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37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Thursday, April 18, 2002

0935

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

Dr. Emmanuel Aquino (East Coast Forensic Psychiatric Hospital, Nova Scotia)

0940

0945

The Chair

0950

Mr. Paul Harold Macklin (Northumberland, Lib.)

Dr. Emmanuel Aquino

The Chair

Mr. Stanley Semrau (Individual Presentation)

1030

1035

1040

1045

1050

The Vice-Chair (Mr. Chuck Cadman (Surrey North, Canadian Alliance))

Mr. Robert Lanctôt (Châteauguay, BQ)

Mr. Stanley Semrau

Mr. Robert Lanctôt

1055

Mr. Stanley Semrau

The Chair

Mr. Cadman

Mr. Stanley Semrau

1100

Mr. Chuck Cadman

Dr. Emmanuel Aquino

The Chair

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

1105

Mr. Stanley Semrau

Mr. Peter MacKay

Mr. Stanley Semrau

Mr. Peter MacKay

1110

Dr. Emmanuel Aquino

The Chair

Mr. John McKay (Scarborough East, Lib.)

The Chair

Mr. John McKay

1115

Mr. Stanley Semrau

Mr. John McKay

Mr. Stanley Semrau

Mr. John McKay

Mr. Stanley Semrau

Mr. John McKay

Mr. Stanley Semrau

1120

The Chair

1150

Ms. Jennifer Chambers (Empowerment Facilitator, Empowerment Council)

1155

The Chair

Ms. Tamra L. Thomson (Director, Legislation and Law Reform, Canadian Bar Association)

1200

Ms. Heather Perkins-McVey (Chair, National Criminal Justice Section, Canadian Bar Association)

1205

1210

The Chair

Mr. Chuck Cadman

Ms. Heather Perkins-McVey

Mr. Chuck Cadman

Ms. Jennifer Chambers

Mr. Chuck Cadman

Ms. Jennifer Chambers

1240

Mr. Chuck Cadman

Ms. Jennifer Chambers

Ms. Heather Perkins-McVey

The Chair

Mr. Robert Lanctôt

Mr. Stanley Semrau

1245

The Chair

Mr. Robert Lanctôt

Mr. Stanley Semrau

Ms. Heather Perkins-McVey

1250

The Chair

Mr. Peter MacKay

The Chair

Ms. Heather Perkins-McVey

Mr. Peter MacKay

1255

Ms. Heather Perkins-McVey

The Chair

Mr. Stanley Semrau

The Chair

Ms. Jennifer Chambers

The Chair

Ms. Heather Perkins-McVey

1300

The Chair

Dr. Emmanuel Aquino

The Chair

Mr. Robert Lanctôt

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 078

1st SESSION

37th PARLIAMENT

EVIDENCE

Thursday, April 18, 2002

[Recorded by Electronic Apparatus]

¿ (0935)

[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.): I call to order the 78th meeting of the Standing Committee on Justice and Human Rights. Pursuant to the Order of Reference of the House of February 26, 2002, the committee is undertaking a statutory review of the mental disorder provisions of the Criminal Code.

Today, from the East Coast Forensic Psychiatric Hospital in Nova Scotia, we have Dr. Emmanuel Aquino, and appearing as an individual, Dr. Stanley Semrau.

At ten o'clock the Prime Minister is going to be making a statement in the House responding to the incidents in Afghanistan yesterday. We will be suspending at 9:55 a.m. to go to the House. I suspect all leaders will have something to say. We will then return here and try to balance the time lost to you with the time we would also need to take from the group coming at eleven o'clock, if that's okay. These things happen here.

Without further comment from me, I would turn to Dr. Emmanuel Aquino.

Dr. Emmanuel Aquino (East Coast Forensic Psychiatric Hospital, Nova Scotia): At the outset, I would like to thank the committee for inviting me and giving me the opportunity to express my views in regard to the provisions for mental disorders under the Criminal Code that are currently under study.

I received the call from the committee inviting me to participate just last week, so I had to prepare my report with haste.

At the outset, I wish to let the members know a bit about my background. This is my first time participating in this type of forum. It's an honour and a privilege, therefore, to have been selected as one of your expert witnesses and to undertake such a delicate task. However, I had the opportunity to live through and experience the evolution of the practice of forensic psychiatry from the most restricted, automatic, indeterminate detention to the least onerous, the disposition of the mentally disordered accused.

I have been practising psychiatry in Nova Scotia since 1975. At that time only one psychiatrist there, Dr. Syed Naveed Akhtar, was practising in the field of forensic psychiatry, until I joined him in 1986. He has since retired, and in the past three or four years...there are five of us now in Nova Scotia.

Before I comment on the issues we are expected to address as they pertain to the new mental disorder provisions, I want to give a synopsis of the impact on our forensic population in Nova Scotia of the amended mental disorder provisions proclaimed in 1992. We used to have 16 hospital beds for forensic patients in the province; however, we were chronically overcrowded. Our numbers had reached as high as 26 or 27 patients at certain times.

Prior to the enforcement of Bill C-30, we had nine NGRI—not guilty by reason of insanity—patients in the province. Since then this population, now known as NCRMD, is steadily increasing. I have a handout that you will be able to review later, after it has been translated into French, which shows an increasing number of NCRs in the past few years.

Despite this, you will also note that there have been an increasing number of absolute discharges. We only have a very small number of patients detained as unfit to stand trial. At present there are three. All of them suffer from schizophrenia. There was one who suffered from a pervasive developmental disorder who remains unfit to stand trial but is presently residing in the community.

Since the enactment of the new mental disorder provisions in the Criminal Code, we expanded to three units at the Nova Scotia Hospital. Since September 2001, we now have a freestanding facility known as the East Coast Forensic Psychiatric Hospital. We have 12 beds for mentally ill offenders. These beds are provided for inmates who became ill while incarcerated and in need of acute treatment in the hospital. We have 12 beds for court-ordered assessments, and two rehabilitation units, each comprised of 30 beds. In the rehabilitation units, we adopted a role recovery model in assisting our patients in achieving their goal of reintegration into society.

The role recovery model uses psychosocial rehabilitation principles. This model promotes patient involvement, self-determination, and empowerment. Despite the restrictions under the Criminal Code, patients are encouraged to make informed choices while balancing their risk factors. Each rehabilitation unit has a team of social workers, psychologists, occupational therapists, recreational therapists, and pastoral care workers, in addition of course to nurses and doctors.

¿ (0940)

For patients deemed suitable for independent living, we also have the transition unit, where they can develop the skills they need towards their living independently. There are presently 46 patients living in the community who are conditionally discharged. Those living in the community are followed up by their respective mental health facilities. However, we also have forensic community coordinators assigned to each patient. The forensic coordinator's mandate is to facilitate risk management and to address the rehabilitative needs of patients living in the community. The coordinators have access to a forensic psychiatrist on a consulting basis.

In the past ten years only two patients have reoffended and were readmitted under section 16 of the Criminal Code. Despite increasing criticisms of the new provisions, I must say the forensic population in Nova Scotia has benefited from the change in the Criminal Code. It was not an easy task, but we succeeded under the capable leadership of our administrator, Ms. Louise Bradley.

In regard to issues for consideration at this meeting, let me begin with “fitness to stand trial”. This is now defined in the Criminal Code. We now have criteria to use as a guide. Before, they were not available. Nonetheless, we always use a low threshold of fitness so as not to deprive the accused of an opportunity to be tried in an expeditious manner.

To comment on section 16, an achievement made under this section was for the court to first determine whether the accused committed the act, or made the admission that formed the basis of the offence charged, before entering a verdict of not criminally responsible by reason of a mental disorder. Again, “mental disorder” is defined in section 2 of the Code as “a disease of the mind”, and “disease of the mind” remains the legal concept.

It is my opinion that the concept of “disease of the mind” is getting broader. Reading this section of the Criminal Code, it seemed that case law cited under this section appeared to be getting out of the realm of the true legal meaning of “disease of the mind”—and I'm giving this opinion from a clinical point of view.

For example, in R. v. MacLeod, 1980, it was stated that anxiety may constitute a disease of the mind and that a disassociative state caused by insanity gives rise to insane automatism.

R. v. Mailloux, in 1985, said toxic psychosis resulting from heavy use of cocaine is a disease of the mind and that delusions resulting from self-induced intoxication by drugs that cause a loss of self-control or an irresistible impulse do not constitute a defence.

In R. v. Courville, in 1982, the evidence indicated that the accused had acted voluntarily, with knowledge and appreciation of what he was doing and that it was wrong.

In the case of R. v. Hilton, in 1977, it stated that even if a disease of the mind results from self-induced intoxication, the accused may be found NCR if he had a disease of the mind within the meaning of subsection 16(2), whatever the origin or cause of such a disease.

