The courts have been very clear that the not criminally insane provisions and much of the law that surrounds them must be seen in the context of mental health and treatment and not in a more punitive approach.

In evidence of this, I would just cite briefly from Mr. Justice Binnie in the Owen case, who said:

It is of central importance to the constitutional validity of this statutory arrangement that the individual…be confined only for reasons of public protection, not punishment.

I put it for my friend from Langley, that this bill, in many areas, seems to trespass from the preventative mental health focus to one that is treating mentally ill persons as criminals and  subject to more severe punishment.

Mark Warawa: Mr. Speaker, I thank the member for being here during these late hours.

As parties, we have the opportunity to take a breather, but she is here, faithfully representing her community. I want to thank her for that. It takes a lot of effort for her to do it by herself.

To the member’s question about whether this is punitive, it is absolutely not. This is reaching a balance where the courts still have discretion to put a classification on somebody who presents, or could present, a very high risk of reoffending. The paramount consideration is whether this designation needs to be put on an individual to protect the public.

The courts have the discretion. If the designation is put on, it would only be the courts that could remove it.

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I want to turn our attention to another piece of this. As much as we can say we want to address the problem and that the problem is the people who are held not criminally responsible, if the legislation that is passed is not compliant with the charter, it will make things worse, even with the aims that the Conservatives claim they want to address here.

If my hon. colleague is familiar with the position of the Canadian Bar Association, its members have looked at this and at the removal of the language of the “least onerous and least restrictive” requirement, which is essential in their mind to constitutional validity of the provisions that we now have. The Supreme Court of Canada has underscored this: that if we remove, as Bill C-54 would, the language of the “least onerous and least restrictive” requirement, we may well find that this legislation would be susceptible to a constitutional challenge and that it would fail to survive.

Jamie Nicholls: Mr. Speaker, these are definitely matters that we would like to discuss with the government side in committee. We would like to talk about the balance between the rights of individuals and the rights of victims. These are things that can be explored and debated in committee. We can discuss the serious questions about the charter and the balance between the rights of victims and the rights of individuals. That is why we are supporting it at second reading: so that it can get to committee and we can discuss these issues.

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One of the experts to whom I referred earlier, Dr. Anne Crocker, professor of psychiatry at McGill University, put the statistics this way, so we really can focus on this. She said that, of all those offenders considered not criminally responsible, in B.C., Ontario and Quebec, less than 10% of that group were responsible for violent crime. Within that group, getting down to very small numbers, less than 15% went on to reoffend.

Therefore, what happens is that we have some very high-profile, extremely upsetting cases. It is devastating when we have the kind of cases that we all have on our minds as we debate this legislation. I do not need to mention the names. However, this legislation would do nothing to prevent somebody with a mental health issue who had no previous record from committing the offence. Surely, when we have experts in mental health and in the criminal justice system who are saying that the current system is not letting us down in terms of handling NCR cases and avoiding recidivism, where we are being let down is that we are not putting in place the structures to support those people so that mental health issues can be streamed into the health system and not into the criminal justice system.

Michelle Rempel: Mr. Speaker, I am glad my colleague opposite has admitted that she is looking at this bill and trying to decide whether or not it should pass at the committee stage.

I implore her to at least get it to the committee stage for a few reasons. First of all, yes, we can talk about recidivism, absolutely. However, the point I am trying to make here today is that when we talk about percentages of reoccurrence, we have not acknowledged the fact that there are high-profile cases, and the lack of legislation we have in this area can lead to deep distress and a deep sense of non-peace in the minds of victims.

For that reason, it is very important that we at least examine the merits of this bill at the committee stage. I fundamentally feel that, as legislators, we cannot fail even one person in this regard, in this context. That is why it is so important.

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It is hard when battling statistics are raised in debates and people are left to wonder what the actual state of evidence is. I am persuaded by the various briefs by the Canadian Bar Association, scientists and people who have dedicated their life’s work to this area, such as McGill University psychiatrists and others.

The rate of recidivism for people who actually have been found not criminally responsible is extremely small. Therefore, I was baffled by the statistics used earlier in the debate by the Minister of Natural Resources, and I wish I could have gotten a question to him. However, the best statistics I can find say that only 7.3% of designated NCR accused actually return to commit a violent offence within the next three years.

The experts in this area are saying that this is not where we need to fix the problem. They are not saying that there is no problem, but they are saying that where we really need to focus resources is on adequate treatment and identification of people with mental health issues to ensure that both they and society are protected.

 Bernard Trottier: Mr. Speaker, the Minister of Natural Resources cited a few recidivism statistics, and whether it is 27.3% of NCR accused who have had past findings of NCR, or 4%, or 7% as the member stated, what is important in this legislation is that prosecutors would have some additional tools at their disposal, and we leave it to the people with the expertise to decide where and when the appropriate time is to use those tools. Ultimately, the protection of society is paramount.

I think we can all agree that these are all terrible tragedies, whether it is 4 out of 100 people who experience recidivism or 25. We need to do everything we can as a society and as a justice system to make sure that the experts and the prosecutors who deal with these kinds of things, using the advice of mental health experts, can decide whether these kinds of tools need to be applied in each individual case.

