[Recorded by Electronic Apparatus]
Thursday, November 7, 1996
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[English]
The Chair: This morning we have Ontario Criminal Code Review Board counsel Richard Schneider on Bill C-17, an act to amend the Criminal Code and certain other acts.
Welcome. I understand you have a brief to present or comments to make.
Mr. Richard D. Schneider (Counsel, Ontario Criminal Code Review Board): Yes. There is a written brief, which has been circulated. I'll keep my comments to the recommended 10 to15 minutes.
By way of introduction, the Ontario Criminal Code Review Board is the new incarnation of the Lieutenant-Governor's Board of Review. We came into existence with the proclamation of Bill C-30 in 1992.
We're now an adjudicative board rather than an advisory one. In our previous incarnation, we advised the Lieutenant-Governor, who made decisions in respect of accused who have been found by the courts to be either unfit to stand trial or not criminally responsible as a result of mental disorder. Those are the two groups of accused over which we have jurisdiction.
With respect to the ``unfit accused'', we retain jurisdiction until such time as they are fit to stand trial, at which point they're returned to court. With respect to the ``not criminally responsible accused'', we retain jurisdiction until they are deemed to no longer be a significant threat to the safety of the public, at which time they're absolutely discharged. We hold approximately 1,000 hearings a year, and our numbers are increasing.
Treatment, of course, is the aspect of the provisions that I'm addressing. It connotes a wide range of possibilities, with everything from benign procedures, such as counselling, through to electroconvulsive shock treatment and psychosurgery.
Those at the extreme end of the continuum are specifically precluded. So generally, what we're speaking about here, or what these provisions are taken to connote or refer to, is the involuntary ingestion or intramuscular injection of psychotropic medications.
The current law only allows one narrow window of opportunity for treatment, which is upon a verdict of ``unfit to stand trial'' by a court and prior to the making of a disposition pursuant to section 672.54. So the treatment is recognized as only being applicable or justifiable to an accused who, as a result of the treatment, could be rendered fit to stand trial and could therefore return to court to continue with the proceedings.
Our concern in general is that the treatment provisions of the Criminal Code, as they are currently formed, are generally very underused. The courts are the only body that have the ability to make an involuntary treatment order. Our finding is that the courts are generally quite reluctant to get into this business and that they would prefer, after a verdict of ``unfit to stand trial'', to simply have the jurisdiction of the accused passed to the review board. Provincial legislation would kick in to provide whatever treatment is required.
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The first response we would have to the treatment provisions in general is that the jurisdiction to make the orders is to be extended to the review boards, as well as to the courts. There are two main reasons for that. First of all, the review board, by the time the accused comes before it, will generally have more information, more clinical data, upon which to found a decision in respect of treatment. The second strength of the review board in this domain is that it is, by definition, a board of expertise. At least one member of the board is a psychiatrist.
So our feeling is that we are quite well equipped from both those perspectives to make treatment orders. The reason we think this should be done is that of course we retain jurisdiction over an accused as long as they are unfit. Generally, the key to becoming fit is responsiveness to a specific sort of psychiatric treatment, neuroleptic treatment. Therefore, the quicker they are treated and returned to a level of fitness, the quicker they are returned to court, the shorter the period of time we have jurisdiction over them, and the shorter the period of time they're occupying a so-called forensic bed, of which there is a critical shortage, at least in the province of Ontario.
The other aspect we're asking government to consider is for it to recognize as a legitimate purpose not only the rendering of an accused to a state of fitness, but perhaps also the reduction of an accused's level of threat to society.
It should be noted that approximately 85% of the accused that we retain jurisdiction over are there as a result of a finding of ``not criminally responsible'' combined with the fact that they're viewed to be a significant threat to the safety of the public. So if treatment could reduce that level of threat to the safety of the public so that either the accused could be discharged absolutely or, in the alternative, they would require a less secure level of disposition, there would be a tremendous cost savings to the system.
With respect to the amendment in proposed subsection 672.55(1), we have concerns with respect to the utility of the expansion that would allow for treatment on consent. The reason for it is that voluntary treatment is generally always available to an accused.
From our perspective, there doesn't seem to be much utility in the court or the review board ordering treatment if it is predicated upon the accused's consent. Presumably, as soon as the consent is withdrawn, the condition becomes void. Then the whole purpose of this section, or the order that would flow from this section, would seem to be rather purposeless.