R. v. Charest, 1990, states an irresistible impulse may be a symptom or a manifestation of a disease of the mind.

Next is the issue of automatism, sane and insane. The most widely quoted case in Canada was the case of R. v. Parks. The circumstances were bizarre. It was reported he got up in the middle of the night, got dressed, got into his car, drove 23 kilometres to his wife's parents', entered the dwelling, found a kitchen knife, used it to kill his mother-in-law, and nearly killed his father-in-law. Then he drove to the police station and turned himself in. He was reported to be under considerable stress at that time but reported to be on good terms with his parents-in-law. He entered the defence of sleep-walking, which is sane automatism. He was acquitted by a jury on a charge of murder and by the judge on a charge of attempted murder.

It has been recognized that nobody seems to know what “automatism” really means. When Rogers and his colleagues conducted a survey of forensic experts, less than one-third of mental health experts shared an understanding of what was necessary to constitute automatism.

¿ (0945)

Professor Ralph Slovenko, a lawyer well known for his expertise in law on mental disorders, states that as a rule the claim of automatism is met with skepticism. Involuntary behaviour, often referred to as automatism, is not in law considered an act. Thus the contraction of a person's muscles purely as a reaction to some outside force, or a convulsive movement of an epileptic, is not an act, nor is movement of the body during sleep. It is idiomatic, in other language, to call involuntary bodily movement “an act” or “action”. As Shakespeare described the Queen's somnambulistic behaviour in Macbeth, it's an accustomed action with her seeming to be washing her hands, but the law does not consider this type of behaviour an act within the meaning of criminal or tort law.

The defence of automatism is used more frequently in England, Australia, and Canada than in the United States. Dr. Tollefson and Dr. Starkman reported that both the psychiatric and legal communities have problems with how to deal with automatism in the context of criminal law. Medical opinions about automatism are likely to vary considerably because of a lack of expertise and substantive relation to classification.

I wish to endorse the Canadian Psychiatric Association's brief to the House of Commons Standing Committee on Justice and the Solicitor General, dated November 1992, which stated that the concept of automatism had no place in law and recommended that it be abolished. The nature of the psychiatric evidence given on an alleged case of automatism would depend on the particular school of psychiatric thought to which the expert witness belonged.

The next issue is on capping and dangerous mentally ill offenders accused. Following the Winko decision, it is my opinion that capping is no longer necessary. Capping is bound to create a revolving door for the mentally ill accused. With this case law, the board or the court can no longer decide on a presumption of dangerous list. There is no burden on NCR accused to show that he or she is not a significant threat to the public.

The other thing is that the significant threat to the safety of the public is already defined, which means the real risk of physical or psychological harm to members of the public from conduct that is criminal in nature. The harm must go beyond what is only trivial or annoying.

I would also like to comment on hospital orders. This will be of no value in Nova Scotia. Our civilly committed patients will still have the right to refuse treatment, as opposed to some provinces such as B.C., I believe, where once they are civilly committed they lose their right to refuse treatment. However, as I stated earlier, we do have beds in the forensic hospital allotted for inmates who need hospital care. The unit still operates under the Nova Scotia Hospital Act.

Thank you.

The Chair: Thank you very much.

We have less than five minutes left. It probably isn't fair to Mr. Semrau to split his comments in two. If there are any technical questions for Dr. Aquino, we might put them, breaking from tradition here in the context of time.

Mr. Macklin.

¿ (0950)

Mr. Paul Harold Macklin (Northumberland, Lib.): I just want to clarify one area you mentioned. You talked about there now being, in your jurisdiction, a low threshold of fitness. Could you expand upon that?

Dr. Emmanuel Aquino: That's my personal view, and it's provided the accused is able to recount the charges laid against them enough for their lawyer to be able to represent them. They are pretty well using the Taylor criteria. Even though they could be psychotic and disruptive, they know the functions of the various court officials, what they are there for, and what charges they are facing.

The Chair: We'll suspend momentarily. The Prime Minister is making a statement at 10 a.m., and I presume other leaders also, so I am guessing we won't be very long. We'll simply return here as soon as that is finished and resume.

I'm reminded that we had intended to do Peter MacKay's motion at the end of the day's session, but he's asked us to pull that until Tuesday. That gives us an extra half hour for our next series of witnesses, so I think we can recover your time.

We will be right back.

The meeting is suspended

¿ (0952)

À (1029)

The Chair: I call back to order the 78th meeting of the committee on justice and human rights, and the continued review of the mental disorder provisions of the Criminal Code. I call on Dr. Stanley Semrau for his presentation.

Mr. Stanley Semrau (Individual Presentation): Thank you very much. It's a great privilege to be able to talk to you about these matters. Having worked in this field for many years and developed both an attachment to and a frustration with many parts of the law, it's wonderful to be able to actually talk to the people who could bring about changes in the law. I'm not going to have enough time to go into as much detail as I would like, but my submission is available in written form, so I'm simply going to be making some references to that as we proceed through.

By way of introduction, I am a forensic psychiatrist. I have 18 years' experience dealing with criminal cases, primarily in British Columbia but across Canada as well. I have testified some hundreds of times in court, mostly involving issues of mental state at the time of the commission of crimes and sentencing matters as well. I have worked both in private practice and for the Forensic Psychiatric Services Commission of British Columbia, which is charged with many of the assessments for individuals who are in conflict with the law.

Many of the principles in the law as they relate to mentally disordered offenders are very sound, but the overall structure of how psychiatry and the law relate to each other is very problematic. We often try to fit psychiatry's round peg into the law's square hole, and in part do so on the basis of psychiatric concepts that are now obsolete, one of the most prominent examples being the automatism defence Dr. Aquino has already referred to.

I believe the problems, though, cannot be understood just in terms of looking at the mental disorder provisions. There are also implications in terms of our sentencing and verdict structure, particularly in the case of homicides, that mean constructive changes to mental disorder provisions involve much broader implications. If we are still to make use of the useful aspects of mental disorder concepts, they have to be incorporated in somewhat different ways, which start to have implications for verdicts and sentencing.

I believe the system as it is produces unduly prolonged trials that give results that often have only a tenuous connection to the real facts of the case and the mental state of an accused. The outcomes often lead to disrespect for the law and are not just or constructive in many cases. The result is that a comprehensive change is necessary, unfortunately one that goes beyond the mandate of the current examination this committee is making. The fact is that if you make small changes in limited areas, you can cause worse problems. I believe interlocking changes in other areas are necessary in order to produce an overall useful result.

In making these comments, I think it's very important not just to look at principles but also to look at how these relate to real-life cases. Unfortunately, in a talk this brief I can really only address it at the level of principles. Many of the existing principles sound good and work well in principle, but my experience in real-life cases has been that they often break down when you get to the nitty-gritty of how individual cases operate.

I have already handed out to some members a book I recently wrote, Murderous Minds on Trial. It takes the approach of analysing 20 different cases and seeing how, in real life, some of the mental disorder provisions in fact do not operate correctly. So I would certainly commend the approach of looking at not only principles but details of cases.

I now turn to page 4 of my submission, some general comments about mental state defences. Under this umbrella term, I'm including not criminally responsible on account of mental disorder, the intoxication defence, the provocation defence, and the non-insane automatism defence.

À (1030)

In order to produce a just verdict, one needs reasonably accurate information regarding the mental state of an accused. Unfortunately, that is often unavailable because the accused has a poor memory of what occurred themselves. That memory is often subsequently distorted for a number of reasons to do with memory processes and psychological repression. Sometimes there's intentional deceit on the part of the accused, and psychiatric assessments are often delayed by weeks or months, or not available at all in the case of prosecution-retained psychiatrists or psychologists.

The bottom line on this is that experts, including myself, often engage in something not much better than speculative or educated guessing regarding the mental state of an accused at the time of an act. Nevertheless we are obliged to do our best for the courts. But given extremely soft information, no wonder we often wind up disagreeing about these things in court. Because we're working with such soft and subjective information, it's no wonder we would disagree. Yet out of that soft information and somewhat speculative opinions we have to produce yes or no verdicts in court, that this person was or wasn't criminally responsible, that they were or were not subject to a non-insane automatism.

So to take soft, not very reliable information and yet produce discrete yes or no decisions, in my view, simply doesn't make sense, and we wind up trying to answer a yes or no question about an issue that in fact comes in shades of grey. In the case of the not criminally responsible defence, it's a balance of probabilities based on certain evidence. As a result, we have many cases where people fall on one side or the other somewhat arbitrarily, and we ignore the complexity of information involved.

Yes or no verdicts, using complex subject matter, simply do not make sense in the case of mental state. They do make sense in terms of who killed the person, and so on; you either did or you didn't. But mental states don't come in either yes or no categories.

The difficulty is that offenders, in some cases, either essentially fit though a loophole in terms of the features of a particular defence and achieve the defence despite many blameworthy aspects of their conduct, which are therefore ignored, or they fail to meet the defence by a hair, where they were mentally disordered. So we have a lot of arbitrariness in the outcomes.

At page 6 of my remarks, the not criminally responsible on account of mental disorder defence is, in principle, the soundest of the mental disorder defences we have, in that in most cases it relates to well-established psychiatric concepts like schizophrenia, delusions, hallucinations, and so on. There are, however, problems with it. One is that it has a very narrow focus on the so-called cognitive aspects of a person's mental state—that is, the ability to appreciate the nature and quality of the act, to know that it was wrong.

