JUST Committee Meeting

37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Tuesday, April 30, 2002

Á

1100

The Vice-Chair (Mr. John McKay (Scarborough East, Lib.))

Mr. Syed Akhtar (Individual Presentation)

Á

1105

Á

1110

Á

1115

The Vice-Chair (Mr. John McKay)

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

Mr. Syed Akhtar

Mr. Chuck Cadman

Mr. Syed Akhtar

Mr. Chuck Cadman

Mr. Syed Akhtar

Á

1120

Mr. Chuck Cadman

Mr. Syed Akhtar

The Chair (Mr. Andy Scott (Fredericton, Lib.))

Mr. Chuck Cadman

Mr. Syed Akhtar

Mr. Jay Hill (Prince George--Peace River, Canadian Alliance)

Mr. Syed Akhtar

The Chair

Mr. Robert Lanctôt

Á

1125

Mr. Syed Akhtar

Mr. Robert Lanctôt

Mr. Syed Akhtar

Mr. Robert Lanctôt

Á

1130

Mr. Syed Akhtar

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

Mr. Syed Akhtar

Á

1135

The Chair

Mr. Chuck Cadman

Mr. Syed Akhtar

Á

1140

Mr. Chuck Cadman

Mr. Syed Akhtar

Mr. Chuck Cadman

Mr. Syed Akhtar

Mr. Chuck Cadman

Mr. Syed Akhtar

Mr. Chuck Cadman

Mr. Syed Akhtar

The Chair

Mr. John Maloney (Erie--Lincoln, Lib.)

Mr. Syed Akhtar

Mr. John Maloney

Mr. Syed Akhtar

Á

1145

The Chair

Mr. Robert Lanctôt

Mr. Syed Akhtar

Mr. Robert Lanctôt

Mr. Syed Akhtar

Á

1150

The Chair

Mr. John McKay

Mr. Syed Akhtar

Mr. John McKay

Mr. Syed Akhtar

Mr. John McKay

Mr. Syed Akhtar

Á

1155

The Chair

Mr. Jay Hill

Mr. Syed Akhtar

Mr. Jay Hill

Â

1200

Mr. Syed Akhtar

Mr. Jay Hill

Mr. Syed Akhtar

The Chair

Mr. John McKay

Mr. Syed Akhtar

The Chair

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance)

Mr. Syed Akhtar

Â

1205

Mr. Kevin Sorenson

Mr. Syed Akhtar

Mr. Kevin Sorenson

Mr. Syed Akhtar

The Chair

Mr. Robert Lanctôt

The Chair

Mr. Syed Akhtar

Mr. Jay Hill

Mr. John McKay

Mr. Jay Hill

Mr. John McKay

Mr. Jay Hill

The Chair

Mr. Jay Hill

Â

1210

Mr. Syed Akhtar

Mr. Jay Hill

Mr. Syed Akhtar

The Chair

Mr. Robert Lanctôt

Mr. Syed Akhtar

The Chair

Â

1215

Mr. Jay Hill

Mr. Syed Akhtar

The Chair

Mr. Chuck Cadman

Mr. Syed Akhtar

Mr. Chuck Cadman

Mr. Syed Akhtar

The Chair

---

CANADA

Standing Committee on Justice and Human Rights

---

NUMBER 083

l

1st SESSION

l

37th PARLIAMENT

---

EVIDENCE

Tuesday, April 30, 2002

[Recorded by Electronic Apparatus]

Á  (1100)  

[English]

    The Vice-Chair (Mr. John McKay (Scarborough East, Lib.)): I'd like to call the 83rd meeting of the Standing Committee on Justice and Human Rights to order, please.

    Our witness is Dr. Syed Akhtar, as we continue our study of the mental disorder provisions of the Criminal Code. Welcome, Dr. Akhtar.

    Generally the format is that we ask for a ten-minute statement. As you are our only witness today, I think we can be somewhat flexible on that. Then each of the opposition parties will have an opportunity over the course of seven minutes to ask you a question or two, and then we'll go back and forth.

    Please commence, and welcome to the committee.

    Mr. Syed Akhtar (Individual Presentation): Thank you, Mr. Chairperson and honourable members, for inviting me to appear before you. This is the first opportunity I've ever had coming and walking through these corridors of power. It's a little intimidating, but I think I'll get used to it.

    I'll use my ten minutes to read a brief, because I think it will be easier for the translators, too. It will be easier for me also to go over the points I'd like to make.

    First my professional background. I'm a medical graduate of the King Edward Medical College in Lahore, Pakistan. I obtained my psychiatric training in Massachusetts, U.S.A., and at Dalhousie University, Halifax. I had my forensic psychiatric training at the Institute of Psychiatry and the Law at USC, Los Angeles, California.

    I'm a fellow of the Royal College of Physicians and Surgeons of Canada and I have American board qualifications in general psychiatry as well as forensic psychiatry.

    I was director of the Forensic Psychiatric Service at the Nova Scotia Hospital, which is the provincial psychiatric institution, from 1973 to 1995. Since 1995 I have been engaged in private practice of forensic psychiatry at Dartmouth, Nova Scotia. I've also been associate professor at Dalhousie University since 1987.

    I was a member of the interdepartmental committee that drafted the last mental health legislation in Nova Scotia in 1979. For several years I was a psychiatric server with the Health Services Accreditation Council, in which position I had the opportunity of visiting psychiatric institutions across Canada and studying their structure and operations. In December 2000 I was appointed to the Criminal Code Review Board of Nova Scotia.

    Over the last five years I have had the opportunity of visiting New Zealand as a forensic psychiatric consultant with various institutions and organizations. I mention this especially because the New Zealand legislation in this area is very much like the Canadian situation was prior to 1992 and even before that, probably prior to 1972. I'll elaborate on this a little bit later on.

    I'll make some introductory remarks about the mental disorder provisions of the Criminal Code, which were introduced in 1992.

