talked about the stigma that those who suffer from poor mental health and mental illness suffer. The stigma is incredible. The government has spent millions of dollars on television advertisements and in the media to reduce the stigma for those who suffer from poor mental health. They have spent money trying to reduce the stigma of those with mental health and mental illness problems, and I agree that money was well spent, but then you turn around and bring forward a bill that is going to yet again further stigmatize those with poor mental health.

As Senator Jaffer said, fewer than 1 per cent of the people who are mentally ill are violent, yet this bill is based on two very high- profile cases in Canada. Unfortunately, a bill should not be based on fear-mongering for the public. Fewer than 1 per cent of those with mental illness are violent, and that’s something we have to remember. I think Senator Jaffer addressed this very well. Bills should be based on research and on facts; they should not be based on a minister saying, “I believe,” or “I think.”

This bill is wrong. It’s wrong for Canadians, who should feel compassion for the people who live in Canada. It is wrong for the one in five Canadians who suffer from poor mental health. Thank you.

Senator Fraser: I have a question for Senator Cordy. I know that you were an active and engaged participant in the Social Affairs Committee study on mental health. I want to ask you something that I don’t know but that I suspect you may know as a result of your work on that study. This goes back to what Senator Jaffer was saying about the nature of a brutal attack. It’s my understanding, not only based on her speech but based on my own reading, that there are no definitions in psychiatry or in law of what a brutal attack is, but okay, suppose somebody has made what somebody has deemed to be a brutal attack.

Under this bill, their case or their progress could be reassessed as seldom as every three years. My question is, what do we know about the time for people who are capable of being helped, capable of being brought back to a normal level of functioning, or an acceptable level of functioning? What do we know or what do you know about how long it takes? It seems to me, based on people one knows, that it is not infrequent for somebody to be engaged in a therapeutic regimen of some sort for maybe a couple of years and then be fine. Suppose they were going to be fine after two years, but after 18 months they come up for review and the word is, “Go away for another three years.” How can we reconcile this with what we know about the treatment of mental illness?

Let me preface your answer by saying I know there are some people who are incurable. I know that there are some people who, tragically, will always represent a public danger, but it is my understanding that the law already takes care of that.

Senator Cordy: Thank you for that question. I will try to answer it. When you speak without your notes that you haven’t prepared, you always keep your fingers crossed that nobody will ask you a question, but I will take that question because I feel very passionate about this whole issue.

The saddest part for me about this whole bill is the additional stigma that is going to be given to those who are mentally ill. I know the Schizophrenia Society and other agencies that help those who suffer from poor mental health have done so much in trying to reduce the stigma, and yet, as I said earlier, here we are again increasing the stigma for those with poor mental health.

In terms of brutal attacks, you’re absolutely right that there is no definition. Yet, this bill makes reference to it. Indeed, if the bill was going to make reference to it, one would have thought they would have done research, gotten facts and put that in the bill as a definition. But, unfortunately, that’s not there. As I said earlier, it seems to be a bill based on fear mongering, not on facts and evidence.

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You said that somebody could be reassessed after three years, and you’re absolutely right. Unfortunately, in the prison system, we have discovered that there is very little help for those who suffer from poor mental health because it seems there are not enough people in the prison system to help deal with those who are mentally ill.

Absolutely, there are some who have a mental illness that will remain with them for the rest of their lives, but indeed, it can be controlled with medication and with help from psychologists and psychiatrists. Certainly, it can be done well before three years.

Speaking from experience with my sister-in-law, who fortunately has been able to live in the community on her own for large periods of time, on rare occasions, she has had to go to the hospital but was only there for a few weeks to have her medications adjusted and then is absolutely fine again.

So three years is far too long for somebody to be languishing in jail who is there because they are not criminally responsible, who suffers from poor mental health, and yet is left in jail languishing when the doctors have actually made them quite self-sufficient and well again.

Senator Fraser: Could I just ask a supplementary? I will be quick because of the time.

If you have reached the point where you would normally be able to go back and function in society, what’s the likelihood that you’ll get sick again if you have to be locked up for another two and a half years?

