Opponents prepare to implement crime bill under fire for lack of evidence

Rob Nicholson

Anna Mehler Paperny – Global News

The experts who’ve argued so vehemently against Ottawa’s bill cracking down on the most mentally ill offenders are preparing to implement it, even though the federal government hasn’t been able to produce any evidence indicating it’s necessary.

After Global News revealed Ottawa had given MPs incorrect information that made the proposed law look better, the Department of Justice tabled new data on Bill C-54.

The bill would change the way Canada deals with offenders deemed not criminally responsible for the most heinous of crimes, creating a “high risk” designation that means longer periods of time between their reviews and more power to the court in determining their fate.

Justice Minister Rob Nicholson still saysthese new numbers, which make the argument for legislation like this less convincing, are “unreliable.”

But even the studies and case law his office cites when asked for evidence don’t back up Bill C-54: There’s no indication of a problem with recidivism among not-criminally-responsible offenders, or that Review Boards should be given less power to determine offenders’ fate.

And while Nicholson’s office says it talked to provinces before tabling the law, provinces with the biggest population of NCR offenders say they were never consulted.

Read more: Full coverage on the not criminally responsible bill

Justice spokesperson Julie Di Mambro said the issue came up at a federal/provincial/territorial meeting last October, where “Ministers recognized the importance of public safety being the paramount consideration in the Criminal Code Review Board decisions.”

But Brendan Crawley, spokesman for Ontario’s Ministry of the Attorney General, says the province “was not consulted on the details of Bill C-54;” an emailed statement attributed to Quebec Justice Minister Bertrand St-Arnaud said “there was no particular consultation with Quebec” on the law. (British Columbia, which has backed Ottawa’s tough-on-crime agenda, said it was consulted)

The federal government has come under pressure to present its reasoning and evidence behind Bill C-54. In a response to an inquiry from Liberal MP Irwin Cotler, Nicholson’s office cited several court cases, including the 1999 Winko v. British Columbia Forensic Psychiatric lnstitute, which is generally seen as setting precedents for the way Canada treats offenders whose mental illness is so severe they can’t be held responsible for their actions.

But none of the court cases or academic studies (listed below and here) indicate a problem with recidivism among people who’ve been found not criminally responsible, treated and released.

“Nothing of what you’ve cited here in any way is consistent with or would support the approach that’s been taken in Bill C-54,” said B.C. Review Board Chair Bernd Walter, who has testified in committee regarding the bill.

In response to a query as to why this is, Di Mambro wrote in an email that: “The case for change in the Criminal Code’s mental disorder regime came from victims, the provinces and territories, and concerned Canadians. … With the Not Criminally Responsible Reform Act, the Government is giving new tools to the courts to enhance victims’ involvement and ensure public safety.”

She also cited cases involving Allan Schoenborn in British Columbia, Vince Li in Manitoba, Richard Kachkar in Ontario, Guy Turcotte in Quebec, and Andre Denny in Nova Scotia. Of these, only Denny had been deemed not criminally responsible before his alleged crime.

“These individuals are a danger to the public and a danger to themselves,” Di Mambro wrote, “and we are ensuring they are treated appropriately.”

The bill has passed third reading in the House of Commons and will go to the Senate this fall, assuming Parliament isn’t prorogued.

Once it passes, Walter said, “then it becomes our job … we will be tasked with implementing these provisions and operating under them.”

That’ll probably be on the agenda for a meeting of review board chairs this fall.

It could be an awkward transition: Walter and his counterparts in Ontario and elsewhere have argued that, far from promoting public safety, this bill will do the opposite: If defence lawyers avoid seeking a not-criminally-responsible designation for fear of getting an onerous sentence for their clients, more people with severe mental illness will end up in the prison system, where they’re already overrepresented and inadequately treated.

“I think the degree of consternation and opposition and input you’re seeing from even our sector is unusual,” Walter said. “But it’s, I think, a badge or an earmark or an indicator of the amount of concern. … There’s just no sound policy underpinnings to it.”

Read: Justice Department response to queries on Bill C-54

Sources cited by the department:

Case Law

Bill C-54 was developed in a manner consistent with prevailing criminal law jurisprudence. While it would be difficult to identify all cases which informed the development of the legislation, the leading cases on the mental disorder regime such as Winko v. British Columbia Forensic Psychiatric lnstitute [1999] 2 S.C.R.

625, R. v. Conway[2010] 1 S.C.R. 765, R. v. Demers [2004] 2 S.C.R. 489, and R. v. Swain [1991] 1 S.C.R.

933 were relied on. Other general criminal law and Charter cases were also considered, including, but not limited to, R. v .Rodgers [2006] 1 S.C.R. 554, R. v. Johnson [2003] 2 S.C.R. 357, Charkaoui v. Canada (Citizenship and Immigration [2008] 2 S.C.R. 326, R. v. Lyons [1987] 2 S.C.R. 309, and R. v. Oakes [1986]

1 S.C.R. 103.

Doctrinal sources

The development of Bill C-54 was informed by reference to various authoritative texts, most notably: Joan Barrett & Riun Shandler, Mental Disorder and Canadian Criminal Law, (looseleaf), (Toronto: Carswell, 2006), Edwin A. Tollefson & Bernard Starkman, Mental Disorder in Criminal Proceedings, (Carswell: 1993); Hy Bloom & Richard Schneider, Mental Disorder and the Law: A Primer for Legal and Mental Health Professionals, (Irwin Law, 2006); and John E. Grey, Margaret A. Shone & Peter F. Liddle, Canadian Mental Health Law and Policy, 2nd ed., (Markham: Lexis Nexis, 2008).

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