    Bill C-30 introduced modern psychiatric terminology into the Criminal Code, clarified and codified criteria of fitness to stand trial, and expanded the authority of the review boards over offenders who are found to be unfit to stand trial or not criminally responsible by reason of mental disorder. Most importantly, it de-politicized the process by granting quasi-judicial powers to the review boards and by making explicit reintegration of the mentally ill offender in society as one of the review board's mandates, the other being that society should be safe from dangerous mentally ill offenders.

    These changes have brought about vast improvement in the system and have been welcomed by both the legal and the psychiatric disciplines.

    The working of the review board under the Criminal Code in particular is the envy of other English-speaking jurisdictions with which I am familiar--that is, U.S.A. and New Zealand. I have done forensic psychiatric conferences every year, and when the disposition of the not criminally responsible is brought up as a subject, people are full of praise for the Canadian system. I have even started a small movement in New Zealand to bring about changes similar to the Canadian system.

Á  (1105)  

    Having made these introductory remarks, I will address some of the issues raised by the committee in the issues paper.

    First, the NCR-MD defence. Because a verdict of NCR-MD no longer means automatic and indefinite psychiatric hospitalization of the offenders, defence attorneys across the province have been raising this defence with increasing frequency, not only in serious cases but also in relatively minor cases. The review boards are therefore facing an increasing workload.

    Contributing to this workload is the complementary tendency on the part of the crown not to contest psychiatric opinions, especially when the charges are minor, such as disturbing the peace or impaired driving and refusing a breathalyzer test, etc.

    On many occasions, psychiatric reports on the mental state of the individual at the time of the alleged offence are accepted uncritically by all parties and the author is not requested to provide his or her full reasoning in oral testimony. This route is followed because it is the least burdensome to the parties and is also perceived as more humanitarian.

    The result is that the review board in the province of Nova Scotia is, in practice, becoming the second tier of treatment for mentally ill offenders regardless of whether they pose a high or low level of danger to society. I believe that this is a runaway train and that the system will bog down if something is not done about it. I say it's time to put brakes on this runaway train. I make the following recommendations.

    (1) The NCR-MD defence should be restricted to indictable offences. Such a change may run into constitutional challenges, but I urge the committee to take this risk in the interest of practical reality.

    (2) Alternatively, in summary offences the court should be mandated to hold a disposition hearing at the time of the verdict of NCR-MD. Some accused will be eligible for absolute discharge at that stage, and only those who pose substantial danger on an ongoing basis would then be referred to the review board.

    The second issue I'm addressing is criteria of fitness. In most cases, the three-pronged criteria laid down in section 2 of the Criminal Code are sufficient to protect mentally ill individuals who should not be put on trial. However, after the Taylor case in Ontario, many lawyers are questioning whether the threshold level of limited cognitive capacity recognized by the Ontario court covers all situations.

    A deeply depressed individual, for example, who wants to invite conviction out of a sense of psychological guilt, even though his cognitive capacities are intact, may not be covered by the present criteria if they are applied strictly. The same consideration applies to an accused who understands the nature and purpose of the charges against him, as well as the consequences of the conviction, and has a capacity to communicate with his counsel but may not be able to make an informed choice between various options because of psychiatric limitations. So the defence bar is particularly concerned with this. There is thus a need to revisit the criteria of fitness.

    The third issue I'll deal with is the powers of the review board. Having been a member of the Nova Scotia Criminal Code Board of Review for over a year, I have become aware that in many situations the review board does not have adequate information to make a speedy decision.

Á  (1110)  

    To deal with this problem, I recommend that the review boards should be empowered to order an assessment prior to reviewing an offender's disposition, where such an assessment is not already available.

    I also recommend that the review board should have the power to discharge absolutely an unfit accused, so that minor, common, non-dangerous cases can be disposed of more expeditiously. To make sure the public interest in such a situation is not overlooked, input from the crown may be made a requirement before the review board makes the decision.

    The fourth issue is capping of dispositions. I suggest a distinction should be made between capping for the NCR-MD group and capping for “unfit accused”.

    For the NCR-MD group, it is neither logical nor practical to have capping. The purpose of detention or other restrictions on these individuals is to make sure they do not pose a danger to the community. If capping is introduced, some individuals will be free from all restrictions and supervision at the end of the capping period, regardless of whether they continue to remain dangerous or not.

    If the capping for this group is introduced, then as other witnesses have suggested to the committee, it should be accompanied by proclamation of the dangerous mental disorder accused sections.

    As for the unfit group, I do recommend capping. It should not, however, be a certain number of years--arbitrarily two years or three years or seven years--but should be related to the progress or lack of it towards achieving the goal of restoring the accused to a state of fitness. Once the review board or court reaches the conclusion that the accused is unrestorable to fitness, then the board or court must stay the proceedings or order the absolute discharge. That's my recommendation.

    Automatism: this defence, though rarely used, is difficult to grasp for lawyers and psychiatrists as well as the general public. Recent cases in Canada have provoked world-wide interest but have shed little light on the necessary conditions that should be satisfied before it can be successfully invoked in psychological cases. There is a great need for study of this phenomenon, in a systematic and a comprehensive manner, by both the legal and the psychiatric professions. I am of the opinion it should be codified, but before it can be codified it should be studied exhaustively by a commission of inquiry.

    I recommend that the Government of Canada establish a commission to look into this time-honoured defence of automatism and clarify its conceptual and legal boundaries. I'm thinking of the McRuer commission, which was established in the 1950s to study the insanity defence, as it was then called. Their deliberations, I think, were very helpful to the psychiatric and legal professions.

Á  (1115)  

    The Vice-Chair (Mr. John McKay): Thank you, Dr. Akhtar.

    Now, for seven minutes, we'll have Mr. Cadman.

    Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair.

    Thank you, Dr. Akhtar, for appearing today. I have a couple of brief questions.

