Criminal Code review board chairs across Canada are decrying a federal bill that puts new restrictions on offenders found not criminally responsible.
Review board chairs from Manitoba, British Columbia, and Prince Edward Island tell Law Times
the government didn’t consult them in the drafting of the not criminally responsible amendment even though the bill will directly affect the way they do their jobs.
The head of the Ontario Review Board has already denounced the bill, which passed third reading in the House of Commons last week and now moves to the Senate.
The chairs unanimously called the amendment, which proposes a designation for high-risk offenders, a reactionary bill footed on no evidence to suggest it will work.
If the bill passes, those who fall into the high-risk category will remain in detention for three years without a review board hearing to decide whether their condition has improved and if they’re ready for reintegration into society.
But review board chairs say the bill’s goal of making public safety a paramount consideration is already a key factor in their decision-making process. Bill C-54 insinuates that review boards are on the opposite side of victims of crimes committed by those with mental illnesses, says Bernd Walter, chairman of the British Columbia Review Board.
“The way the whole thing has been introduced and presented is really divisive,” he says.
“It seems to, rather than suggest that we’re all on the same page as victims and the government in terms of wanting public safety, it really pits decision-makers and treatment providers against victims, suggesting that they have opposing interests, which I think is offensive.”
P.E.I. Criminal Code Review Board chairwoman Michele Dorsey, who calls the bill “misinformed,” suggests the legislation is proposing a fix to a problem that doesn’t exist.
“Review boards across Canada, and P.E.I. is no different, take great pains to ensure that public safety is considered when a person is brought before the board,” she says, noting that a three-year gap between hearings will mean less monitoring and vigilance around patients’ progress.
“There’s far more chance of ensuring recovery of mentally ill accused persons when they are engaged with the system,” she adds.
The biggest concern, according to Dorsey, is that people with a mental illness facing charges will abandon the defence of being not criminally responsible but instead end up in a correctional system not designed for recovery.
“What people are concerned about is that if you’re a lawyer who is representing someone who’s charged and you’re evaluating that clients’ options on how to proceed, then if there is a mental-health issue and it’s a dangerous offence, then you may disregard the not criminally responsible option,” she says.
It’s a concern John Stefaniuk, who chairs the review board in Manitoba, also shares.
“If this process is implemented, it will accomplish a couple things: one is that it will require greater court resources to deal with these hearings because they’re likely to turn into something similar to a dangerous offender hearing,” he says.
“The other thing is that counsel representing these individuals who are not criminally responsible at the time of their defence are going to be less likely to claim that they’re not criminally responsible because they might run the risk of falling under the bill C-54 changes and therefore spend more time in custody than they might otherwise.”
But even review boards aren’t clear on exactly how the courts will interpret the new bill if Parliament passes it. There are questions, for example, around the timing of the high-risk consideration, says Stefaniuk.
“Is it going to be at the time the patient committed the offence or is it going to be at the time of the hearing, which could be much farther away?” he asks.
“By that time, patients will have typically received treatment and their condition is likely to be significantly different than the time of the event itself.”
What’s clear is that the bill seeks to lower the threshold for what it means to be a high-risk offender, Walter notes.
Currently, the law requires boards to evaluate whether there’s “a serious risk of serious harm,” says Walter, but under the amended legislation, the threshold would consider the “risk of serious physical or psychological harm.”
“It has converted the probability of an offence to even a possibility of an offence,” says Walter.
“It means you would have to impose detention in cases of even minor and even speculative risk beyond what’s required to manage the individual accused’s risk.”
The high-risk designation would look at the brutality of the offence, “which is really, in science, not a good predictor,” he adds. “It just is not based on any sort of logical thread of structured decision-making.”
A few weeks ago, Walter presented his views before the House of Commons standing committee on justice and human rights ahead of second reading of the bill. The response was disappointing, he says. “It was the most condescending, dismissive, mock consultation I have ever been through in 40 years in public service,” he says. “It was a joke; it was insulting.”
The head of the Ontario Review Board, Justice Richard Schneider, wasn’t available to comment by press time. But Schenider wrote a commentary piece in the Toronto Star earlier this month in which he said the discussion around the bill “is not a real debate.”
“Consistent with Supreme Court decisions, the review boards that manage these cases have always held public safety to be the paramount concern,” he wrote.
“What we do know is that simply locking people up does not make society safer,” he added, noting the correlation between recidivism and the length of detention.
Justice Minister Rob Nicholson, however, has argued the opposite in his statements on the issue. “Our government has acted, at the request of victims and concerned Canadians, to ensure greater public safety and to enhance the role of victims in the Criminal Code mental disorder regime,” said Nicholson as he announced the passing of the not criminally responsible reform act in the House of Commons last week.