2nd Session, 41st Parliament,
Volume 149, Issue 34

Tuesday, February 11, 2014
The Honourable Noël A. Kinsella, Speaker

Criminal Code
National Defence Act

Bill to Amend—Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator McIntyre, seconded by the Honourable Senator Seth, for the second 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 to speak to Bill C-14, An Act to amend the Criminal Code and the National Defence Act, which is better known by its short title, the Not Criminally Responsible Reform Act.

I would like to begin by repeating some important facts, and then I will present the concerns I have with the various components of the bill.

Correctional Service Canada reported that in 2008, 13 per cent of federal offenders were suffering from mental illness at intake.

It’s an increase of 86 per cent compared to 1997.

That rate is 24 per cent among offenders, which is an 85 per cent increase over the same time period.

Senator McIntyre, the sponsor of Bill C-14 in the Senate, for whom I have great respect, spoke on this bill at second reading. He is very familiar with the issues of the bill as he was a member of the review board for 25 years.

In his speech, Senator McIntyre presented three main components of Bill C-14. These three components were also in the minister’s backgrounder on the Not Criminally Responsible Reform Bill. They are putting the public first, a designation of high risk, and enhanced victims’ rights.

The proposed amendments to the mental disorder regime are as follows: First, the legislation would explicitly set out that public safety will be the paramount consideration in the decision-making process relating to accused persons found to be not criminally responsible.

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 a serious personal injury offence and a substantial likelihood for further violence that would endanger the public. A high-risk designation could also be made in cases in which the acts were of such brutal nature as to indicate a risk of grave harm to the public. Those designated as high-risk, not criminally responsible accused persons would not be granted a conditional or absolute discharge.

Upon being designated by the court as high-risk, a not criminally responsible person would be held in custody and would not be released by a review board until the person’s designation was revoked by a court.

The third part of the bill is enhancing victims’ rights. The legislation would enhance the safety of victims by ensuring that they are specifically considered when decisions are being made about persons found not criminally responsible.

As we are all aware, there are the concepts of “unfit to stand trial” and “not criminally responsible.” These are two different concepts. A person can be unfit to stand trial at any time during the trial before a verdict is pronounced, and in determining if a person is not criminally responsible for the offence charged, the court focuses on the mental state of the person at the time of the alleged offence.

A person may be found to be not criminally responsible due to their mental state at the time of the offence and the fact that they lacked the capacity to appreciate that what they did was wrong. They did not have the necessary intent to commit the offence.

A person not criminally responsible is found to be neither guilty nor innocent. The Supreme Court explains this regime:

… supplements the traditional guilt-innocence dichotomy of the criminal law with a new alternative for NCR accused — an alternative of individualized assessment to determine whether the person poses a continuing threat to society coupled with an emphasis on providing opportunities to receive appropriate treatment.

Honourable senators, we are speaking of fewer than 1 per cent of those accused annually who are found to be not criminal responsible; they are fewer than 1 per cent of all those people who are accused of crimes.

At present, the review board must take into account four factors: one, the need to protect the public; two, the mental condition of the person; three, the reintegration of the person into society; and, four, the other needs of the accused. Now the approach will be that the public safety will be paramount.

Honourable senators, we would all agree that victims’ rights must be enhanced and the victim and their families need support and, more importantly, a voice at these hearings. If anything, at committee stage here in the Senate, we should examine if there are further rights that the victims should be accorded. I know, senators, you will agree with me that the victim should get all the support they need.

Honourable senators, let me express my concerns about this bill.

In its first engagement, the government explicitly emphasizes the protection of the public.

However, the Canadian Bar Association said, and I quote:

The teachings of the Supreme Court indicate that providing treatment to mentally ill individuals is the most just and equitable approach to protecting the public.

The Criminal Code states that the need to protect the public, the mental condition of the accused and the needs of the accused must be equal criteria. Those three criteria that are deemed to be equal allow the court to order the disposition that is the least onerous and least restrictive to the accused. However, Bill C-14 flies in the face of the equality and authority of those three criteria.

The government is also going against what the Supreme Court of Canada said. Indeed, Chief Justice McLachlin made the point that what is important is:

…maintaining a balance between the goal of protecting the public, the treatment of a person who is mentally ill, and the protection of that person’s dignity.