    We had some testimony a couple of weeks ago from Dr. Semrau, who suggested--and it was quite controversial, in my opinion--that the mental state of an accused should not be considered for the determination of guilt, but that the determination of guilt should be made first and the mental state of the accused or the offender taken into consideration at the time of sentencing. I just wonder if you have any comments on that.

    Mr. Syed Akhtar: This is more a legal than a psychiatric question. It's a policy issue, and as I understand it the law has always considered the mental element to be an essential ingredient of guilt: you cannot establish guilt without considering the mental element. The word “guilty”, as I understand the legal concept, cannot be applied unless the mind is guilty. So I don't see much merit in that recommendation.

    Mr. Chuck Cadman: On the issue of victim impact statements, there's been a proposal that victims be permitted to give oral impact statements before review board hearings. I'm just wondering if you have experience with that or a recommendation on that.

    Mr. Syed Akhtar: In Nova Scotia, I've been on the board for only one and a half years, and victims have appeared only once or twice. I don't know if they know that the board is going to review that particular case. Maybe there is a need to inform them, if they are already on some kind of list, when a case that is relevant to their complaint is going to be reviewed. I have no objection to them being notified.

    Mr. Chuck Cadman: What about the issue of actual oral impact statements?

    Mr. Syed Akhtar: Again, that's a legal question rather than a psychiatric question. I think it will complicate the situation if the accused--I call them the patient--is confronted by this victim, and there are sometimes family members present. In consideration of the practical workings of the board, it is probably not necessary.

Á  (1120)  

    Mr. Chuck Cadman: You are aware that it is permitted in court and at parole hearings now. So your suggestion is that it wouldn't be of much value to the review board.

    Mr. Syed Akhtar: I don't think it would be of much value.

    The Chair (Mr. Andy Scott (Fredericton, Lib.)): You still have four minutes.

    Mr. Chuck Cadman: I have one quick question. Thank you, Dr. Akhtar.

    If I heard you correctly, you made some reference in your presentation to the fact that in your opinion, the review boards are becoming almost like a second level of treatment. I wonder if you would expound a bit more upon that, so I can better understand what you're driving at.

    Mr. Syed Akhtar: There are some individuals who are not extremely psychotic but have some problems, and somebody raises the defence of insanity. They say let's send him to the Nova Scotia Hospital on a psychiatric remand to get a report on his mental state. The psychiatrist examines him. He has only been charged with a minor offence, like disturbing the peace, but he is mentally ill. The psychiatrist reaches the honest conclusion that he was disturbed at the time of this disturbing the peace to such an extent that section 16 applies, and he makes the report.

    That person goes back to court. The prosecution doesn't fight it because it's a minor case. The defence, of course, is very happy: they know he's not going to be detained indefinitely and he'll get treatment. So everybody's happy with this. The result is the review boards are now becoming like the review boards under civil legislation. I think every province has a civil board.

    I make a distinction between a civil kind of dangerous and a criminal kind of dangerous. Maybe I'm going into too many details on it. The concept of civil commitment is designed to cope with danger of a different magnitude from the Criminal Code review boards. On the civil side, they're dealing only with mental illness. Under the Criminal Code review side, you're not only dealing with mental illness but personality disorders plus sexual deviations. On the civil side, you're dealing with danger to society but also danger to the person himself. On the criminal side, you're concerned mostly with danger to society. On the civil side, you're dealing with short-term danger and the magnitude is lower. On the criminal side, the magnitude is higher and you're dealing with long-term problems.

    So here the review board is getting derailed or directed into those areas that would be dealt with by the treatment boards.

    Mr. Jay Hill (Prince George--Peace River, Canadian Alliance): Just to sum up then, Doctor, what you're saying is that your primary concern in how the review boards are operating, in this particular aspect, is with how they deal with the civil cases, versus the criminal?

    Mr. Syed Akhtar: Minor cases--how they deal with cases of a minor nature. They are being swamped with these minor cases. There's a tremendous increase in the number of cases, and many of them are minor cases.

    So that's my suggestion, that the NCR defence should be limited to indictable offences. And if that cannot be constitutionally done, then at least for minor cases, the court should be forced to make a decision. Instead of taking 30 or 45 days, and sending him to the review board, the courts should be mandated, for example, in a disturbing-the-peace charge, to have a disposition immediately after the verdict. Then many cases would be able to go home or to the hospital, whatever.

    The Chair: Thank you very much.

    Monsieur Lanctôt.

[Translation]

    Mr. Robert Lanctôt (Châteauguay, BQ): Thank you, Mr. Chairman.

    We have heard the testimony of a psychiatrist, Stanley Semrau. To some extent, Mr. Semrau threw out the whole line that had been taken in the work that had been done up to that point of the Committee's proceedings. His ideas were perhaps interesting, we don't know. We are not psychiatrists and this is why I am taking the opportunity to ask you the question. He is really asking to make a U-turn. As far as he is concerned, mental disorders have nothing to do with guilty intent. In his view, except when convulsions are involved, schizophrenia, hallucinations or things of this nature have nothing to do with guilty intent. He was asked some really important questions because, as far he is concerned, guilty intent goes almost automatically with the fact, with actus reus. As for mens rea, as far as he is concerned, this view of things is not overturned because a person has a mental disorder.

    What do you think of this?

Á  (1125)  

[English]

     Mr. Syed Akhtar: I think I have addressed that question before, with the other honourable member.

    I think that's a legal question. I don't know. I don't want to criticize Semrau. He has his own opinions, but this is an extreme opinion, from both the psychiatric point of view and the legal point of view. You have to demolish the foundations, the philosophy of criminal law, criminal liability, if you accept that, if you accept that the mental element is not necessary. There are 400, 500, 600 years of experience in dealing with criminal intent or guilt that would have to be discarded. But that, essentially, is a legal question--what is guilt?

    As I understand it, the fundamental principle applies that no person would act as guilty unless the mind were guilty. So you have to destroy that proposition.

