Response to the 14^th Report of the Standing Committee on Justice and Human Rights

Review of the Mental Disorder Provisions of the Criminal Code

November 2002

SYSTEMIC ISSUES

Resources to address the needs of mentally disordered accused and mentally disordered offenders

RECOMMENDATION 16

The Committee recommends that the federal, provincial and territorial ministers responsible for Justice review the level of resources available to deal with the needs of mentally disordered accused and offenders so as to determine whether they are being used effectively and to see if the level of budgetary allocations is adequate to meet those needs.

COMMENTS

The Committee's report has highlighted the need for a careful review of the resources available to support mentally ill people, whether or not they are in conflict with the law. As the Committee noted, many witnesses that appeared before them expressed their concern about the inadequacy of current resources and their inability to do their job effectively and in the spirit of the law. Some witnesses noted that forensic patients were taking up resources that should be available to the general population. In other words, court-ordered assessment and treatment in mental health facilities is regarded as the priority and consumes a significant portion of mental health resources.

The Government agrees that officials responsible for health and justice at both the federal and provincial/territorial levels should explore the adequacy of mental health resources together. As a starting point, the Deputy Minister of Justice and Deputy Minister of Health will discuss strategies for ongoing review and consultation.

Education and awareness about the mentally ill and the application of part XX.1

RECOMMENDATION 17

The Committee recommends that the federal, provincial and territorial ministers responsible for Justice take the necessary steps to ensure that education programs on the mental health and forensic systems, and related issues, are developed for, and delivered to, judges, lawyers, court personnel, law enforcement personnel, corrections staff, and others coming into contact with mentally disordered accused offenders. As well, a similar education program should be developed for delivery to the public to dispel stereotypes surrounding mental illness.

COMMENTS

The Government supports the intent of this recommendation but notes that the development and delivery of educational programs requires the cooperation of both provincial and territorial governments and non-governmental organizations.

The Government believes that it can be of assistance to the provinces by bringing together practitioners as it has through the Federal-Provincial-Territorial Working Group on Mental Disorder and through the Federal-Provincial-Territorial Mental Health Advisory Network. There needs to be greater coordination between these bodies to exchange information, learn about best practices, and develop solutions to common problems.

In particular, the Government agrees that many of the problems identified by the Committee may arise from unfamiliarity with the law. Developing a body of specialists as British Columbia has done in its Community Legal Assistance Society or as Ontario has done with the establishment of a designated Mental Health Court in Old City Hall, Toronto, is also an effective way to deal with large numbers of cases requiring special knowledge and a multidisciplinary approach. Delivering educational programs to lawyers, judges and others who deal only rarely with unfit accused or the not criminally responsible is not the only way to address this issue.

As indicated in the response to Recommendation 6, the Department of Justice has developed various public legal education materials, including fact sheets, pamphlets and guides to the criminal justice system. The Department's Web site is also a valuable source of general information about the justice system as is the Government-on-Line Initiative, particularly the Justice and the Law Cluster of information. The Department will continue developing materials focussing on the Criminal Code provisions governing persons found unfit and not criminally responsible to provide basic or general information to the public, the legal profession and service providers.

The issue of developing further educational programs both for those who work in the criminal justice system and the general public may also be referred to the Federal-Provincial-Territorial Working Group on Mental Disorder.

The need to improve data collection and research

RECOMMENDATION 18

The Committee recommends that the Department of Justice and other relevant departments and agencies, in collaboration with their provincial and territorial counterparts, collect, process, and analyse the data necessary to facilitate a further parliamentary review of Part XX.1 of the Criminal Code in 2007.

COMMENTS

The Committee's report is highly critical of the lack of research and data available from the Department of Justice to assist in the parliamentary review. While the Committee's criticism may be justified, the Government offers the following information to provide essential information the Committee did not possess.

Throughout the Committee's review process, departmental officials were available to provide any assistance requested. The Department of Justice also provided the Committee with the most recent data available, as described below.

