The British Columbia Civil Liberties Association (the “BCCLA”) welcomes this opportunity to make the following submissions to the Standing Committee on Justice and Human Rights as the Committee undertakes its review of the mental disorder provisions of the Criminal Code. The BCCLA is Canada’s oldest and most active civil liberties organization. It is a private, non-profit charitable organization whose mandate is to preserve, protect, defend and extend the civil liberties and human rights of British Columbians and Canadians as a whole. The BCCLA is active in promoting its mandate through a wide variety of means, including individual case work, public education, legislative reform and strategic intervention in judicial proceedings. We are pleased to once again appear before this Committee to share our views on this important area of social and legal policy.

There are few more telling litmus tests of a society’s commitment to safeguarding the liberties of its citizens than its treatment of those deemed to be mentally ill, especially those whose mental illness has caused them to transgress society’s own basic rules of conduct through the commission of criminal acts.

The BCCLA believes that the Criminal Code’s mental disorder provisions are inadequate in some respects in the protections they grant to these, some of our society’s most vulnerable members. In particular, the potential for the indeterminate detention of non-dangerous unfit accused and the lack of any cap generally on the length of time that both unfit accused and not criminally responsible persons may be detained need to be addressed in order to ensure that such persons are treated fairly by our criminal justice system. The BCCLA also believes that the automatism “defence” needs to be statutorily clarified in order to ensure that persons incapable of acting voluntarily, and thus incapable of being held responsible for their actions, are not unjustly convicted and imprisoned.

1. FITNESS TO STAND TRIAL

Is there a need to clarify or expand the definition and/or criteria for determining fitness to stand trial? If yes, do you have specific recommendations?

The concept of fitness to stand trial is concerned with the mental state of the accused at the time of his or her trial, rather than at the time of the commission of the alleged offence.

Bill C-30 brought about the first statutory definition of “unfit to stand trial” in Canada. According to this definition, found in section 2 of the Criminal Code, “unfit to stand trial” means

unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and in particular, unable to

(a) understand the nature or object of the proceedings,

(b) understand the possible consequences of the proceedings, or

(c) communicate with counsel.

Individuals who are found to be unfit to stand trial are subject to disposition by the court or Review Board, through the same process established for those who are found not criminally responsible (s. 672.54). Crucially, however, unlike the case in respect of persons found not to be criminally responsible on account of mental disorder, it is not open to the Board or the Court to discharge an unfit accused absolutely.

If the accused becomes fit to stand trial at a later date, the accused will be tried, provided that the party arguing fitness establishes it on a balance of probabilities (s. 672.32). In addition, the court having jurisdiction in the matter must review the Crown’s case at least once every two years while the accused remains unfit. If the Crown is no longer able to prove its prima facie case against the accused, the accused will be acquitted (s. 672.33). Issue 1: Indefinite detention of unfit individuals

Under the current system, individuals found unfit to stand trial are given one of two possible dispositions: they are detained in custody, or they are discharged subject to conditions. This state of affairs continues indefinitely until the accused is deemed fit to stand trial, or until the Crown can no longer make out its prima facie case. This is not problematic for individuals who are suffering from temporary disorders and are likely to be declared fit to stand trial in the future. However, there are many individuals who are unlikely ever to become fit.

The plight of the unfit accused must be contrasted with that of the not criminally responsible accused. Unlike the not criminally responsible accused, the unfit accused has not been found to have committed any offence. Nonetheless, the unfit accused can be detained indefinitely. In contrast, the not criminally responsible accused must be discharged absolutely unless the Review Board positively concludes that he or she poses a significant threat of committing a criminal act that would threaten public safety (Winko v. B.C. (Forensic Psychiatric Hospital), [1999] 2 S.C.R. 625). However, even if an unfit accused is found to be completely harmless, the Review Board still does not have the authority to discharge the accused absolutely.

The following statement by Judge Witten of the Alberta Provincial Court is telling: “while the NCR [not criminally responsible accused] may be freed, when ‘cured’, the UST [unfit to stand trial accused], if not ‘cured may never go free, even though he or she has not actually been adjudged guilty of any crime.” (R. v. C.W., [2001] A.J. No. 1123 at para. 34). It is implicit in this statement that the “illness” being “cured” is different for the unfit accused. The criminal justice system seeks to cure the not criminally responsible accused of dangerousness, but it seeks to cure the unfit accused of unfitness. This distinction is perfectly reasonable, since the unfit accused was not found to be dangerous in the first place. However, it brings to light the question of why we would choose to detain an unfit accused indefinitely if that individual was unlikely ever to become fit, and posed no danger to the public. After all, if such an accused ever became fit and was found not criminally responsible, he or she would quickly receive an absolute discharge from the Review Board.

No initial requirement to establish prima facie case

Not only is the unfit accused subject to supervision in the absence of a finding of guilt, but he or she may also be subject to supervision before the Crown has even established a prima facie case against the accused. Section 672.25(2) of the Criminal Code reads as follows:

The court may postpone directing the trial of the issue of fitness of an accused

(a) where the issue arises before the close of the case for the prosecution at a preliminary inquiry, until a time that is not later than the time the accused is called on to answer the charge; or

(b) where the issue arises before the close of the case for the prosecution at trial, until a time not later than the opening of the case for the defence or, on motion of the accused, any later time that the court may direct.

This section implies that it is within the court’s discretion to try the matter of fitness at any point in the proceedings. There is nothing in Part XX.1 of the Criminal Code that explicitly requires the Crown to show that it has sufficient evidence upon which it could be concluded that the accused committed the act, before the accused is declared unfit to stand trial.

As noted above, once an individual has been found unfit, the Crown is required to prove its prima facie case every two years for as long as the accused remains unfit. This is little comfort, however. If the prima facie case is not established before the finding of unfitness, the unfit accused may be subject to detention or supervision for up to two years before the court enters a stay of proceedings.

In the Ontario case of R. v. Taylor (1992), 77 C.C.C. (3d) 551 (Ont. C.A.), the amicus curiae argued that the conduct of a fitness inquiry before the Crown proved its prima facie case was a violation of section 7 of the Charter. The Court of Appeal did not address the constitutional question, but instead held that the trial judge, in exercising his or her discretion under section 672.25(2)(b) of the Criminal Code, should consider whether there is any dispute as to the Crown’s ability to demonstrate that the accused committed the alleged act or acts. If there is a dispute, the trial judge must be satisfied that the accused committed the act before deciding the question of fitness. The Court concluded that “a finding that an accused is not fit to stand trial should not be made in the absence of any basis to put that accused on trial” (563).

While this decision binds Ontario courts, other Canadian courts remain free to try the issue of fitness before they are satisfied that the accused likely committed a criminal act. It is clear that Part XX.1 of the Criminal Code should include a provision explicitly requiring that the Crown establish its prima facie case before the court determines the issue of the fitness of the accused, in order to ensure than no person in Canada is detained by the criminal justice system when that person has not committed a criminal act.