[Translation]

    Mr. Robert Lanctôt: However, he goes further. I am focussing on the medical aspect, not the legal aspect. I fully understand your answer in that regard. As a psychiatrist, as a medical practitioner, he told us that mental disorders had nothing to do with guilty intent, except in the case of convulsions. As far as he was concerned, a schizophrenic, or someone experiencing hallucinations or some such condition can have this guilty intent. In his view, it has nothing to do with it. I wonder whether, from a strictly medical point of view, he is right. These are his premises. If he is setting out to change this system, these are the premises that he is adopting. As a psychiatrist, what do you think of this?

[English]

    Mr. Syed Akhtar: I don't agree. I don't think it is the matter.

[Translation]

    Mr. Robert Lanctôt: O.K.

    I am getting back to the victims for a moment. The last witnesses that we heard told us that the victims are really abandoned. Among others, this is the case of a victim of a serious act who gave evidence in confidence. For such victims, it would be necessary, perhaps not for the system or for the review board, but for them, the victims...

    Would this really impede the review board to hear these victims, if this is necessary for their progress, for their equilibrium and even for them to continue living? As my colleague said, they have the opportunity to do so in other instances, but we are not talking about the same thing. We are not talking about accuseds, we are not talking about guilty parties, we are not talking about any of that, much less about parole. We are talking about a case where this person is not convicted. So, legally, this causes the problem in question. The victims want to monitor what happens by way of a penalty or to know whether the person gets out or does not get out. Does this really harm the review board, if we can help these people?

    What choice do we make? Do we choose to rehabilitate the accused, who committed this act against the victim, or the victim himself, who testifies that he feels he has fewer rights than the accused?

Á  (1130)  

[English]

    Mr. Syed Akhtar: I don't think it will undermine the work of the review board. I say it will add to the work and will complicate it if the victim is present.

    The whole concept of the person, especially the NCR-MD, is the mind was not operating properly when the victim was victimized. I don't see that a confrontation between the victim and the accused, in the situation of a formal hearing before a quasi-judicial body, will be helpful. I think they should have the option of writing to the review board and giving their points of view as to what happened. Their presence in the hearing is what I'm talking about. I don't think it's either necessary or helpful.

    The Chair: Thank you very much. I'm going to go on now. We'll be back.

    Mr. Macklin.

    Mr. Paul Harold Macklin (Northumberland, Lib.): Thank you.

    There are about three questions I'd like to ask you. One of the things, of course, is my curiosity is still awaiting your thoughts on New Zealand. You said you were going to come back to it. I'd like to hear what you have to say.

    Second, you talked about threshold level--that is, fitness to stand trial. I'd like to hear what your comments are to specifically outline some guiding principles we might be able to use, from a legal perspective, that might be more adequately set forth in the code.

    Third, I want to clarify, what is your reference when you use the term “absolutely discharge at the review board with the crown present”? Are you taking us to the point where you believe, therefore, there would be no referral back to the criminal courts? Would you have, through the review board process, the right to give an absolute discharge, as defined within the concept of the criminal justice system, rather than a discharge that may be used in a more general way, in describing a person released within the forensic system?

    Mr. Syed Akhtar: Let me answer that last question first. I am thinking for absolute discharge, just as when the crown drops the charges in the public interest.

    All I'm saying is if you're worried that this will usurp the prosecution's role, the review board will then be taking the place of the prosecution. I'm saying you may make it a requirement that a decision by the review board to absolutely discharge a person cannot be taken unless the crown has had an opportunity to represent the public interest. That's my view on that.

    As to your question on the fitness, that's a question of what terminology you use. Legal experts are more qualified than I am, but I will say something like this, and I base this opinion of the law on a recent case that I saw in New Zealand. A doctor had been charged with the murder of his wife. He actually had been a superintendent of a forensic psychiatric institution. He became extremely depressed after his retirement and had problems with his wife too, and had what we psychiatrists call evolutional depression. Depressed people in old age develop this delusional guilt and they invite punishment. They want to be punished. So he was in that frame of mind.

    He was fully aware of the nature and purpose of the charges, because, as I say, he had been the superintendent of a forensic psychiatrist institution, and satisfied the criteria of the nature and consequences and the purpose and all that, and had communication with counsel. But he didn't want to raise any defence. This is what I'm talking about. Cognitively, he's intact. The Taylor case criteria are satisfied, but he doesn't have the motivation. His motivation is the opposite. He doesn't want to defend it. He wants to be convicted. This is the kind of situation that I am saying the present criteria may not cover. And some mentally subnormal handicapped individuals may also be in the same situation.

    You can have wording that in addition to the three criteria adds the fourth criterion that his illness is not interfering with his decision-making powers. That is the kind of expansion I'm thinking of regarding the fitness criteria, because strictly applied, especially if you said the threshold of unfitness is very high and the threshold of fitness is low, which is the Taylor case--limited cognitive capacity--then you have to worry about these individuals who are not motivated.

    To New Zealand now. New Zealand has the system now, which used to be here before, when I started my practice in forensic psychiatry--no review boards. The decision is made on these individuals by the attorney general. This was the same in Nova Scotia when I started my forensic practice. It was the lieutenant-governor, but the lieutenant-governor sought the advice of the psychiatrists, and I was the sole psychiatrist. Now I shudder to think that I lasted so many years being the sole adviser to the lieutenant-governor, who sometimes took a personal interest and interviewed these patients, but many times he didn't. I know of cases in other provinces where the decision was made to release and not to release on political grounds. How would the community react to that?

    New Zealand has the same situation now. The attorney general makes the decision about whether to release or not to release, and it's very upsetting to the legal profession as well as the psychiatric profession. I'm saying we have made a vast achievement in having this system of review boards, and people are envious of that. Let's take the example of de-politicizing or politicizing.

Á  (1135)  

    When I mentioned it to some of the lawyers there, I said they should start a movement there for change in legislation along Canadian lines. They said, “But this is an election year; nobody will touch it.”

    The Chair: I never heard of such a thing!

    Some hon. members: Oh, oh!

