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

UNPROCLAIMED PROVISIONS

Repeal of Capping

RECOMMENDATION 13

The Committee recommends that sections 672.65, 672.66, 672.79 and 672.8 of the Criminal Code (Capping of Dispositions) be repealed.

Repeal of DMDA

RECOMMENDATION 14

The Committee recommends that section 672.65, 672.66, 672.79 and 672.8 of the Criminal Code (Dangerous Mentally Disordered Accused) be repealed.

COMMENTS

The Government agrees with the Standing Committee that these unproclaimed sections should be repealed.

The majority of the witnesses and briefs submitted to the Standing Committee were opposed to proclaiming capping and the Dangerous Mentally Disordered Accused provisions, and advocated their repeal.

Some representatives of the defence bar and some civil liberties groups were in favour of the proclamation of capping. Their argument, as the Standing Committee summarized it, is that it is inequitable that the offender "can spend a much longer time under supervision than if they were convicted." The Government believes that this argument fails to consider the great difference between supervision with a view to restoring a person's mental health and punishment, particularly imprisonment, for convicted offenders under the Criminal Code.

Other representatives of the defence bar (Barreau de Québec and the Quebec Defence Attorneys Association) favoured the repeal of capping, noting the risk that accused persons could be detained until the cap, with little incentive for treatment, if capping were proclaimed.

When Parliament enacted the new regime for mentally disordered offenders, the notion of capping, originally proposed by the Law Reform Commission, was included. Capping was designed to provide some equivalence between the maximum sentence that would be imposed upon conviction and the maximum period for which a mentally disordered accused would be subject to the criminal law. Several provinces were not supportive of the inclusion of capping in the 1992 reforms. Parliament included a safeguard by making provision for hearings to have a person declared a Dangerous Mentally Disordered Accused in order for the cap to be extended to address the concern that "capping" could result in dangerous persons being released into the community. The Government also deferred proclamation of capping to permit provinces to review their mental health legislation.

Concerns have been expressed since the enactment of the 1992 amendments that proclamation of the capping provisions could result in the release of mentally disordered persons at the expiration of their "cap", even though they might still be mentally disordered and potentially dangerous, and could put public safety at risk. The safeguard of the dangerous mentally disordered accused provisions, which gives the court discretion to extend a 10-year cap to a maximum of life is seen as too restrictive.

There continues to be a general consensus among provinces that capping is not necessary. The provinces' experience and the case law indicates that the current Code provisions and Review Board procedures ensure that only those persons who continue to pose a threat to public safety are detained. The disposition criteria as interpreted in R v. Winko [1999] 2 SCR, 925 result in the non-dangerous being discharged either absolutely or conditionally.

Provinces have noted that provincial mental health legislation could not be relied upon to detain a dangerous person. While the provinces have constitutional jurisdiction to legislate in relation to health matters, provincial health initiatives must focus on the care and treatment of individuals, not punishment. Detention of a person under provincial mental health legislation may initially be necessary for the purposes of their care and treatment, but the continued detention of the person for the protection of society is not a valid provincial objective. The psychiatric community has emphasized that psychopaths are not treatable, yet may be very dangerous. The inability to treat such people means that the provincial mental health legislation has little effect – psychopaths could not be detained under that legislation for the sole purpose of protection of the public.

In R. v. Lepage, [1999] 2 SCR 744, the Supreme Court of Canada affirmed the Ontario Court of Appeal decision overturning a declaration that section 672.54 (the disposition-making power) was constitutionally invalid and held that the Code provisions were valid, carefully crafted to protect the liberty of those not criminally responsible on account of mental disorder to the maximum extent possible compatible with the person's current situation and the need to protect public safety. In Lepage, the accused sought the proclamation of capping. Intervenors included victim advocates and the Canadian Police Association, who emphasized the public safety implications of capping. Similar issues were raised in three other cases, Orlowski, Winko and Besse, regarding the constitutional validity of the potential for indeterminate detention due to the non-proclamation of capping. The Supreme Court of Canada delivered judgement in these cases together in June 1999.

In R. v. Winko [1999] 2 SCR 625, the Supreme Court of Canada addressed the constitutional validity of the mental disorder provisions – particularly the disposition-making power (section 672.54). The court noted that Part XX.1 provides for individualized assessment of the not criminally responsible accused to determine whether they pose a continuing threat to society, coupled with an emphasis on providing opportunities to receive treatment. The scheme permits the accused the maximum liberty compatible with the goals of public protection and fairness.

The Supreme Court of Canada's decision in R. v. Winko strongly supports the current regime in the absence of capping. There is no presumption of dangerousness and no comparison between the treatment of the not criminally responsible accused and convicted offenders. The regime provides for a process of inquiry designed to result in individually tailored dispositions. The dispositions are not indefinite, given the requirement for annual or more frequent review, and an accused must be discharged unless he or she poses a significant risk to the safety of the public.

As noted in the response to Recommendation 5, the Government proposes to amend the Code to ensure that the ongoing supervision of long-term or permanently unfit accused can be addressed by the court, and in appropriate circumstances, the court may enter a judicial stay of proceedings.

The repeal of capping and the related DMDA provisions, coupled with amendments to better protect the rights of permanently unfit accused will continue to reflect the goals of our criminal law.

Repeal of Hospital Orders

RECOMMENDATION 15

The Committee recommends that sections 747-747.8 of the Criminal Code (Hospital Orders) be repealed.

COMMENTS

The Government agrees that the unproclaimed section providing for hospital orders should be repealed.

Hospital orders were intended to provide a mechanism for short-term treatment of a convicted offender who, at the time of sentencing, sentence was in an acute phase of a mental disorder and in urgent need of treatment to prevent further mental deterioration. An offender meeting this criterion would be sent to a psychiatric facility for a period of up to 60 days rather than be jailed.

Witnesses appearing before the Standing Committee generally noted that the current system is able to accomplish what these provisions had been intended to do and therefore did not support proclamation. Transfers to psychiatric facilities from corrections facilities may be accomplished by administrative means as part of managing the sentence in some jurisdictions.

The hospital order provisions were also criticized as too narrow in their application to address the nature and range of mental disorders in the convicted offender population.

The Government agrees with the Standing Committee that the underlying concern is the general shortage of resources to treat all kinds of mental disorders within the correctional system. Proclamation of the hospital order provisions would not address the larger problem and would impose financial burdens on provinces that do not support proclamation.

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