Charter concerns

Even if the prima facie case is proven against the accused before the issue of fitness is tried, the problem of indefinite incarceration remains.

As noted above, many individuals who are declared unfit to stand trial are unlikely to ever be declared fit, and thus will remain in the control of the system indefinitely, often for minor crimes. In many cases, these individuals are harmless to society and unlikely to re-offend.

This problem was brought to the attention of the Yukon Territorial Court in the case of R. v. T.J. [1999] Y.J. No.57. This case involved a 22 year old man suffering from fetal alcohol syndrome who had been under the control of the criminal justice system for over six years as an unfit individual. The alleged crime in this case was an incident that occurred when the accused was 15 years old, with the appearance and demeanour of a 12 year old. He allegedly entered the room of another 15 year old, wearing no pants, and laid down on top of her or beside her. She was clothed and possibly also covered by blankets. When she confronted him, he quickly left the room. There was no indication that he used any force. The maximum penalty for a minor sexual assault of this type, perpetrated by a youth, is two years. As Judge Lilles noted, it was unlikely that the accused would have been given the maximum punishment if he had been convicted.

But the accused was not convicted. He was instead declared unfit to stand trial. As a result, he remained under the control of the criminal justice system more than six years later. This case is particularly troubling for the following reasons:

– The accused suffered from a permanent intellectual impairment that made it highly unlikely that he would ever become fit to stand trial.

– The accused, if convicted, would have been subject to very minimal incarceration, if any.

– During his six years in the system, the accused was subject to a number of conditions that the judge found “extremely intrusive” including an extended period in a residential treatment home located far from his family.

Judge Lilles considered a number of constitutional arguments, and found that the treatment of the accused violated sections 7 and 15 of the Charter.

Under section 7, Judge Lilles found that the treatment of the unfit accused constituted a deprivation of liberty that was not in accordance with the principles of fundamental justice on the basis of the following factors (at para. 37):

1.) While the proceedings are initiated by a criminal charge, a UST [“unfit to stand trial”] accused does not have the benefit of a hearing or inquiry to establish guilt or innocence, whether at a criminal or civil standard of proof.

2.) After a finding of UST, the accused is subject to dispositions which may involve custody, but they are to be the least restrictive in the circumstances.

3.) According to s. 672.33 the only evidentiary basis necessary for continuing the criminal disposition is a “prima facie” case. Similar to the test to be applied at a preliminary hearing, it provides a very low threshold.

4.) Subject to the interpretation of s. 672.25(2) by the Ontario Court of Appeal in Taylor, supra, the prima facie case need not be established prior to the finding of UST or prior to making a disposition pursuant to s. 672.54. According to s. 672.33 it need not be established for as long as two years afterwards, and reviewed periodically thereafter. For young offenders, the two year period is reduced to one year.

5.) Once charged and found UST, a retarded individual like T.J. is likely to remain in the criminal justice system forever. He cannot be discharged, as can an NCR [“not criminally responsible”] accused, when he no longer represents a significant threat to public safety.

Judge Lilles concluded that

The state interest in the case of NCR and UST accuseds is to restrict their liberty no more than is necessary to protect public safety…. The procedure established by s. 672 brings individuals into the criminal justice system without a proper factual adjudication. It keeps them in the criminal justice system indefinitely without any possibility of release, even when the UST accused is no longer a danger. This scheme is overbroad as it applies to UST accuseds. (para.39)

Judge Lilles also addressed the question of delay under both sections 7 and 11(b). With regard to section 11(b), he concluded that

An accused whose trial is delayed because he or she is unfit to stand trial has recourse under s. 11(b). In this case, the delay is over 6 1/2 years long. Beyond that, there is no indication that T.J. will be tried at any time in the foreseeable future. His disability prevents this. It is not reasonable that an accused be forced to face the prospect of spending years, if not a lifetime, under the auspices of the criminal justice system awaiting a trial that will, in all likelihood, never occur. (para. 58)

Judge Lilles also commented that delays in the current system also violated section 7 for similar reasons:

The legislative scheme creates unreasonable delay. It makes no allowance for the person who will never become fit to stand trial nor does it contemplate the individual who may become fit many years into the future. While the objective of the Criminal Code regime is to retain jurisdiction to try persons accused of crimes, its scope is far beyond that which would minimally impair an accused’s right to be tried within a reasonable time. It constitutes an infringement of s. 7 of the Charter. (para. 65)

Finally, Judge Lilles looked at section 15 of the Charter, concluding that the current treatment of unfit individuals is discriminatory as compared to the treatment of the public generally, as compared to other persons with mental disabilities who are charged with criminal offences, and as compared to persons found unfit to stand trial for reasons other than mental disability. He made the following comparisons:

The NCR accused must be found guilty of the actus reus of the offence beyond a reasonable doubt before any further interventions, including rehabilitative ones, can be imposed by the criminal justice system. The UST accused is subject to the criminal law simply by virtue of the Crown laying a charge and a judge making a finding of unfitness. The UST accused remains within the system provided the Crown establishes a prima facie case as defined in s. 672.33 at two-year intervals (one year for young offenders). The NCR accused will be absolutely discharged when he is no longer a significant threat to public safety. T.J., and many others like him who suffer from mental retardation due to Fetal Alcohol Syndrome or from other causes, will remain within the criminal justice system indefinitely, even when they pose no significant risk to public safety. The UST accused with a permanent condition of retardation is effectively in limbo in the criminal justice system, based only on an unproven criminal charge and a finding of unfitness to stand trial. While it is true that the Crown must be able to present a prima facie case as a condition of continuing criminal law jurisdiction, the evidentiary threshold as defined in s. 672.33 is very low. Moreover, evidence may be in affidavit form or admitted as hearsay in cases of necessity, provided sufficient indicia of reliability are present. It would be an unusual case indeed where a UST accused is acquitted for lack of a prima facie case. (para. 73)

Judge Lilles went on to find that these Charter violations were not justifiable under section 1 of the Charter.

This considered and carefully-drafted judgment should be afforded close attention by the Committee. The issue has not yet been considered by the Supreme Court of Canada, but is likely to arise again in the future.

The dual objectives of Part XX.1

In the recent case of Winko v. B.C. (Forensic Psychiatric Hospital), [1999] 2 S.C.R. 625, the Supreme Court of Canada emphasised the careful balancing that must take place when the criminal justice system confronts the mentally disordered. On the one hand, it seeks to avoid the injustice of punishing someone who is not morally culpable. On the other hand, it seeks to protect the public from individuals who pose a threat to their safety.

As Chief Justice McLachlin wrote for the majority in Winko, “The only justification there can be for the criminal law detaining a person who has not been found guilty (or is awaiting trial on an issue of guilt) is maintaining public safety” (para. 33). Although Winko dealt with the not criminally responsible accused, the explicit mention of those “awaiting trial on an issue of guilt” makes it clear that the Supreme Court of Canada intended this principle to apply equally to the unfit accused.