    The Chair: Thank you, Mr. Macklin.

    Back to Mr. Cadman for three minutes.

    Mr. Chuck Cadman: Doctor, I'd like to return to the issue of victim impact statements, because I'm a little confused here. You say it's a legal question, and the not criminally responsible plea essentially means that the person is not guilty. But I would suggest that whether the person is held criminally liable is irrelevant to the victim. The accused are still the cause of the situations that victims find themselves in. You suggested it would possibly complicate things if the victim appears, that it could cause some difficulty for the person under review.

    If we're dealing with rehabilitation to determine whether somebody has been rehabilitated or is now fit for release--I'm talking about not criminally responsible now--would not part of their rehabilitation or their ability to function in society be reflected in the fact that they're able to deal with their victim, with what they've done, and be able to deal with that person one on one? I'm not suggesting confrontation, but just be able to deal with what they have caused that victim to go through.

    Mr. Syed Akhtar: I think it should be dealt with in a different setting. I'm not saying it should not be dealt with. The victim's concern should be addressed, maybe in a separate interview between the patient and the victim, but not in that formal setting.

Á  (1140)  

    Mr. Chuck Cadman: If they're not able to deal with their victim, would that not say something about their ability or their fitness to be released? That's my point.

    At the review board you're making a decision as to whether that person is fit to be released, and if they're not able to deal with what they've done, deal with their victim, would that not be a part of--

    Mr. Syed Akhtar: There are various stages of improvement. Some may be able to deal with it, some may not be able to deal with it. You see them immediately after they are found, within 45 or 90 days, and then you see them a few months later when they may be in a different mental state. After a certain period of time they probably will be able to deal with it. But you cannot say in every case they will be able to deal with it.

    Mr. Chuck Cadman: How do you know that, unless you actually see them interact with their victim?

    Mr. Syed Akhtar: I'm not saying you shouldn't see them interact or have them interact, but in a different setting. In a review board meeting you cannot observe what he's feeling or ask him how he feels about it. In a treatment session, the doctor can say this is how the victim feels, what do you think about it? What is your reaction to that? But you can't ask that in a review board meeting.

    Mr. Chuck Cadman: Why not, exactly?

    Mr. Syed Akhtar: Because it's not an interview like a psychiatric patient interview. It's not an interview. Sometimes the lawyers advise their clients not to answer any questions. That's their right.

    Mr. Chuck Cadman: I'm a little bit concerned about that person's rights.

    Mr. Syed Akhtar: That is their right. I asked a question of a person not too long ago. The lawyer advised this person who'd been found NCR not to answer any questions. I wanted to know whether he wasn't answering any questions because he decided not to answer or because he was hearing voices telling him not to answer questions. But I couldn't ask the lawyer. I couldn't even ask the psychiatrist, who was testifying as a board member, what do you think of the patient's refusal to answer questions? I was shot down by the chairperson, who is a retired judge. He said you cannot make any inference. You cannot ask a psychiatrist to make any inference about a patient's or any individual's exercise of his constitutional right not to answer questions.

    That's the situation. It's not a patient-doctor relationship. It's a legal situation. You have to deal with those legalities.

    The Chair: Thank you very much.

    Mr. Maloney.

    Mr. John Maloney (Erie--Lincoln, Lib.): The review board is breaking down because of the increased workload, and you have suggested that perhaps it should only be used for indictable offences and you've driven an arbitrary line across its use. As a professional psychiatrist, do you feel comfortable with drawing that line?

    Mr. Syed Akhtar: Provided adequate provisions are made to teach these individuals. What you need is a treatment system. I won't say that they should not be treated at all; I'm just saying they should not be treated by a criminal court review board, but by the civil system.

    Mr. John Maloney: Is the situation a matter of resources? Should your review board be expanded? Should there be more?

    Mr. Syed Akhtar: The situation is first of all a matter of resources. That's true, no question about it. But also, in my view it is lowering the standards of psychiatric testimony. It is harmful to forensic psychiatrist standards because nobody is critically examining the issue; nobody has cross-examined this doctor. Some doctor could say that he's schizophrenic and he's disturbing the peace, so he's section 16, this without any connection, without any reasoning, and without the lawyer challenging it.

    In that way it is, I think, lowering the standards for both the legal profession and the psychiatric profession, because it's an automatic thing. It's a minor charge, nobody worries about it, and the doctor says he's not guilty, not criminally responsible, so who am I to raise a fuss about it, especially because it's only a minor charge? That's what I'm saying. It has that side effect.

Á  (1145)  

    The Chair: Thank you, Mr. Maloney.

    Mr. Lanctôt.

[Translation]

    Mr. Robert Lanctôt: It's good to hear the governing party talking about a lack of resources. Usually, this comes from the opposition. I thank my colleague, Mr. Maloney.

    Once again I am coming back to the issue of the victims. Your answers to some extent vindicate the victims who tell us that they are really abandoned, because you say that this is not the right forum for them to express themselves or to open up their hearts or to come face to face with the accused. However, this is what they have said. Understandably, they want to be a part of this formal process. For them, this is part of their rehabilitation. It is also part of the follow-up process in a system where they were the first to be involved. They are the victims, and excluding them in this way...you are not the only one. Virtually all psychiatrists and all review boards have said the same thing: that it would provide no benefit, while doing no harm, but that it would be more complex.

    This may be the case, but it might also be time to attend to it, if it makes no difference to the review board other than to complicate matters. For the person who is the victim, it is far more complicated not to be able to participate in this formal forum. Understandably, they don't want it to be a closed forum. What impression is the victim to form if the only thing he can do is to write a document that you will read out when he could relate the same facts orally? The victim could tell you things about it, but, for the victim, even if it adds nothing for you, it is a part of a process of taking account of what the victim is going through.