Honorable senators, under the present regime the review boards have to make a disposition that is least onerous to the not criminally responsible person under the four considerations I set out above. In the words of Supreme Court Chief Justice McLachlin in the Winko decision:

… it 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 Winko v. British Columbia (Forensic Psychiatric Institute), wherein the Supreme Court addressed the issue of public safety of people and the rights of people not criminally responsible. 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 behavior — the mental illness. It cannot content itself 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 dangerous NCR accused.

Part XX.1 also protects the NCR offender. The assessment-treatment model introduced by Part XX.1 of the Criminal Code is fairer to the NCR offender than the traditional common law model. The NCR offender is not criminally responsible, but ill. Providing opportunities to receive treatment, not imposing punishment, is the… appropriate response.

The Supreme Court indicates that providing treatment to mentally ill people is the just and equitable approach to protecting the public.

The court further states:

[T]he treatment of one unable to judge right from wrong is intended to cure the defect. It is not penal in purpose or effect. Where custody is imposed on such a person, the purpose is prevention of antisocial acts, not retribution.

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

The Supreme Court of Canada has on many occasions stated that the “least onerous and restrictive” is at the core of the constitutionality of the criminally not 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 amendment to change the language may bring constitutional validity into question.

Concerning the designation in section 672.54, instead of stating the least onerous disposition, it places the safety of the public as paramount. 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 person who is ill? The amendments will dilute the importance of the recognized 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. Now it will be more of a punishment era than a treatment era.

Chief Justice McLachlin of the Supreme Court of Canada states:

… the regime provided 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 proposed in Bill C-54 to section 672.54 of the Criminal Code 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, the Supreme Court of Canada explicitly referred to those criteria as equal. They should be balancing each other.

Those amendments therefore diminish the importance of the recognized objective of ensuring that the condition of the ill NCR person has improved as being the most just and equitable way to protect society.

In a Department of Justice press release the government states that:

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 protection of the public was not a priority before.

I would like to reiterate what the Supreme Court of Canada said, as follows:

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 other house, the Honorable 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 that approach is that it is demonstrated and proven by a number of professionals and by research — by the Canadian Psychiatric Association, for example. My concern about this initial commitment is that at no time is the government ensuring public protection over the long term. Indeed, over the short term, the public will be protected. However, stating on paper the importance of protecting the public is a very different thing from making a commitment to protect the public over the long term.

A 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.

As mentioned earlier, the second component of Bill C-14 is to create a high-risk designation. 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, 1991, the Supreme Court struck down the previous regime, accepting that the mentally ill have historically been the subject of abuse, neglect and discrimination in our society. The changes made to Part XX.1 of the Criminal Code had an important effect on the processing and detention of individuals suffering from serious mental illness at the time of an offence.

The Canadian Bar Association believes the high-risk designation is not only unnecessary, but self-defeating and counterproductive. This amendment suggests, without much empirical support, that because a not criminally responsible accused has committed one serious offence, they will do so again. Yet again, Chief Justice McLachlin wrote:

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.

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 with regard to this new provision is the use of the French word “détenu.”

Bill C-14 specifically states that a high-risk not criminally responsible person can be detained by the authorities.

The French word “détenu” refers to detention or imprisonment according to French dictionaries. If that is the case, a not criminally responsible accused would be called an “inmate” or “prisoner” instead of a “patient.” This would mean that those accused and found not criminally responsible would be further stigmatized. There will be a greater impact because this bill will stigmatize millions of Canadians suffering from mental illness.

My second concern with respect to this provision is that the not criminally responsible accused would not be eligible for unescorted temporary absences and could be denied an assessment of their condition for a period of up to three years.

There is no research that justifies these draconian measures or that indicates that these amendments will help protect the public or help treat individuals deemed not criminally responsible.

Once again, we are dealing with a government that ignores the opinions and research of professionals in this field.

These sanctions may actually hinder an accused’s treatment, imperiling public safety.

If the individual in question does not have access to unescorted temporary absences, how can we evaluate his or her progress in society? How can we evaluate whether this individual is autonomous? How can we assess the progress made if review boards only assess the individual every three years? These are important steps in the process of reintegration into society.

In fact, Bill C-14 makes no attempt to foster the reintegration of non-criminally responsible accused back into society. It expressly prohibits such conduct for persons designated high-risk. Bill C-14 sends the message that non-criminally responsible people who commit serious offences cannot be efficiently treated and should be offered fewer procedural protections. That message cannot be acceptable to us, and certainly not to Canadians.

In that same vein, the description of the bill on Parliament’s website says that:

The bill recognizes that some criminals are unredeemable.