Contrary to the Committee's allegation that the Department of Justice is "not in a position to respond knowledgeably and comprehensively to the findings and recommendations contained in this report" owing to a lack of data, the Department is confident it has the requisite expertise and knowledge to determine the extent and nature of necessary reforms. It should be emphasized that the Department of Justice has been well informed regarding the practical application of Part XX.1 by provincial and territorial Attorneys General and other stakeholders since the proclamation of the Act. In addition, the Attorney General of Canada has been involved in significant litigation, which has both clarified and validated the regime governing mentally disordered offenders.

The research and data provided to the Standing Committee on Justice and Human Rights by the Solicitor General in the course of the Committee's review of the Corrections and Conditional Release Act is indeed an excellent example of a comprehensive review. However, it should be noted that the Solicitor General of Canada is solely responsible for the policy and implementation of the Corrections and Conditional Release Act.

The Criminal Code, although a federal statute, is not solely a federal responsibility. The provinces are responsible for both law enforcement and the administration of justice. Moreover, the Department of Justice's criminal law research program must address the whole range of criminal law issues. Unfortunately, no dedicated resources were made available to the Department following the parliamentary committee's inclusion of a review clause in the 1992 legislation reforming the mental disorder provisions.

In preparation for the anticipated review of the mental disorder provisions which was to have occurred in 1997, and as part of the Department's research plan to monitor the implementation of Bill C-30, the Department of Justice made efforts in the early 1990s to work with the Canadian Centre for Justice Statistics (CCJS) to collect data from Review Boards across Canada. However, the legislative changes that came into force in February 1992 increased the workload of Review Boards, and implementation of the new law took precedence over data collection. This issue was not identified as a priority by the National Justice Statistics Initiative and, therefore, no additional resources were provided to CCJS.

As a result, the CCJS was not able to collect data from the Review Boards. As an alternative, the Research Section of the Department of Justice commissioned several studies to collect basic or essential information for the purposes of reviewing Bill C-30. The research examined five provinces: British Columbia, Alberta, Ontario, Quebec, and Nova Scotia. These five provinces comprise over 80% of Review Board patients in Canada. Data was collected for the years 1993 and 1994 and was compared to data for the two years prior to the implementation of the provisions. The data for the period prior to Bill C-30 was drawn from the Canadian Database for Forensic Psychiatry Patients Held Under a Warrant of the Lieutenant Governor (referred to as the LGW Survey). The LGW database was maintained under contract by l'Institut Philippe Pinel of Montreal from 1987 to 1991.

The first group of studies was carried out by Forensic Service Units to examine the number and nature of psychiatric assessments in each of the five provinces. The second group of studies was carried out by Review Boards to examine the number and characteristics of patients under their care. The numbers and types of patients were compared to similar data contained from the LGW database to determine if there were any trends. The overview report outlining the findings from the five provinces indicated that the Review Boards in Quebec and British Columbia were not able, at that time, to provide data. As a result, there are some gaps in the information provided for these two provinces. It was also difficult to contextualize the findings since no in-depth analysis of the pre-post legislation data was provided in the report. At this juncture, the value of these pre-post amendment comparisons has diminished. A number of years have passed since the studies were conducted, and the data may not reflect recent experiences with these provisions.In an effort to address the data gaps in subsequent years, the Department of Justice has worked with Review Boards across Canada to collect basic data on individuals under the jurisdiction of the Boards for the years 1987 to 2000 or 2001 (where available). The first study, conducted in 2000 by Justice Richard Schneider (formerly of the Ontario Review Board) to inform the pending review involved the annual collection of data on the number of

• accused persons in the system;
• hearings held;
• new accused entering the system who were "not criminally responsible" (NCRs);
• new accused entering the system who were "unfit to stand trial" (UST); and
• absolute discharges granted for the period 1987 to 1998.

Information about the Review Boards in each jurisdiction was also obtained, such as the number of members, the composition of panel, and significant difficulties faced.

A recent study, undertaken by the Department of Justice, involved the collection of similar data for the years 1999 and 2000. The study provided an update to the Schneider report and was provided to the Standing Committee on Justice and Human Rights.