Two days ago I testified in rebuttal for the prosecution in a case where a very mentally disordered lady, who had a severe brain injury when she was two years old, was involved in a string of arsons. There's no question that profound mental disorder resulted in these arson behaviours, and yet because she did not narrowly fit the insanity defence criteria, she was simply convicted, a completely inappropriate disposition, but one where a more flexible look at the role of her mental disorder in the offence would have resulted in some kind of mental health considerations in her disposition. But the defence, as it is now framed, as an either/or issue, does not permit that.

It also ignores other factors that are involved, including, often, intoxication, which may accompany the mental disorder, non-compliance with treatment, and other factors of that sort, which are contributors to the offence occurring. But it looks at the offence narrowly. It doesn't look at what led up to it; it doesn't look at any of the other causative factors. It simply says, at that instant in time, in a narrow way, what was the role of mental disorder?

À (1035)

So if you then do find that the person was mentally disordered, you ignore all these other factors. You don't take into account any blame or aspects of their behaviour, personality traits, all those kinds of things. It's simply an either/or outcome.

My belief is that in the mental disorder defence, the not criminally responsible on account of mental disorder defence, the principles are useful but they are applied in too narrow and rigid a way. They should be incorporated into a new structure in which they could be taken into account at the time of sentencing where much richer, more complex information that's available about the person could be used in a more creative way.

I'll next turn to the intoxication defence, on page 7. It is in part based on an obsolete psychiatric notion that alcohol can deprive a person of the ability to form intent. That proposition is now largely rejected in psychiatry and psychology, yet continues in force in many ways within the criminal law.

There's a paper that the staff is translating, but I have some English-only copies I could hand out—I'm sorry—about the intoxicated offender, refuting the legal and medical myths. It really explains this in some considerable detail. The problem here is that, again, intoxication is used in an all or none fashion. If we believe the person couldn't form intent, they would then be guilty only of manslaughter. Yet in most respects there is a lack of any scientific foundation for that proposition.

It is nevertheless true that alcohol and other intoxicants do play a significant role in why people commit crimes. So it's useful information, but it distorts the process for it to result in different verdicts. It should instead be taken into account at the time of sentencing, particularly in the case of homicides, where it might be viewed either as a mitigating factor or as an aggravating factor, depending on the unique circumstances.

With respect to the non-insane automatism defence at page 8, I completely echo the comments of Dr. Aquino. This defence has no proper basis in psychiatry whatsoever. I believe the copies of the 1992 presentation of the Canadian Psychiatric Association to this committee are available. I think those comments are just as valid today, if not more so.

Not only does that defence lack any kind of scientific merit, but it is so confusing in the law and so conceptually mired that I have heard frank comments, even from judges on the bench in the absence of the jury, to the effect that they did not understand the defence. Even if it were a valid concept, it is incapable of being understood well enough by juries to produce just decisions.

It is, however, very popular as a defence because it results in a total acquittal. I have seen many cases in which defence lawyers would frankly admit in the hallway that they were using the defence as their only hope because—and we'll get to this—they have no other way of dealing with the case by way of any other kind of plea bargaining, particularly in the case of homicides.

The only part of it that could arguably be preserved is in a case where there was very clear evidence that the offender, the accused, had a profound disruption of brain function from some event, such as a seizure, where there is completely clear-cut medical evidence that their brain was simply not operative. With those arguable rare exceptions, it should be completely eliminated.

On page 9, I deal with the provocation defence. This committee, I know, already dealt with that some years ago, but I would simply say that this is also a tenuous concept from a psychiatric and physiological point of view. We have essentially no way of determining whether someone lost self-control or whether they failed to exercise self-control. As such, conceptually we are quite incapable of dealing with this, on top of the problem of having extremely poor evidence. How can you possibly have someone tell you in a reliable way whether they did not or would not or could not exercise self-control?

At page 10 I deal with the verdict and sentencing structure because this very much interlocks with the mental disorder problems, particularly in the case of homicides. The difficulty is that since mental-disorder-based verdicts are all or none, you lose the complexity and richness of information that comes from the crime and simply make a yes or no decision.

That wouldn't be so bad if, in the case of homicides, there was more flexibility in sentencing. But what you have is an absolute, mandated, minimum 10 years for second-degree murder and minimum 25 years for first-degree murder. The opportunity to re-introduce some of the more subtle psychiatric issues at the time of sentencing is lost. In non-homicides, there is much greater flexibility because there is not the same rigid set of minimum sentences. But in homicides in particular, the all-or-nothing kind of psychiatric defence leads to an all-or-nothing kind of sentencing, so that judges really have no flexibility.

À (1040)

I see cases where, for instance, people who have a profound mental disorder—who are very ill but just by a hair fail to achieve an insanity defence—can be convicted of first-degree murder and be given 25 years minimum until parole, the same outcome as Clifford Olson might get. The fact that these verdicts are simplistic and the sentences rigid magnifies the inequities in dispositions.

At page 11 I've simply summarized that we have interlocking problems of mental disorder defences, which are in some cases poorly conceived and have no proper scientific basis, and even where they are valid they are crude and simplistic in their impact because there are all-or-none decisions. The richness of the information is lost. We therefore have unduly complicated and contentious trials. We often have unjust outcomes in both directions: of being, in rough terms, softer and harder than they should be; and being inflexible in terms of the kind of disposition, whether it's a mental health or penal kind of disposition.

The problem is these problems are interlocking, and you cannot simply tinker with one of them. I, for instance, said the automatism defence should be abolished. But if you simply do that, there are nevertheless mental disorder issues that would therefore be completely neglected when it comes to the disposition stage.

I believe you have to make changes not only to the mental disorder provisions but to verdict and sentencing structures. I am proposing in fact a huge change, which I appreciate is perhaps mind-boggling from the point of view of dealing with this kind of thing. But I believe if you change just one part of this you will worsen it—just as in renovating the house you have to look at the whole thing rather than doing a patchwork job.

Finally, here are my recommendations, on page 12. What I recommend is this.

All consideration of the mental state of an accused should be eliminated at the time of trial. Trial should concern itself with whether or not the person did the thing alleged, without reference to mental state. The only exception to that might be something like a condition such as a seizure, where it was very clear that there was no mental element at all, based on very objective medical evidence. But those would be very narrow and rare exceptions.

The person would then be found guilty of homicide. Then what you would do is introduce all of the psychiatric evidence at the sentencing stage and give judges far greater flexibility in terms of how they deal with the offender at sentencing. The objectives of sentencing would be just the same as they are now concerning deterrence, denunciation, incapacitation, and all those kinds of things—nothing new there—but the judge would be given a much wider range of tools, particularly in the case of homicides but in other criminal offences as well, to adapt the sentence to the accused and to the crime in a much more flexible way than they do presently. You would have individuals who were profoundly mentally disordered who would now probably be given much the same disposition. They would be given a disposition of detention in a psychiatric facility, much the same as we have now. But there would be other people, like that lady I testified about two days ago, who would be given a fairly similar disposition, because the judge would be able to recognize that mental disorder produced a behaviour, even though the person didn't narrowly fit the confines of the insanity defence. So the judge would have a much more flexible way of taking that into account. It wouldn't be just simply a yes or no determination. The judges would have a much wider capability in terms of the type of disposition—a combination of penal, mental health—in whatever combinations those things seem to work.

À (1045)

So the psychiatric information would then be taken into account in a much more creative, rich, and flexible way by the judge, producing outcomes that would meet the needs of all parties in the system much better than I believe they do now.

À (1050)

The Vice-Chair (Mr. Chuck Cadman (Surrey North, Canadian Alliance)): Since I don't see myself sitting over there, I'll go to Mr. Lanctôt for seven minutes.

[Translation]

Mr. Robert Lanctôt (Châteauguay, BQ): Thank you.

I have just received your brief. I did not expect to see a brief whose aim was to completely overhaul the defence process.

First, this is the first witness to propose such a radical and new change. However, a quick perusal of the recommendations lead me to wonder how we could go from an established system to one which would not recognize the defence of mental incompetence, except during sentencing. Wouldn't such a system involve discrimination with regard to a person's understanding of the trial, that person's ability to understand, and not only the person's ability to sit through the trial, and does it not also raise the issue of whether that person is mentally fit enough to present a defence?

These people with mental health problems... I understand that what you are saying is that you would have greater authority, or that the testimony of a psychiatrist would carry more weight in sentencing, but under the type of system you are proposing, I wonder whether it would not be even more discriminatory to abolish the mental health defence argument.

[English]

Mr. Stanley Semrau: First of all, I'll make one technical point.

As far as the issue of fitness is concerned, I'm not suggesting any particular change in that. The accused would still be protected in terms of their mental state during the process of trial, although I do agree, actually, with the comment of Dr. Aquino that the fitness issue is somewhat too narrowly defined, and there are people who in practice we don't see as being really fit these days who are nevertheless found fit.

But in terms of the issue of the person receiving the benefit of mental disorder considerations, I would not diminish that at all, because even though the person would not formally receive the defence, all of that information about mental disorder would be taken into account at the time of sentencing.