When there is no threat to the public, the rights of the accused properly become our sole concern. There is no longer any reason to detain an individual unless there is a reasonable possibility that he or she will become fit to stand trial. If there is not, then the dual aims of the criminal justice system are best fulfilled by releasing the unfit accused.

Criminal jurisdiction

Although Chief Justice McLachlin in Winko did not include maintaining criminal jurisdiction as an adequate justification for detaining a mentally disordered individual, it will inevitably be argued that the criminal justice system should not be asked to surrender its jurisdiction over the prosecution of a criminal offence simply because the accused is not dangerous. The response to this is clear: the “jurisdiction” of the criminal law system to prosecute is meaningless in reference to an individual who is unlikely to ever become fit to stand trial. To insist upon maintaining jurisdiction over a case that will never be prosecuted is to insist on formality over fairness.

The need for a proactive solution

Normally, an individual facing a lengthy and dubiously just period of detention will retain a lawyer to argue his or her case. However, individuals who are declared unfit to stand trial, are, by definition, unable to communicate with counsel. Occasionally, the Crown will ask for a stay of proceedings, or the court will grant a stay on its own initiative. This is dependent on the judgement of the individual Crown counsel, however. Many unfit individuals who are unlikely to become fit will remain in the system indefinitely. Although the Crown is required to prove its prima facie case every two years, it rarely fails to do so. This process is usually quick and painless, except perhaps from the perspective of the accused, who will often be unrepresented by counsel.

Although some unfit individuals may belong in the system indefinitely, others do not.

Our legal system should include a mechanism to allow for the absolute discharge of an unfit accused, where the individual is unlikely to become fit and where public safety will not be compromised. Both of the following options provide a reasonable means of review without the need to establish costly new programs or procedures:

– The court with jurisdiction in respect of the offence charged should be required, both upon finding an accused to be unfit, and while reviewing the Crown’s prima facie case every two years, to consider entering a stay of proceedings on the grounds that the accused is unlikely to become fit to stand trial, and would not pose a significant threat to the public if released. The Review Board should have the authority to make recommendations of the Court with respect to intractability of the accused’s condition and whether he or she poses any significant threat if released.

– The Review Board itself should have the authority to discharge an unfit accused at any time on the same grounds. This was the decision that was reached in the Yukon case of R. v. T.J, discussed above. To achieve this result, Judge Lilles of the Yukon Territorial Court read down s. 672.54(a) to exclude the phrase “a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and”. Read in this way, s. 672.54 allows the Review Board to discharge absolutely an unfit accused.

It is important that whatever mechanism is introduced be pro-active. It should also be timely, so that non-dangerous unfit accused do not languish unnecessarily in forensic psychiatric institutions. For this reason, it is preferable, in our view, that both the Court and the Review Board be granted the authority to discharge an unfit accused so as to provide regular and relatively frequent opportunities for an unfit accused’s status to be reconsidered. We cannot place the burden upon an unfit accused to seek out counsel in order to receive a fair disposition. It is clear that current system of indefinite supervision or detention is not always fair or necessary.

Proclamation of the capping provisions

The problem of indefinite detention of unfit individuals would be remedied to some extent by the enactment of the capping provisions, found at section 672.65 of the Criminal Code. We deal with these provisions and provide our submissions with respect to their proclamation below. The proclamation of these provisions would establish maximum periods during which either an unfit accused or an NCR accused could be subject to disposition by the justice system. Although this would provide some relief to the unfit accused, it is not a sufficient protection, and should be seen as only one part of a solution that also includes the implementation of one of the above suggestions. Unlike the capping provisions, the above suggestions mandate individual review of each case, and thus provide for a greater likelihood of justice in all cases.

Summary

In summary with respect to this issue, the BCCLA urges this Committee to recommend the amendment of the mental disorder provisions so as to ensure that unfit accuseds who are unlikely ever to become fit and who pose no significant threat to the public are not held longer than is necessary. This could be accomplished through giving both the Court having jurisdiction over the underlying criminal proceedings and the Review Board the power to discharge unfit accused who meet these criteria. Further, the BCCLA calls on this Committee to propose that section 675.25(2) be amended to require that the Crown establish its prima facie case against the accused prior to the court making a determination as to the fitness of the accused so as to ensure, so far as possible, that unfit accused who did not commit the actus reus of the offence charged are not detained.

Issue 2: Fitness to be Sentenced

A question has been raised in a recent unreported Ontario case as to whether or not there should be a provision for unfitness that arises after the trial, during sentencing (or, in this case, during a hearing to determine whether the accused was a dangerous offender). It is clear that neither the current definition nor the law it was derived from were intended to cover post-conviction hearings.

Richard D. Schneider, in an article entitled “Fitness to be Sentenced”, (Sept. 1998) 41 Crim. L.Q. 261, described this concern as follows: “The question remains as to whether ‘unfitness’ at the sentencing juncture of the prosecution process is a proper concern for the court. If it is a proper concern, what is the test? If an accused is found ‘unfit’ to be sentenced, what is to be done with him or her?” Although most sentencing takes place at the time of the verdict or very soon after, this is not always the case. Schneider proposes that the test for fitness to stand trial that is set out in section 2 of the Criminal Code should apply to sentencing, because “it is another type of hearing within the prosecution process which concerns the accused’s liberty”. In addition, “it is imperative that he or she be able to participate in any pre-sentence assessment. It is important that the accused be able to ensure the accuracy of the information compiled and have the ability to contest or provide corrections to that information.”

We agree that an individual must remain fit through all of the stages of the trial in order to receive just treatment from the criminal justice system. The spectre of a person who is incapable of understanding the nature or possible consequences of the proceedings he or she is subject to or of communicating with counsel during the sentencing process is not one which does any credit to our criminal justice system. However, as the system currently works, the courts are given no alternative but to sentence a convicted individual, and the Review Boards do not have jurisdiction over an individual who has been convicted but not sentenced.

The simplest solution to this problem would be to extend the jurisdiction of the Review Boards to encompass the convicted individual who becomes unfit before sentencing. This could be accomplished by expanding the scope of section 672.38, as suggested by Schneider at 270. As it currently reads, section 672.38 gives jurisdiction to the Review Boards over the NCR accused and the unfit (but not convicted) accused:

(1) A Review Board shall be established or designated for each province to make or review dispositions concerning any accused in respect of whom a verdict of not criminally responsible by reason of mental disorder or unfit to stand trial is rendered, and shall consist of not fewer than five members appointed by the lieutenant governor in council of the province.

As Schneider notes, it is likely that “the term ‘verdict’ is not so elastic as to cover post-verdict proceedings up to the point of sentencing” (270). However, if the above provision were changed to include “accused found to be unfit for the purpose of sentencing”, the Review Board would then have jurisdiction to make a disposition concerning an accused who became unfit after conviction but before sentencing.