[English]

    Mr. Syed Akhtar: Maybe it's because I am concerned with the patient that you say I'm ignoring the victim's plight. I'm not ignoring their plight. My focus is that the verdict of not criminally responsible by mental disorder means that the individual didn't mean to harm the victim. Although the victim was harmed, the accused didn't mean to do it. How do you deal with situations in daily life where somebody bumps into you and says “Sorry, I didn't mean to do it”? How do you deal with that?

    I'm saying that this should not be done in a formal setting. Maybe the psychiatrist should first meet with the victim separately and see what the appropriate method of catharsis for the victim is, maybe confrontation with the patient. In different situations there will be different solutions.

    I'm not saying that this is not a problem; it is a problem for the victim, no question. I'm saying different situations will call for different methods of closure for the victim, and to bring it into a formal situation is not always a solution. I'm not opposed to it. I'm saying that it's just complicating things, but I'm not as opposed to it as I am to the abolition of the NCR defence.

[Translation]

    Mr. Robert Lanctôt: If the victims heard you today and if they heard the other people, I'm sure they would all say that these comments mean that they are not being taken into account, whereas they are the ones who suffered.

    I understand that your patient... However, indirectly, you have another patient for whom you are not required to provide treatment but for whom this is part of the process that may help them. You have a forum in society that is established by the Criminal Code. These victims are not fools. Why exclude them from this forum?

[English]

    Mr. Syed Akhtar: I'm not saying they should be tossed aside. I say they should be heard, and they should be given all the opportunity. They should be treated, if necessary, to get over this psychological injury they have suffered. The setting is what I am saying is not helpful, because it's a formal setting, it's not an informal treatment setting.

Á  (1150)  

    The Chair: Thank you.

    John McKay.

    Mr. John McKay: Thank you for your testimony.

    You raised the issue on the criteria of fitness, and you make reference to a three-pronged test in the definition of the nature.... The person needs to understand the nature of the proceedings, the consequence of the proceedings, and be able to communicate with counsel. You gave a couple of examples of people who were depressed, or people who were unable to make informed choices, and suggest that the criteria should be revisited.

    We've also heard testimony--and not to put too fine a point on it--that if you have a pulse and you know who the judge is, you're in. If you have a pulse and you know who the judge is and what he can do to you, you're in. It's pretty low. Am I to assume that your concern is that the threshold is too low, or is your concern that for a variety of reasons people may not be able to communicate in a rational fashion? Is it something that's wrong with the three points--nature and object of proceedings, consequences of proceedings, or communicating with counsel--or is it with the fact that this should be changed? I'm not quite sure what your point is there.

    Mr. Syed Akhtar: I have no problem with the threshold. I think it is appropriately low. It should be low, especially now, meaning as contrasted with several centuries ago, when no accused had a lawyer and had to defend himself or herself. The test then was whether they were capable of conducting their defence. Now everybody has a lawyer, so that whatever deficiency the person has in his understanding should be compensated for by competent legal counsel. I think the threshold should be low. In my view that is not a problem. It's both in the interest of the accused and the interest of society, and the fact that everybody has legal counsel means that the appropriate level of fitness is low.

    My concern is with the boundaries of the concept of fitness, and that is why I gave that specific example. More than cognitive capacity is necessary for rational participation in the process. This person who has adequate cognitive capacity but does not have enough motivation is not rationally participating in his defence. I think that situation should be covered.

    Mr. John McKay: I'm unclear as to how you would state that in a criminal code.

    Mr. Syed Akhtar: I gave that as an example, as an adventure into legal terminology. I'm sure the lawyers will be able to come up with better terminology--that is, that he has an operating mind or that his cognitive capacities are not influenced by other irrational processes. Different language can be used. I'm sure people will come up with something, but I'm giving this illustration to say this is my concern.

    Mr. John McKay: Arguably, it opens up a situation where “I'm just too depressed to instruct counsel”.

    Mr. Syed Akhtar: Well, you can't say that. This is up to the judge to decide anyway. You don't get away with that.

Á  (1155)  

    The Chair: Thank you very much, Mr. McKay.

    Mr. Hill.

    Mr. Jay Hill: Thank you, Mr. Chairman.

    I have a number of points to make and then perhaps I will ask you to comment on them at the end.

    First of all, because of the nature of our questioning, oftentimes we leave one aspect of the questioning and we don't come back to it for some time. I would want to comment that in regard to the NCR having a constitutional right not to respond and not to answer questions, I would think that in the best interests of society that perhaps the system should have a constitutional right to deny him or her release, based upon non-response. If they're going to make these types of choices and wrap themselves in a constitutional right, I think society has an equal right to protect itself.

    If I understood you correctly, you perhaps support an independent meeting between the victim and the NCR, with doctors present. I would suggest that if that were the method used, it should be mandated that this type of meeting be conducted prior to the review board meeting to decide upon release.

    In order to pick up on Mr. Cadman's point, the review board should have, as information available to it when it makes its decision, how the NCR may or may not interact with the victim in order to come to the conclusion of whether there's going to be an ongoing or perhaps future problem.

    The last point I want to make is in this whole area we keep raising on the issue of the rights of the victims. It seems to me, and we made this point previously, that the system and the review boards are fixated on the mental health of the person you keep calling a patient and we call a criminal. The accused did the act, whether they meant to or not.

    It seems to us that the system is fixated on the mental health and well-being of the NCR, and we've had people pose this to us. What about the mental health and the well-being of the victim? The system seems to overlook that. I think we as a society owe them something in the sense of trying, as the Bloc member raised the issue, to bring closure for them as well. So I think it's incumbent upon the system to look after their mental health as well.

    The last point I would make is in the case of NCR defence. Is it always that they didn't mean to do it, or is it that sometimes it's not necessarily that they didn't mean to do it, but they couldn't control themselves from doing it?

    Mr. Syed Akhtar: In some United States jurisdictions, that is true. Control is one of the criteria of the insanity defence, as they call it in the United States. Not in Canada. In Canada, control does not enter into it. It's the cognitive capacity, the understanding of what the act is and whether it is morally wrong or not. So in Canada it always means he or she didn't mean to do it.