The other aspect of the proposed amendment that causes us concern is the use of the term ``other treatment''. Almost by definition, any treatment that would be applicable to an accused in terms of rendering him fit to stand trial - this is the only situation that would cause a treatment order to be made - would be psychiatric treatment. We're concerned that given the very limited scope for treatment, there isn't much room for other treatment. This is set out in a little more detail in the brief.
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We're also concerned that treatment may be imposed ``where the accused has consented to the condition and the court or Review Board considers the condition to be reasonable and necessary in the interests of the accused''. This test of ``reasonable and necessary in the interests of the accused'' again strikes us as being conspicuously vague. In other words, treatment should only be found where we have a situation in which the accused is unfit and the treatment order is made for the purposes of rendering the accused fit, or in the proposed alternative, where the accused presents a significant threat to the safety of the public and treatment would be made for the specific secondary purpose of reducing the accused's level of threat to the safety of the public.
So here's what we are recommending in a nutshell. I should actually add to the recommendations on page 3 that we're asking the government to consider that an application for a treatment order be made possible upon an application by either the crown, which is the prosecution, or the administrator of the hospital. The reason for this is that at many of the initial hearings there is no representative from the crown attorney's office present. So it would be the representative of the hospital, the administrator of the hospital. Generally, counsel comes from the health ministry to make the application for treatment on the administrator's behalf.
So what we're asking the government to consider is that the provisions for treatment orders be expanded to allow the order to be made by the provincial review boards, as well as the courts. A reduction of threat should be recognized as a ground or justification for making an order. Treatment orders should be allowed as a term within a general disposition pursuant to section 672.54 as long as the evidentiary notice and other criteria of sections 672.58 through to 672.62 Code are complied with. Also, in general, with the greatest respect, we don't see much utility in the making of an order for treatment that is predicated upon consent of the accused.
Those are my respectful submissions, which are subject to questions.
The Chair: Mr. Ramsay, ten minutes.
Mr. Ramsay (Crowfoot): Thank you, Madam Chair. I'd like to thank our witness for coming to provide us with his thoughts on Bill C-17.
Do you have some concerns with this undefined term ``other treatment'' in the amendment found in proposed subsection 672.55(1)?
Mr. Schneider: Yes.
Mr. Ramsay: Is it that it's not defined in the act what ``other treatment'' means?
Mr. Schneider: It's not only that. As it stands now, Parliament has only recognized one condition that would allow for treatment of any sort, which is unfitness to stand trial as a result of mental disorder. So presumably, any treatment that would be ordered to rectify that situation would be psychiatric treatment.
The breadth of ``other treatment'' is perhaps unnecessary. On the other side of the coin, perhaps it's a little disturbing, in that it might, to some readers, imply that treatment other than psychiatric treatment for other purposes might be ordered. I think this clearly is contrary to Parliament's intention.
Mr. Ramsay: Okay. The other area of concern you've expressed is the voluntary nature of the treatment of the order. In other words, if there's no consent, there can be no order, according to your understanding of this legislation.
Mr. Schneider: That would appear to be the way it reads.
Mr. Ramsay: Yes. You're satisfied that this is the way it reads.
Mr. Schneider: That's our understanding.
Mr. Ramsay: That's your interpretation.
Mr. Schneider: That's our interpretation. To that extent, it's probably the interpretation that most other readers of the provision would make.
Mr. Ramsay: Of course, I share that concern. If there's evidence that this type of treatment is required, then why should it be based upon the consent of the accused for that type of treatment?
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Perhaps the officials from the Department of Justice can explain that to us when we go through this bill clause by clause. That's the concern I would share with you.
It seems that we've seen this in other areas of criminal justice as well. It's not only psychiatric treatment, but other rehabilitative programs are based upon consent. In this particular case in which it's determined whether or not a person is capable of appearing and standing trial on a criminal offence, it seems that making it mandatory only upon consent leaves a whole area of concern.
Perhaps you could put this on the record for the committee. What is your concern, bearing in mind that this would require consent and that no accused could undergo psychiatric examination without that consent? What is the problem with that?