2. AUTOMATISM

Although the Minister of Justice circulated draft amendments in 1993 that would have codified automatism, the defence continues to be governed by the common law. Should automatism be defined in the Criminal Code?

The “defence” of automatism is not technically a defence at all, but rather is a logical corollary of the common law concept of actus reus. In order for the element of actus reus to be satisfied, the accused must be found to have acted voluntarily. An accused who acts in a state of automatism is not acting voluntarily, and thus is incapable of committing the actus reus required for the act. The concepts of actus reus and voluntariness have developed in tandem over the years, closely linked to the concept of mens rea.

In R. v. Parks, [1992] 2 S.C.R. 871, at paragraph 41, Mr. Justice La Forest discusses this phenomenon:

Automatism occupies a unique place in our criminal law system. Although spoken of as a “defence”, it is conceptually a sub-set of the voluntariness requirement, which in turn is part of the actus reus component of criminal liability. A useful introduction is found in the dissenting reasons of Dickson J. (as he then was) in Rabey v. The Queen, [1980] 2 S.C.R. 513, at p. 522:

Although the word “automatism” made its way but lately to the legal stage, it is basic principle that absence of volition in respect of the act involved is always a defence to a crime. A defence that the act is involuntary entitles the accused to a complete and unqualified acquittal. That the defence of automatism exists as a middle ground between criminal responsibility and legal insanity is beyond question …

The call to codify automatism seems to spring from a perception of public concern about overuse or misuse of the “defence” of automatism. Not guilty by reason of automatism is a verdict that may appear unjust to those who are not legally trained. Automatism cases often seem to be highly sensational, and to attract a great deal of inquiry and commentary from beyond the legal community. If the desire to codify the defence of automatism arises from a desire to enable the public to understand it better, this goal is one which must be seriously considered. However, we must not allow a fear of potential misuse of the defence of automatism to hinder the application of the basic tenets of our criminal law system.

Issue 1: There is a need for change if the defence is codified

If a codification of the common law defence of automatism is to be undertaken, a number of issues must be addressed. The law as it has been applied in recent decisions is problematic.

Undue procedural restraints have been placed upon the defence of automatism.

The common law defence of automatism divides automatism into mentally disordered automatism and non-mentally disordered automatism (or, in the old terminology, insane automatism and non-insane automatism). A finding of non-mentally disordered automatism leads to an acquittal, while a finding of mentally disordered automatism channels the accused into section 16 of the Criminal Code, the mental disorder defence. Thus, the outcome for the accused will vary greatly depending upon whether the accused is found to have suffered from mentally disordered or non-mentally disordered automatism.

Recent judgments from the Supreme Court of Canada have narrowed the category of non-mentally disordered automatism. More cases are being channelled into the mental disorder category, not because they clearly constitute manifestations of a disease of the mind, but because the courts are reluctant to find sane automatism, which would result in absolute acquittal. The Supreme Court of Canada has also expressed a concern that accused individuals will “fake” automatism if their success is likely to lead to absolute acquittal as opposed to disposition by the courts or review boards.

The recent Supreme Court of Canada ruling in R. v. Stone, [1999] 2 S.C.R. 290, currently governs the common law defence of automatism in Canada. This decision, which was delivered by a 5:4 majority, introduced and perpetuated a number of features that unduly limit the availability of the automatism defence, and threaten the legal rights of defendants. These features include the following:

1.) Legal Burden on Accused to Prove Voluntariness on a Balance of Probabilities. The majority introduced a burden on the accused to prove, on a balance of probabilities, the existence of a state of automatism (para. 179). This is a major departure from the basic criminal law principle that the burden is on the Crown to establish all elements of the crime. In essence, the majority judgment “effectively took the issue of voluntariness away from the jury” (Binnie J. for the dissent, para. 4) In cases where arguably it matters most, the Crown is now excused from establishing the fundamental criminal element of actus reus.

2.) Presumption of Mental Disorder. The Court established a presumption of mental disorder in cases of automatism (para. 199). This is based on the logic that any state of automatism caused by something that we do not understand must be the result of a mental disorder, even if the accused has always functioned normally apart from the automatistic episode.

3.) The Continuing Danger Criterion. The Court added a further criterion of continuing danger, or “likelihood of recurrence”, to be considered along with the “internal/external” nature of the triggering event as a factor for determining whether the automatism, if it in fact occurred, was mental disorder or non-mental disorder automatism (para. 212). Likelihood of recurrence is not a factor that has been considered relevant to determination of mental disorder in other contexts. Moreover, it seems concerned more with the issue of public safety than the determination of culpability, and thus has little place at this stage of the trial.

4.) Exclusivity of Defences. The Court affirmed earlier rulings that courts should determine, as a question of law, whether mentally disordered or non-mentally disordered automatism should be left to the jury (paras. 219-221). It is thus not possible for an accused to argue both defences, even where both are plausible.

This legal framework reflects an overemphasis on controlling “dangerous” persons at the expense of justice and individual liberty (A. Brudner, “Insane Automatism: A Proposal for Reform” (2000) 45 McGill L. J. 65 at 68). It has “led to a concept of a diseased mind that no ordinary person would recognize as such and hence to the detention of innocent and reasonably well-functioning persons for their own welfare and that of society-reasons for coercion that we normally admit only in the case of the genuinely insane” (68).

The overuse of mentally disordered automatism

The presumption of mental disorder, described above, is one aspect of the current overuse of the mentally disordered automatism category. This overuse of mentally disordered automatism seems to stem from a reluctance on the part of the courts to discharge absolutely an individual who commits a crime while in a dissociative state. However, by channelling almost every automatism case into the mentally disordered category, the courts have turned the defence of automatism into a legal fiction that is so counterintuitive as to render the defence untenable.

Under the current law, an individual who enters a dissociative state as a result of a medical problem not traditionally thought of as a mental disorder, such as diabetes or arteriosclerosis, is considered to have a disease of the mind. Similarly, an individual who responds to a traumatic (but not earth-shattering) event by entering a dissociative state is also considered to be suffering from a disease of the mind, on the logic that if most people would not have entered into a dissociative state in similar circumstances, then the problem must be with the accused.

The problem with this system is that accused individuals are forced to argue that they have a mental disorder, when the problem they are actually faced with is so far from the common sense concept of mental disorder that it is highly unlikely to be accepted as such by jurors. This leads to a legal injustice described quite aptly by Mr. Justice Binnie, writing for the dissent in Stone: “When it is appreciated that all of the experts agreed the appellant did not suffer from any condition that medicine would classify as a disease of the mind, it is perhaps not surprising that the jury found the accused to be sane.” (para. 3).

