 Good evening, everyone. Thank you very much for venturing out on a lovely sunny Wednesday evening. Welcome to the Schulich School of Law at Delhause University. My name is Archie Kaiser. I teach here mainly, but also in the Department of Psychiatry Residency Training Program. You know, when I was thinking about what I was going to present as my mini law lecture tonight, I had lots of challenging issues I could have chosen from. In my own fields, which are criminal law and procedure and mental disability law, there are always difficult and interesting issues. So it was very hard to decide what I would choose for this semi-captive audience, let's say. I chose my topic tonight to demystify the mental disorder defense, because there has been much public discussion of late about the intersection of mental disorder and crime. And I regret to say that that discourse is often based upon myth and prejudice and ignorance. So I thought, you know, perhaps it's time for me to say a few things in public and also to help the public understand some of the issues that are in play. So I called my topic demystifying the mental disorder defense. That intimidated me somewhat. You know, it suggests that A, there's some mystery around it. And B, I'm going to remove it. I looked at the Canadian Oxford Dictionary definition of demystify. So I use my words intentionally. I'm supposed to clarify, and especially obscure beliefs or subjects, et cetera. I'm supposed to simplify. I'm supposed to explain. The example they give is that this book attempts to demystify computers, end quotes. So this lecture will attempt to demystify the mental disorder defense, but a whole range of issues that touch upon it. I've probably bitten off more than I can chew. I probably have pitched it at a level which will be unsatisfactory to most. Because when I look around this audience, I see people who are working in the field from the mental health and legal perspectives. I see other persons who bring to bear their community experience. And I'm not sure that I'll get anybody's level of knowledge right. And I may alienate everyone from the point of view of their level of interest. But all these caveats aside, I decided to press on regardless. So we'll start off with what I'm going to do tonight. I'll start with what I've called prefatory comments. It's really a chance for me to announce my position on a number of issues where there is considerable public discussion. I will be talking about what I've called key elements of the criminalization of persons with mental health problems and remedial responses. Because if I only talked about the mental disorder defense, I think you'd be singularly misled about the intersection of mental disorder and the criminal law in Canada. And I will look at what I've called here threats to human rights that may reinvigorate criminalization. And then because, as I say, I never hesitate to overreach myself, I've decided, well, why don't I provide a short history of the mental disorder defense? Why don't I, because you've never looked at it before, perhaps, why don't I look at fitness to stand trial as well? Because sometimes people kind of collide the two, the fitness issue, and they're not criminally responsible on account of mental disorder defense. So rather unwisely, I've decided to try to tackle both. And I'm going to finish with what I've called another threat on the horizon, Bill C-54. That's an act which is intended to reform aspects of part 20.1, the mental disorder amendments in the criminal code. So that's what I'm going to do. Well, that's what I'm going to try to do. So you can follow me. You can follow the script, or none of the above, I suppose. But I do want to start off with making some prefatory comments. And I couldn't help myself, but keeping the foreground for me and I hope for you that this is a community that, like many, and I'm not saying just Nova Scotia, I'm saying Canada, is infected with mental disability prejudices that stigmatize people with mental health problems and those with intellectual difficulties. And there are widespread and uninformed beliefs that people with mental health problems are unpredictable and dangerous. So in fact, this part of the community, I want to say upfront, is not more violent than other members of the community. If anything, people with mental health problems are more likely to be victims of violence than perpetrators. The Supreme Court of Canada, which hasn't always been attuned to these issues, did say in the Winko case, a major authority, as you'll see later on the mental disorder amendments, contrary to the stereotypical notions that some still may harbor, persons who are mentally ill are not inherently dangerous, but they have been long subject to negative stereotyping and social prejudice. Very few people, to preface my remarks as well, charged with criminal offenses ever claim the mental disorder defense. That's why it would have been inadequate to only talk about the NCR defense and the unfitness issues. Recent research out of Ontario showed that 1, 1,000ths of a percent of accused in Ontario, given the overall number of charges, used this defense. And of the people who do use the defense on the not criminal responsible and counter mental disorder defense, only a small portion of 10% approximately involve severe violent defenses. But with respect to this population, we have to keep in mind that their rates of recidivism are much lower than other offenders. And many other people in the NCR context are what I've called here forensified. That is, their index offenses are far less serious. And at times one is not sure, although technically they qualify whether they should be going through the forensic justice system. But everyone who is subject to the NCR defense is monitored far more intensively for a much longer period of time than other offenders. Those are the facts. The criminal justice system in Canada, and I'm going to address this fairly extensively, has seen an overrepresentation of persons with mental health difficulties. That's the real ground level truth. People are being criminalized who don't belong as subjects of the criminal law. And finally, in terms of my prefatory comments, because they're animated in part by the government's introduction of Bill C-54, as you'll see later, Canada has had a well-functioning and fairer system, and I'll put it in some historical perspective later, for considering what should be done with unfit in NCRQ since 1992. And I believe that the current law and procedure governing the decisions of criminal review boards is facing an extraordinary and unjustifiable attack under Bill C-54, currently before Parliament, the not-crimly responsible reformat. So in case you have any doubts about where I stand, that's my, in part, the line in the sand, or the lines in the sand. So I do want to then close these prefatory comments with this kind of coverage from the daily news. It says, get the violent crazies off our streets. That's what you sometimes see, and this is an old headline, but that's what you sometimes still see infecting our news media. And so I hope that all of you will, as the slide says, think outside the stigma. Think, truly think. And you'll be a cut above our current federal government, a cut above Mayor Rob Ford of the city of Toronto, and a number of other people who have spoken, in my view, on an uninformed basis about the problems of the intersection of mental disorder in the criminal justice system. So I'm going to turn and look briefly, because I couldn't do the whole lecture on this, but briefly, perhaps too fast, at what are called key elements of the criminalization of persons with mental health problems. Because what I want you to think about is before we get to the formalities of the doctrine of the mental disorder defense and the unfitness procedures, we need to think about how people in our community who have significant mental health difficulties encounter the criminal justice system and how they're treated within it. So when I refer to criminalization, broadly speaking, I'm talking about using the course of powers of the criminal law. But here, for a portion of the population that from these sources will see, one can say that a criminal or legal response has overtaken a medical or social services response to behavior that's related to mental illness, as from CMHABC, or the sentencing project from the US. It implies that people are being inappropriately processed through the criminal justice system rather than through the mental health system or with the benefit of community supports. As in this article from Luragio, there are people who fall outside the country's social safety net, which is itself shrinking and simply landing in the criminal justice system at an alarming rate. The Canadian Psychiatric Association in their December 5, 2011 position paper on the criminalization said that they traced the trend of deinstitutionalization, transinstitutionalization, and the consequent criminalization of people with mental illness. And they found that there's an increase of people with mental illness within the criminal justice system, which appeared to correspond with the reduction in psychiatric beds. It's not to say it's linear, and that's not to say that when people were in psychiatric beds that that was an inherently better environment. But on the other hand, that's what has occurred. The CPA says, no one has taken responsibility for the care of one of the most disadvantaged and marginalized populations. And many people suffering from serious mental illness end up incarcerated only in part to a lack of appropriate services to treat them in the community. The Canadian Bar Association in 2011, I might add, before the Canadian Psychiatric Association a few months, not that we're competitive or anything, made their position known. And they made it known to the Minister of Justice and asked for his comment, the current Minister Rob Nicholson, which was, I regret to say it, the CBA national meeting quite unsatisfactory. But the CBA's resolution said, there are significant numbers of mentally ill people who have become involved with the criminal justice system as opposed to the health care system. And the CBA urged government to allocate sufficient resources to reduce the criminalization of mentally ill individuals and to develop policies that enhance the lives of those suffering from mental illness to prevent them from coming into contact with the criminal justice system. So these pictures really tell the story. This is the image of the asylum, as it was once called, from the mid-1800s on. And this is what's happened to it. It's literally been dismantled in the past 40 years. And this is what has occurred with many people who are formerly residents of these large, essentially villages for people with disabilities and mental health problems because of the lack of investment in appropriate community supports on a very wide basis. And this is the phenomenon that I was talking about. And I will be talking about for the next few minutes with respect to criminalization. So these images, I think, do speak eloquently, although tragically for themselves. So when I talk about criminalization, then I'm talking about what many people see as an inappropriate use of the criminal justice process for persons with mental illness. When we invoke and use the justice system, it's often unnecessary. It's often counterproductive for society. And it's usually damaging to the individual accused. And my approach, and that of many others, is, and I include this Canadian Psychiatric Association at the Canadian Bar and other advocacy organizations, is that wherever possible, we should prevent justice system involvements. And where there is a justice system involvement that has not been prevented, then we have to minimize the harm that people