So a person who has a classic, successful insanity defence under the present system because of, let's say, paranoid schizophrenia and delusions would, as a matter of disposition, receive essentially the same outcome. They would be sent to a psychiatric facility. They would be subject to review board jurisdiction and so on. However, a judge might impose somewhat greater restrictions in that regard at present if, for instance, it had been found that the person was wilfully, repetitively non-compliant with medications. They might require some tougher criteria in terms of ultimate release. But basically, the disposition would be the same as at present.

What would happen, though, with the lady I referred to two days ago is that instead of simply being sent to prison, she would be given the benefit of the doubt that she was brain damaged when she was two years old and she was behaving that way as a result of mental disorder. She would probably receive the benefit of the mental disorder condition in terms of her disposition.

So the main impact in terms of people with true, serious mental illness would be that a few more of them would receive mental disorder consideration in sentencing, but people who legitimately receive it at present would lose nothing.

[Translation]

Mr. Robert Lanctôt: That really would represent a big change. You would only establish the actus reus and not the mens rea. How can you determine a person's criminal intent if this person really has a mental disorder, and then have this person put on trial, and despite the fact that the person has a recognized mental disorder, say that he or she would receive help in the sentencing process and afterwards as well. I think this is already possible. You could take the bull by the horns if treatment is truly necessary. The fact that a person cannot be held responsible has nothing to do with it. In my view, it would be very discriminatory because if the person cannot be held criminally responsible, it would mean that you're completely changing the nature of criminal law.

À (1055)

[English]

Mr. Stanley Semrau: I don't believe that's what's actually involved. In the case of people who are not criminally responsible on account of mental disorder, at present, in most cases, they do in fact have intent. It is that their intent is based on mental illness as opposed to a properly functioning mind.

The only cases at present in which there is truly a complete lack of intent—that is, the actus reus issue—are those who suffer from seizures or some other profound state of delirium or something of that sort. So those would be the very narrow exceptions that I would suggest should be considered.

But all other individuals, even if mentally disordered, do have some type of intent to do what they do. It's simply that it is influenced by mental illness or by intoxicants, and it is not simply an all-or-none question of having intent or not, except in those rare instances like seizures. Even in the patients I've seen who have paranoid schizophrenia, there are often other elements besides their delusions and hallucinations. That is, there was often a history of some ordinary, sane hostility in a relationship. There was often medication avoidance. There was often abuse of street drugs and all sorts of other considerations of that sort.

So it is not simply a matter of mental disorder purely determining the behaviour in most cases.

It is only in those rare instances in which there is something like a seizure that complete acquittal, I believe, would be appropriate. In all other cases we have some kind of rich mixture of other factors, including personality, circumstances, mental illness, intoxication, all of which should be taken into account in a comprehensive kind of way.

The Chair: Thank you very much.

Mr. Cadman, now.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): There's a lot for us to digest here. Speaking purely from the victims of crime perspective, it's kind of refreshing to hear a psychiatrist with a view like that, recommending those kinds of changes.

You spoke about relying on soft evidence in order to make a determination. Could you step us hypothetically through an example of a person committing a violent offence—in this case I'm thinking in terms of a homicide—and they're the only ones left to say they blacked out, that they were psychotic? How do you determine if that was actually the case? Do you understand where I'm going there? That's what we hear in the courtroom: “I blacked out”. But there was nobody to corroborate that, only the offender's word. So how do you, as a psychiatrist, as a professional, make that determination?

Mr. Stanley Semrau: Very often it is simply a matter of instinct and educated guessing. Ultimately we have very little in the way of tools to be able to determine whether someone is telling the truth or not about their mental state. So you can try to use interviewing skills, you can try contrasting what the person tells you with other objective evidence, but at the end of the day you have no real ability to determine that.

Unfortunately, the cases in which I'm most successful in detecting deception are those of people with low IQs, where there are certain tricks, I'd have to call them, that you can use to expose an attempt to mislead someone else. But if a person has average or higher levels of intelligence, there is no way of getting around misrepresentations they might make about their mental state. So we often get experts on either side saying “I believe this” and “I don't believe it”, often based on nothing more than gut feeling.

So I would say where there's some deception going on about that is only in a fraction of such cases, that we're able to come to some fairly clear understanding. In other cases, it's left to very subjective impressions. This is part of the problem that I see. We're making all-or-none decisions based on very soft information. I'm often left expressing opinions on the order of this being what I think is most likely, and I would rate it as sort of a 40% likelihood; this other possibility is almost as likely, so we'll give it 30%—and so on. The information is often very soft, and yet you make a yes or no decision out of it.

Á (1100)

Mr. Chuck Cadman: I wonder if Dr. Aquino would care to comment on some of Dr. Semrau's recommendations, from what he has heard.

Dr. Emmanuel Aquino: Well, Dr. Semrau certainly is very analytic, and he certainly has a lot more experience in dealing with homicides.

In my submission, I thought we were broader in the section under section 16, based on the case law. But in Dr. Semrau's submission, I think he is implying that we are using too narrow a concept.

I'm thinking of somebody who I was involved with, who killed his mother and there were no witnesses. There was not even a shred of evidence that he actually killed her, because it happened outside; it rained. Then he took off and swam across the river. They could not find any evidence, and he did not recall anything at all.

It could have been an acquittal, but just as Dr. Semrau said, we had to try to use as much collateral information as we could utilize. With this person, although it's not admissible in court, he went through what we call a sodium pentothal interview, and that's when everything came out. Again, it was not admissible, but it did assist in remembering what happened, and then that was entered as evidence.

Mr. Chuck Cadman: Thank you, Doctor.

The Chair: Thank you very much.

Before we go to Mr. MacKay, I'll just tell members that there will be a vote in approximately half an hour. I presume it's procedural. We'll probably have to leave at about 11:25 a.m. to be there.

The witnesses who are in the back, don't despair. Mr. MacKay has relieved us of a debate later on this morning and we'll have an extra hour, so we'll be able to fit everybody in, if that isn't a problem for your schedules.

So, on that, Mr. MacKay....

Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC): Thank you, Mr. Chair, and thank you both, Dr. Semrau and Dr. Aquino. It's very good to see you again, Dr. Aquino, having worked with you in the past.

I must share the sentiment expressed by my colleague, Mr. Cadman. It's heartening to hear, in essence, an expert witness say that in many instances we're doing the best we can objectively. My experience in the past has been that experts have come to court and said, “We're making a concrete decision here that's ironclad and there's no doubt that can be cast upon the testimony we're about to give.” But I think you've been very forthright in admitting we're hardly dealing with an exact science when it comes to diagnosis and when it comes to the criminal justice response. So it's a fascinating proposition you've put forward here this morning.

In terms of being almost a hybrid response at the sentencing hearing, it's one that I don't think has been contemplated, at least not by this committee in our studies, and one that I've certainly never encountered. Is this, for lack of a better word, formula, which you've obviously put some thought into, something that can be enacted under the current provisions, or are we looking at the creation of something akin to a diversion type of system where upon a finding based on psychiatric evidence before a court we would be in essence putting this into a system, I suppose, not unlike the current review board, but something that is more specifically aimed at integration, or, again, trying to arrive at some disposition that combines incarceration and treatment in a more humane fashion? As you've said, the justice system is a rather blunt instrument upon these findings. It's either guilty or not guilty. You're either fit or not fit. You're either criminally or not criminally responsible. I'm trying to grasp and grapple with how we, in a practical way, could bring about this change that you've brought forward here today.

Á (1105)

Mr. Stanley Semrau: I'm not a lawyer or a drafter of laws, so at a certain level I would be lost in terms of how to respond. I think all I can say is that section 16 of the Criminal Code would be eliminated and there would presumably need to be a new piece of law that would disallow intoxication and automatism defences. In the case of homicides in particular, this gets a little complicated, because the problems I'm describing have far more impact in the case of homicides because of the rigid sentencing structure there. But in that case in particular, I would actually have only one charge and only one possible verdict--call it homicide.You would then write some new sentencing law that says that mental disorder, intoxication, and obviously the circumstances of the offence would be taken into account at the time of sentencing and you would not have the current minimum sentences of 10 and 25 years.

Sentencing practice, of course, would develop in large part taking as a precedent sentencing that has already occurred. But you may well, for instance, in the case of someone who was very mentally disordered and was in the lay sense provoked in certain circumstances, give them a lesser penal sentence combined with some mental health disposition conditions. In other cases you might well in fact impose a more lengthy sentence. If you were today sentencing Clifford Olson, you might well give him a minimum of 40 or 50 years before parole eligibility, or none at all. So the sentencing process would allow much greater flexibility, both lesser and greater, and different types of dispositions and criteria, including combinations of penal and mental health.