Thus, individuals who, under the pre-Stone common law approach would not have been guilty of a crime at all, are convicted. The Court “offers” the defence of not criminally responsible on account of mental disorder, but this defence is illusory when the act in question clearly did not arise out of a mental disorder. The jury has no option but to convict the accused, even in the absence of proof that the accused voluntarily committed the act or omission in question.

Further, if successful in persuading a jury that they have a mental disorder, this will result in a person who experienced an automatistic episode being detained in a forensic psychiatric hospital which will offer them little or nothing in the way of treatment for whatever condition they may actually have.

Detention of non-culpable individuals is an exception to the norm of our criminal justice system, and should be resorted to only in rare circumstances.

Automatism is based upon a basic principle of our law; namely, that if an individual does not will himself or herself to carry out an act, that individual cannot be guilty of that act. As Dickson J. (as he then was) wrote in R. v. Rabey (1980), 114 D.L.R. (3d) 193 at 201, “The fundamental precept of our criminal law is that a man is responsible only for his conscious, intentional acts.” If an accused person is not responsible for his or her actions, that person must be acquitted.

This basic legal principle, based on the value of individual liberty, must be balanced against the goal of protection of the public from those who may pose a threat arising from a disease of the mind. Thus, the common law defences of mental disorder and automatism have been countered by legislation aimed at providing some protection to the public. It is of great importance that we maintain a careful balance between these two competing goods.

As the current system stands, our fear that the defence of sane automatism will be misused has led to a system in which individuals who are not guilty of a voluntary criminal act may nonetheless be convicted.

Fear of automatism

The Court in Stone bases many of its choices on “policy” concerns involving the defence of automatism. These policy concerns reflect a fear of automatism, as expressed in the following passage, quoted from Dickson J., dissenting in Rabey:

There are undoubtedly policy considerations to be considered. Automatism as a defence is easily feigned. It is said the credibility of our criminal justice system will be severely strained if a person who has committed a violent act is allowed an absolute acquittal on a plea of automatism arising from a psychological blow. The argument is made that the success of the defence depends upon the semantic ability of psychiatrists, tracing a narrow path between the twin shoals of criminal responsibility and an insanity verdict. Added to these concerns is the in terrorem argument that the floodgates will be raised if psychological blow automatism is recognized in law. (Stone, para. 176)

This fear of the defence of automatism does not appear to be grounded in experience, however. At no point in the above passage does the Court point to instances in which automatism has been found to have been successfully “feigned”. In reality, automatism is very rarely used as a defence in Canada, and even more rarely is it successful. There is no indication that a failure of the justice system to “crack down” on automatism will lead to an epidemic of automatism claims.

The perception that automatism is easy to “fake” is also ungrounded. While it is true that the existence of a state of automatism will normally be proved by the testimony of the accused, this is not new to the criminal justice system. Courts are often called upon to make difficult determinations regarding the credibility of witnesses. In addition, it has always been open to courts to reject any defence if it does not carry an “air of reality”.

The problem with using “policy” concerns such as those above to justify an increased burden of proof on the individual claiming automatism is made clear by the following passage, quoted in the majority judgment in Stone (para. 175):

The words of Schroeder J.A. in R. v. Szymusiak, [1972] 3 O.R. 602 (C.A.), at p. 608, come to mind:

… a defence which in a true and proper case may be the only one open to an honest man, but it may just as readily be the last refuge of a scoundrel.

Unfortunately, the majority in Stone fails to consider the obvious question that arises out of this statement: What if the defendant in the “true and proper case” is unable to prove automatism on a balance of probabilities? Surely the court is not relying on the common fallacy that the person who is “most innocent” will have the strongest case? Many people who have been acquitted of a crime by raising a reasonable doubt would not have been acquitted if they had been required to prove their innocence on a balance of probabilities. It is not the “scoundrel” who is punished by the tough approach to automatism; it is the “honest man”.

At present, a finding of non-insane automatism requires a complete acquittal, even on the most serious of charges. Is this appropriate or should courts have the power to impose supervisory orders in some cases of non-insane automatism?

There is an understandable emotional longing to see something more done to settle the score when an accused is acquitted on the basis of non-insane automatism of a serious, violent offence. However, our legal tradition focuses on the culpability of the accused as a first step, and if the accused is not culpable, there is no second step of assessing the magnitude of the harm done. It is wrong, in our system of justice, to let the magnitude of the harm done affect our assessment of the culpability of the accused; indeed, it would be constitutionally offensive.

In this regard, the refusal of the majority of the Court in R. v. Parks, supra, to impose any supervisory order on Mr. Parks following his acquittal on the basis of non-insane automatism is significant. They recognized that to do so would likely violate section 7 of the Charter (see Sopinka J. at paras.66-68, McLachlin and Iacobucci JJ. At para 73 and La Forest J. at paras 57 and 61).

Further, as La Forest J. state in Parks (at para. 54):

It may be that some will regard the exoneration of an accused through the defence of somnambulism as an impairment of the credibility of our justice system. Those who hold this view would also reject insane automatism as an excuse from criminal responsibility. However, these views are contrary to certain fundamental precepts of our criminal law: only those who act voluntarily with the requisite intent to commit an offence should be punished by criminal sanction. The concerns of those who reject these underlying values of our system of criminal justice must accordingly be dismissed.

Philosophical questions aside, what is the practical need for supervision of acquittees following a finding of non-insane automatism? Is there a considerable body of cases of non-insane automatism acquittees with subsequent findings of non-insane automatism involving offences of serious violence? So far as we aware, there is not.

Although it would be unfortunate if an individual acquitted of a serious crime on the basis of non-insane automatism were to re-offend, there is little or no risk of such a person re-offending repeatedly. Why? Because if an individual who is knowingly prone to unconscious episodes fails to take reasonable precautions for the safety of others, that person can be charged with criminal negligence. Thus, the diabetic accused who knew the consequences of taking insulin without food and with alcohol (R. v. Quick, [1973] 3 All E.R. 347) or the accused with a history of violence while sleepwalking (R. v. Parks, [1992] 2 S.C.R. 871) would likely be convicted of criminal negligence in the event of a reoccurrence of the involuntary behaviour.

Summary

In summary with respect to the “defence” of automatism, the BCCLA calls upon this Committee to recommend the statutory codification of the defence of automatism. That codification should make it clear that while the accused must satisfy the evidentiary burden of adducing sufficient evidence to put the voluntariness of his or her actions into question, the burden remains on the Crown throughout to prove that an accused’s actions are voluntary.

It should also eliminate any presumption of mental disorder in cases of automatism, leaving it to the finder of fact to make the determination on the basis of the evidence as to whether the accused has a mental disorder or not. The continuing danger criterion should be eliminated in view of the fact that it has nothing to do with whether a person was suffering from a mental disorder or not. Further, it should be permissible for both mentally disordered and non-mentally disordered automatism to be left with the jury in the appropriate case.