experience in their interactions with the justice system when they have mental health difficulties. If we think of precursor factors, basically here, it's pretty simple. The person's mental health problem is directly related to his or her involvement with the justice system. And that problem, that mental health difficulty, causes, one way or the other, the interaction with the justice system. And the person's difficulties are exacerbated by the contact with the justice system. Mental health problems usually don't get better, unfortunately, when the person comes into conflict with the justice system. So where the person's problems have not been previously remedied or ameliorated by mental health care and support, the justice system is often called upon to provide the societal response to people. Because we haven't done what we could have done to provide appropriate support systems for people. As the Canadian Psychiatric Association says, correctional facilities are becoming the de facto psychiatric institutions in the country. The justice system is quite dysfunctional at times, not always, but quite dysfunctional at times when it comes to its interaction with persons with mental illness. Any contact with the justice system is likely to cause harm to vulnerable people. Their symptoms may be exacerbated. Their social functioning may be diminished. And overall, as we'll see more clearly as we go through this tonight, the purposes of the justice system don't fit well with the needs of persons who are mental health consumers. So recidivism may become more likely and we see this phenomenon of overrepresentation emerging. You can look forward to improved service delivery with appropriate services and supports. Many mental health problems can be remediated and crises can be averted. Crises that cause conflict with the justice system can be averted. But as anybody knows, who works within these systems, there's been poor collaboration between the health and justice systems. And obviously, we could achieve better outcomes if we work better together. But on the other hand, if we accept that the justice system has badly served many persons with mental illness, that doesn't imply vindication of the current mental health care system. It too needs to be reformed, although, you know, the kinds of reforms may be different. And in some ways, they may be less urgent in some areas. But the overall message about criminalization is that it's not inevitable. We don't have to bear this as a society. There are other ways of delivering services for persons with mental illness that will reduce the likelihood of their conflict with the justice system and reduce the harm that they experience. The contemporary Canadian reality has no authority of Canadian data on the overall experience of persons with mental illness in the justice system. There's lots of relatively reliable evidence from responsible organizations that affirms what I've talked about, this overrepresentation. The Department of Justice in 2013 provided this, you know, just facts as they call it, prevalence of mental illness in the justice system. They observed no national statistics. And the prevalence rate will vary. But they brought together things like police data, where you can see there in Vancouver and London that there is an extensive and overuse of police services for persons with mental illness in corrections. They noted from BC that more than half of offenders had a diagnosed mental illness. And in Quebec, that 61% had at least one diagnosis. In the federal system, and more of this soon, there's been a doubling of rates of inmates with mental health problems. And 36% of inmates according to the Department of Justice have difficulties that require a follow-up. And of persons, of women in the justice system, they're more likely to have a mental illness. And some diagnoses are more prevalent to justice points to depression, anxiety, and PTSD. And when you bring in comorbidity, concurrent disorders, substance abuse, and the levels of overrepresentation go up. The correctional investigator has been very active in Canada in bringing to the attention of parliament and the Canadian public the problems that inmates experience in the federal correctional system. From 2004 on, he has observed that the proportion of federal offenders with identified mental health needs has more than doubled over the past decade. And successive reports have specified the positive things that the federal government has done, but also the many shortfalls with respect to the delivery of services to federal inmates. And in the most recent report, the correctional investigator says basically it hasn't changed. Despite some good faith efforts, it's not good enough. So in federal corrections then, he has been very active in the federal government and in the federal corrections then, he points to a complex and compromised population where resource and capacity challenges facing Canada's correctional authority are significant and growing. Other sources will give you more or less the same kind of data, the program, a mental health division, and court support services in Ontario says they had a 27% increase since 1995, Alberta in 2001, and the recent utilization of law enforcement resources. The CMHA captured the basic themes here for many people who are criminalized with mental illness very well. Persons with mental illness are being jailed rather than helped due to a lack of community mental health services. The trigger for police involvement is usually a nuisance offense. There is an 81% chance they'll be apprehended again because they have not accessed adequate services and they're overrepresented in the jail system, which is unfunded and ill-equipped. That's the data such as it is. There is therefore neglect and unsuitability in both systems. With respect to the civil mental health system, many, including the Kirby Senate report and the Romano report before that have talked about the needs of persons with mental illness. They've referred to the mental health care system as being the orphan child or the poor second cousin, and then the justice system itself is unsuitable. And then, as I've been trying to explain, there are very low utilization rates for the mental health provisions, mental disorder provisions of the criminal code, which we'll look at later on. So when we look at the criminal law, it is mainly deterrent and it's punitive. And it's based upon a model of deliberation that does not suit many people who have serious mental health difficulties if they come into conflict with the law. Model of deliberation, of knowledge, of understanding, and hence of moral culpability. It is a blunt and costly instrument, and in many instances, it's quite inappropriately invoked for persons with mental illness. There's insensitivity in many doctrines, policies, actors, institutions within the justice system. As the CPA says again, jails and prisons can be brutal places where people with mental illness who are often unstable and exhibit poor judgment are victimized and terrorized. So, how do you reduce criminalization? You improve supports and services for people with mental health problems. And there are some aspirations that we could think about now having been relatively well-concretized both in Canada and internationally. I think of the Convention on the Rights of Persons with Disabilities, it's a whole other subject. Maybe you were here for one of our earlier many law lectures where we took on the Convention on the Rights of Persons with Disabilities. But it's the first human rights treaty of the 21st century where the credo is nothing about us without us. It had 155 signatories as of 2013 and 90 to the optional protocol, and it represents a paradigm shift. Under the Convention, persons with disabilities, including people with mental health difficulties and intellectual disabilities, are not viewed as objects of charity, medical treatment and social protection, but rather as subjects with rights who are capable of claiming those rights and making decisions, as well as being active members of society. So, actually, it's an indication of the lack of popularity perhaps of my last handout, but I happen to have quite a few handouts on my CRPD presentation. At the end of the evening, you're welcome to pick up one of those. If you wanna learn more about the Convention on the Rights of Persons with Disabilities, I can't cover it more now. There are a number of parts of the CRPD. That directly relate to the justice system that provide for rights for individuals not to be interfered with in terms of their bodily and psychological integrity, but also positive social, educational, and cultural and political rights, broad, positive rights for people to be able to live in the community. So that is what I believe to be a key resource for developing our aspirations for how we as a community should relate to people with mental health problems. Why don't I just pass these out? You don't have to keep them, but at least I won't have the embarrassment of having them kind of recycled again. But that's not what I'm talking about tonight. That's just important for you to understand that the world community has changed in its outlook on people with disabilities. And one of the things I'm going to try to orient us all about tonight is to make sure we keep up with the rest of the world. The Mental Health Commission of Canada and its mental health strategy for Canada has dealt with the issues surrounding criminalization to some extent as part of Canada's national mental health strategy in 2012. It too observes over representation in how we ought to focus on preventing mental health problems and illnesses, providing timely access to services, treatments and supports in the community to wherever possible implement diversion programs as the next line of defense if you can't prevent crises. And in the justice system, to ensure that people have a right to reasonable access to mental health services consistent with professionally accepted standards. Not a reduced norm of delivery of professional mental health services because they're in prison. I never quite understood why, but it still persists that the Correctional Service of Canada has responsibility exclusively for delivering mental health services to inmates. Rather than the system of healthcare delivery that all of us who are not currently federal inmates have. Anyway, so even the Mental Health Commission of Canada which is at times pretty reticent about biting the hand that feeds it, the government of Canada has said maybe there should be a transfer of responsibility to the civil system away from Corrections Canada. We could look at the Criminal Justice Mental Health Consensus Project as well. In many ways, this is the gold standard for many of the interrelationships described in the United States between criminal justice and mental health. I won't stop there now. So, what can we do to improve justice system responses? Talk about improving the mental health care system, social support services, that's not enough because some people are still gonna be brought into conflict with the justice system and we have to think about how to improve the justice system in addition. The major concepts that we would think about are the same as introduced by the Mental Health Commission of Canada. Diversion, redirecting people with mental health problems away from the criminal justice system to community-based supports and also ensuring that people who are involved in the justice system receive appropriate supports and services on a comprehensive basis. So, there are things which we can do to reduce the phenomenon of criminalization that we observe in the nation's jails and penitentiaries. I regret to say there are many threats to human rights as exemplified by the Convention on the Rights of Persons with