    Mr. Jay Hill: Could you comment on my other three points about this whole business about the rights of the victim and the need for the victim to have society protect their right to rehabilitation and closure?

  (1200)  

    Mr. Syed Akhtar: I have said before that I am in favour of this. I'm a supporter. I want to help people. You're right, this system is created to focus on the mental health of the individual and public safety. That's the whole purpose of the review board system. There are usually other people suffering--the victims--no question about it. I'm all in favour of avoiding any long-term effects on their health, and for closure and catharsis, as I say.

    I'm talking about the situation that I cited, where you cannot ask him questions. You have to live with that.

    Mr. Jay Hill: What about my idea of ensuring that the independent meeting happen prior to the review board making the decision?

    Mr. Syed Akhtar: This will be opposed by people who are submitting reports, because you're putting restrictions on us now--you are directing us how to practise our psychiatry. But I have no objection to it as a member of the board. The more information the better. The quality of your decision is dependent on the quality of the information on which it is based, so I'm all in favour.

    The Chair: Mr. John McKay.

    Mr. John McKay: To go back to that point, I thought you said previously that the presence of the victim at a review board hearing was neither helpful nor useful. I hope I'm quoting you somewhat accurately here. Yet you seem, in response to Mr. Hill's inquiry, to want to invite the victim into the process of the review. We need a point of clarification here, because we have had representations from people saying that the victim should be invited into the process; that the process should be more than just simply a filing of a statement; that they should be able to make representations to the board on how this event has traumatized their lives, etc.

    There's a certain superficial attractiveness to that. But I think you properly state that the board is focused on the accused, not the criminal--just to make a point here--because he's not been found to be a criminal. You're focused on the mental state of the accused, and properly so. The system is geared to this. Could you reconcile these at least supeficially irreconcilable thoughts on the role of the victim in the process and the role of the board?

    Mr. Syed Akhtar: I'm sorry if I am confusing. In my mind, I am clear. I am saying the victim should be given full participation, but not have a physical presence in the review board hearing. That situation is not conducive to any therapeutic effect, because of the example I gave you, that they don't have to answer any questions if they choose not to. Otherwise, there should be all kinds of efforts in the doctor's office, in submitting the report to the review board. I have no problem with that.

    The Chair: Thank you, Mr. McKay.

    Mr. Sorenson, did you want to comment?

    Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Yes, please. I'm sorry I missed your testimony. We sometimes have more than one meeting here on the Hill.

    While I'm certainly not a psychiatrist and don't pretend to understand what you have to understand to be a forensic psychiatrist, we understand that victims are traumatized. They can become very emotional when they see the individual who perpetrated the criminal act, or the one who was accused of that. We've heard other testimony of how she was not sure if she would be able to face the person who tried to commit this criminal act against her. They become very emotional.

    Is it possible that reactions can be the same with the accused, when they see the person they perhaps committed this act against--that they have a different demeanor than they would normally have without seeing the person they have victimized?

    Mr. Syed Akhtar: Yes, it would be different. It would depend on the personality of the victim. Some people will deal with it very effectively; others may become more traumatized. The same is true with the patient or the accused. This is why I say there are so many variables you cannot make a generalization.

    All I am saying is you cannot conduct a therapeutic interview in the review board setting. If the intent is to have a salutary effect on the mental state of the victim without seriously interfering with the mental state of the accused, it may not be accomplished--or may not be accomplishable--in the review board setting.

  (1205)  

    Mr. Kevin Sorenson: There's also other evidence of individuals--I'm not sure whether they're just criminals or whether they're those who are insane--who have gone back after being accused, after getting out of prison, to the very same victims they committed the atrocious act on and harassing or trying to re-victimize them again, to commit the same thing.

    My question to you is this. Although you have said you're dealing with the accused and can professionally distinguish, just from him and without talking to a victim, so that the victim shouldn't even appear before the review committee, do you believe you should have access to how the meeting went between the victim and the accused that happened, not at the review board, but in a different place?

    Mr. Syed Akhtar: Yes, I would like to have access to that.

    Mr. Kevin Sorenson: So it would be important for you to have access to how that information went?

    Mr. Syed Akhtar: Yes, absolutely. I say the more information, the better: the more information about the accused and the victim, and the context in which the interview occurred, the better for the review board and the better for the treating psychiatrist as well.

    The Chair: Thank you, Mr. Sorenson.

    Mr. Lanctôt, you have three minutes.

[Translation]

    Mr. Robert Lanctôt: This shows once again that it is just this minor aspect, something that you could report to the review board yourself, that may be disturbing for the accused. It will give you still more information if his response...That's all well and good, he may have seen the victim in another place, in hospital, during a previous meeting, but if you, as a member of this review board, you see...Often, non-verbal language will give you indications. These non-verbal aspects exist, but they will not necessarily be written in a report.

    How can the credibility of a witness be established before a judge so that the judge can see whether his testimony is credible or not? Often, the non-verbal aspects will tell something, but you, as a member of this review board, may be several steps ahead. So you will see the non-verbal aspects and perhaps already, before a decision is made, you will see that the meeting between the victim and the accused will give you a completely different kind of idea.

    In light of what you have just told me, I think, on the contrary, that this confrontation in this setting...We should not forget that the accused who is responsible, whether he is fit or not, who arrives before this review board and who sees the victim will react in a completely different way from how he would have reacted if he had seen the victim in a different setting, such as in a hospital where there is no pressure. He will review and reanalyse things in his mind and you will have far more information if the victims are present and they can give their version orally, I am sure of it.

[English]

    The Chair: Thank you very much.

    I'll go to Mr. Hill, unless--

    Mr. Syed Akhtar: I just want to say your brief is different from mine.

    The Chair: Ah, it's a great country.

    Mr. Hill.

    Mr. Jay Hill: I want to follow up so that we very clearly understand your position, Doctor. You have said now, on more than one occasion today, that you believe, I think quite strongly, that the more information the review board has at its disposal, the better. I think that's what you've said.

