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


The Standing Committee on Justice and Human Rights has comprehensively reviewed the provisions of our criminal law that apply to persons found not criminally responsible on account of mental disorder and unfit to stand trial. The Committee's review, along with the submissions of the many experts who appeared before the Committee, has provided the Government of Canada and the Minister of Justice with excellent advice and has confirmed that our law is effective and fair. However, as the Committee notes, several areas require reform to improve effectiveness and efficiency and to ensure the appropriate balance between public safety and the rights of accused persons.

The reforms enacted in 1992 reflected a significant evolution of the policy and law applicable to mentally disordered persons who come into conflict with the criminal law. The 1992 reforms maintained the fundamental principle of our common law that there can be no criminal responsibility without an operating mind.

The Supreme Court of Canada's decision in 1991 in R. v. Swain, which made prompt reform necessary, clearly established that the law governing those found not guilty by reason of insanity (as they were known) was within the criminal law power and that the treatment aspects of the law were an appropriate means of achieving the protection of society.

Since enactment of the reforms, the courts have provided essential guidance in the interpretation of the provisions. Supreme Court of Canada decisions in 1999 in R. v. Winko and several related cases confirmed the constitutionality of Part XX.1, noting that the law provides both for individual assessment of the not criminally responsible accused to determine whether they pose a threat to society and for opportunities to provide treatment. The Supreme Court provided guidance on the interpretation of the disposition criteria while establishing that the law permits the accused to be offered maximum liberty compatible with the goals of public protection and fairness.

The jurisprudence, the Committee's review, and ongoing consultations undertaken by the Department of Justice permit the Government to provide a detailed Response to the Committee's recommendations. The Government's Response proposes to introduce essential Criminal Code amendments now; to consult on several additional amendments with a view to developing the best solution; and to pursue non-legislative initiatives to address those issues not requiring a legislative response. The Government agrees that ongoing review, monitoring and, where needed, reform of our criminal law governing the mentally disordered accused is required and that further consultation and research must continue.