Disabilities that may reinvigorate in some ways the phenomenon of criminalization. I refer to reductions in social service budgets, reduced access to employment insurance, increasing social inequality, the contraction of addiction supports and services, the erosion of affordable housing, the failure to address the underinvestment in mental health promotion, illness prevention and treatment services. All of these things are sadly going to result in more criminalization of people. A nation that permits vast social inequalities and that ignores people who are already on the margins is not a mentally healthy society, but besides that indictment, it's also a society where those same vulnerable people are going to come in conflict with the law. So, you know, maybe sometimes cartoons illustrate what I can't as well. To me, it's the danger of increasing social inequality and neglect of marginalized people. So I'm not saying I agree with any of the following cartoons, they're much too far out on the left for me. I wanna formally disassociate myself. It's just to give you an idea of what some people might think about how to think about our society. So here's one. I think you get the message, you know, here he's got euros and everybody else is out here. Now, as I say, it's not my ideology I can assure you, but, and here's another one. Stop robbing the poor to feast the rich. I think there's something wrong with that person, but you get the idea as social inequality increases, then the likelihood of criminalization also increases. That's a catchy little and simple design, isn't it? So, those kinds of developments in social policy will have, in my view, in the view of many others, the inevitable effect of increasing not only social inequality, but the likelihood of vulnerable people coming into conflict with the justice system. I regret to say that there are other issues more directly in my field, rather than the broad social policy and ideological field that will have inevitable bad effects on the number of persons with mental illness who are criminalized. I refer to here more putative approaches to criminal justice policy. And there's a whole range of things that the current government has done and is intending to do, apparently. I refer to, for example, the sentencing changes, the Truth and Sentencing Act, Bill C-25 from 2010, that limited the credit that a judge may allow for time spent in pre-sentencing custody, commonly called credit for time served. That was introduced by Minister Nicholson as part of the overall assurance that the government has that they are tackling crime. For the category of persons that I'm talking about tonight, denying people or reducing the available credit for time served in custody prior to their eventual sentencing will cause some people with mental illness to serve longer periods of time in jail and that'll be harmful to them. So the minister talks about tackling crime. I found this next slide, which I thought was quite charming. It, to me, turns the debate on its head. I didn't alter this. I did not Photoshop this. I swear. But it does, to me, put the debate in clearer perspective. The minister's head blocks out C-R-I and leaves in what I think we need to think about that is responding to these regressive criminal justice policies that are going to have the effect that I'm talking about, about increasing criminalization. There's the credit, by the way, which it's from the globe and mail, after all. So there, I did not Photoshop it. I am not responsible. We could also look at the other changes that have been brought about by Bill C-10. The, for many people, infamous bill from 2012, the Safe Streets and Communities Act. I think the current government gets people to come up with titles which are increasingly more absurdist in terms of what they actually accomplished compared to their labels. But this act actually is intended to increase or impose minimum mandatory penalties for several criminal code and control dog and substances act offenses. It amends the Corrections and Conditional Release Act to, among other things, and I'll refer to this later, to eliminate the least restrictive reference. And it doesn't commit the CCRIT to human rights protections. It amends the Criminal Records Act to remove pardons and make record suspensions more elusive. It amends the Youth Criminal Justice Act to emphasize public protection to increase the likelihood of pre-trial detention for young offenders and adult sentencing as well and longer custodial sentences. So, you know, there were a host of non-governmental organizations of respectable professional organizations, not just people like me, academic lawyers and people who, you know, enjoy attacking government. Good citizens, you know, who, you know, band together as responsible professionals. I'm only mentioning two here. Canadian Psychiatric Association, not renowned for its radicalism. You know, they said, this is from their representations to Parliament. Bill C-10 will dramatically increase the number of incarcerated individuals in Canada. Just like current populations, these people will experience mental illnesses at disproportionately higher rates without a robust mental health strategy with its aggressive stance on justice policy, the mental health crisis in our prisons will worsen. Canadian Psychological Association, similarly. I looked at the Canadian Social Workers Association, the Canadian Prison Guards Association, the Canadian Bar Association, but I just mentioned these two tonight. The CPA, the Canadian Psychological Association, says that C-10 will put more people in jail for longer periods of time. Incarceration does not reduce time. Treatment works. We should instead be concentrating on moderate and high-risk offenders, targeting changeable risk factors, incorporating proven human services as part of offender rehabilitation. That was their submission to the Senate. This poster for a rally captures the Canadian Psychological Association, the Canadian Psychiatric Association, and many other organizations outlook on Bill C-10. Time does not stop crime. And what would, well, what would slow down crime at least is a reversal of these sentencing policies and what will slow down criminalization is a retreat from some of these harsh sentencing policies which probably have their worst effects on the most vulnerable parts of the population. So there is my opening salvo on criminalization, but you can see I hope why it became important to me to start off with this. I know that the title of my lecture is then somewhat misleading because you didn't come here to hear about criminalization. You came here to hear about the mental disorder defense. But I wanted to start off this way because if we only talked about the mental disorder defense, you would, as I mentioned, get a singularly misleading view of what happens with people with mental illness as they come into conflict with the justice system. So we start off with a criminalization piece, keep it in mind please. Now I'm gonna turn to what you may have come for, the mental disorder defense and on fitness issues. So as I said, I'll start off with a short history here. The early common law provided just no relief for persons even with severely altered mental states. Eventually it became obvious that there was something inherently morally wrong about convicting and punishing people with radically altered mental states as if they were regular offenders. So gradually juries were empowered to return a special verdict of insanity followed usually by a pardon. And insanity gradually became recognized as a separate defense for those who were very floridly mentally ill. By the 1700s though, you had to be seen as a brute or wild beast, absolutely lacking any reasoning capacity to benefit from the defense. You know, your mental health difficulties had to be on the true extreme end. By 1843, the McNaughton case in the UK which was followed by judicially imposed rules permitted an acquittal by reason of insanity. And our criminal code, which we only developed in 1892, largely adopted the British McNaughton rules which were liberalized in part over the years by our courts. Until the Swain case in 1991, what we had in Canada, which was a not guilty by reason of insanity verdict for an insane equity, meant that the trial judge had to order the person into strict custody immediately with very few procedural protections. Ominously, up to the time of the Swain decision and then the middle disorder demandments which I'll be talking about tonight, you were in custody at the pleasure of the lieutenant governor. That was the actual phrase in the criminal code which always struck me as having a very dangerous and perverse notion to it at the pleasure of the lieutenant governor because it suggested what the Supreme Court found. That this complete allocation of, or complete abandonment of structured rules to control the use of the discretionary power to detain was wrong. So Swain determined that this provision which for the insane equity to be detained at the pleasure of the lieutenant governor was unconstitutional because it didn't provide due process, permitted arbitrary detention, absent any examination of the accused condition and level of risk. So as a response to the Supreme Court of Canada in the Swain case, striking down the then provisions which dealt with persons who were found not guilty by reason of insanity, part 20.1 of the criminal code was introduced, a whole section that dealt exclusively with mental disorder, at least in the context of unfitness and not criminally responsible determinations. It provided a much higher level of procedural protection, new terminology, and a new verdict, what I've been talking about. The not criminally responsible verdict having committed the act, but at the time suffering from mental disorder so as to be exempt from criminal responsibility. It left the substantive standard for the NCR defense how you get to it, largely for the courts to develop. It didn't interfere with what I'm about to explain the so-called section 16, the not guilty by reason of insanity defenses that used to be called the not criminally responsible defense. It also introduced new provisions for assessment orders which I'll address briefly, and it clarified and modified the unfitness provisions overall. It created new provincially appointed review boards with a senior lawyer as chair and significant mental health expertise being a necessary part of review boards. It established a procedure and standards for determining what is the appropriate disposition for a person who is found not criminally responsible or unfit, and it required these review boards for the first time to pay attention to statutory declarations from the Parliament of Canada. The need to protect the public, the mental condition of the accused, the reintegration of the accused, and the other needs of the accused. And then the review board, usually a review board, had to make a disposition that was the least onerous and least restrictive, and it would choose from discharging the accused absolutely, free then of state control, imposing appropriate conditions, or ordering that the accused be detained in custody subject to conditions. Subsequent cases have strengthened and clarified this legislation so that I'll mention as part of my brief historical tour, some of them. The Winko case I've already mentioned, but it is the pivotal authority from the Supreme Court of Canada determining how we are to construe the mental disorder provisions of the criminal code. It emphasized individualized assessment, treating and accused with dignity, and according the person maximum liberty. It established standards for when a person could get an absolute discharge. It confirmed, as I'll explain a bit more later, the constitutionality of part 20.1, the mental disorder