These clarifications are necessary in order to ensure that the crucial criminal law principle that persons are held criminally responsible only for acts voluntarily committed by them is not trampled in response to an unwarranted fear of the floodgates being opened to feigned cases of automatism. Our courts, judicial processes, judges and juries are more than competent for the task of recognizing the rare case of non-mentally disordered automatism without artificial and dangerous limitations on the elements of the defence. As Binnie J. said for the dissent in Stone (at para. 89):

The common sense of members of the jury is a fundamental and vital part of our criminal justice system….

[Referring to the evidence in that case] The jury in this case, for example, had before it the testimony of the Crown psychiatrist that the appellant’s violent response to his wife’s verbal attack was entirely too purposeful and the loss of memory entirely too convenient to be considered “involuntary”. The members of the jury could, I think, have been counted on to exhibit powerful scepticism about such evidence. Anyone who thinks a jury of bus drivers, office workers and other practical people will be less sceptical than members of the bench or professors of law ha perhaps spent insufficient time in buses or around office coffee machines.

Similarly, the principles of fundamental justice require that persons found not guilty on the basis of non mentally disordered automatism be acquitted. In the absence of a voluntary act such persons are not criminally responsible for “their” acts, with the result that the state cannot be justified in imposing penal or other consequences on them.

3. REVIEW BOARDS

The CCC gives Review Boards the authority to determine an accused person’s fitness to stand trial. A Review Board can also order a mentally disordered accused held in custody, or it can release him or her subject to conditions. Should Review Boards also have the power to order an assessment prior to reviewing an offender’s disposition? Should Review Boards have the power to discharge absolutely an unfit accused?

Review Boards should be given the power to order an assessment prior to reviewing an offender’s disposition. In view of the inquisitorial nature of the Review Board process, it is vital that Review Boards have the authority to ensure that they have adequate information before them when conducting reviews. Although in most cases a report will be prepared by either the forensic psychiatric institute or the outpatient clinic before the date of the review, this is not always the case. Where a report is not already available, the Review Board should have the authority to order one. There is no reason to withhold this power from the Review Board.

It is especially important that the Review Board be granted the power to order community assessments, as the parole board does. In British Columbia, hospitals will not prepare a community assessment unless they are recommending discharge. The Review Board cannot order that such an assessment be done, with the result that the hospital’s refusal to recommend discharge stands as a fait accompli. Review Boards must have the power to obtain the information they need to make a full review of the person’s situation and make a fair disposition.

4. CAPPING PROVISIONS

Should the capping provisions be proclaimed in force? If yes, is there a need to amend existing mental health legislation in your jurisdiction before doing so?

It is imperative that the capping provisions be proclaimed in force as soon as possible. The failure thus far to proclaim the capping provisions undermines the purpose and effect of the 1992 amendments.

At present it is possible, and not unusual, for a mentally disordered accused to be confined indefinitely for minor offences against property or process. An accused person suffering from a developmental delay, obsessive-compulsive disorder, or head injury such that he or she at the time of the trial met the criteria for a finding of not criminally responsible might never be released from the supervision of the Review Board, because even though the index offence did not involve violence, a psychiatrist will likely never be able to assess a lower risk to public safety because there is no prospect for an improved diagnosis. There is also no treatment benefit to confinement in a forensic psychiatric hospital for persons with such conditions. Such persons are simply warehoused.

When the government introduced Bill C-30 in 1991, it introduced it as a package that included the capping provisions set out in section 672.64 of the Criminal Code. The Honourable Kim Campbell, then Minister of Justice and Attorney General of Canada, discussed the capping provisions during the second reading of Bill C-30, making the following comments (House of Commons Debates (4 October 1991) at 3298):

In recent years there has been strong opposition to the indeterminate nature of the [Lieutenant-Governor’s] warrant. It has been argued that warrant detainees are discriminated against as a result of their mental disorder because they are subject to indefinite detention, whereas those convicted of the same offences receive definite sentences. The bill imposes three outer limits on the length of time an accused can be held as either unfit to stand trial or not criminally responsible.

The Minister of Justice then went on to describe the Dangerously Mentally Disordered Accused (“DMDA”) provisions in section 672.65 of the Criminal Code, which serve as a counterweight to the capping provisions. She also noted that,

Moreover, persons released on reaching their maximum may be detained under provincial mental health legislation if they constitute a danger to themselves or to others. Some provinces may wish to amend their mental health legislation to ensure that it adequately provides for commitment of those who are viewed as being potentially dangerous if not detained. I have indicated that these provisions will not be proclaimed until the provinces have been allowed a reasonable time to amend their laws if necessary.

As this passage makes clear, there was never any question when Bill C-30 was passed that the capping provisions and the DMDA provisions would be proclaimed in force. It was simply a matter of giving the provinces time in which to ensure that their civil commitment legislation was adequate to deal with potentially dangerous accused persons outside of the criminal justice system. Now, ten years later, we are being asked to argue whether these provisions should be proclaimed in force at all. This question should not even be asked. When the House of Commons voted to pass Bill C-30, they voted to pass it as a package. This is made clear by the comments of NDP member Ian Waddell (Port Moody-Coquitlam) at 3140:

We passed a very big and very complicated bill… we have remand provisions, new capping provisions, provisions for a new board of review, and we have brought it into the Charter of Rights and Freedoms so that people will have their rights. I hope we have the right balance between the protection of society and the rights of the individual. That is the key to good criminal law and good procedure.

Mr. Waddell’s comments emphasise the importance of finding the right balance of elements in the enactment of Bill C-30. The balance that was settled on by the House of Commons included the capping provisions. However, even at this early stage, individuals such as Mr. Waddell feared that the proclamation of the capping provisions might be “delayed” more than was necessary:

As I understand it some provinces will have to amend their mental health legislation to bring it into line with the new Criminal Code provisions…. That means the capping provisions of this bill will be delayed for some time. I know that this is going to happen and I hope that will come in sooner rather than later.

Once Bill C-30 was passed, the matter was left to the government. The government has failed to proclaim the capping provisions, and thus has failed to deliver the legislative package that our representatives voted upon in 1991.

Issue 1: The adequacy of provincial legislation

As part of its issues paper, the Committee asked us to comment on whether or not there is a need to amend existing mental health legislation in our respective jurisdictions.

There is no need for the British Columbia Mental Health Act, R.S.B.C. 1996 c. 288, to be amended to harmonise with the capping provisions. At present, the test for detention and/or involuntary treatment is sufficiently broad to cover any mentally disordered accused person still representing a risk to public safety who might be released under the capping provisions. The test for detention under section 22(3)(c) is that the person is a person with a mental disorder, and

(i) requires treatment in or through a designated facility,

(ii) requires care, supervision and control in or through a designated facility to prevent the person’s or patient’s substantial mental or physical deterioration or for the protection of the person or patient or the protection of the person or patient or the protection of others, and

(iii) cannot suitably be admitted as a voluntary patient.