Even in cases where mental disorder was a significant part of the act but there was also blameworthy behaviour—say someone had schizophrenia but they also didn't take their medications and were using crack cocaine, and these things were factors in the homicide—you might well say, this person needs a primarily mental disorder disposition, but as a matter of denunciation of the crime, and reflecting the blameworthy parts of their behaviour for which they're responsible, this person will have a minimum of five years to be served, for example, in a way that would reflect the ways in which they were culpable separate from mental disorder. I think this would also enhance public respect. They would say, this person isn't going to just walk out on the street a week from now.

Mr. Peter MacKay: And drug rehabilitation as well.

Mr. Stanley Semrau: Yes. You may well have drug rehabilitation conditions that the person not be released unless they were shown to be free of alcohol and drugs and had mandatory urine and blood testing in the community, for instance.

Mr. Peter MacKay: I have one question I'd like to address to Dr. Aquino.

I know that you—probably both doctors—have encountered circumstances where individuals arrive at your offices or at your forensic facilities and the evidence has been adduced that they simply refused to take their medication. For whatever reason, they've wilfully not complied with previous attempts...or even simply prescriptions for anti-psychotic behaviour.

We've seen cases where there is repeated behaviour because of alcoholism where Antabuse must be taken in the presence of a doctor or other person. Is there a way we can be more forceful? Is this something you've contemplated, how we could try to bring about greater compliance? It seems that much of the resistance to taking anti-psychotic medication in the past was the side effects. We're led to believe, with the testimony we've heard, that those side effects now appear to be more under control than they have been in the past. There's still, I guess, a philosophical question about whether you can force somebody to take treatment. Can you force them, even for the protection of the public and the protection of themselves, to comply with medication?

Á (1110)

Dr. Emmanuel Aquino: In Nova Scotia, even if they are civilly committed or if they're under the jurisdiction of the Criminal Code Review Board, we still utilize the Hospital Act, and they have the right to refuse treatment. Certainly, we still have to determine whether they are capable of consenting or not.

At the same time, in terms of people who have been found not criminally responsible by reason of mental disorder, the review board expects the accused, or the patient, to maintain good mental health. So if they have not been maintaining good mental health, which includes not taking their medication, they will continue to be considered a significant threat to the safety of the public and not ready for release.

The Chair: Thank you, Dr. Aquino.

I want to go to John McKay, but before I do, just for everybody's edification, what I'm hoping to do, if it's acceptable to the committee and the panellists, and to the next panel... I want to ask that when we leave in ten minutes or so, that you might...are the two panellists now able to stay? You can both stay?

We could get our presentation, you would stay, and then they'd have questions for all four for the balance of the time, because for some of this stuff I know members want to ask some more questions.

John McKay.

Mr. John McKay (Scarborough East, Lib.): I dare say that the criminal lawyers want to have a conversation with Dr. Semrau.

The Chair: With both panels; there is no agenda.

Mr. John McKay: Yes.

As I understand your testimony, Dr. Semrau, you are basically proposing to eliminate the mens rea from Criminal Code offences. In reality, it's really not going to matter what your mental state was at the time of the offence.

Your evidence is that a lot of this stuff is soft evidence and it's given in a black and white fashion, that psychiatrists and other experts disagree among themselves, that it happens in a fantasy land of legal theatre, and that a lot of these defences, like non-insane automatism, intoxication, provocation, and all that sort of stuff, are just really so much nonsense. You would pick up, if you will, the mental component of the individual—not only the individual but also the individual's state of mind at the time of the crime—in the sentencing, rather than in the process by which you arrive at a conviction.

The question arises, going with that thought for a while, what are the other injustices that arise by virtue of proceeding down that path? If you eliminate the view that there is a notion of intent, a notion of criminal responsibility, then you have certainly kicked out one of the major underpinnings of the criminal law, but you've also precluded the individual accused from giving any kind of reasoned context for what they did at the time they were doing it.

Á (1115)

Mr. Stanley Semrau: Well, my belief about how you do these things is that you do not in fact deprive the individual of that opportunity; in fact, you enhance it. The mental state defence during trials is given in very restricted and artificial ways because it has to fit a particular defence criteria. These criteria often do not match what is involved in the mental disorder of the accused and how that affected his or her conduct.

Those people who are presently successful at getting NCRMD defences would still in effect have the same outcome, only now it would occur at a different stage in the process. There would be psychiatric examinations post-conviction or pre-conviction, but evidence in the court post-conviction would be given to the effect that this person suffered from schizophrenia and acted on the basis of paranoid delusions and hallucinations. In practice, the impact on them would be just the same as it is now.

But people like the lady who I saw two days ago—who is now likely going to be spending a minimum of ten years in prison, but who clearly committed her acts of arson as a result of a mental disorder—would likely be given primarily a mental health disposition. So in fact, in cases of true mental illness, this would broaden the application of mental disorder considerations.

Mr. John McKay: Wouldn't this also eliminate the possibility of her being found not guilty of these crimes?

Mr. Stanley Semrau: She attempted a defence of not criminally responsible on account of mental disorder and she failed in this simply because she did not precisely fit the section 16 criteria. If we changed the law, she would have an opportunity that she now does not have.

Mr. John McKay: You also eliminate the opportunity for her to have success with that defence, to be found to be not criminally responsible for what she did, and then possibly to have a disposition under the mental health provisions of the province.

Mr. Stanley Semrau: To be clear, in her case she has lost this opportunity. Had she succeeded in the defence—which she didn't because the defence is too narrowly defined—under the scheme as I would have it changed, she would have had the same outcome; she would have been sent to a psychiatric facility, and so on. It's just that this would have happened at a different stage in the proceedings. That's the only practical difference. But in her case, she would have been allowed that opportunity, which under the present law she has lost.

Mr. John McKay: I have one brief final question. On page 6, in point 3 you state that:

Recent judicial decisions (R. vs. Winko) have lowered the threshold for community release and absolute discharge to a degree which may create undue risk to public safety and also undermine what limited public acceptance there is of the legitimacy of the NCRMD defense.

Almost universally, the previous witnesses think that Winko has it right. I'm curious here as to why you think the balancing Winko has achieved after the 1992 changes is not good.

Mr. Stanley Semrau: Simply, at the practical level, I'm now getting involved in review board hearings where people are being released who are still dangerous. That is a change, based on the Winko decision.

Stepping back and looking at it slightly more philosophically, I think we make a mistake in again looking at mental disorder as an all-or-none thing. What we say presently is that if you have a successful NCRMD defence, you will now only be dealt with on the basis of mental disorder. I think that oversimplifies what's happened.

There are many blameworthy aspects to the conduct of some people who have NCRMD defences, such as medication non-compliance and alcohol and drug abuse. There is still a level of responsibility that we need to expect from people. Just because you are mentally disordered does not mean you have lost all capacity for self-control or responsibility.

I believe the Winko case and the principles of least restrictive disposition have gone a little bit too far, and there is a place for a requirement that, as a trade-off for not receiving a prison disposition, you have a higher level of responsibility to demonstrate your safety. After seeing people released in real life, where even the review board members have said to me privately afterwards, “I don't think this person is safe to be released, but Winko forces me to release them”, I believe that in a small minority of cases we've gone too far.

Á (1120)

The Chair: Thank you very much.

While we are voting, I would ask the next panel to come forward. I understand our present witnesses will stay also. After the presentations of the Empowerment Council and the Canadian Bar Association, we'll return to questioning, going back to Mr. Cadman, and the questions might be put to any of the witnesses.

With that, I suspend.

Á (1122)

Á (1149)

The Chair: I call back to order the 78th meeting of the Standing Committee on Justice and Human Rights. I apologize to everyone. I understand we now have another 30-minute bell.

I'm going to go quickly to the two new panellists. The Empowerment Council is represented by Jennifer Chambers, and the Canadian Bar Association is represented by Tamra Thomson and Heather Perkins-McVey. Ms. Chambers will be first, for ten minutes.

Á (1150)

Ms. Jennifer Chambers (Empowerment Facilitator, Empowerment Council): Thank you. There seems to have been a technical difficulty in my paper not getting to you, so I'm going to try to cover it very quickly. Please gesture wildly if I'm speaking too fast.

The Empowerment Council is a group of clients and ex-clients of mental health and addiction services. They're based at the Centre for Addiction and Mental Health, and the catchment area covers all of Ontario, as do the centres.

We thank you for inviting the council here today. As far as we know, it's the first time a federal parliamentary committee has invited a deputation from a group of people who have actually been receivers of mental health and addiction services.

My name is Jennifer Chambers. I facilitated the intervention of the Queen Street Patients Council in LePage, which became Winko. So I have a background of interest in this area.

In general, we'd like to say we think the ruling of Winko was a very good ruling. If the system operated in accordance with the standards set out in Winko, it would be a very good system indeed. There are, however, problems with the actual operation of the law and mental health system. Because of the awareness that you're writing a report on this subject, we're going to bring to your attention some of the broader issues in the area before getting into specific recommendations.

One problem is the increasing size of the forensic system proportionate to the rest of the mental health system. There are a few reasons for this. One is that when money went from the institution, it was supposed to follow people into the community, but it didn't always make that trip with the individuals. Another problem is that the money spent in the mental health system is not always wisely spent. There is an increasing trend right now in mental health to fund services that are somewhat more coercive and less popular, and the people in mental health services are less interested in using these services.