amendments. And it did say, and it reminded us essentially, because I think this really is an ancient principle, the persons who are mentally disorder offenders should not in fairness be held morally responsible. They are spared the full weight of criminal responsibility. The NCR accused is not to be punished. You'll see how relevant that is when we look at the provisions of Bill C-54 shortly. The penitanguishing case of 2004 kind of highlighted the importance of this least-ownerous, least restrictive provision that is the commanding note from the Parliament of Canada as to how you choose a disposition. It extended the least-ownerous requirement from the choice of dispositions in the community, in a forensic hospital, or discharged absolutely, to the conditions that attach to dispositions. So everything that affects the accused at the review board is determined. The Masai case in 2006 said that review boards can't prescribe treatment, but on the other hand, they do have power to make orders and attach conditions relative to the supervision of treatment. It didn't show sufficient muscularity as far as I was concerned, and I'd said so at the time, to empower review boards to require services to be delivered to persons who were in forensic facilities. But at least it said, we're not going to abandon them. We're going to permit review boards to have some structural role with respect to how people are treated. And then the Conway case in 2010 expanded the powers of criminal review boards and it took them a very long time to reach this position, which I always thought was singularly logical. It said review boards are courts of competent jurisdiction for the purposes of the lawyers in the room, section 24.1 of the charter. They can provide, review boards can provide charter remedies, which are previously only available in the courts. Now review boards could establish constitutional remedies for accused persons who were before them. So the Conway case then strengthened the powers of review boards. Soon I'll be telling you how Bill C-54 is moving in the other direction, reducing the powers of review boards. So that's a little tour of several hundred years of history of the mental disorder defense. Now I'm going to immerse you in the two junctures at which mental disorder is most crucially relevant for the purposes of the mental disorder amendments of the criminal code. What I'm not touching upon here is mental disorder and the conventional sentencing process. Now that's beyond even my overly ambitious agenda tonight. So we're only going to deal with it at the level of, at the preliminary stages is the accused fit to stand trial or is he or she not because of how profound the person's mental impairment is. And also we're going to look at it at the trial of the accused, who is fit to be tried? Was the accused at the time of the offense so seriously mentally disordered that he or she ought not to be held criminally responsible? We're going to look at both junctures. Now you may well say fitness issues. I've heard about them before if you're not a lawyer or not a clinician, but I thought that kind of faded away. And if that's your intuitive sense, you're right in a way. But we're going to look at it because it's a crucial stage of the trial where the person who is before the courts still has a significant mental health difficulty compared to merely having it at the time of the offense and having stabilized. So we're going to look at a quick tour here of the fitness to stand trial provisions. I'll give you an introduction to the substantive and procedural law with respect to fitness determinations. Everybody's presumed fit to stand trial, right? If you're charged with an offense, that presumption has to be displaced. Either the crown or the accused can raise the issue of fitness before the verdict and a conclusion of on fitness requires proof from the balance of probabilities the civil standard. The legal standard for fitness is specified by parliament in section two of the criminal code. It means that a person who is unfit is unable on account of mental disorder to conduct an offense or to instruct counsel to do so, unable to understand the nature or object of the proceedings, unable to understand the possible consequences, unable to communicate with counsel. The Taylor case from the Ontario Court of Appeal articulated what still is the dominant authority in this area. It's called the limited cognitive capacity test where Barrett talks about it as the ability to relate the facts of the offense such that counsel could properly present a defense regardless of whether the accused's instructions were deemed in good judgment or not. So it's not a guarantee that if you're fit to stand trial, you're making decisions which are in your own best interests. Quite the contrary. It just says you have enough orientation that you can provide kind of a minimalist type of instruction to your lawyer and you're at least alert to some of the factual foundations. The Morrissey case from 2007 the Ontario Court of Appeals said, what we require is meaningful presence, meaningful participation at the trial. These are the touchstones of the inquiry into fitness. Now this standard has been criticized as being too low. It has been criticized because it is said to permit people with profoundly impaired judgements to be subject to the rigors of a criminal trial. So it remains controversial but that is the law as we have it. If you're found unfit, you may be ordered to be treated for the purpose of making a person fit to stand trial. It's the only part of the criminal code where parliament has said to judges that they can actually order a person to be treated. Otherwise it's not possible. Most accused having been treated and this may be why this doesn't stay in your minds that forcefully will eventually be found fit to stand trial. Very rarely where it accuses unlikely to ever become fit and doesn't pose a significant threat to safety after the Daveris case from the Supreme Court of Canada and then a consequent amendment of the criminal code, there may be a permanent judicial stay of proceedings for that rare person who is going to be permanently unfit to stand trial. Here's a procedural flow diagram which will simplify this in part for you. By the way, I don't remember whether I said or when you may not have read at the beginning that all my slides are going to be available online. Lindsay, sometime soon. On the Dow Law website, if you'd like to look at these and possibly read them or possibly print them off and the video of tonight will also be available if you want to replay some of our magic moments together. So this is what happens with respect to fitness issues. There's a presumption of fitness, as I mentioned. There is an assessment order which can be issued by a judge if there are reasonable grounds to believe that evidence is necessary to determine the person is fit. Usually there's a written assessment report which talks about whether the person has significant impairments. There is a trial of the fitness issue if there are reasonable grounds to believe the accused is unfit. If he or she is found to be unfit and he please set aside. And if the person is found unfit, he or she may be ordered to be treated to make him or her fit. By the way, if the person is fit, then the proceeding continues as if the issue never arose, as you might expect. The court or review board has a hearing for the person who's been found unfit and then they have the kinds of dispositions that I mentioned before that are shared with persons who are found not criminally responsible. And then the review board, once it determines a person having made a disposition to be fit, it sends the person back to court for a trial of the fitness issue because only a court finally determines the fitness issue and the court determines whether that state has been reached. So I hope that this introduction to fitness and the flow chart will give you a sense of where the fitness issues go and how they are dealt with both substantively through the Taylor case in section two of the criminal code and procedurally through this kind of flow that I mentioned that's specified now by the criminal code. So that's the unfitness stream. As I mentioned, most people who were found unfit temporarily become fit. And then they can go to their trial and they have the option to choose then whether they'll defend on the basis of they're having a mental disorder defense. So now we're going to switch gears away from fitness. Now we're going to look at the person's mental state at the time of the commission of the offense. So we're going to look at the basic nature of the current version of the insanity or not criminally responsible and kind of mental disorder defense. This at its heart is an issue that involves as the chalk case from the Supreme Court of Canada says an underlying claim that the accused has no capacity for criminal intent because his or her mental condition has brought about a skewed frame of reference, a profoundly skewed frame of reference. Not just the kind that you or I might have on a daily basis because we look at the world through different eyes and different ideological stances and different personalities, but a profoundly skewed frame of reference. As the Bouchard-Lebrun case said in 2011, the NCR verdict protects the integrity of our country's criminal justice system and the collective interest in ensuring respect for its fundamental principles. In a way that was a throwaway line for Bouchard-Lebrun, it's a toxic psychosis case. I won't get into it, although I'd love to because I wrote an article on it. I was kind of angered by the case, but anyway, I'm over it for the time being. Mr. Bouchard-Lebrun took powerful drugs and inflicted terrible harm on somebody and he defended on the basis of his being not criminal responsible owing to his psychotic state. Supreme Court of Canada said no. He was just intoxicated and that's the end of it and he's gonna be convicted and punished like other people. So that's what happened in Bouchard-Lebrun. But actually, this statement, I believe, is singularly important for us to appreciate at this juncture of our evening together and when we think about Parliament's current stance on the mental disorder amendments because what it underlines is that this verdict of NCR is not just a procedural nicety that's just left there and it's an artifact of time past. It protects the integrity of our justice system. It ensures that no one is convicted who has that profoundly skewed frame of reference and it also ensures respect for our fundamental principles. We don't punish people in Canada who are so profoundly mentally disordered that they're not criminally responsible. So this is, in my view, a principle of fundamental justice. So when the Parliament of Canada starts amending it as they are about to do, then I believe that they're opening themselves eventually to the court saying, well, wait, you're going too far here, you're treading upon principles of fundamental justice, more of that later. So, hence this image, this is the essence, or one of the essences of criminal justice in a democratic society, the scales of justice and also this principle that we're not going to punish people who are profoundly mentally ill, that being a fundamental principle. So what are the basics of our current mental disorder defense in Canada? Section 16, one of the criminal code specifies the requirements of the mental disorder defense. Assuming that the act is proved, you have to prove that the accused did the act in question, then what's required is proof of the person's mental disorder, proof which is sufficiently serious that it causes either the person to be incapable of appreciating the nature and quality of his or her act or of knowing that the act was wrong. All of these things