    Despite the fact that Mr. McKay believes the victims' being able to make an oral statement before the board has a superficial attractiveness for allowing them to do that, I just can't believe it.

    Mr. John McKay: I didn't say I believed that. I said that was the testimony.

    Mr. Jay Hill: No, no, you said there is some superficial attractiveness to allowing them to do that.

    Mr. John McKay: That's not necessarily a statement of belief.

    Mr. Jay Hill: Well, I'm just taking you at your word.

    At any rate, Doctor, please excuse the partisan banter among the members of the committee.

    The Chair: I suggest you speak through the chair.

    Mr. Jay Hill: Well, Dr. Akhtar is our guest.

    At any rate, I'm trying to understand why you seemed so firm in your belief that the board should not witness the exchange, or at least a potential exchange. As you pointed out, there's no way in which you can force NCR persons to actually interact. If they so choose, they simply don't answer the questions or respond to the statements the victims would be making in front of them.

    Even that would say something to the board. It would be much more evident, and helpful to them in making their decision, if they were to witness that, versus reading on a piece of paper that the NCR person didn't respond. Because as other members of the committee have said, there might be body language involved there or some emotions shown that would be helpful to the board in arriving at a fair decision about whether that individual should be released or not.

  (1210)  

    Mr. Syed Akhtar: There would be certain benefits, but I'm saying to you that you have to weigh.... In every life situation, you have trade-offs. What is the quantum of benefit that you will get from that interaction when you have all the other information, not the body language, but all the other information that you have? What will be the effect of that in an artificial situation?

    The purpose of the victims appearing is for their emotional health, right, so that they are reconciled with what happened to them. I'm saying this kind of therapeutic purpose is not achievable in the legal atmosphere of the board meeting. That's all I'm saying. They are just two different contexts.

    Your purpose will not be achieved by allowing the person to be present there--the purpose you and I both have in mind, that they should be reconciled.

    Mr. Jay Hill: I just wanted to point out that this isn't the only reason we believe the victim should be present, for his or her rehabilitation and to bring closure. I hope none of us has misled you on that. It's a fundamental reason and we believe it should be a right, just as strong a right of the victim as it is of the accused to have that avenue for mental treatment, if you will. But it's not the only reason.

    I would suggest very strongly that another reason to have this exchange take place is so you can get a reading on whether the NCR person reacts at all to the victim. As has been pointed out by members, very clearly, if the board arrives at the decision to release him or her--the NCR, the accused, the patients, as you call them--and then this NCR person re-victimized that same person, obviously, and I think all of us would agree, that would be a travesty of the system.

    Mr. Syed Akhtar: Again, I cannot think of any incident like that which has happened. It has never happened in my practice where the person has gone and victimized the same...not in Nova Scotia, anyway. It's very rare. You can conjure up all kinds of situations; all I'm saying is they are very rare.

    So as I said, you have to have a trade-off. You have to balance what you get out of that versus what other restrictions or complications it produces.

    The Chair: We have two names left on the list. I know Mr. Cadman wants to go to a different subject, so while it would be his turn, I'll go to Michel Lanctôt now, if his question is on the same subject.

    Mr. Michel Lanctôt: Le même sujet.

    The Chair: It's on the same subject, so we'll let him finish out his thoughts.

[Translation]

    Mr. Robert Lanctôt: It is on the same subject and it is very brief. Doctor, you said in your introduction that it was the first time you had appeared in this forum and that you were nervous and that you hoped to get used to it, and so on. Do you see that just this setting, even for someone who has a healthy mind, for an experienced professional such as yourself...This shows, once again, that the accused who is going to a place where he knows his situation is to be addressed with the victim, namely to the review board, will probably react - I am just using the word "probably" - differently, and that this meeting before you, in this forum, would probably present something very positive in terms of a response for the members of this review board. I am sure of it.

[English]

    Mr. Syed Akhtar: Thank you.

    The Chair: Mr. Cadman.

  (1215)  

    Mr. Jay Hill: I have just one point on this same subject. I just wanted to draw the doctor's attention to.... I'll just use one example. We've all heard and read about cases where there are stalkers who are mentally ill, who, despite the courts bringing down court orders to restrict them and keep them away from a celebrity--a hockey player or a movie star--keep doing it anyway. I just throw that out as an example of how mentally ill people sometimes do continue, as long as they are free to do so--in other words, out in society--to victimize the same individual.

    Mr. Syed Akhtar: I'm not saying it doesn't happen. I'm saying it's rare.

    The Chair: Mr. Cadman.

    Mr. Chuck Cadman: We've had the psychologists before us suggesting that they should be able to perform assessments. We've had a number of people who supported the proposition that they should be able to perform assessments for fitness, etc., and there have been some people opposed to it. I just wonder what your feeling is on that.

    Mr. Syed Akhtar: There are two kinds of psychologists: the clinical psychologists, who have some training in assessing illness and treatment, and the research psychologists. I say if they have adequate clinical training, then they might be able to assess. But anyone who doesn't know mental illness--because that is the very basis of the finding of unfitness--will not be able to do a good job.

    Mr. Chuck Cadman: Are you suggesting that you don't have a problem with that but there should be some criteria, some qualifications?

    Mr. Syed Akhtar: Yes. They should have clinical training--and those criteria should be strict--and have adequate familiarity with psychiatric illness, not only psychological problems, especially psychoses, in which few psychologists are trained fully. That's my opinion.

    The Chair: Thank you all.

    Are there any other questions?

    If not, Dr. Akhtar, welcome, and thank you for participating and helping in this very complicated subject. Also, on behalf of the region, thank you for your service to the province of Nova Scotia for as many years as you've given that service. Thank you.

    For the committee, did you want to put your thing today? I will suspend long enough to go in camera so that we can finish giving direction to the staff on the preparation of the report. It will be a couple of minutes.

    The meeting is suspended.

    [Editor's Note: Proceedings continue in camera]