These provisions cast a broad net that is highly likely to catch any unfit or NCR accused person in British Columbia who poses a threat to the public.

Further, we submit that regardless of the state of legislation in the provinces, the capping provisions should be enacted immediately. The provinces have now had ten years to amend their civil commitment legislation. Any reliance on the alleged inadequacy of provincial legislation must, at this point, be seen as an intentional attempt to delay the proclamation of the capping provisions.

Issue 2: The continuing need for capping provisions after Winko

The Committee may hear the argument that, following the decision in R. v. Winko (Forensic Psychiatric Institute), supra, there is no longer any practical need for the capping provisions. We do not agree. In Winko, the Supreme Court of Canada ruled that Review Boards must absolutely discharge any NCR accused whom they do not positively conclude to be a significant threat to the public. This means that, in theory, only dangerous NCR accused people are now being detained. It may be argued that this was the system originally envisioned by the drafters who created the capping provisions and the complementary Dangerously Mentally Disordered Accused (“DMDA”) provisions, and that those two sets of provisions are no longer necessary. However, this is not the case. The DMDA provisions, if enacted, would only apply to individuals who are found not criminally responsible for a “serious personal injury offence”, as defined in section 672.65 to include offences involving violence or sexual assault. Other individuals, even if found to be likely to re-offend, would be released under the capping provisions.

To put it succinctly, the system as it was drafted (complete with the inclusion of the capping and DMDA provisions) envisioned three main categories:

the NCR accused who does not pose a significant threat to public safety,

the accused who may pose a significant threat to public safety, but committed a minor offence and thus should not be subjected to indefinite detention, and

the DMDA accused who committed a violent crime and is likely to re-offend and thus should be detained indefinitely.

Under the current “Winko” system, we have only two main categories:

the NCR accused who does not pose a significant threat to public safety, and

the NCR accused who does pose a significant threat to public safety.

Under the current system, an NCR accused may be detained indefinitely because he or she has been labelled “dangerous”, even if the accused committed only a minor offence such as shoplifting.

The instinct of many people may be to say that all dangerous NCR accused individuals should be detained indefinitely, regardless of how minor the index offence in question was. However, a system that allowed this would be no more just than one which incarcerated all persons who might commit crimes in the future. When a Review Board determines that an individual is “dangerous”, it is making a prediction, based on what information is available to it. This prediction may or may not be accurate, and, in any case, does not provide sufficient justification for indefinitely detaining a mentally-disordered individual who has never committed a serious offence. Further, in this connection we must keep in mind the existence of provincial mental health legislation designed to deal with persons who are considered to be a risk to themselves or others—it is this legislation which is appropriately directed to concerns about potential threats posed by persons with mental illnesses.

Furthermore, Winko does nothing to remedy the situation of the unfit accused, as discussed above. The unfit accused continues to be detained by the system even when he or she is not dangerous. The proclamation of the capping provisions would provide some relief to the unfit accused, where Winko failed to do so.

Thus, despite the limited positive effect of the ruling in Winko, it remains necessary to proclaim the capping provisions in force in order to ensure that individuals who have committed only minor crimes are not held for a longer period than is just.

Issue 3: Equality remains a concern despite Winko

In Winko, as noted above, the Supreme Court of Canada clarified the requirement that a Review Board must discharge absolutely an NCR accused unless it makes a positive finding that the individual is dangerous. In the same decision, however, the Supreme Court of Canada considered and rejected arguments under sections 7 and 15 of the Charter. The section 15 argument related to the indefinite detention of NCR individuals in the absence of the enactment of the capping provisions.

The Court rejected the section 15 argument on the basis that the differential treatment of the NCR accused is not discriminatory, because it does not depend upon stereotypical characterisations on the basis of association with a group, but upon the personal characteristics of each individual NCR accused. The Court noted that “[a]t every stage, Part XX.1 treats the individual NCR accused on the basis of his or her actual situation, not on the basis of the group to which he or she is assigned” (para. 88). The Court further elaborated on this point, noting that

the key feature of Part XX.1—treating every NCR accused having appropriate regard to his or her particular situation—far from being a denial of equality, constitutes the essence of equal treatment from a substantive point of view. It does not disadvantage or treat unequally the NCR accused, but rather recognizes the NCR accused’s disability, incapacity and particular personal situation and, based upon that recognition, creates a system of individualized assessment and treatment that deliberately undermines the invidious stereotype of the mentally ill as dangerous. It treats NCR accused more appropriately and more equally. (para. 90)

Relying on the concept of substantive equality, the Court emphasises that “different legal treatment reflecting the particular needs and circumstances of an individual or group may not only be justified, but may be required in order to fulfil s. 15(1)’s purpose of achieving substantive equality” (para. 84).

The Court paints an idyllic picture of the treatment of the NCR accused. However, they appear to have left out one significant point. When did the safety of the public become an element of the “individual situation and needs” of the accused? (para. 88) The Court’s entire judgment in Winko is based on its characterisation of the dual objectives of Part XX.1 of the Criminal Code, described as follows:

The dual objectives of Part XX.1, and s. 672.54 in particular, are to protect the public from the NCR accused who poses a significant threat to public safety while safeguarding the NCR accused’s liberty to the maximum extent possible. (para. 71)

In its section 7 analysis, the Court explicitly states that the accused, whatever his or her “needs”, must be granted an absolute discharge if not found to be a significant threat to the public (para. 62). Thus it would appear that the only justification for detaining an NCR accused is a threat to the safety of the public. While it is certainly an important concern, the safety of the public is not a concern directed at the needs of the accused, but at the needs of the public. The Court seems to have overlooked this factor in its analysis of the section 15 argument. The most that can be claimed is that Part XX.1 looks at the individual needs of the accused, subject to the need to maintain public safety. If, at any point, the NCR accused is determined to be a significant threat to public safety, that determination automatically overrides his or her right to liberty. This is not true of convicted offenders, who are released at the end of a set period of time, whether or not they are likely to re-offend, unless they have been designated Dangerous Offenders.

Why, when the criminal justice system deals with an NCR accused, does it subordinate the liberty interest of the NCR accused to the safety interest of the public, when it does not do so for other offenders? The response the Court gives is, in a nutshell, that the NCR accused is not being punished, unlike the other offender. In the words of the Court:

…Punishment is morally inappropriate and ineffective in such a case because the NCR accused was incapable of making the meaningful choice upon which the punishment model is premised. Because the NCR accused’s liberty is not restricted for the purpose of punishment, there is no corresponding reason for finitude.” (para. 93)

The Court emphasises that “One purpose of incarcerating a convicted offender is punishment.” It fails to note, however, that protection of the public is also a reason for incarcerating a convicted offender. Section 718(c) of the Criminal Code lists as one of the objectives of sentencing: “to separate offenders from society, where necessary”. Thus, the safety of the public is a factor in the disposition of both the convicted offender and the NCR accused. Yet in the case of the NCR accused, the safety of the public is justification enough for indefinite incarceration, while it is not so in the case of the convicted offender.