have to be shown, as we'll shortly see on the balance of probabilities or the civil standard, before a person can be found not criminal or responsible on an account of mental disorder. It is not therefore like some people would say who don't know very much. That is that it's just a walk and it's easy for the accused. It is not in any sense and it's not advanced on a frivolous basis. And it's not something that should be discussed in ways that trivialize. I'm looking here for a choice quote from Mayor Ford from Toronto. I'll come up with that, because I did highlight it because he really didn't understand the law that well when he called into a local radio station before a jury was sequestered talking about the catch car trial in Toronto recently. Where a person was found not criminal responsible of killing a police officer, you may have heard of the case, driving a snow plow over the police officer. It's an awful incident, but the mayor of Toronto called into the radio station and said, before the jury was sequestered, which, you know, if you're a modern politician in Canada, normally you would never do because that shows disrespect for the judicial system and the deliberations of the jury. But that fundamental principle aside, Mayor Ford said, I'm really disappointed how the defense is presenting this. The defense of not criminal responsible. One of our finest got killed. He left behind a wife and little son and we're trying to find an excuse why he stole a snow plow and killed a police officer. I think you can't defend that. These people put their lives every day in the line of fire. They jeopardize their lives and we are trying to justify this. He didn't get it. We're not trying to, when we defend a person on the basis of not criminal responsible, for even a terrible thing like this. We're not trying to justify the actions. This is not a justification or excuse as self-defense is. This is an exemption. This says that the person's mental state is so skewed that they cannot be held criminally responsible. The lawyer for one of the people on the panel said, the mayor seemed to be very misinformed about the legal principles that applied on the ramifications for Mr. Kachar if he was convicted. They are in law held, not criminal responsible but it doesn't mean they get off. It doesn't mean that people are not held accountable. They're just held accountable in a different way. So, the point is here, and I perhaps shouldn't be picking on poor Mayor Ford from Toronto. The first applause of tonight. I've picked an easy target maybe. But the point is you don't get the NCR verdict by just the eminence of psychiatrists or the persuasive ability of lawyers. The jury has to be persuaded on the balance of probabilities that all of these things are present. And then after that, you're not getting off. That's what was wrong and what the mayor said. So, the burden of standard improved just as I said everybody is presumed to be fit to stand trial. You're also presumed to be sane not to suffer from a mental disorder. If you raise the defense, you must prove it on the civil standard. And it's not sufficient to prove that you have a mental disorder. You must show that it was sufficient severity as to satisfy either of both of the other limbs of the defense that I mentioned. And then you get this special verdict. It's not an acquittal. You're not getting off. It's not like self defense where I get a complete acquittal and I'm not subject to state control. Quite the contrary. You're subject to a disposition which I'm about to explain. There are special procedures that obtain when you succeed in the NCR defense. A disposition hearing may be held by the court, usually by a review board. And the terms of the dispositions are, as I mentioned before, with respect to section 672.54. With respect to the nature of the mental disorder defense, there are these stages that I mentioned. The first stage, in some ways, the easiest hurdle for the NCR defense is to show that you have a mental disorder. The Cooper standard from the Supreme Court of Canada said, this embraces any illness, disorder, or abnormal condition which impairs the human mind and its functioning, excluding most self-induced intoxicated states. Hence the Supreme Court of Canada's verdict in the Bouchard-Lebrun case, which I just mentioned. And it also excludes most transitory states that are caused by external factors such as hysteria or concussion. That's a separate doctrinal stream in Canadian criminal law, where you might be able to be acquitted. If one of you hits me on the head now and then I assault one of you acting in a concussed state, i.e. I'm not deliberating at all on any level, then I can get a complete acquittal. So that's why we exclude transitory states. The nature of mental illness is that it's a long subsisting state. So the Stone case and the Parks case say that we also inform our judgment as to what is a mental disorder beyond the Cooper case with a more holistic approach informed by the internal cause theory. Is it internal to the person's functioning? The continuing danger theory is the person likely to be an ongoing danger and policy concerns, among other things. Is it easy to feign mental illness? No, it's not. And it stems from a common concern for public safety and recurrence. So that's the first stage. In many ways, the easier stage, as the courts have said, to show that the person has a mental illness. Now you have to also navigate these other strains here. You have to show that the person is incapable of appreciating the nature and quality of the act or omission as one part of the second stage or the other part as I'm about to explain. You have to show that the effects of mental disorder involve more than something that's just passing in its effects or minimal. The person has to be held criminal responsible more than simple awareness of the act in the sense of the immediate physical qualities. You have to have more than mere knowledge to apprehend the nature and of the act and its consequences. So if your mental state is so skewed because of your mental disorder, you fall below this standard, then you may be incapable of appreciating the nature and quality of the act or omission. The other limb of the mental disorder defense is if you have the mental disorder, you're either shown to be unable to appreciate the nature and quality of the act or possibly incapable of knowing that the act was wrong. Due to your mental condition, you're incapable of distinguishing between right and wrong. And the courts determine whether the person was incapable because of his or her mental condition from knowing that the act committed was one that he or she ought not to have done. And we say now it's more than merely legally wrong. Accused, an accused person with a serious mental illness may know that killing is a crime, but may not understand it's morally wrong owing to delusions. So that to succeed on this limb, it has to be shown you're incapable of knowing that the act is morally wrong in the circumstances according to the moral standards in society. Unable to apply moral judgment in the particular transaction that the person is accused of committee. So who may introduce the NCR defense? Usually the accused. And whether the accused raises it as a tactical issue for many people. You look at the seriousness of the offense. You look at the strengths of the crowns case. You look at the willingness of the accused to advance this defense. You look at the relative lengths of state intrusions following a successful NCR, but are guilty plea. Part of the mental disorder amendments originally now repealed were to introduce caps on the length of time to which you could be subject to a disposition under the mental disorder provisions. And it was the outer limit of criminal punishment. But the Parliament of Canada eventually repealed that. Now you can, like Mr. Conway from whose case was decided at the Supreme Court of Canada. His index offense in the early 1980s was sexual assault. It was a serious offense, but at the time he would have had a maximum term of imprisonment of five years. Before they repealed the capping provisions, that would have been the length of time to which he could have been subjected to a disposition under the mental disorder amendments. At the time of the decision, in the Conway case in 2010, he had been subject to a disposition and in a forensic custodial setting for 27 years. You see, so that there is no outer limit now on the length of time that the state can intrude upon your liberty. So that's relevant to your defense. And the crown can also introduce mental disorder as a defense, but it has more restrictions on when it can do so. So this is yet another procedural chart which tells you what happens following the NCR verdict. I'll go through it quickly for you just so you get a sense of it. The accused who is found not criminal responsible. So we've navigated through then the NCR defense, the substantive law that I've just mentioned, section 16 and the two limbs of section 16. Now the verdict is in, the person is found not criminal responsible. I'm just gonna show you what happens after that, which will elucidate the review board provisions of the criminal code. Following the person being found not criminal responsible, the court may hold a disposition hearing and it's shall on application. If the court doesn't hold one, then the person is kept according to whatever his terms of release or detention are. And then the review board holds a hearing and the review board makes a disposition. Courts can also do this, but usually it's review board. So I'm gonna simplify things for you. The review board makes a decision that's based on the factors that I mentioned in section 672.54. That's the list of factors that I said now incorporates the need to protect the public as the number one factor. The accused can get an absolute discharge or discharge subject to conditions. Absolute discharge, no longer subject to state control, you walk away effectively. Discharge subject to condition, you can live in the community, but you're strictly controlled as you would be under bail effectively. Or detention and custody in the hospital, possibly also subject to conditions where the review board delegates the authority to the hospital with specifying on a floor and a ceiling of rights to a liberty are. And then after this, what else do we need to know? There can be appeals on question of law or mixed questions of law. In fact, the reviews by review boards are mandatory within 12 months of a disposition, every 12 months thereafter. It's extendable in certain instances as the law stands for Rylan defenses to 24 months. So those are mandatory reviews. There are also mandatory reviews when their facility requests it or where restrictions have increased for more than seven days, restrictions on the person's liberty. There are also discretionary reviews at the request of the accused or at the board's discretion at any time. So the accused can ask for a review of his or her status. So that's what happens in terms of the procedural outflow following a verdict of not criminal responsible. In terms of these disposition proceedings, what happens at the criminal review board? There's been quite a bit of litigation, actually an uncharacteristic level of activity at the Supreme Court of Canada since the swaying decision of 1991. So there've been quite a few cases which help us understand how we are to construe these provisions that have been introduced by Parliament to control what was formerly the unfettered discretion of the Lieutenant Governor at the pleasure of the Lieutenant Governor. We're well beyond that. So let's look at what some of the cases have said. What's the purpose of these provisions? Because if these are the purposes, you ought not to as the Parliament of Canada mess about