Our recommendation would be that it would be wise to first expend money where people are indicating they have a need for service. The services have more of a demand than they're able to meet. It seems commonsensical to first meet people's self-identified needs before getting into needs for coercive measures, such as community treatment orders.

The same problem happens with ineffectively directed services in the area of social assistance and housing. Again, it's much more expensive to keep people in a hospital-based system in the forensic system, where a lot of people are ending up because they go into crisis as a result of a lack of housing, for example. It's been shown that homelessness frequently results in mental disturbance more often than homelessness is caused by mental disturbance.

A final factor is that lawyers who are not always adequately trained in the mental health area do not always advise their clients of the dangers of entering into the forensic system and the likelihood that they will be detained indefinitely.

Another problem with the system as it exists right now is a bottleneck at the assessment process. One of the reasons for this is that lengthy assessments are used as a back door by some judges to acquire treatment for the individual. It would be far preferable if there could be assessments that only last as long as is actually required for an assessment, and then be followed by a speedy return to court.

Another problem with the system as it currently operates is excess custody and supervision. An indication of this is that increasing numbers of people are detained in the forensic system. Some are detained on trivial offences for long periods of time, and some are apparently detained forever because of the nature of the index offence.

One of the reasons for this lies with the insufficient evidence obtained by the review board. Winko advises that reasons for release be sought out in evidence, as well as reasons for detention. We don't think this is adequately done, in part because an NCR individual and legal aid often can't afford the expert advice that's needed to independently assess them and also to analyse the risk assessment done by the hospital. We think it would be a good idea to have more independent assessment brought into play by the defence for the individual.

There are also problems with risk assessment being very unreliable. This doesn't always come out. Clinicians are not always able to adequately explain the statistical validity of the risk assessments they do.

Á (1155)

Factors unrelated to violence often come into play in risk assessment. For example, lack of compliance with medication isn't always associated with risk, yet it's frequently treated as if it is, as compliance with other aspects of institutional living tends to come into play. Just because someone doesn't do well in an institution doesn't mean they would be unsafe in a community. Yet these associations are often made.

A violent index offence is also a major cause for detention. There's a problem with bias there, because when something goes through the criminal justice system, it's often bargained down to a lower index offence, so that for the same prisoner in the correctional system, the index offence is often recorded as lower than for someone in the forensic system.

Then there's a problem with excessively restrictive disposition orders. I could give you a number of examples of some of the minor incidents that have resulted in long-term detention. It's problematic, especially when research shows—and I have sent some of this research to the committee—to quote an article by Harris and Rice, “for offenders at lowest risk, evidence suggests that supervision, detention, and treatment actually increase the risk of violence.”

There's excessive restriction of unfit accused, as I know you've heard extensively. Sometimes people can be essentially punished for life because of an inability to understand the judicial system, and especially for people of a low risk this is a big problem.

Something that gets very little attention in the Winko ruling is the narrow consideration of the needs of the NCR and unfit accused, so that people are often treated purely in terms of symptoms and medical condition. Experience and the forensic database done by Chris Webster suggest that people enter the system often with very basic practical needs, such as a need for education and vocational training. Things in the forensic system that don't get addressed include people having a history of abuse. Part of the reason for this is that the therapeutic relationship is tainted by the assessor being also the person's jailer. There's a need to separate the therapeutic and assessment aspects of the forensic system, if at all possible.

Finally, it would be helpful if there were assistance for people leaving the forensic system and going into the community, much as happens in the correctional system.

Our recommendations are that: legal aid funding should be available for expert witnesses so that people could better bring forward evidence to release; when entertaining risk assessments, the review board should always hear evidence as to their predictive validity; assessment orders should end when the assessment is complete; rote conditions, such as drug or alcohol use, should not be written into everyone's disposition orders; and at the request of the accused, whose health information is at stake, hearings should be able to be closed to the public.

We don't support victims' statements, as we don't believe they have a role in this system.

Review boards should be given the power to order least restrictive orders and dispositions, and this should include consideration of people being in seclusion or restraints. This is a bit of a grey area in the law right now.

Review boards should have the power to order assessments.

In terms of capping, our position is that Winko is better than the suggested law. Capping is only needed as a fail-safe when Winko fails to operate properly. So we would support capping only if as well it didn't involve the dangerously mentally disordered accused designation, as we feel this inappropriately decides for life that someone can't possibly have a better mental state.

We also recommend that there be a legal committee in each province to review cases that are brought before them containing problems in the practice of law in this area, and review board members should be required to be familiar with provincial mental health legislation.

In line with some of the other recommendations you've heard, we think it would be appropriate to change “disease of the mind” to “mental disorder”, as the former gets into the scientific quagmire of whether there is a biological basis to certain mental conditions.

Because of some of the discussion you've heard, I just wanted to add a final point about the issue of people's compliance with medication. Complying with medication is no guarantee of safety. There's no pill that can completely control anyone's behaviour. Similarly, not complying with medication does not equal dangerousness. Medication can work for some. It doesn't work for others. It's not 100% effective. It does have its dangers. In fact, some medication has been associated with possible increased risk of violence.

The Chair: Thank you very much.

Next is Tamra Thomson.

Ms. Tamra L. Thomson (Director, Legislation and Law Reform, Canadian Bar Association): Thank you, Mr. Chair and honourable members.

We are here on behalf of the Canadian Bar Association, which is a national association representing close to 37,000 jurists across Canada. We're very pleased to appear before the committee today as you undertake a study of these important and indeed complex issues.

You have received a copy of our written submission, which was prepared by the national criminal justice section within the Canadian Bar Association. The criminal justice section comprises both crown and defence lawyers, and the members bring that balance to all their work. They also had input from the committee on imprisonment and release, which is a committee within that section that is expert, particularly on issues of sentencing. So that aspect has been brought to bear as well.

Amongst the primary objectives of the Canadian Bar Association are improvement in the law and improvement in the administration of justice, and it is within that rubric that we bring our comments to you today. I'm going to ask Ms. Perkins-McVey, who is chair of the criminal justice section, to address some of the issues that are outlined in the written submission.

Â (1200)

Ms. Heather Perkins-McVey (Chair, National Criminal Justice Section, Canadian Bar Association): It's often said that this is the area in the Criminal Code where law and psychiatry meet. I think it's very interesting to look at the panel of people you have before you today, because we have representatives from many of the different facets that are dealt with in this section of the Criminal Code.

We feel as practitioners that this is perhaps one of the most technical and complex sections in the Criminal Code and an area of law and social practice and social policy so fundamental that it crosses all boundaries or borders, political, provincial, and otherwise, and that it is an area that deserves careful, serious study and analysis before we start making significant changes.

However, looking at it, we feel there are some areas we can comment on. Largely, however, we feel there should be more statistical analysis done to properly evaluate some of the issues and concerns that may have been raised.

The court's application of section 16, or the not criminally responsible sections of the Criminal Code, as you know, and as you've heard both psychiatrists and lawyers say to you, is an area of intense debate between the legal and the psychiatric communities. In our view, the focus of the current test on cognitive incapacity is flawed.

It happens on occasion that you have severely mentally disordered individuals who are convicted of criminal offences and incarcerated for long periods of time in spite of the clear existence of mental disorder related to their crimes. By focusing on impairment of cognitive facilities and how that impairment affects the accused's capacity to appreciate the nature and quality of the act or to know that it is wrong, this definition does not encompass situations in which an accused can appreciate that the act is wrong, but the act is the result of delusion, paranoia, or other irrationality that can be linked to the mental disorder.

There's a case called R. v. Cheong where the gentlemen was convicted of murder after pushing a complete stranger from the subway platform. He suffered from schizophrenia, which as you know is a major mental illness. He also had a substance disorder problem and experienced auditory hallucinations. At the time of the offence he was in a delusional state that caused him to focus on the kind of woman he believed would mock him and subject him to racial insults. While he appreciated the nature of his act and knew it was wrong, the act was clearly a product of mental illness.

This is an example, perhaps, of some of the problems in the application of the current definition of section 16.

You may recall that in 1992 the Canadian Bar Association Criminal Recodification Task Force dealt with this issue and responded to the Law Reform Commission's report on recodifying the criminal law. The task force recommended expanding the scope of section 16 to encompass three separate situations—this is addressed in the submission you have before you—as follows: that the scope of section 16 should be that no one is criminally liable for conduct if, through disease or mental disability, the person at the time was (a) incapable of appreciating the nature and consequences of the conduct, or (b) believed what he or she was doing was morally right, or (c) was incapable of conforming to the requirements of the law.

This recommendation is a slight variation on the age-old test of McNaghten, with the addition of the penal code element. While this test, we've suggested, is at a very rough stage right now, it is the kind of test that could be improved, because it would bring an important expansion of a mental incapacity defence and would encompass cases like the Cheong case I have mentioned to you.

Â (1205)

We believe this area is one where legitimate concerns and issues have to be addressed. The very controversy those comments give rise to is the reason we believe this area of the law and psychiatry has to be carefully studied before any changes are made.