There are two possible reasons for this distinction. First, is it possible that the Court, despite its rhetoric to the contrary, is still prey to the old stereotype of the mentally disordered accused as being inherently more dangerous than other individuals. Second, the Court may be unconsciously placing a lesser value upon the liberty of the mentally disordered individual.

The mentally disordered accused as dangerous

The Court in Winko took great pains to discuss and reject the stereotype of mentally disordered individuals as dangerous:

As the stereotype of the “mad criminal” has been undermined by research, we have learned that only a few mental disorders are associated with increased rates of violent behaviour…. And for these disorders, it is not clear whether the increased rates of violent behaviour result from the illness itself or from the socially marginalizing side-effects of the illness…. Research shows that NCR accused are no more likely than their convicted counterparts to commit any offence, let alone a violent offence, upon release…. (para. 37)

Yet, when the criminal justice system approaches the NCR accused, it is concerned very much with the question of dangerousness. Take, for example, the case of two individuals who are charged with theft. Imagine that one is found guilty and the other is found NCR. The individual who is found guilty will be sentenced to a fixed term of imprisonment. He will be released when he has served a certain amount of time, with no inquiry into whether or not he was or is dangerous. On the other hand, the NCR accused will be subject to inquiries regarding dangerousness from the outset. Dangerousness will be the focus of each Review Board inquiry. The degree to which the accused is dangerous will be scrutinised and analysed. It is unclear how this represents a rejection of the stereotype of the “mad criminal”.

If the NCR accused is no longer presumed to be dangerous, why is there such reluctance to proclaim the capping provisions in force? The current system of indefinite detention suggests a presumption that the accused may pose an indefinite threat to the public. To proclaim the capping provisions and the DMDA provisions in force would eliminate this implicit presumption of dangerous, while still allowing for the indefinite detention of those NCR accused individuals who are actually dangerous.

The value of liberty for the mentally disordered accused

As noted above, the Court views the incarceration or supervision of the NCR accused as fundamentally different from the incarceration of the convicted offender. It notes that

Any restrictions on the liberty of NCR accused are imposed for essentially rehabilitative and not penal purposes. In the words of Taylor J.A., unlike the sanctions faced by a convicted person, the scheme that addresses NCR accused “exacts no penalty, imposes no punishment and casts no blame”. (para. 94)

While this distinction might make sense when viewed in the abstract, it is meaningless to the accused. It is little comfort to Mr. Winko and others in his position to know that they are not being “punished”. Furthermore, this position is patronising to the NCR accused, and fails to recognise the equal right to liberty that ought to be granted to the NCR accused. It also ignores the fact that for at least some NCR accused, such as those suffering from a head injury, no rehabilitative purpose is served by such restrictions on their liberty.

The Court’s decision in Winko is premised largely on the characterisation of the NCR accused as “different” from the convicted offender. Because of this difference, distinctions must be made in their treatment. However, one distinction that must not be made is a distinction between the value of liberty for the mentally ill and the non-mentally ill person. The current system, whether intentionally or otherwise, makes this distinction by allowing the safety of the public to override the liberty right of the NCR accused but not the convicted offender.

Summary

In summary on this point, the BCCLA asks this Committee to recommend that the capping provisions be proclaimed into force immediately. There are other, more appropriate means to deal with concerns raised about mentally ill persons who may pose a risk to themselves or others than keeping such persons permanently detained on the pretence of a minor index offence.

5. DMDA PROVISIONS

If the capping provisions were proclaimed in force, would it be necessary or useful to bring the Dangerously Mentally Disordered Accused provisions into force at the same time?

The Dangerously Mentally Disordered Accused provisions were drafted as a type of “counterweight” to the capping provisions. They were intended to allow indefinite incarceration for those mentally disordered individuals who posed a serious threat to public safety. As such, they constitute a parallel to the Dangerous Offender provisions of the Criminal Code. While we recognise the need for such provisions, it is our hope that they will be interpreted narrowly, and not used in such as manner as to infringe unnecessarily the liberty rights of the NCR accused.

6. STATISTICS

Do you know how many mentally disordered accused are currently subject to supervision orders in your jurisdiction?

Based on the information we received from the Review Board, there are approximately 370 people in B.C. currently under the jurisdiction of the Review Board. An estimated one-half to one-third of these people are in custody.

7. HOSPITAL ORDERS

Should the “hospital orders” provision be proclaimed in force? Can you provide the Committee with information respecting the availability or adequacy of treatment for mentally disordered offenders sentenced to federal and/or provincial institutions in your jurisdiction?

Bill C-30 also contained provisions with respect to hospital orders, which would allow convicted persons suffering from mental disorders in an acute phase to receive, with their consent and the consent of the hospital, treatment for a maximum period of sixty days for the purpose of stabilising their condition. At the end of the sixty day period, the hospital and the prison authorities would decide whether the person in question could go to prison to serve the remainder of his or sentence, or should continue to receive treatment.

Like the capping provisions and the DMDA provisions, these provisions have not yet been proclaimed in force. At the time of the second reading of Bill C-30, the Honourable Kim Campbell explained the delay as follows (House of Commons Debates (4 October 1991) at 3299):

Some provinces are concerned about the financial repercussions these provisions may have, even if they only apply in cases where treatment is urgently required. We believe that the hospital orders provisions in the bill will not have a serious impact on the financial resources of the provinces. However, considering their concerns, I have agreed to postpone the coming into force of these provisions for two or three years, so that pilot projects can be conducted in one or two provinces.

There are many persons who do not meet the narrow legal criteria for the mental disorder defence, and are therefore convicted, who nonetheless suffer from serious mental illness. Such persons are extremely poorly served by the criminal justice system. One of the primary goals of sentencing is the rehabilitation of offenders. Another is the protection of the public. Persons suffering from acute mental illness are not going to be rehabilitated in a correctional facility. Nor is the public going to be safe upon their eventual inevitable release into the community. Any and all steps we can take to provide mentally ill offenders with the psychiatric assistance they need to overcome their illness will be not only to their benefit, but to the benefit of society as a whole. This is true not only with respect to hospital orders, but while such persons are housed in correctional facilities as well. Too often mentally ill prisoners do not receive the medication or other therapy they require while incarcerated.

While the hospital provisions are inadequate standing alone as a mechanism to provide mentally ill offenders with psychiatric treatment, they would go some way to improving the treatment afforded to such persons. The BCCLA therefore asks this Committee to recommend that they be brought into force.

CONCLUSION

In conclusion, the BCCLA again wishes to thank the Committee for the invitation to provide these submissions on its review of the mental disorder provisions of the Criminal Code. We hope that these submissions will prove of assistance to you in your deliberations.