with them. The special NCR verdict is neither an acquittal as Mayor Ford thought it was, nor is it a conviction. It diverts offenders to a special stream that provides individualized assessment and treatment for those found to be a significant danger. Because if they're not a significant danger, they're not under criminal review board control anymore. For persons who are NCR, there are two goals here which we have to keep in mind, protecting the public and treating the mentally ill person fairly and appropriately. We can only confine people according to the Supreme Court of Canada in the Owen case for reasons of public protection, not punishment. I mentioned this before, I'll mention it again. Parliament doesn't seem to be fully aware of that. But that's what the Supreme Court says our mental disorder provisions are about. These preambular factors that I mentioned, you know, where we look at the other needs of the accused and so on, they need to protect the public and all this. These are singularly important and we conclude them as the law now stands with the least-owners and least-restrictive disposition, both for NCR accused and unfit accused. So those preamble factors are very important. And the least-owners and least-restrictive principle, you know, is perhaps the most significant, you know, beyond the protection of the public one. As the Mazai case said in 2006, this new element added in part 20.1 is an assurance of procedural fairness and dignity for the NCR accused and a commitment to ensure that his or her liberty interests are to be infringed as minimally as possible. That's how important it was for the Supreme Court of Canada. This was meant to be considered at every stage and it didn't apply just to the choice among dispositions. It applied to conditions as well. Why am I emphasizing this so much? Well, because it's a break on state authority. It says you can't do more than necessary, you know, to affect the accused liberty and you must do as little as possible in the circumstances while still accomplishing the state's purpose. I'm emphasizing this because in these new amendments in Bill C-54, this is gone, just as it was, as I mentioned before, under Bill C-10, under the Corrections and Conditional Release Act, the amendments of that in 2010. You're entitled to receive an absolute discharge, free of state control then, if you're no longer a significant danger. And you're entitled to an absolute discharge unless the review board is able to conclude that you pose a significant risk. Review board proceedings are inquisitorial. They're not adversarial. It's not like a trial, whereas the crown versus the accused, they have a different aura to them. They're meant to, according to the Supreme Court of Canada. When I was a lawyer for our review boards, perhaps because of my adversarial nature, I have oppositional defiant problems. I'm getting over them. But they're not meant to be adversarial. They're meant to be inquisitorial, looking at the facts, finding out what the right decision is. Who bears the onus of proof at a review board proceeding? Basically, we get down to this one to make progress to Bill C-54. It must be justified by the review board itself. It doesn't create a presumption of dangerousness. It doesn't impose a burden in either direction. The review board has to conclude it must always, the authority and the responsibility to determine whether a person is a danger or not always remains with the court or review board. How certain must the review board be? Well, it's not a beyond the reasonable doubt standard. It's not the civil standard as in unfitness matters. It's something different from that. It must be supported by evidence. And the Supreme Court here also noted that with respect to decisions on dangerousness, that it's extremely difficult, even for experts to predict whether a person will offend in the future. And any assessment is not a guarantee. We can't expect absolute certainty in any human conduct domain, but certainly we can't expect it here. Can a review board order treatment? No, but they can do some things even though they can't order treatment. They can provide some, as I mentioned before, that they can't actually prescribe, but they have the power and authority to make conditions that will be binding on some parties, including hospitals. They can't actually order treatment for individual accused, order treatment against individual accused. Do these provisions, the mental disorder amendments that were created after the swaying case, do they infringe section seven of the charter? The answer by the Supreme Court is no, that this process that I've just outlined for you does not violate the principles of fundamental justice under section seven of the charter, nor does it violate the equality guarantees under section 15.1. Because the key in both areas is that there's procedural fairness and for the equality guarantee, they say that this is an individualized process that's the antithesis of the logic of the stereotype, the evil of which lies in pre-judging and the accused's actual situation on the basis of the group to which he or she is assigned. So that's why the provisions were sanctified constitutionally by the Supreme Court of Canada, because they said they permit individualized assessment. It's not a class-based decision, whether you're dangerous or not. That is the problem with, again, the new provisions I'm about to show you because they do step into the stereotyping error. Wait, that must be a mistake. No, no, that's actually not a mistake. Interestingly, the Prime Minister himself took the foreground in introducing what I'm about to discuss, Bill C-54. You know, he thought, and I don't know him to either A, be a lawyer, or B, particularly interested in the interstices of the criminal law. He thought that it was, for whatever reason, something that he had to take a leadership role on. That is the not-criminal-responsible reform act that I'm about to introduce for you. What does that tell you? Draw your own influences, for the time being. I actually have this picture up on my wall. I would just want you to know. So that's probably why it infiltrated my slides. To be serious, this is the actual picture of the Prime Minister on the day that Bill C-54 was introduced because he conducted a news conference. It was, to my mind, a very disturbing news conference because I think he used images of victims and their survivors of acts that were very disturbing to kind of exemplify his political purposes. That's kind of a, what do they call it, a word cloud which kind of deals with Bill C-54? It's as clear as the government's thinking in some ways. So this is, in my view, another threat on the horizon to persons with mental illness in Canada. I talked before about other bills that would cause increasing criminalization. This is a new, and in some ways, in my view, given what I've shown you about the history of the mental disorder defense and the procedural progress we've made in Canada, this is in some ways more pernicious than some of the other bills where the effects are more indirect as the Canadian Psychological and Psychiatric Association showed us. Now these are more direct assaults on the integrity of some of the fundamental principles of our criminal justice system that say you don't punish people who are severely mentally ill at the time of the commission of the offense. So what is the legislation supposed to do under this euphemistically called not criminal responsible reform act? Well, I'm gonna quote here from the Prime Minister's press statement and from his website, because as I said, he took the leadership role. He takes responsibility for this. The federal government says the bill is part of their commitment to protecting victims of crime and making the streets and communities safer for Canadians. We're ensuring that public safety comes first in the decision-making process with respect to accused persons found in NCR and enhance the safety of victims. The government pointed directly to this bill, which is also critical for my analysis as one of over 30 measures in three key areas. Tackling violent crime, that's the image that I showed you before, by holding violent criminals accountable for their crimes, which isn't consistent with what I've been telling you about the doctrine surrounding mental disorder, giving victims of crime a stronger voice and increasing the efficiency of the justice system. The proposed legislation says then that first of all, we're gonna repeal the current controlling provision and substitute a new one. We're removing the current provision, the need to protect the public from dangerous persons. That's already part of our law. It's the present first consideration as I just showed you. We're substituting a new provision that states the safety of the public as the paramount consideration. Review boards and courts in this country were already very mindful of the need to protect the public. And that was because the legislation said that and also because they were dealing with persons who if they weren't a significant threat were to be given an absolute discharge anyway. So we'll get to that. But so it substitutes this new provision. Critically as well, it eliminates this reference which I said was so important, which I emphasized about the dispositions having to be the least onerous and least restrictive for the accused, substituting a requirement to make a disposition. These are the words of the bill that is necessary and appropriate in the circumstances. To me that has a more threatening air to it because it jettisons the notion of the least restrictive and least onerous language. It also creates, according to the PM's announcement, a new designation of high risk offenders. I think that they instructed their Department of Justice Council in a way that said, let's try to avoid constitutional challenge. The only way we can do that is maybe by creating this new range of offenders. We'll call them high risk. I think they're too clever by half and I'll explain why. And basically this provision would say if you found NCR for a serious personal injury offense and if the court has satisfied there's a substantial likelihood that you'll use violence or your offense was of such a brutal nature, which has nothing to do with individualized assessment and treatment. Your original offense was of such a brutal nature is to indicate a risk of grave physical or psychological harm then you can't get an absolute discharge. You can't get a discharge with conditions that permits an absence from hospital except in limited circumstances. We can limit the time for re-hearing to three years and review board powers are also diminished in other ways as well because only a superior court has the authority to relieve the accused of the high risk designation. It's also said to enhance the safety of victims and provide them with greater opportunities for involvement with review board proceedings of which more later. So what's my assessment of this bill? It's fraught with problems. First of all, and you always have to ask this when you consider supposed law reform. You have to ask is it necessary? And my conclusion and the conclusion of many other people is that no case has been made out for its necessity. That reform is not required according to the Canadian Bar Association March 2013 submission. That the existing law already provides for very extensive controls over risk to public safety and considers victims' interests very sensitively. Expert opinion seems to have no place. Already expert NGO opinion is coming or to gain still C54. Experts such as the Canadian Alliance for Mental Illness and Mental Health which is a broad umbrella organization that includes many of Canada's premier NGOs advocating for mental health issues and the rights of people to live in the community. They're