Mr. Schneider: Here's the the first problem, as I read the provision. I hope I'm reading it the way it was intended. It would appear to be an unenforceable term in an order. Say the order to take treatment is predicated upon an accused's consent. Then the accused, at some time subsequent to the making of the order, withdraws his consent. He decides that he doesn't want to take treatment after all. Presumably, the order could not be enforced, because the consent necessary to found the order has been withdrawn. That's number one.
Number two, consensual treatment is always available whether the accused is incarcerated in a correctional facility or detained in a hospital. Voluntary treatment is virtually always available.
So the problematic cases are those in which it is, in the court's view, necessary to intervene and render an accused to a state of fitness. Consent is not being extended, so it's necessary for Parliament to step in and order involuntary treatment. Those provisions are looked after from subsection 672.58(3) through to section 672.62. There's a good scheme in place there.
So what we're recommending is that with that already in place, the added ability to make an order predicated upon consent first of all is unnecessary. Second of all, it's unenforceable. So that's our concern with the second part of the amendment as found in proposed subsection 672.55(1).
Mr. Ramsay: With that proposed amendment in effect, do you foresee the possibility of people standing trial who perhaps ought not to be there on medical grounds simply because they have not granted consent to the necessary examination to determine whether or not they are fit to stand trial?
Mr. Schneider: I'm sorry, I don't think I caught the gist of your question there.
Mr. Ramsay: Say a person is arrested for an offence and there is evidence that the person may not be fit to stand trial. They therefore require a psychiatric examination. First, does the legislation provide for that without the consent? Second, if it does not do so, does this mean that accused people who don't grant consent for the treatment might appear on a criminal charge when they are not fit to stand trial without the examination being conducted?
Mr. Schneider: First of all, assessment orders can be made to determine fitness with or without the accused's consent, pursuant to section 672.11. That's in place now.
Mr. Ramsay: Okay.
Mr. Schneider: No, an accused won't be forced to stand trial if, after hearing the evidence, he remains unfit.
Our concern is that an accused may remain in a state of unfitness longer if involuntary treatment isn't applied more frequently. As I indicated earlier, the courts seem to be generally reluctant to get into this arena.
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At the same time, the review boards are, as it now stands, precluded from entering this arena. Actually, from two main perspectives, they are probably better able to make the sort of order that would get more accused back to court faster. I don't think there is any sort of danger that the accused will be forced to go to court when they're not able to do so. It is just that -
Mr. Ramsay: So the power for those assessments is already in the legislation.
Mr. Schneider: Yes, it's just that they might wait a lot longer before returning to a state of fitness and therefore returning to court, so the system will be slowed more if orders of this sort aren't made more frequently.
Mr. Ramsay: Thank you, Madam Chair.
The Chair: Thank you, Mr. Ramsay.
Mr. Ramsay, I'm going to ask Ms Torsney to take the chair. I wonder if I could have a word with you outside. Thanks.
The Vice-Chair (Ms Torsney): Thank you.
The next round will go to the Liberals. Mr. DeVillers.
Mr. DeVillers (Simcoe North): Thank you, Madam Chair.
Dr. Schneider, in your presentation you indicated that forensic beds are in critical shortage in Ontario right now.
Mr. Schneider: Yes.
Mr. DeVillers: My home town is the town of Penetanguishene and I'm familiar with the Oak Ridge facility there. They had 300 patients in the late 1960s when I was summer staffer there, but now I believe the population is down to something like 120. You say there's a shortage of beds. Is it because the funding isn't there to use that facility to its full extent?
Mr. Schneider: There seems to be a great movement. Two things are operative here. First is the policy approach, which is more toward putting people into the community, more toward shutting down beds. The second, of course, is the economic climate in which beds are being closed.
Relative to so-called civil beds, my sense is that forensic beds, relatively speaking, are protected. To give you an example, the Queen Street Mental Health Centre in Toronto recently opened a desperately needed medium-security facility. I think it's about a 30-bed facility. It opened within the last year, and at present the waiting list to get in is 18 months. This underscores the importance of treating, or of having a broader base for treating, and of allowing review boards, in addition to courts, for treating mentally disordered accused, because it gets them out of that system more quickly, either to a less secure situation - whether a less secure hospital setting or a less secure supervised sitting in the community - or back to court. It just moves them through more quickly if there is a broader base for addressing the mental disorder that is driving the whole problem.