Several caveats regarding the Review Board data collection need to be taken into consideration, notably:

• the Review Board data did not capture data on accused who were absolutely discharged by the court at a disposition hearing conducted by the court immediately following the verdict or on those accused who were unfit but found fit before the Review Board assumed jurisdiction; and
• no data was collected on the nature of the offences that led to the dispositions.

In terms of the Review Board data, while there may be a perception and concern that the number of mentally disordered accused have increased over the years, the data must be considered along with other criminal justice statistics. In 1992, the total number of new individuals found not criminally responsible combined with the number of new individuals found unfit to stand trial across Canada accounted for less than 1% of the total number of individuals charged with a criminal offence (as reported in the Police Services Database) and similarly, the total accounted for less than 1% in the year 2000. Consistent with the above-mentioned findings, the number of new individuals found not criminally responsible conbined with the number of new individuals found unfit to stand trial across Canada accounted for less than 1% of the total charged with violent criminal offences in 1992 (as reported in the Police Services Database), and accounted for less than 1% in the year 2000. These proportions have remained stable in the two time periods examined.

To collect the data necessary for a further parliamentary review, two currently available data sources will need to be further examined. The files from the Review Boards across Canada are one, while the other source is the annual Adult Criminal Court Survey (ACCS) conducted by the CCJS.

As explained above, a number of data elements may be extracted from the Review Board files. Unfortunately, most Review Boards across the country do not have compatible computerized systems that would allow automated data collection. In the two studies conducted, hard copies of forms were distributed to the Ontario Review Board to other Review Boards across the country. The Ontario Review Board coordinated the collection and collation of this data. New resources would be required to continue, as well as expand, this data collection process in the future.

The annual Adult Criminal Court Survey (ACCS) conducted by the CCJS provides a national database of statistical information on the processing of cases through the adult criminal court system. The survey consists of a census of Criminal Code and other federal statute charges dealt with in provincial/territorial adult criminal courts. However, some significant limitations to the survey must be noted, including the following:

• only nine of the 13 jurisdictions across Canada report data for the ACCS (the jurisdictions that do not report are New Brunswick, Manitoba, British Columbia, and Nunavut);

• most jurisdictions do not report Superior Court data; and

• information from Quebec's 140 municipal courts, which account for approximately 20% of federal statute charges in that province, is not yet collected.

According to CCJS, the nine reporting jurisdictions represent approximately 80% of the national adult criminal court caseload. The CCJS expects that the remaining jurisdictions will be providing data to the survey within the next few years.

Although the CCJS collects data on the number of individuals found not criminally responsible and the number of individuals found unfit to stand trial, there are some limitations to the data. At present, it is unclear whether the data fields are completed consistently in the jurisdictions. As a result, it is difficult to obtain an accurate representation of the situation. Furthermore, the CCJS does not routinely present data on these two groups in their annual Juristat. In order to obtain data on NCRs and Unfits, special requests need to be made to the CCJS to provide this data.

There is also some disparity between the numbers of NCRs as reflected in the CCJS data and the numbers reflected in the Review Board data – the Review Board data consistently shows much higher numbers. This may be explained by the fact that CCJS does not include data from Superior Courts.

Overall, collecting reliable data from the jurisdictions presents a number of challenges, regardless of whether it is from the Review Boards or through the ACCS. Some jurisdictions are not able to participate in data collection because of financial constraints, inadequate data retrieval systems and other reasons. Information systems and databases are not always set up in a manner that allows comparable data to be extracted efficiently. In a number of cases, information is collected on different variables in various jurisdictions.

In order to respond to the Committee's concern about the inadequacy of data, the Department of Justice is exploring two options. One is to work with the Review Boards to collect more detailed data, and the second is to work with the Canadian Centre for Justice Statistics (CCJS) to collect reliable data on the number of mentally disordered accused appearing before the courts each year.