against it. The Canadian Forensic Mental Health Network is against it and the Canadian Bar Association, the National Federation of Lawyers, one of the usual suspects for protecting civil liberties in this country, they have opposed it. But on the other hand, expert opinion on this legislation and other reform bills is routinely ignored and devalued. It's as if people who actually know something who have committed their lives to working in the justice system and the mental health care system that somehow or other their input is kind of esoteric, irrelevant. You know, we'll consult who? We'll throw the experts under the bus because what do they know? Well, they have expertise, but we'll ignore that. So that in Bill C10, you know, there was a large array of responsible organizations that opposed it. And similarly with Bill C54, it is predictable that every serious mental health and legal professional organization in this country will oppose aspects of Bill C54. But it won't matter. The legislation appears in its motivation that being similar to other aspects of the government's politicized criminal justice agenda. Unless you think that I'm picking on both the Prime Minister and Mayor Ford, no, this photo, you know, I did extensive research for, you know, both texts and images. This is a photo of the Prime Minister and Rob Ford who had had a high level discussion about one of the earlier bills, which dealt with gang violence. You know, Mayor Ford was seen as somebody who in the context of Bill C10 was somebody who had something significant to contribute. And so I'm not saying that you shouldn't consult those mayors and premiers and ministers of justice. I am saying that, you know, if you decide to disavow the role of true experts and then consult others, you ought to be asking yourselves, what kind of input are we getting? So that's part of the input that we're getting with respect to bills like this. And when you think about, and I'm not being unfair here, the chummy relationship that people like Mayor Ford has with the Prime Minister, you know, the fishing trips that is celebrated in the national news media together, you know, you have to ask yourself, well, you know, what is the subject of discussion and why is it that, you know, people, some people get this kind of superior access and influence and other people whose whole lives are dedicated to, again, criminal justice and mental health don't have a particular role. So, Bill C-54 also continues in terms of my fraught with problems analysis abroad, trend of reducing judicial and now criminal review board discretionary powers. You know, part of the assault on the courts and their ability to provide justice to Canadians accused of criminal offenses is that at the sentencing stage traditionally, Canadian criminal court judges had a high level of discretion as to how to do the right thing in the circumstances, balancing what the accused ought to receive as a punishment with his or her, from a retributive perspective, with his or her opportunities for rehabilitation and so on. We trusted our judiciary to do that. You know, this government is concerned with taking that discretionary power away and that's why minimum mandatory penalties in bills such as I mentioned, Bill C-10, you know, are so threatening to some of our traditional principles of justice. So now it continues with review boards as well. They're removing discretionary powers from review boards too and saying we don't trust you now to deal with this supposed group of high-risk offenders. Legislation therefore also has a punitive purpose or effects which again contradicts the basic nature of the NCR defense. The NCR defense says that we see accused as being morally blameless and not deserving of punishment. We see them according to the Winko case and the other authority I mentioned as needing and deserving of individualized and balanced assessment and treatment being required instead. The high-risk offender designation undermines that individualized assessment of risk. Review boards and clinicians were already doing that. They were already thinking about, you know, whether a person presents a risk to society before Bill C-54 said, we don't trust you to do that and we're going to take that out of your hands and we're going to fetter the power of review boards and we're going to deny this group of high-risk offenders some of the rights that other accused have. It is, I regret to say, propelled by sensational, unrepresentative cases such as Lee Turcot and Schoenbrunn. These are awful cases that you may be familiar with where there was very horrific violence but on the other hand what has happened here is that the survivors or victims have had what I believe to be a disproportionate and at times vengeful influence on legislative policy. Of course, if you ask the survivors of somebody who has been killed what they think about the legislation, their input is going to be skewed in one direction compared to what we expect from our law-making process which is solemn, deliberative processes that are balanced and that are cautious to bring into play a whole range of considerations. Not what might be understandably a vengeful response. As the Canadian Bar Association says, part 20.1, the Mental Disorder Amendments, they're not an opportunity to exact retribution on people. Again, that's the theme, you don't punish men. Punish people who are not morally responsible. The thing is that had this bill been implemented none of these tragic cases would have been prevented. The bill is irrelevant to these cases involving Mr. Lee, Mr. Turcot, his cases under appeal and Mr. Schoenbrunn. These are the people found not criminally responsible. Had these amendments been in place it would have had nothing whatsoever to do with preventing the harms that occurred here. Other things may have been able to be done that were preventative in nature but Bill C-54 will not therefore have anything to do with protecting Canadians from the very cases that are manipulatively drawn out to bring in political support for these amendments. They're irrelevant to that. We have to think about how the mental states of these people might possibly, and that's all we can ever say, might possibly have been controlled and these terrible incidents prevented. But we can't prevent anything, everything. And we certainly could not see this legislation as being something that would have protected the victims of these people who had floored enough mental illness that juries found them not criminally responsible. As well as I mentioned before the elimination of the least restrictive and least owners principle strikes at the heart of the legislation and the cases. And I said this has happened before in the Corrections and Conditional Release Act. The manner of introduction of the legislation and its provisions propagate stigma and discrimination which is the theme that I started out with which shouldn't be clouding our judgment as to what we should do in lawmaking against persons with mental health problems. The Canadian Bar Association again says that contributes to the stereotype that the mentally ill are dangerous and should be isolated from the community. That's how it was introduced. That's what spawns these changes. The legislation may well be subject and I've already predicted how this might come about to charter challenges given what we've seen about the court's previous judicial assessment of the purposes and character of the mental disorder amendments. And it may also be interestingly subject to adverse comments by the United Nations Committee on Persons with Disabilities because of its non-conformity with this convention that I mentioned to you before, the Convention on the Rights of Persons with Disabilities because I think it could be argued that it permits detention purely on the basis of disability and not on the basis of risk assessment. It ignores other positive measures that could be used to reduce the likelihood of crises in the community and it could ensure that people who are brought under the justice of valor are treated more humanely. It ignores the kinds of anti-criminalization measures or more sensitization measures that I talked about before at the very beginning a long time ago when I addressed criminalization. So it will not achieve Bill C-54 its intended results. It will further erode the likelihood of some people using the defense because if I'm the person's lawyer, I'm gonna say, look, this is what might happen in these circumstances. Maybe we should take another stance here on whether we should defend on the basis of the NCR defense even if we might have it. It does not offer heightened assurances to the communities or victims. It may in fact reduce the protections that are available to victims and the community and to accused persons in terms of their rights and dignity that are now offered through the mental disorder amendments and the review board procedures. All of its proclaimed objectives are being achieved therefore in my view under the existing legislation or they could be more efficiently produced pursued using other methods. As the CBA says, the goal that we have to be thinking of is reintegration, not retribution, right? Community inclusion eventually when risk is removed, not punishment for people when they're not responsible criminally and when they're not answerable morally. So my conclusion here, I was told that I had an hour and a half. Well, that may well be unless people want to stay. I've got the whole evening. My conclusion, Elizabeth can't throw me out. What am I gonna do? What's she gonna do to me? My conclusion is here, there are challenges that are available, that can be addressed to prevent people from becoming criminalized. It's possible to reduce the number of persons with mental health problems in the criminal justice system and those people who are subject to the justice system can be treated more fairly and more humanely. The mental disorder defense, as I mentioned, is really only appropriately invoked for a few people. If you use it for too many people, then too many people will be subjected too long to its already tenacious provisions. The mental disorder provisions as they are currently constructed provide a good balance between public safety and encouraging community of integration and I believe there's a responsibility to ensure that the stereotypes of the past do not continue to influence public discourse. That's why I chose to give this talk tonight. That's why I'm glad you stayed for the last hour and a half and that's why I'm also glad that we have the opportunity for questions now. You'd have to drag me off the stage with a hook if I, to say that questions are over. So, we've used up a lot of time. Thank you so much. I'm happy to answer questions. I'm happy to hear your comments. So, please go ahead. Yes. Oh boy, that's a very complicated question and with 50 states with different provisions in terms of the availability of defenses and the standards that obtain procedurally, I couldn't answer in any way definitively. What I would say is that if anything in the US there's even more of a attributive and punitive spirit with respect to all aspects of criminal justice, including persons with mental illness. So, I don't think very often we can look south of the border for inspiration. If anything, criminal justice policy in the US is reorienting itself that states like Texas and California are gradually recognizing we put too many people in jail for too long a period of time and it's wrong for them and it's wrong for the community. So, if anything, at the same time in Canada that we're becoming more punitive, some states in the US have sort of turned that circle and they're recognizing that their criminal justice system had gone awry. Was there another question? Yes. Today it's on a page that likes to