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They can just ask me about procedure if they like.

But again, for me it is the content of this legislation that is very important. Once this debate goes for second reading, as I pointed out, it will go to committee, there will be witnesses and great debate. I have complete confidence in my parliamentary secretary and all those who work with him on the justice committee that there will be good and fulsome debate. I would say to the hon. member to tune into those debates. The good thing about CPAC is that it continues to broadcast those committee meetings over and over again. If people miss it once, they will have the opportunity to get it later on, and to see politics in action.

Elizabeth May: Mr. Speaker, I rise on a point of order. I wanted to know if the Minister of Justice had meant to use the word “fulsome”, which in relation to debate means noxious and disgusting?

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I am surprised the Minister of Justice believes the bill has been well received. I have seen from the experts in the area of mental health and the experts in criminal justice that there is no evidence whatsoever for the changes that are being proposed and that the bill needs a proper, full and thorough debate in this House.

I ask the Minister of Justice how he could miss the comments of Professor Anne Crocker, who did a report for his own department, and said, “I would say there’s no current evidence indicating the need for changing the way things are being done at the moment”.

Then she went on to say, “You wonder why you commission reports [referring to the Department of Justice] if you’re not going to use them”.

Hon. Rob Nicholson: Mr. Speaker, we have actually commissioned a couple of reports and I referred to some of the statistics in the final report that was given to us in November 2012. Indeed, there was one from 2006 that underscored some of the challenges that we have.

The member asks who we have been listening to. I make no bones about it, we have been listening to victims. We meet with victims groups. I would give the member the same advice that I would given to the NDP on a hundred different occasions. Sit down with victims groups across this country. I know members are busy and have lots of things to do, they have a constituency to look after. Even if they are down to one seat, as the Green Party is, they can still make time for victims groups across this country. I think they will be very impressed. I believe once having sat down with victims groups, members will be very supportive of what this government is doing to better protect victims.

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Of course, it is difficult to imagine the hypothetical of having the evidence we need to look at the situation. However, it seems to me, and this is somewhat intuitive, that if we had the evidence we need, we would find that the larger part of the problem is our failure to deal with mental health issues in a comprehensive way, through society, to ensure the prevention of violent acts by the very small minority of people with mental illness issues who find themselves then committing violent crimes. We recognize that this is a tiny proportion of all those with mental health issues, but when it occurs, of course it is devastating.

Would it not, on the evidence, make more sense to address our attention to preventing these rare occurrences from ever happening rather than to trying to keep those few people in jail indefinitely and finding fault with a system that we have no evidence is failing?

Irwin Cotler: Mr. Speaker, I would agree. The whole approach of this legislation regrettably fits a pattern whereby one addresses the issue through the lens of punishment rather than through the lens of prevention. Since we are dealing, in particular, with the issue of the mentally disordered, this becomes crucial in terms of approaches with regard to prevention.

Again, I regret that when I submitted amendments on Bill C-10 that would have addressed the approach to the mentally ill through treatment rather than incarceration and through prevention rather than punishment, they were rejected by the government, although they were designed for the sole purpose of simply improving that which the government was ostensibly concerned with in Bill C-10, and that was the promotion and protection of public safety.

Through prevention we would, in fact, end up protecting public safety, ensuring that there are fewer victims, better treating offenders with respect to their reintegration into society, and treating those, particularly in the NCR regime, who are not regarded as offenders and have not been deemed criminally responsible with the appropriate approach.

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In this case, the key issues relate to human rights and people suffering from mental illness. This is somewhat different from criminality, since it is a health issue. We need to strike a balance between protecting public interest, which is very important, and protecting human rights.

If we were to imagine a system that would, at the same time, protect the rights of ill people and protect society against violence, what would the best possible system look like?

Françoise Boivin: Mr. Speaker, I would like to have a perfect answer to this question. It is the question that we must always ask and to which we must always try to find the most specific answers. We also have to give the people who are in a much better position than we are in this House the tools they need to solve this problem.

I have a great deal of respect for psychiatrists and all those who work in the mental health field. Unfortunately, here in Canada, they often get less than their due. Even my Conservative colleagues have to admit it. It is something that we are not used to dealing with and that we really do not understand.

I will never be able to repeat it enough: the danger with this bill is that we are making Canadians believe that the people who committed these offences are not patients, but prisoners. They are not criminals like Bernardo, for example, or like someone who coldly and with no regard for other people’s lives decided to commit unspeakable crimes. We have examples of this, here.

In this bill, we are talking about serious mental disorders. I cannot say it often enough: if we are not happy with the verdicts, we should discuss the verdicts. If we are reasonably satisfied with the verdicts, they have not been appealed and they are final decisions, the person is taken into care. What I think is that the system requires greater investment in protecting mental health. We have to be reasonably satisfied that the people in question are being well treated. However, it would be very sad to let people believe that we live in a society that is full of people who have been recognized as not criminally responsible because of mental illness and who are walking around in the open.

On the other hand, we have to ensure that these people and the victims are up to speed. There are some good elements in this bill, as I said in my speech. I just do not like how the stage is set, sometimes, because it takes some of the credibility away from the bill, with the kind of political speeches we are hearing about something as serious as mental disorders.

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