The Department of Justice Canada is exploring the possibility of collecting more detailed information from Review Board files across Canada on an ongoing annual basis. In addition to the data elements reported earlier, data on the gender, age, alleged offence types, and criminal history of each individual would also be useful. It would also be of benefit to conduct a study that tracks individuals who are found unfit to stand trial or not criminally responsible and fall under the jurisdiction of Review Boards. Data could be collected on the number of individuals who subsequently become fit to stand trial and on the number of hearings that are conducted for individuals found unfit and for individuals found not criminally responsible once they are under the supervision of the Review Boards and the number of transfers.

In addition, qualitative interviews or surveys might be conducted with officials from Review Boards across the country. This would assist in determining how the provisions are working and identifying any new concerns or emerging issues. The focus would be on the operational issues facing the Review Boards.

However, the availability of financial resources to undertake data collection efforts and qualitative interviews or surveys must be considered. Given that the Review Boards do not have the resources to maintain comprehensive databases, it would be necessary to contract out the data collection and database maintenance. In addition, any tracking study would require substantial commitments of both time and money in order to follow mentally disordered accused individuals through the system.

The CCJS is currently examining the feasibility of collecting more reliable data across jurisdictions on the number of individuals found not criminally responsible and the number of individuals found unfit to stand trial. This study would help inform future data collection efforts by the CCJS. Provincial and territorial cooperation would be essential to the success of such a survey.

The Department of Justice continually monitors developments in the case law and consults regularly with the provincial and territorial governments, as well as with other stakeholders, including hospital administrators and Review Board Chairpersons. The information provided is as essential and valuable to assessing the effectiveness of the law and the need for reform, if not more so, than quantitative data.

Further Statutory Review of Part XX.1

RECOMMENDATION 19

The Committee recommends that the legislation implementing the recommendations contained in this report include a requirement for a further review of the provisions and operation of Part XX.1 of the Criminal Code within five years of the legislation coming into effect. If no such legislation is adopted by Parliament, it should designate a committee to review the provisions and operation of Part XX.1 of the Criminal Code in 2007.

COMMENTS

The Committee has highlighted the need for further parliamentary review of any legislation enacted in response to its report.

The Government does intend to introduce specific amendments to respond to the issues raised by the Committee. Further reforms may be pursued following consultations with provincial and territorial Attorneys General and other stakeholders. Non-legislative initiatives are also proposed to deal with specific recommendations.

The inclusion of a clause in an amending Act requiring a review by a parliamentary committee is usually due to an amendment made by the committee reviewing the bill after Second Reading.

It should also be noted that the amendments to Part XX.1 could be included in a larger package of amendments to the Criminal Code. Parliament has the discretion to determine whether a further statutory review is necessary for any or all of the provisions included in a bill.

The Government is committed to ensuring that our criminal law responds to emerging issues. Necessary reforms to the mental disorder provisions will continue to be considered, whether or not a statutory review is prescribed.

The Committee's report was critical of the Government, particularly the Department of Justice, for the lack of data available. The response to Recommendation 18 describes the efforts made by the Department of Justice to gather data for the parliamentary review, which should have occurred in 1997, but did not proceed until 2002. The collection of data requires the cooperation and active participation of all provinces and territories. Unlike the research conducted by the Solicitor General to assist the Committee in their review of the Corrections and Conditional Release Act, the data regarding unfit accused and accused found not criminally responsible on account of mental disorder is in the hands of the provinces and territories, not the federal Department of Justice.

Moreover, data on numbers of accused found not criminally responsible or unfit, number of hearings, and disposition information cannot provide a complete picture about the effectiveness and fairness of our criminal law.

While the Government agrees that research, both quantitative and qualitative, is essential to inform policy development and legislative reform, we cannot make specific commitments with respect to what information will be available if a subsequent parliamentary review is called for.

The Department of Justice made its best efforts to carry out essential research on the 1992 amendments within the existing budget for all criminal law related research. The Department of Justice proposes to enhance research and data collection with the cooperation of CCJS, Review Boards and provinces and territories, to the extent that available resources permit.

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