run and travel and I just wondered if you comment on that. Well, I mean, I'm saddened as everybody was by Mr. Tavill's death and I'm glad that there's been some serious consideration of improvements that might be made in the forensic justice system to try to prevent things like that from happening. On the other hand, I cannot be at all certain because I don't know enough about the actual facts of the case, I can't be certain as to whether the accused has an available, not criminal responsible defense and I don't know how the trial will unfold. So I think it's early to say very much about what will happen with the person who's now accused of murder in respect of Mr. Tavill's death. But I do hope that although this is an anniversary that we just wait the judgment of the criminal court with respect to whether he has an available defense of any kind, including the NCR defense. So it's a type of sadness for the community, no doubt. But on the other hand, as I mentioned in the case of Lee and Turcotte and Schoenbrunn, we have to be very careful about cases which are in many ways totally unrepresentative of the way in which persons with mental illness behave in the community and people who are subject to the forensic justice system interact in the community. We have to be very careful that we don't let that as we have seen in other cases skew or divert the criminal justice system from the principles that I tried to outline for you. So I'm concerned as I would be in any other case that the wrong lessons would be drawn from cases like this one and that we veer too much in another, I believe, wrong direction just as we are now at Bill C-54. Any other questions? Yes. Why are we seeing any more educated about mental illness for? Well, there's a complex range of factors, some of which I've mentioned for you. I think that many people who need more supports in the community don't get it and so therefore they're more likely to come into conflict with the criminal law. And many people whose mental illness ought to be considered more sensitively in the sentencing system don't get the benefit of a judiciary being able to bring mental illness through the criminal code into the sentencing domain as readily as they should be. And then when many people go into the conventional, non-forensic, conventional jail or penitentiary system, their symptoms get worse. So it's a whole range of things which conspire to produce this phenomenon but the evidence seems to be clear from every responsible commentator that the phenomenon of overrepresentation is increasing and it's particularly acute in the jails and penitentiaries of the country. Any other questions? Yes. What is the status of Bill 54? Oh, when I last looked at it, we've been given first reading and I think it's not yet got to the Justice Committee stage where they'll hear briefs from organizations. I think I'm right there. I think it hasn't gotten along that far. I think there are some lawyers in the audience who may be more familiar with Bill C54 but it has not gone very far as I recall along the parliamentary route yet. But it's at that time when you'll hear, when it's before the Standing Committee on Justice and Human Rights, it's then when you'll hear groups such as we heard for Bill C10 who will come forward and say some of the same things they've already said like the Canadian Alliance, the Canadian Forensic Mental Health Group, the Canadian Bar Association, the Canadian Psychiatric Association, et cetera. I think they'll come before parliament and say please, please restrain yourselves, reconsider this, think about what you're doing that violates fundamental principles. I'd be surprised if they didn't. I don't know whether the government is capable of hearing that. That's the difficult thing for me as a lawyer and as somebody who's very interested in these issues from a disability rights perspective. I'm not sure, given the kind of introduction the bill has had, whether they're actually capable of hearing that. I deeply regret that but I'm not sure. Yes. Given your use of the term mental illness and you also say an important thing to do is improve the supports and services that's in the community. So what supports and services would you like to see in the community to help with mental illness? Well trust you Steve to ask an easy question at the end of the evening. You know as well as I that what people need is a broad range of supports and services that may include enhanced access to mental health treatment of a conventional nature but not just biological, you know psychosocial support services. But they also need as the convention on the rights of persons with disabilities talks about. They need, they have the right recognize to a decent standard of living, you know to a housing that will accommodate them to employment opportunities, to educational opportunities and to participate in other aspects of civic life. They need supports that will guarantee what you and I and everybody in this room has. So a whole range of supports. That's a whole other mini law talk I think. I don't know that it's absolutely necessary but I prefer it. I prefer that legislation provides for positive guarantees of the nature that it has been endorsed in the convention on the rights of persons with disabilities. I prefer law to lead social policy recognizing that it may not always do so. Yes. I don't know if it's okay to talk a little bit about the specific case you mentioned about the drug and use psychosis and just like what runs with, you know the case sort of from what it's about and what drug it was. That was the Bouchard-Lebrun case. You can look at the decision it's available on the Supreme Court of Canada website. Mr. Bouchard-Lebrun was a person who took PCP as the principal intoxicant. He had also smoked marijuana and I think he had drunk some as well. It was the PCP that particularly accelerated either his intoxication or psychosis or both. But as I mentioned, you know the Supreme Court of Canada said he was merely an intoxicated offender because, you know, after the PCP wore off he was normal again. The criticism I mounted of that was that sometimes with persons who have what appears to be toxic psychosis that sometimes that conceals a longer term mental health difficulty, a pre-existing vulnerability that just sort of tips things. So in that sense, you know I think the case deserves special scrutiny. I argued for it being considered from the perspective of revising the current parliamentary law that we have many people have talked about a dangerous intoxication defense that ought to be available rather than as we presently do just denying people the defense absolutely. So a dangerous intoxication, I should say offense what it would create is a strain of liability which says, you know, if your the harm you cause is done while intoxicated even though you may not match the standards of the criminal law nor the standards of section 16, the insanity or mental disorder defense that you may still be able to be punished for the harm you did while in this dangerously intoxicated state. So it's a complex and interesting case which pushes the limits in both directions with respect to intoxication and mental disorder. It's worth looking at in Bouchard, LeBron. Is that being aggravated or mitigating the fact of the dangerous defense? Well, it's a different law reform discussion that we could have. I mean, certainly some people would characterize that as absolute liability just because you did the harm regardless of your altered state of mind due to intoxication. So there are competing policy arguments but right now the choices are too stark in many ways and they don't accommodate the dangerous things that people do when they are very severely intoxicated and harm others. Anybody else? Yes? On the issue of criminalization? No, I'm not aware of any. OK, so I would like to choose her. That's the Department of Justice that said that, yeah. No, I said that they're not typical cases in terms of the relationship of people with severe mental disorders and the way they behave in the community. They are unrepresentative cases in terms of the level of violence that was done in those circumstances. And I said that that was the mistake to let that drive the law. Because there's no, OK, do you have an idea how long a lot of the dispositions allow for restrictions on people's rights? Well, the criminal code imposes no order limits, right? There are no caps now as was proposed in the early version of Part 20.1 so that there's no order limit, effectively. I mean, on the other hand, it's not in anybody's interest. And it certainly, in my view, is not in, for example, Mr. Conway's interest, as I mentioned, the case that I talked about from the Supreme Court of Canada. It's not in anybody's interest to be in an institution for a long period of time, right? People need to be gradually moved into the community because that's where they belong, assuming that any subsisting risk has been minimized or eliminated. So there are no order limits, unfortunately, in my view. And in terms of average length of disposition, it will vary from province to province and offense to offense. And in my view, many people are detained longer than they should be. In part, that's because of some of the factors that I mentioned about there being unwarranted assumptions of dangerousness. Also, I think it's because there are often unreceptive communities. There aren't appropriate housing and other options for people to be moved into the community so that even when clinicians and review boards might think that a person should be moved into the community, there's no place for them. So that accounts for what I believe is often over long stays in forensic psychiatric facilities. Anybody else? Yes? Hi. You mentioned something about transitory states. A person that's, say, in class gets committed to crime. Would that also include people who have amnesia or committed crime while they're sleepwalking? It certainly includes people who are truly sleepwalking, assuming that's not grounded in a mental disorder. There, again, you could look at the Parks case, a fascinating case on sleepwalking, a homicide case from the Supreme Court of Canada. But a person who is a real sleepwalker and where the sleepwalking is not caused by an underlying mental health problem, that person would get a full acquittal. It's extremely rare for sleepwalkers to hurt people. But that's what happened in the Parks case, because they don't have an ongoing mental health difficulty. They have a sleep disturbance, which made them into an automaton, effectively, whenever they did what they did. But that's a very rare case. Any transitory state that's not down to a mental health difficulty can result in an absolute acquittal. Now, having said that, what I said is that it is a part of the policy guidance for the interpretation of Section 161 defenses that the courts look at long-term or recurrent danger. Not all mental health difficulties are of that character. It is possible to have, as I understand it, a temporary mental health problem that goes away without a prior history, so a temporary psychosis. But that person, if it's a true, but temporary psychosis, could still defend on the basis of Section 16, not on the involuntariness defense, as I mentioned, for sleepwalkers or concussed people. The Parks case, though, that was the case. One of his in-laws, and was also charged with and acquitted of attempted murder of the other in-law, yes. He was the person who sleepwalked his way across Toronto and then did these terrible things. But the Supreme Court of Canada said they only had evidence of a sleep disorder, not of a subsisting or ongoing mental health problem. That's why Mr. Parks was acquitted. We're done, it looks like. Thank you very much for coming this evening. I appreciate your question.