Mr. DeVillers: Yes, but if there's a broadening of the jurisdiction for treatment orders, and the facilities aren't keeping pace with the demand now, how are we going to get around that?
Mr. Schneider: These accused are already in the custody of the hospitals.
Mr. DeVillers: Okay.
Mr. Schneider: For example, as the result of a verdict an accused might be found unfit to stand trial. The court may decline to make a treatment order. The accused might go to Penetanguishene, the facility you're familiar with, but if they don't go there with a treatment order -
Mr. DeVillers: Then they can only get treatment if they voluntarily agree to it.
Mr. Schneider: Precisely. Whereas if treatment orders are more routinely made and if the bodies making them are expanded to include the review boards, the prediction would be that they're going to be in the hospitals a shorter period of time, therefore consuming fewer days of hospital bed time.
Mr. DeVillers: But under the present system, where as I understand it the review board reviews the patient's status yearly -
Mr. Schneider: At least every year.
Mr. DeVillers: If they're not accepting treatment -
Mr. Schneider: They're going to be there for a long time.
Mr. DeVillers: Isn't that an inducement for them to voluntarily accept this treatment?
Mr. Schneider: You're assuming they have the insight required to realize that they need treatment, to accept that they have a mental disorder. That's the sort of problem we're confronted with - generally, they don't have that insight, and therefore involuntary treatment is required.
Mr. DeVillers: So by accepting your amendment to give the review board the authority to order the treatment, that could be done on these yearly reviews?
Mr. Schneider: Precisely. The prediction would be that even if a small percentage of those in respect of whom treatment orders are made recover, either to the extent that they're rendered fit and returned to court and out of the system that way, or alternatively, their level of threat is reduced so that they require a less secure, which means less expensive, disposition, there will be a savings resulting from this.
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Mr. DeVillers: On a related but perhaps slightly off-topic subject, which is the question of the review board's role to review yearly, it's been suggested that period of time could be extended because there are certain cases where there's not much likelihood of a whole lot of change occurring in a patient's status within a year, and because of the expense involved in reviewing yearly. Do you have a thought or an opinion on that?
Mr. Schneider: Generally speaking, I would be opposed to that. The reason is that we review not only the accused's progress as an individual, but also the hospital's efforts to do something with an accused. I think that when the hospitals know they're being watched and monitored, there may be a greater incentive to show some sort of movement from one year to the next. If you expand that time interval, I think you're likely to see less progress.
I think as far as I'd go with the proposal is that it be at the accused's option. In other words, there are individuals - at the Oak Ridge division at Penetanguishene, for example - whose condition is static. They're not going anywhere and they have the insight to appreciate that. Certain individuals in that sort of situation might have the option of waiving an annual review for up to a two-year interval, but except for that isolated circumstance I would be very much opposed to it.
Mr. DeVillers: Okay. Thank you.
The Vice-Chair (Ms Torsney): Mr. Telegdi and Mr. Maloney, do you have questions?Mr. Telegdi.
Mr. Telegdi (Waterloo): Thank you, Madam Chair.
I liked your response on having the annual review. You mentioned that consensual or voluntary treatment is always available to the accused. Do we have the bed space? Do we have the staff resources? What kinds of timeframes are we referring to?
Mr. Schneider: Again, refocusing on what we're generally talking about here, although it isn't defined in the code, we're talking about the voluntary ingestion or intramuscular injection of psychotropic medication. Wherever an accused might be in the system, so long as they're under our jurisdiction - whether in a halfway house in the community, reporting to an out-patient psychiatric facility, as an in-patient at a hospital, or in a medical unit of a jail awaiting transfer to one of those facilities - psychiatric facilities are always available. By that I mean attending psychiatrists, nursing staff, etc.
If an accused is treatment-compliant, is voluntarily taking medication, it wouldn't add to the pressure on the system. If anything, it would reduce it, because by virtue of their compliance they would require less in the way of restraint or supervision.
Mr. Telegdi: I have another question. I'm going to enlarge the scope here, Dr. Schneider, since we have the good fortune of having you before us.
When we went through the downsizing of psychiatric facilities and went to the community treatment option, a great number of people in the province of Ontario were dislocated and put into the community. When this was done, I recall Frank Drea saying resources would be available in the community for them.
