Response to the 14th Report of the Standing Committee on Justice and Human Rights

Review of the Mental Disorder Provisions of the Criminal Code

November 2002

COURT AND REVIEW BOARD PROCEDURE

Qualifications of those who Conduct Fitness Assessments

RECOMMENDATION 10

The Committee recommends that the definition of "assessment" in section 672.1 be amended to expand, but not make mandatory, the class of persons qualified to assess whether an accused is unfit to stand trial.

COMMENTS

The Committee heard from several witnesses, including mental health professionals and Review Board Chairpersons, on the issue of whether assessments of the accused's mental condition should be done only by medical practitioners (usually psychiatrists) or whether other mental health professionals, particularly, psychologists, should be authorized to conduct such assessments. The briefs and testimony revealed very different views.

While there was a general consensus that "forensic" psychologists are extensively relied on as part of a team (which includes psychiatrists) to assess the accused's mental condition, there was no consensus whether psychologists should be authorized to conduct assessments. As the Committee notes, it was not clear in the submissions and testimony on the role of the psychologists whether those advocating for the inclusion of psychologists believed that psychologists should be permitted to conduct assessments only to determine the accused's fitness to stand trial or more broadly to assess the accused's mental condition with respect to criminal responsibility or the appropriate disposition.

Given that section 672.1 defines an assessment as "an assessment by a medical practitioner of the mental condition of the accused pursuant to an assessment order made under section 672.11, and any incidental observation or examination of the accused," the Criminal Code is clear that only a medical practitioner would be qualified to conduct any assessment.

While there may be more support for permitting psychologists to conduct fitness assessments rather than assessments for the other stated purposes of section 672.11, different qualifications could pose practical problems depending on the purpose of the assessment. Moreover, the implications and benefits of permitting psychologists to conduct fitness assessments only to determine fitness require careful consideration.

The Canadian Psychological Association (CPA) advocated the inclusion of psychologists, and submitted a comprehensive brief and oral testimony which strongly supported their position. The CPA noted that there are graduate programs in psychology that provide the requisite training and skills; psychologists are qualified to administer and interpret tests relevant to fitness assessments and criminal responsibility; psychologists are qualified to assess and treat mental illnesses under provincial legislation; and, psychologists are relied upon in the United States and Australia to conduct similar competency and criminal responsibility assessments. Other submissions and testimony supporting this approach, including the Association of Review Board Chairpersons, noted that in many parts of this country psychiatrists are not available, resulting in delays in assessments or transfer of the accused to an urban centre for the fitness assessment.

It was also noted that psychologists are referred to in the Youth Criminal Justice Act and in other parts of the Criminal Code.

An amendment was included in the 1997 changes to Part XXIV of the Criminal Code, the Dangerous Offender (D.O.) provisions. A major aspect of the D.O. procedure requires a timely assessment of the offender. Prior to 1997, there was a requirement of at least two psychiatrists to assess the offender and report their findings to the court. The new D.O. procedure allows a court to rule on a Part XXIV application after only one "expert" assessment has been conducted, and the expert can be either a psychiatrist or a psychologist.

The early indicators suggest that this change to the Criminal Code has improved the procedural aspects of D.O. applications. While most applications still use psychiatric examination and testimony, a substantial number of successful applications have been completed with the testimony of forensic psychologists.

However, assessments of dangerous offenders under Part XXIV are intended to help the court determine the offender's dangerousness, whereas assessments under section 672.11 in Part XX.1 are to determine the mental condition of the accused at the time of the offence, fitness to stand trial at the time of trial, or the appropriate disposition once an accused has been found not criminally responsible.

Those who oppose permitting psychologists to conduct fitness assessments do not do so out of disrespect for psychologists, who are recognized as essential mental health professionals. Rather, there are practical reasons for requiring assessments to be conducted by medical practitioners. As the Canadian Psychiatric Association noted, an assessment of mental condition to determine fitness or criminal responsibility requires a medical diagnosis in addition to other assessment criteria. They noted that many medical conditions may appear to be mental disorders but are not. In addition, where an accused is found to be unfit, the Code (sections 672.58 and 672.59) provides that treatment may be ordered for up to sixty days for the purpose of making the accused fit to stand trial. A treatment order requires evidence by a medical practitioner that a specific treatment should be administered and that the medical criteria stated in subsection 672.59(2) have been satisfied. Therefore, even if a psychologist were authorized to conduct a fitness assessment, if the accused is found unfit, a medical practitioner would have to conduct an additional assessment to determine appropriate treatment.

It was also noted that not all psychologists are "forensic" psychologists with the additional specialized qualifications and practical experience necessary for assessments of mentally disordered accused. Forensic psychologists with the necessary qualifications may not be any more readily available in rural and remote areas than psychiatrists.

While it is recognized that there may be some benefit to broadening the category of who may be qualified to perform assessments under Part XX.1 proceedings, this issue needs to be more fully canvassed with stakeholders. Whether assessments are conducted by both psychologists and psychiatrists or only psychiatrists, the provincial mental health resources will be relied on. Hence, provincial input is essential. The Government therefore proposes that the Minister of Justice raise this issue with provincial Attorneys General, with the Federal-Provincial-Territorial Working Group on Mental Disorder, and in other federal-provincial-territorial forums.