Looking at the definition of fitness to stand trial, in a nutshell, our concern is whether or not the decision of R. v. Taylor has caused problems in this area. We feel the test may be too restrictive, particularly inasmuch as it talks about the ability to communicate with counsel.

If the purpose of the section is for an accused to be truly at his or her trial—to be there and able to participate in a meaningful, informed, and rational way—we believe the Taylor decision is too narrow. There should be some appreciation of the need for the accused to communicate with counsel in an informed way.

One of the problems, of course, is that all of these are interpreted by courts and psychiatrists in a purely subjective way. We often see situations where one psychiatrist deems that an accused can't communicate effectively with counsel and is therefore unfit to stand trial, and in other circumstances a restrictive interpretation of Taylor is made.

This subjectiveness and inconsistency in application is a problem that we feel should be addressed. We feel there has to be a substantive, qualitative component to the ability to communicate and instruct counsel.

As it pertains to the powers of review boards, I've reviewed some of the reports and submissions that have been made before you. The Canadian Bar Association, in considering this issue, feels that there may be some constitutional concerns. We have to remember that review boards are not courts. They are not constituted as such, and there may be a section 91/92 issue as it pertains to giving them certain increases in powers.

We feel that giving review boards the power to discharge an accused absolutely would then empower them to make decisions about mens rea—effectively, to work as a court. We feel they are not empowered to do so, either constitutionally or in terms of their current mandate, and because of how they're made up, with lay persons, psychiatrists, and others.

As such, while it's an attractive option for cutting the process short, it's fraught with serious difficulties. We feel it should not be supported at this time without careful review.

On capping, very briefly, we also believe the Winko decision is an important benchmark that, if properly and consistently applied, eliminates the need for capping. That's basically our position on this point.

Our report covers some of the other areas, but by no means is it meant to begin an exhaustive review of this highly complex, very difficult area. We also support some of the comments that have been made about the problems with lack of resources in the community for dealing with the assessment process for persons who are mentally disordered.

Â (1210)

The Chair: Thank you very much.

Mr. Cadman, we have less than the seven minutes available to you left to us. Consequently, the best thing for us to do is to excuse ourselves once again. You now are familiar with the bell system. We'll come back immediately following the vote and then begin with Mr. Cadman, as promised.

The meeting is suspended.

Â (1211)

Â (1236)

The Chair: I call back to order, still, the 78th meeting of the Standing Committee on Justice and Human Rights. I should say I call the committee back to order for the last time, because if this happens again, it will probably be impossible to reconstruct.

Mr. Cadman has seven minutes.

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

I had a few questions, but I think we're probably going to run out of time here.

To the criminal bar, I assume you were in the room when you heard Dr. Semrau's proposals about essentially eliminating the mental disorder as a defence or whether it should be used to determine guilt, setting it back until sentencing, making it a mitigating factor. I wonder if you'd care to comment on that.

Ms. Heather Perkins-McVey: I have to state that I have not had the opportunity to read the book that is the basis of the submission the doctor made, and I only caught the tail-end of the argument.

I'll tell you that it's not something the criminal justice section of the Canadian Bar Association has thought about, because it really means changing the fundamental characteristics of the criminal justice system that have been there since time immemorial.

I think there are some very serious constitutional concerns. We also have always had a fundamental view that the mental element of the offence is one that has to be proven beyond a reasonable doubt, and it's part of the fundamental basics of the code.

Everything can't go to sentence. I think my concern, just hearing some of the comments, is that we have to remember that the criminal justice system has a different purpose from the social justice system and even the health care system. We have to be careful in dealing with this issue to properly ensure that the legal rights are protected, and where appropriate, have a social justice system and a health care system that can appropriately deal with the mental disorder.

I think it would be rash to take out the mental disorder sections of the Criminal Code as a defence, given the fact that there are two components to most offences.

Mr. Chuck Cadman: Ms. Chambers, do you have a comment on that?

Ms. Jennifer Chambers: I would tend to support the bar's advocation. I think the element of intent is an important part of our definition of a crime. Some may very well have intended the act, but they might have intended it, for example, in their minds, for self-defence, and I think it's not reasonable to treat that the same as with someone who intended it for a selfish gain.

Mr. Chuck Cadman: Through you, Mr. Chair, to you, Ms. Chambers, you stated that your organization does not support victim impact statements. Do you see any role for the victims in the process?

Ms. Jennifer Chambers: As part of someone's therapeutic process, should they want to talk to the victim at some point about what happened—as part of their healing, learning more about themselves—I think that would be appropriate, and I think that is sometimes done in the correctional system as well. I just don't think it's appropriate as part of their disposition order, because it doesn't really have any bearing on the state of mind of the accused, which is what the forensic system is supposed to be about.

Â (1240)

Mr. Chuck Cadman: What about the concerns that a victim might express as to what the possible outcome of a hearing would be, if they have concerns for their safety?

Ms. Jennifer Chambers: I think they have no real ability at that point in time to understand what the outcome of release might be. They're not familiar with the accused's state of mind. So they can express fears, but the degree to which a particular victim might be afraid or sympathetic shouldn't really be influencing the custody of the accused.

Ms. Heather Perkins-McVey: I think we're mixing apples and oranges here. That's what I'm hearing in many of the comments and when I read some of the testimony.

I think we have to be careful about what stage of the process we're talking about and the context. Clearly, victims have a role in the proceedings. They do in criminal proceedings. The Criminal Code provides for victim impact statements, and there are certain times in certain proceedings when it's entirely appropriate that they attend and make their views known.

Let's not forget that in the courts, of course, we have a judicial process that allows everybody's views to be taken into account as part of the considerations, and at the review board stage, clearly it doesn't apply to people who are unfit.

If somebody wishes to make their views or their concerns known, that can be done through the filing of a statement and through the representations of the crown attorney's office. But once again, we have difficulties with ensuring the accused are able to know what's going on.

It depends what the victim's purpose is. If the purpose is simply to say, “I'm concerned because I feel this fellow is dangerous”, then fair enough. That's part of the information that should be known to the review board in determining all of the evidence so they can make their final determination of the issue.

I don't have the same concerns, but I think we have to be careful about terminology, because it's a very technical part of where we're at and at what stage of the process. You can't talk about courts and review boards in the same breath, because they're entirely different beings with different functions and different balancing roles.

The Chair: Thank you very much.

I'm going to go to Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: I would like to come back to Dr. Semrau.

I hope you realize that you have caused quite a stir not only within the committee, but also within the Bar Association and amongst people representing the mentally handicapped. This has huge implications. As the Bar Association said, the potential of this idea has not yet been studied.

I would like to know whether there are alternatives which are not contained in the brief you presented to the committee. Are there any experts, psychiatrists or psychologists who are aware of what you have presented to the committee? Are lawyers and bar associations aware of this? What kind of process was undertaken before you presented your brief?

[English]

Mr. Stanley Semrau: First of all, many of the ideas in the proposal do relate to ideas developed by others. They're not original on my part. It was ten years ago that the Canadian Psychiatric Association expressed its views regarding the automatism defence.

We also made use of the views of a Mr. Schneider, who was involved with the Ontario review board, I believe, and who did a study of the issue of criminal responsibility and found that in fact it wasn't a matter of black or white, that there were various degrees of criminal responsibility if you used an operational psychiatric definition.

There are also ideas of this sort prevalent in other places. There is, for instance—I believe unproclaimed within our law—the notion of a hospital order similar to the British concept, which is an aspect of what I referred to, that there could be a psychiatric element in disposition.

I have not had any kind of formal response to the ideas in my book, but I have had informal feedback from dozens of psychiatrists and lawyers. To oversimplify, the crown prosecutors who I have talked to have tended to be very supportive of the notions in the book. The defence lawyers who I've talked to have said the same in principle, but they hope for their own sakes the changes don't come to pass, because it would reduce their work.

That's really the opportunity I've had in terms of feedback. There hasn't been any sort of formal reaction from anyone.

Â (1245)

The Chair: Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: Have there been any symposiums, seminars or conferences on this subject? This is a very original idea, but it represents a sea change in the status quo. I'm not being critical. I am just wondering how far you have pushed this idea and whether there are other people who believe that Canada's criminal justice system must be completely overhauled.

[English]

Mr. Stanley Semrau: It hasn't been dealt with in any symposia or anything of that sort. This is the first official body that has dealt with it.

I do think it's important to go through the ideas in quite some detail, because in many ways the changes are not quite as radical as they would appear. All of the existing elements and principles within the system, in terms of making use of mental disorder concepts, are in fact preserved. It's just that they are rearranged essentially in different ways that provide greater flexibility for mental disorder to be taken into account by the courts and to be used in a more creative and flexible way. So I would describe it as more of a restructuring than the alteration of any principles.

One particularly important thing is that I am not in any way proposing altering the concept of intent. The notion of people who have a complete lack of intent, such as an act based on a seizure or something of that sort, I would preserve. And that sort of issue could be dealt with at trial.