When I worked with the court system I found that quite a few of the people who go to court are there because of a psychiatric condition that is not managed properly in the community. Instead of being the wards of the hospitals, they end up becoming the wards of the criminal justice system and many of them end up in jail.
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I think quite a bit of the crime rate is represented by that, and that's because if somebody is put into the community there is no way to enforce that they take their medication, which was the underlying premise for putting them there in the first place. So instead of a psychiatric problem, we now have a criminal law problem.
From your experience, how widespread is this problem?
Mr. Schneider: First of all, I think you've captured the picture perfectly. If anything, the situation is escalating to the point where you now have people referring to the Criminal Code as the mental health act of last resort. The reason for the situation you've described is that there is a tremendous shortage of beds.
When a mentally disordered individual comes to a psychiatric facility, unless they are treatment-compliant, which a great percentage of them are not - particularly the more deteriorated ones, because they have no insight and don't believe they have a mental disorder - the hospitals are inclined to turn them away and take the next person in line who is treatment-compliant. The reason is that to proceed with the civil legislation and have someone declared treatment-incompetent and treat them involuntarily is a very difficult and protracted procedure.
What you have then are hospital beds more and more occupied only by those patients who are treatment-compliant. Those who are in the more deteriorated state, so long as they are not certifiable, end up walking the streets, getting into minor scuffles, charges of mischief, minor assault and nuisance sorts of offences, and as you described, end up in the criminal courts. That is a shame, because if there were more room in the civil system, if the psychiatrists had the luxury of taking people in who they're currently turning away, I predict fewer of these individuals would end up in the criminal courts being found unfit to stand trial, not criminally responsible, and ending up in the jurisdiction on the Ontario Criminal Code Review Board or the other provincial boards.
So I think the problem is twofold. One is the general impotence of the civil legislation in terms of capturing these individuals and treating them involuntarily, and second and directly connected with that is the tremendous demand for beds. Doctors want to treat people who want to be treated. They're not up for fights, appeals and appearances before the consent and capacity board. They would much rather invest their energy in treating psychiatric patients who want to be treated.
I think the picture you've described is precisely the one responsible for our increasing numbers. More people are ending up in the criminal justice system who shouldn't be there. They're really mental health nuisance cases. Of course there are more serious cases as well, but a huge number of them are nuisance cases.
Mr. Telegdi: I think it's fairly critical for the committee to focus on that. I'll make this available to Mr. Ramsay.
I have had experiences, and I know the police in our community have experience on a regular basis, where they will pick up an individual and it's an obvious psychiatric problem, a nuisance kind of infraction. I have had cases where I took the person down to the crisis clinic hoping for an admission, and ten hours after I took the person down, I'm still hanging around the crisis clinic. I'm in a crisis as to what to do with this individual. I've taken some pretty psychotic folks in there. The more psychotic you are, the less likely that facility is to take you.
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The situation we're left with is that if you don't have a court order, the person doesn't go to London where they have facilities to deal with them, so they invariably get released into the community. This happens regularly to all sorts of social workers and police officers, and we know that this person is a danger to himself and is a danger to other folks in the community.
I guess what we have done is cut back initially on the hospital facilities to deal with people with psychiatric problems, and we have cut back further the meagre funds that existed in the community that were supposed to be for caring for these people.
Mr. Schneider: That's right. The irony in trimming a budget at that level is that it actually causes the system in the big picture more expense -
Mr. Telegdi: That's right.
Mr. Schneider: - because you're involving the court process, you're involving the legal aid plan, and you're involving the Ontario Criminal Code Review Board in a case in which all of this time, expense, aggravation, and heartache would have been avoided had it been cut upstream in its pre-forensic civil level and had it been handled at that level adequately.
In other words, the prophylactic for the demand on forensic beds to a large extent is a very strong and potent civil system. If individuals are caught upstream at first instance in the civil net and treated and dealt with appropriately there, there is a reduced probability that they will deteriorate, decompensate further, slide further downstream to the point at which they're caught in an extreme situation, having been arrested, in the forensic net, which is inevitably more expensive from every perspective.
Mr. Telegdi: Do you have any literature on this?
Mr. Schneider: I have lots of literature. In fact I've written on it myself. I don't have anything with me today, but I could certainly send you information.
Mr. Telegdi: Could you? Do you have any idea as to the numbers we might be talking about - the percentage of...?
