April 29, 2004 (37th Parliament, 3rd Session)


Vic Toews

Canadian Alliance

Mr. Vic Toews (Provencher, CPC)

Mr. Speaker, I would like to add my comments to this very important bill. The stated purpose of the bill is to modernize the mental disorder provisions of the Criminal Code to make it both fairer and efficient while preserving the overall framework of these provisions.
In June 2002 the standing committee tabled its report, calling for legislative reforms and looking at Department of Justice consultations on the mental disorder provisions of the Criminal Code. The extensive committee review that was conducted was as a result of the statutory requirement under Bill C-30, which had been introduced in 1991, after many years of consultation.
The report that was put forward in 2002 was approved by all parties. In fact the results of this review is an important example of how committees, when they are focused on the issue rather than politics, can work in a cooperative fashion. This report is a demonstration of that.
Bill C-30 had a significant reform provision relating to persons not considered criminally responsible. That bill replaced references to terms such as “natural imbecility” or “disease of the mind” with the term “mental disorder”. It extended its application to cover summary convictions for less serious offences as well. Instead of being found not guilty by reason of insanity, an accused could now be held not criminally responsible on account of mental disorder.
Such a finding no longer resulted in an automatic period in custody. That automatic period of custody was found to be unconstitutional in the Swain decision in 1991. Instead the court could choose an appropriate disposition or indeed defer the decision to a review board.
Furthermore, under that provision, the courts and the review boards were obliged to impose the least restrictive disposition necessary having regard to the goal of public safety, the mental condition of the accused and the goal of his or her reintegration into society.
Bill C-30 came into force in February 1992. The proclamation was delayed for three major initiatives. First was the capping provision that was referred to earlier. Second was the dangerously mental disordered accused provisions that would allow the courts to extend the cap to a life term. The third was the hospital orders provisions for convicted offenders who at the time of sentencing were in need of treatment for a mental disorder.
This bill takes into account the recommendations of the justice committee of June 2002. Bill C-29 addresses six key areas. These are all issues that were thoroughly considered by the committee. I understand that these are not necessarily exactly the way the committee has recommended them and that is why the committee will no doubt examine very carefully what has been put into the bill.
However, indeed the amendments address six key areas: first, the expansion of the review board powers; second, permitting the court to order a stay of proceedings for permanently unfit accused; third, allowing victim impact statements to be read; fourth, the repeal of unproclaimed provisions; fifth, streamlining of transfer provisions between provinces; and sixth, the expansion of police powers to enforce dispositions and assessment orders.
A couple of concerns have been raised with respect to some of these key areas, for example, the allowing of victim impact statements to be read.
In the case of a criminal trial where a person has been found guilty the concerns of the victim of course are very relevant. They are necessary in the sentencing provision to determine whether the impact on the victim should also be reflected in the sentencing.
Here we are dealing with a substantively different situation because we are not looking at the guilty mind of an accused. We are dealing with a mentally disordered person. We therefore have to be careful how we use these victim impact statements in this context. I think it is important for victims to have a voice but we have to remember that this does not form exactly the same role that it does in a criminal trial where a criminal may not express any regret after having been convicted and it is important for the victim to have his or her say in that context.
The streamlining of the transfer provisions between provinces is another issue. It is important that there be the appropriate consent of the jurisdiction to which the individual is being transferred. I understand the bill attempts to ensure that there is the appropriate consent in that context.
The repeal of the unproclaimed capping provisions and the like are important. Why were concerns raised over these sentencing provisions? They were raised because it seemed that where a person was found mentally disordered, the period of incarceration could be a lot longer than a comparable sentence in the criminal courts. Somehow there was a suggestion that maybe it would be unfair to have a mentally disordered person subject to a longer period of custody than someone who had been in fact convicted of a criminal offence.
Here again is the difference in the intent. With the criminal conviction, obviously punishment is a key goal of the criminal justice system, as well as rehabilitation. When we talk in the mentally disordered context, we are not talking punishment. We are not talking about rehabilitation in the same way where there is a cognitive element in terms of rehabilitating an accused. In the mentally disordered context we are trying to deal with the health of the individual. Therefore if it takes longer to help the person, so be it. The capping provision is simply not appropriate.
The Supreme Court of Canada ruled in the Winko decision that a potentially indefinite period of supervision of a mentally disordered person was not unconstitutional since it was not for the purposes of punishment. However there is the review process that provides a mentally disordered person with some safeguards.
On the issue of the stay of proceedings for the permanently unfit accused, there is some concern related to how the safety of the public can be guaranteed. I look forward to that particular discussion at the committee, because even if the person is not personally responsible for his or her actions because of the mental disorder, there is still an onus on society to ensure that the individual does not cause further damage to his or her fellow citizens.
As I indicated, the objectives of the bill are generally consistent with the recommendations of the June 2002 committee report, a report which members of both the former Canadian Alliance and the Progressive Conservative Parties approved. I look forward to having the discussion in committee.

Topic:   Government Orders
Subtopic:   Criminal Code
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