The Role of the Crown (Attorney General) as Representing the Public Interest

RECOMMENDATION 11

The Committee recommends that federal, provincial and territorial ministers responsible for justice review procedures at disposition hearings to determine whether the public interest would be better served by the mandatory representation of provincial Crown attorneys.

COMMENTS

The Government notes that practice before the Review Boards varies among the provinces and territories. In some provinces, Crown attorneys are present at all hearings. In other provinces, the Crown is present for some cases or some reviews. This is appropriate, as the provinces are responsible for the administration of justice and are free to deploy their resources as they see fit.

All those involved in the administration of Part XX.1 of the Code seek the same goal: to protect society with the least intrusion on the rights of the persons found not criminally responsible. This laudable goal must, however, still take into account costs and efficiency.

The Criminal Code currently provides for the Crown to receive notice of all Review Board hearings and to be a party if it chooses. Many Review Board hearings are non-contentious, involving an extension of community living without change of conditions or a minor change in the conditions. It is not clear how the public interest would require that a Crown attorney actually be physically present for such hearings. The Government is not aware of any instances where the safety of the public has been jeopardized because a Crown attorney was not present at a hearing, nor were any such instances brought to the attention of the Standing Committee.

Given that the provinces are responsible for the administration of justice and that there are substantial resource implications, the Government will consult with the provinces and territories to assess current practices and determine whether the attendance of Crown attorneys should be mandatory at all hearings or whether guidelines can be developed to identify when the Crown should be present.

Transfers of Youth to Other Forensic Facilities And interprovincial transfers of mentally disordered accused

RECOMMENDATION 12

The Committee recommends that federal, provincial and territorial ministers responsible for Justice review practices and procedures for transferring youth to forensic psychiatric facilities and accused to other jurisdictions to determine whether the Criminal Code should be amended to provide greater clarity.

COMMENTS

The recommendation addresses two distinct issues. The transfer of adult accused found not criminally responsible or unfit from one jurisdiction to another is one issue. The placement or transfer of youths found not criminally responsible or unfit to forensic psychiatric facilities, which may also house adults, is a separate issue.

The Committee heard from several witnesses who noted that the existing Criminal Code provisions governing interprovincial transfers of accused persons were confusing and cumbersome and that excessive delays were common, even where both jurisdictions agree to the transfer. The Department of Justice has consulted provincial officials and Review Boards on the issue of transfers, and agrees that reforms are necessary. Despite clear wording of the relevant Code provisions, varying interpretation of the provisions has led to inconsistency, complexity and confusion.

Situations have arisen where, for example, an accused person is found not criminally responsible on account of mental disorder in the province where the offence occurred and receives a conditional disposition. If the accused is originally from another province and has family or other support networks in that province, his or her reintegration into the community may be fostered by a transfer to the home jurisdiction. The Attorney General in the receiving jurisdiction, however, must agree and the Review Board must have the capacity to supervise the accused once transferred.

The Government proposes to clarify the transfer provisions, particularly the transfer of accused on a conditional disposition. However the consent of both the sending jurisdiction and receiving jurisdiction cannot be dispensed with. The administrative procedures for providing the timely consent of the provincial Attorney General, in consultation with the Minister of Health where necessary, should be addressed by the provinces. The transfer regime provided in the Criminal Code must continue to require the consent of both Attorneys General to ensure that adequate resources are available to supervise and treat the accused and that all relevant information is provided.

The transfer of youths from youth treatment facilities to adult treatment facilities is a separate issue that should not be confused with the Code provisions governing interprovincial transfers.

Youths who are found unfit or not criminally responsible on account of mental disorder are currently dealt with in accordance with the Young Offenders Act and, following proclamation next year, by the Youth Criminal Justice Act.

The Government supports the Committee's recommendation that Federal-Provincial-Territorial Ministers Responsible for Justice review practices for transferring or placing youths in psychiatric facilities.

The Minister of Justice will ensure that this issue is canvassed with provincial and territorial officials in the context of ongoing consultations in the implementation of the Youth Criminal Justice Act.

It should be noted that the Youth Criminal Justice Act adopts with necessary modifications the Criminal Code provisions governing persons found unfit to stand trial and not criminally responsible on account of mental disorder. Consequential amendments to the Youth Criminal Justice Act to ensure consistency with the proposed reforms to the Code will be pursued.

However, the Committee's review did not explore the full range of issues faced by youths that have a mental illness. The Government is aware that the Department of Justice proposes to conduct a comprehensive examination of how the youth criminal justice system can best deal with youths who are mentally ill or who require special attention and to ensure that the protections available in the youth criminal justice system are available to youths with a mental illness or mental disorder. This review will also consider the special needs of youth, with Fetal Alcohol Syndrome and Fetal Alcohol Effects who come into conflict with the criminal law.

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