Mr. Schneider: Numbers in which category?
Mr. Telegdi: I'm talking about the number of people who probably are psychiatric problems versus criminal problems, but they're spending time in custody and institutions, whether in jails or psychiatric hospitals.
Mr. Schneider: That would be a very ballpark statistic. Just to give you an example, prior to the proclamation of Bill C-30, which allowed for a variety of dispositions, the defence of not criminally responsible was generally reserved for extremely serious cases because of the fact that involuntary hospitalization was the outcome. Now what we're seeing at the Ontario Criminal Code Review Board are cases coming through in which the index offence is common assault, mischief, threatening, causing a disturbance, or theft of under $100 or $1,000. Trivial offences are becoming more and more the norm.
I will now answer your question. I think it is difficult to predict how many of those would not have occurred had they been caught upstream in the civil net. All you could do is look at the increasing numbers of the less serious offences in the system and surmise that perhaps a large percentage of those wouldn't have come to be had they been caught and treated earlier. I think that's about as far as you could take that.
To answer your question, I don't have statistics. I think they'd be difficult to extrapolate. But the one thing we know for sure is that our numbers are increasing every year, and this is mainly as a result of nuisance-type offences.
Mr. Telegdi: How many of the very serious crimes that you have, such as somebody's totally losing control, ending up committing murder, and being found not guilty by reason of insanity, could be tied to that? I can think of a number of cases in my community, even though murders are not that frequent.
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Mr. Schneider: Again, I think it would be very difficult to take a look at the number of murders with a verdict of not criminally responsible that could have been prevented had the system been functioning better upstream. At the risk of wasting any time, I'll give you a very quick example.
I represented an accused a few years ago who was charged with a rather bizarre but serious sexual assault. Two days before the assault his mother had attended before a justice of the peace and had described to the justice of the peace the violent, psychotic behaviour of her son. The justice of the peace failed to take any action, and the sexual assault was committed. Presumably, had the justice of the peace taken action, a form two would have been issued, which would have allowed for 72 hours of observation. A form three for involuntary hospitalization would have followed, and the offence wouldn't have taken place. Ultimately the accused was found to be unfit to stand trial. After he recovered, he was eventually found to be not criminally responsible.
This is a classic example of a relatively serious offence. As you can see, 99% wouldn't have occurred had the civil system kicked in when it should have.
Mr. Telegdi: Crime prevention means having adequate resources to deal with the problem before it becomes a criminal problem.
Mr. Schneider: That's right.
Mr. Telegdi: Thank you.
The Vice-Chair (Ms Torsney): Thank you.
[Translation]
Any question, Mr. Bellehumeur? Fine.
[English]
Does anyone else have any questions? Mr. Kirkby has a question.
Mr. Kirkby (Prince Albert - Churchill River): If the department were to commence a review dealing with all of these types of sections in the areas for which you're proposing changes to this bill, separate and apart from what's happening in this bill, would that deal with your concerns effectively?
Mr. Schneider: Yes. I've talked about treatment in general, and that of necessity calls into play treatment provisions that are currently in place outside of subsection 672.55(1). In particular, we're recommending amendments to sections 672.58 through to 672.62, first to include the review boards and second to expand the ambit of jurisdiction.
Mr. Kirkby: If those types of provisions were being dealt with by a separate review, it would be good enough for your purposes. It's not specifically necessary that they be dealt with right here. Is that correct?
Mr. Schneider: That's right.
The Vice-Chair (Ms Torsney): Thank you, Mr. Kirkby.
Dr. Schneider, I think you mentioned that you were going to send something to Mr. Telegdi.
Mr. Schneider: I can send anything he'd like. If he passes me his card, I'll collect some materials and send them to him.
The Vice-Chair (Ms Torsney): Actually, if you wouldn't mind sending it to the clerk so that it can be distributed to all members, that would be that much better. If you need an address, I'll get Myriam to come to you in a second.
Thank you very much for your testimony this morning.
Our next witnesses are from the Barreau du Québec. We'll rise for about two or three minutes, five minutes maximum, and get everyone reassembled. Then we can actually be ahead of schedule this morning.
Thank you very much, Dr. Schneider.
Mr. Schneider: Thank you.
The Vice-Chair (Ms Torsney): The meeting is adjourned.