Senator Cordy: Sorry, I missed the end of the question.

Senator Fraser: If you are well but you are still stuck in prison for another prolonged period of time, what is the likelihood that that in fact will contribute to making you sick again?

Senator Cordy: Absolutely. We know that when the bill was brought forward, Bill C-10, going back a long time, those who have poor mental health are the ones who will suffer most with double-bunking, poor prison conditions and all of those things happening. Certainly, those would not be the best conditions for somebody who suffers from poor mental health and has been brought back to good health by the doctors.

To remain in a prison cell when are you again healthy and under the care of a doctor and doing very well, even somebody who is not mentally ill would find that stressful and difficult, so I agree with you.

Hon. Paul E. McIntyre: Senator Cordy, would you take a question?

Senator Cordy: Yes.

Senator McIntyre: You seem to suggest that this bill stigmatizes people with mental illness. Let me assure you that that is not what the bill is doing. The bill deals with people suffering from mental illness, but at the same time, they committed a very serious crime. That’s what the bill is doing.

There is also some suggestion about people having committed an attack of a brutal nature. Let me tell you what an attack of brutal nature is all about, and this is what this bill is all about.

We have talked about high-profile cases, such as Allan Schoenborn and Guy Turcotte, but there is another high-profile case I would like to mention, and that’s the case of Gregory Allan Despres. In March of 2005, this young man killed an elderly couple in Minto, New Brunswick. He knifed them about 100 times each. He decapitated the male occupant.

I know about this case because I was chairperson of the New Brunswick review board, and I did both hearings; I did the fitness hearing and the NCR hearing. First, he was found unfit to stand trial, and then he was found fit to stand trial but not criminally responsible on account of mental disorder. He is currently still being held at the Shepody Healing Centre, which is part of Dorchester Penitentiary. The reason for that is because he has no insight into his mental illness. That’s why he is being held. He is taking his medication but has no insight and suffers from chronic paranoid schizophrenia.

If this is not a case of a high-risk offender, I don’t know what a high-risk offender is all about.

Senator Cordy: I have to disagree with you in terms of stigma attached to those who are mentally ill. I’ve seen it; I’ve heard it from many organizations. We heard it over and over again when our committee did a report on mental health and mental illness. To talk about somebody who is mentally ill as having a high-risk designation and to suggest with this bill that those who are mentally ill are more likely to commit crimes is wrong; less than 1 per cent of the population will do that. We are going to have to agree to disagree on that because I think it will bring additional stigma to those who suffer from poor mental health.

The Hon. the Speaker: Continuing debate.

Hon. James S. Cowan: The honourable senator looked like he might have had a supplementary. I think the bells will ring at 5:15. I have a few comments, but I’d rather not start now and wait until afterwards. If Senator McIntyre has a follow-up, it might take us to 5:15.

Senator McIntyre: The only comment I would make is that this bill deals with high-risk offenders.

Senator Fraser: To clarify, we are on questions or comments to Senator Cordy’s speech. This is not a new speech by you, Senator McIntyre.

Senator McIntyre: In answer to Senator Cordy, the only thing I wish to say is that this bill deals with high-risk offenders. We’re not dealing with low-risk offenders at all. We’re not dealing with people that are just suffering from mental illness. We’re dealing with people that, yes, suffer from mental illness but at the same time have committed a very serious crime. That is what this bill is all about. Okay?

The bill contains three elements: public safety, creating a high- risk designation and enhancing victims’ rights. I don’t want to start a debate because I already spoke on this bill last Thursday, but once again, this bill deals with high-risk offenders, people like Gregory Allen Despres, who is presently being held in custody at the Shepody Healing Centre because he has no insight into his mental illness and suffers from chronic paranoid schizophrenia. That is where they belong, and that’s where they should be.

I can assure you, senator, that people who suffer from mental illness are presently being treated either as in-patients at a hospital or at a local community mental health centre. That’s all there is to it. I see nothing wrong with this bill.

The Hon. the Speaker: Honourable senators, it being 5:15, I’m obliged to interrupt the debate and to order the ringing of the bells for the ordered vote at 5:30.

 

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