I find this statement a deeply worrisome indicator of the government’s attitude toward people with mental illness.

I would like to recall a speech given by the Honourable Senator McIntyre about Bill C-14. He stated that the government is concerned that this interpretation — taking the victim into account — will not always be reflected in practice. I would like to know which sources or what research supports that claim. Statements like that make me worry about the government’s attitude toward legal professionals.

In his speech, Senator McIntyre also said:

I can assure all honourable senators that the proposed reforms are consistent with the government’s efforts regarding mental illness and the criminal justice system.

The honourable senator said that the reforms are consistent with the government’s ideology, but where do health and legal professionals stand?

Here is a list of all of the professionals who have concerns about this bill: the Canadian Bar Association; the Canadian Psychiatric Association; an alliance of mental health groups and mental health service providers that includes the Canadian Association for Suicide Prevention, the Canadian Association of Social Workers, the Canadian Mental Health Association, the Mood Disorders Society of Canada, the National Network for Mental Health, and the Schizophrenia Society of Canada; the John Howard Society; and

Honourable senators, the thing that has stressed me about this bill is that every group that my office phoned said that there had been no consultation by our government with that group. None of those groups, who have daily contact with people who suffer from mental disabilities, were contacted before this bill was drafted. How can it be possible that there was no consultation with the groups that work with people who have mental disorders?

The Mental Health Commission of Canada recently noted that the mentally ill are over-represented in the criminal justice system and that an urgent need exists for appropriate services and treatment for these individuals.

Bill C-14 does nothing to ensure that adequate mental health services are available before a person comes in contact with the criminal justice system. Very little effort is being made to prevent these offences. I believe resources should be spent on the prevention of these offences.

Honourable senators, we need to work with the provinces to ensure that these offences are prevented, rather than after the terrible damage is done by people who are not criminally responsible. In fact, persons with mental illness are much more likely to engage in criminal behaviour when their condition is poorly managed.

If we follow that logic, this bill makes protecting society a myth.

The fact remains that this bill will send more people with a mental illness into the regular prison population — individuals who would be better served by getting treatment in the psychiatric system. Mental illness is already prevalent in the prison system, estimated as affecting as much as 10 per cent of the current federal penitentiary population.

This bill focuses on punishment rather than social reintegration.

The emphasis is on the Conservative ideology of punishment rather than investing in rehabilitating offenders and protecting the public in the long term. In short, this bill will increase the risk to society while placing a heavy burden on government coffers.

Honourable senators, if public safety was the main incentive for producing this bill, the government should assist the provinces by investing in mental health and rehabilitation programs. Today, one in five people in Canada has mental health issues. Protecting the public will not be achieved through these short-sighted changes to the law. We must also take a long-term approach towards rehabilitation and reintegration so that offenders do not become repeat offenders.

Honourable senators, almost 40 years ago when I became a lawyer, the first thing my senior partner said to me, because we used to do a lot of criminal work, is that when he was a judge he always had this one thought in mind: that when he sent the accused to prison, the prison guards did not throw the key away. Sooner or later that person would have to be reintegrated into society.

Today, ask yourself, are we going to integrate this mentally ill person into society, and how are we going to do it?

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

Senator, in your presentation you seemed to be suggesting that Bill C-14 will have a negative impact on the broader issue of mental illness and that the bill is intended as fuel against the mentally ill.

As I indicated in my presentation way back in December of last year, Bill C-14, in my opinion, should not be interpreted as implying that people with mental illness are presumed to be dangerous. That is not what the bill does.

You’re right that the bill has three main elements: putting public safety first, creating a new high-risk designation and enhancing victims’ involvement. Bearing those elements in mind, it appears to me that two of the elements, public safety first and victims’ involvement, are nothing new. The reason I say they are nothing new is because these two elements, public safety and victim impact statements, were first addressed by Parliament with the passage of Bill C-30 and Bill C-10. As you will recall, Bill C-30 was passed in 1992, which called for the creation of Part XX.1 of the code, and then in 2005 it was amended.

The only new element forming part of Bill C-14, you’re right, is the high-risk designation. But the bill speaks of high-risk offenders as opposed to low-risk offenders. Nothing will change as far as the low-risk offenders are concerned.

What will change are the high-risk offenders and, in my opinion — and I would like to have your thoughts on this — all the bill is doing is amending Part XX.1 of the code by putting more emphasis on the high-risk designation.