However, if we get outside of the situation of complete lack of intent, then we're looking at natures and degrees of intent. And that's where issues like provocation, intoxication, and mental disorder are involved in terms of what is the nature of the intent that exists.

So the principle of intent must be preserved, but dealt with in a way that is much more sophisticated than how it is presently dealt with.

Ms. Heather Perkins-McVey: I disagree with the comment that's it's a much more sophisticated way than it's presently dealt with. I think we have to take a little step back here and look at what we're talking about, because I feel we're blurring a lot of areas.

First of all, the issues of provocation, self-defence, and even automatism, are a separate area, in my view, and should be dealt with separately. That is an area that the Canadian Bar Association supports the justice department taking a good look at in terms of re-evaluating those provisions. But that's not what we're here to deal with.

Let's look at the mental disorder section of the code and why it was enacted to begin with. It's there to ensure two things: to protect the rights of a vulnerable accused, to ensure that there are certain safeguards in terms of their detention; and also to balance that with the need to protect the community.

The doctor talked about Richard Schneider's commentary about criminal responsibility and the fact that there are different degrees. Certainly there are, but we have safeguards in the system. There are some persons who, because of the nature of the disorder and how it fits with the offence they're charged with, fall on the side of the balance scale that suggests they will thereafter come under the jurisdiction of the review board system and be under their conditions.

There are many others, and I would say most other accused, who suffer some lesser degree of mental disorder who fall under the rubric of being dealt with under section 718 in the sentencing section. There are absolutely no restrictions for judges to deal with mental health issues. I would say that if you walked down the street...95% of the judges are dealing with some aspect of mental health.

We also can't forget that some of the greatest tools we have are within the provincial mental health system, and those have to be properly utilized.

So I don't think we need to take as rash a step as is being suggested. The ends that the doctor is suggesting need to be met can be dealt with within the current system.

Â (1250)

The Chair: This is probably the final question, and it is going to have to go to Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair, and to all the witnesses.

As has been stated by many, it's a very difficult and complex area of the law. We're struggling with whether to go down the path of making major changes or to simply try to improve upon or perhaps provide greater direction to the current system and the provisions that exist.

I was very heartened to hear Ms. Perkins-McVey's commentary from the Canadian Bar Association. It's the position of the bar, I take it, that given the buttress and the support of crown, defence, and experts who are better placed to make these decisions, the courts, the judiciary, should balance all those issues you just recited in keeping with case law like the Winko and Taylor decisions. They're far better placed to do so than a review board. And some might stretch the case to say that the bench is the same, but the review board is essentially comprised of lay people, whereas the courts have, I would suggest, a more broad and powerful mandate.

I have a couple of specific questions about the youth provisions. I don't know how much attention any of you have focused on the youth provisions, but there appear to be some anomalies currently in the way we treat youth who might fall into this NCR or not fit category. I wanted to give you an opportunity to put some comments forward, or if you had envisioned this... I know, Dr. Aquino, in the past you've been called upon to evaluate youth who were in youth correctional facilities where transfer provisions very much bear on their fitness and their mental state.

One comment I direct to Ms. Chambers is about the victim's role and whether you feel that in fact review boards should be given the opportunity to hear from a victim, not necessarily through a victim impact statement but through an oral statement where that release, be it conditional... I suppose we don't have the absolute discharge option available as yet... whether the review board should be taking that into consideration the same way a court has that option.

The Chair: Ms. Chambers.

Ms. Heather Perkins-McVey: I'd like to deal with the youth issue because it is an area where there are extreme problems. I can tell you that we did not address this issue in our brief because, as we said, it's such a big issue, and we can only deal with some issues.

For a practitioner it is impossible to find appropriate psychiatric facilities to properly assess youth. They do not have the same luxuries as an adult.

Right now I have one client I'm literally waiting to turn 18 so I can get him into an adult facility. A forensic hospital system as big as the Royal Ottawa Hospital in Ottawa does not have facilities, apart from the family court clinic-type facilities and the Robert Smart Centre, to deal with youth. Robert Smart does not deal with forensic assessments.

There is a real gap in terms of the ability to ensure that young people are properly evaluated. Yes, there are some provisions in the Young Offenders Act as it is, and there are certainly some considerations in the Youth Criminal Justice Act, but really and truly it's a very serious problem, and there have to be some resources made available for that.

Mr. Peter MacKay: Just on the resource aspect--and you may have touched on this in your presentation--we had a lockout yesterday in Ontario. Obviously, that's a broader issue, but it's one I would suggest is very acutely relevant in the context of mentally ill accused obtaining even rudimentary access to counsel. I think it underscores again this entire resource issue of legal aid.

Â (1255)

Ms. Heather Perkins-McVey: One thing you'll see in our submission is that we believe all mentally ill people must be represented by counsel. The difficulty is that because it is such a complex area involving very technical legal issues as well as some knowledge of mental health, there are very few lawyers who wish to deal with the mentally ill. Our belief is that you should have competent, well-trained lawyers as well as judges and crown attorneys. Quite frankly, the same problem exists for crown attorneys and judges. It's an area where there must be some degree of expertise. Of course, in order to get that expertise, you must have the ability to have a properly funded justice system to ensure that people can spend the time to do the work. Certainly legal aid is one issue.

There are models that are starting to be put into place in terms of mental health courts, where you get specialized judges, specialized crown attorneys, and defence lawyers who are trained in this area. I think our brief talks about the one in Toronto. Justice Brien is in New Brunswick, I believe. Those are indeed models that should be followed across the country.

The other issue is the avenue of diversion that may be available for some mentally ill people. We've talked a little bit about those here today—the murders, the most serious of cases. But I would say that if you looked at the majority of cases in the mental health courts, the majority of people are charged with much less serious offences. There has to be a way of ensuring those are dealt with.

The Chair: We're almost out of time and I know there are two more.

Dr. Semrau.

Mr. Stanley Semrau: I'd like to say a couple of brief things. First of all, a lot of the discussion here is based on differences and severity of offences. It's my view that the system as it presently exists doesn't work all that badly for non-homicide crimes because there is already a great deal of flexibility there in terms of sentencing. If we weren't dealing with homicides, I would say that only relatively modest changes are needed.

In particular, I would support the comment made by the bar association to the effect that the insanity defence is too narrow in its definition. For that matter, the fitness test is as well. It's when you get specifically to the issue of homicides with rigid sentencing structures that these difficulties become, in my view, extreme in terms of seeing them happen day to day. That's the chief trigger for the change. In many ways we would see the operation of homicide cases become in effect more like that of other charges.

The Chair: Ms. Chambers.

Ms. Jennifer Chambers: At the review board level, I don't support victim statements unless the victim has recent personal information about the accused. I think the problem with victim statements is that they can create a bias according to how sympathetic the victim is, how anxious they are, whether they're able to make it to the hearings.

I've been a victim of violent crime, and I feel that ultimately the whole society is better served by humane treatment of the accused. I'm concerned about the excessive custody and supervision that sometimes happen, which research suggests can actually make people more likely to reoffend, not less.

The Chair: Ms. Perkins-McVey.

Ms. Heather Perkins-McVey: I'd like to address the doctor's comments. If we're talking about homicide, we don't need to reinvent the wheel and roll back criminal justice and the Charter of Rights to the turn of the century. I think what we're looking at is whether our homicide sections are too rigid, such that they can't properly deal with the mentally ill in those sentencing provisions.

Yes, you're correct, manslaughter should not be the catch-all for everybody. But that suggests that we have a third or a fourth category of homicide that would be drafted in such a way as to accommodate some of the issues that are raised by the doctor. That can be done by way of expansion of the definition or a new classification of homicide. I know that's something that's been talked about in justice and legal circles.

Also, then you're having to look at the hospital treatment order section. We've addressed this in our brief. The 60 days isn't long enough, and we are talking about the need to have better facilities to deal with the mentally ill inside the criminal justice system.

· (1300)

The Chair: Thank you.

Dr. Aquino, did you want the last word?

Dr. Emmanuel Aquino: I just want to respond to Mr. MacKay's question in regard to the youth.

In Nova Scotia we also don't have the expertise when it comes to dealing with young offenders. We used to be able to deal with them prior to the enactment of Bill C-30, but I don't think it has anything to do with that. I think it's more of an adversative issue.

It wasn't long ago that I was retained by a defence lawyer to look at a young offender who was accused and to give an independent assessment because he was also assessed by an adolescence psychiatrist. We thought we were going to have one, but B.C. took it away from us.

The Chair: On that note, I want to thank, in particular, our first panel for lending themselves to the rebalance of the day. I apologize to everyone for the rather erratic way the committee... I can assure you, those who care about this issue, this is not typical. We have had more consistent panels in the past. This has been a bit of an aberration. We do take our work very seriously. We'll once again have a chance, I think, to go through testimony.

If you have anything you feel you'd like us to know that you're a little concerned we didn't quite get because of the nature of today, please feel very comfortable in communicating to the staff any of those concerns.

Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: I have another question. Would you object if we showed your brief to other experts or organizations who could give us their—

[English]

The Chair: At this point it's on the public record, so it's available to anybody.

With that, I will adjourn.