Senator Jaffer: Senator McIntyre, everyone in this chamber knows of your detailed knowledge about this, and you have had 25 years of experience. If there is anybody who knows this issue very well, it’s you.

I will try to answer your questions. As for Bill C-10, if you remember I brought forward an amendment that if a person was charged with a drug offence first they would be sent for treatment and then they would come in front of the judge to be dealt with. I moved an amendment that the same kind of thing would happen for a mentally troubled person. Unfortunately, that amendment was not adopted. Even though Bill C-10 was passed, everyone here knows that I was very unhappy with it. Later on today I will try to see if I can now get that amendment through.

There are three elements, as you very correctly said, in this bill. First is the paramount nature of public safety; second is the high- risk designation; and third is enhancing victims’ rights.

As I said in my speech, I am really happy that we are enhancing victims’ rights. Forty years ago, when I started practising law, there were no rights for the victim. It’s great that this bill addresses that. I’m happy about that, and I hope our committee can ask victims if there are any other rights we should protect. That’s a very good part the bill.

The concern I have is with the focus on public safety as being paramount. The courts have said to us regularly that there should be a balance between public safety and the interests of the person who is sick. I truly believe that when it is tested in the courts, this legislation will not stand. The courts have said continuously for the last 15 years that there needs to be a balance.

As for the high-risk designation, there are many problems with it. First of all, it applies only to personal injury caused by the person who is sick. Second, it has to be of a brutal nature. For the last few weeks — and this is why it has taken me a while to speak — I have not been able to find any definition of “brutal nature.” It is so vague. Who will be designated as high-risk? “Brutal” is not defined.

In the Langevin case “brutal” was mentioned, but only in a contextual basis. The definition of “brutal” was not mentioned.

Again, we, as legislators, are setting up vague legislation for judges to interpret. I have difficulty knowing if we are serious about making a change or are making political noise.

Senator McIntyre: Would you take a supplementary question?

The only point I want to drive at is that, as far as I’m concerned, Bill C-14 simply deals with high-risk offenders as opposed to low-risk offenders. Having chaired the New Brunswick review board for 25 years, I see nothing will change as far as the low-risk offenders are concerned.

The board has three choices: It can grant an absolute discharge, it can grant a conditional discharge — a discharge subject to conditions — or it can order detention in a hospital facility.

This is how the law now stands under section 672 of the code: The difference between detention in a hospital facility and a conditional discharge or a discharge subject to conditions, as opposed to an absolute discharge, revolves around the issue of dangerousness. If the board is satisfied that the accused no longer remains a significant threat to the safety of the public or has doubt as to whether the accused remains a significant threat to the safety of the public, then it must grant an absolute discharge.

On the other hand, if the board is satisfied that the accused remains a significant threat to the safety of the public, then it must order detention in a hospital facility or a conditional discharge. So nothing has changed.

The only thing we’re changing here is the high-risk designation, and it needs to be done, as far as I’m concerned. But we’re not taking any powers to the low-risk offenders, and we’re not stigmatizing mental illness.

The Hon. the Speaker pro tempore: There was a question in that comment.

Senator Jaffer: Senator McIntyre, you have been in this process for 25 years and you say nothing has changed but high-risk. A lot has changed.

Number one, the decision to designate a person high-risk has been taken away from the great board you were working with, the review board. Now it will be decided by the courts, not by the review board.

Number two that has changed, which is really bothering me, is that instead of having an annual review it will be three years before there is a review. And before the high-risk designation is removed, sadly, the person who has had the mental illness has to go again before the courts, not before the review board. The person has to go again before the courts and have the court remove the designation. Once the court has removed the designation, it doesn’t mean that that person is free. Then it goes back to the board to decide whether this person should get an absolute discharge or a conditional discharge or should continue.

The biggest thing for me about a person who is ill is that we are stigmatizing that person. He will always carry the label that he is a high-risk offender. Why? Because he has a mental illness. Is that the kind of Canada we want?

Senator McIntyre: I don’t want to start a debate, because we’re on second reading. I’ll have an opportunity to address this at third reading.

The Hon. the Speaker pro tempore: Absolutely. Continuing debate? Are senators ready for the question?

An Hon. Senator: Question.

The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

The Hon. the Speaker pro tempore: Carried, on division

(Motion agreed to and bill read second time, on division.)

Referred to Committee

The Hon. the Speaker pro tempore: Honourable senators, when shall this bill be read the third time?

(On motion of Senator McIntyre, bill referred to the Standing Senate Committee on Legal and Constitutional Affairs.)