JUST Committee Report

APPENDIX A

REVIEW OF THE MENTAL DISORDER PROVISIONS
OF THE CRIMINAL CODE

ISSUES PAPER

PURPOSE

The House of Commons Standing Committee on Justice and Human Rights is conducting a detailed study of the mental disorder provisions of the Criminal Code, as required by 1991 amendments to the law.

To assist in its study, the Committee is seeking input from non-government organizations, provincial and territorial officials and Boards of Review, and members of the public on the provisions and operation of the mental disorder measures adopted by Parliament in 1991. This Issues Paper is intended to focus the discussion for those who participate in this consultation.

BACKGROUND

Canada’s Criminal Code has always provided that persons will not be held criminally responsible for their actions if their mental state at the time of an offence rendered them “incapable of appreciating” the nature and quality of the act and knowing that it was wrong. Based on the common law concept that conviction for a crime requires not only a wrongful act but also a guilty mind, the original Criminal Code 1892 made the “insanity” defence available to an accused whose incapacity resulted from a “natural imbecility or disease of the mind.” The law also included a legal presumption of sanity and persons acquitted on account of such a plea were held in custody at the pleasure of the Lieutenant Governor. Those unfit to stand trial on account of insanity were also held under warrant of the Lieutenant Governor. The original Criminal Code insanity provisions remained largely unchanged until the 1991 amendments that are the subject of this review.

In 1975, during its study of the criminal justice system’s treatment of mentally disordered accused, the Law Reform Commission found considerable confusion in the practical application of the law, arising in part from a “lack of clear social policy towards the mentally ill.” In its working paper and subsequent report, the Commission also questioned a system that focused on custody rather than treatment and resulted in many mentally disordered accused serving longer periods of detention than their “sane” counterparts. The Commission’s report was also critical of the Lieutenant Governor warrant scheme which placed effective control over mentally disordered acquittees in the hands of the applicable provincial Attorney General or Cabinet, with no legal obligation to follow the recommendations of existing Review Boards.

By 1985, the Department of Justice Mental Disorder Project had identified specific shortcomings in the Criminal Code and recommended changes intended to bring the law into compliance with the Canadian Charter of Rights and Freedoms. In particular, the final report questioned the fairness of indefinite confinement for persons found unfit to stand trial, without the Crown having made out a prima facie case against them. The report also questioned the automatic detention of mentally disordered acquittees, even in the absence of proof they posed any danger to others.

In 1986, the federal government circulated draft proposals for reform which became the focus of widespread consultation with the provinces as well as organizations and individuals in both the public and private sectors. However, the final impetus for legislative reform came from the 1991 decision of the Supreme Court of Canada in R. v. Swain: it struck down legislation and common law practices then affecting the defence of insanity. In particular, the Court ruled that section 542(2) of the Criminal Code, mandating automatic detention for persons found not guilty by reason of insanity, infringed sections 7 and 9 of the Charter in a manner not saved by section 1. Out of concern that the release of all persons then held under Lieutenant Governors’ warrants could pose a danger to the public, the Court granted a six-month temporary period of validity which was later extended in order to give Parliament sufficient time to pass remedial legislation.

BILL C-30

That remedial legislation, in the form of Bill C-30, came into force in 1992: a number of more controversial provisions have yet to be proclaimed. As a result of the amendments creating a new Part XX.1 of the Criminal Code, references to “natural imbecility” and “disease of the mind” have been replaced by the term “mental disorder.” Instead of being found not guilty because of insanity, the accused may now be held “not criminally responsible on account of mental disorder.” Such a finding no longer automatically results in custody. Rather, the court can choose an appropriate disposition or defer that decision to a Review Board. In either case, there is an obligation to impose the least restrictive disposition necessary, having regard to public safety, the mental condition of the accused, and the goal of his or her reintegration into society. Lieutenant Governors in Council no longer have a role in criminal proceedings involving an unfit or mentally disordered accused.

Bill C-30 amendments also spelled out criteria for determining whether an accused is “unfit to stand trial” and gave the courts limited powers to order involuntary treatment for the purposes of rendering an accused fit. In addition, the courts are now obliged to review the case of an unfit accused every two years to determine whether sufficient evidence exists to bring the individual to trial. If the evidence is not sufficient, the accused is entitled to an acquittal.

Proclamation was delayed for a number of Bill C-30 amendments, including the “capping” provisions that would limit the length of time an unfit or mentally disordered accused could be detained on any given charge. The companion “dangerous mentally disordered accused” (DMDA) provisions have also yet to be proclaimed in force. Patterned after the existing dangerous offender scheme in the Criminal Code, the DMDA provisions were intended to enable courts to extend the cap to a life term in special circumstances. Additional inoperative sections would allow the courts to order that an offender serve at least part of a sentence in a treatment facility, if he or she is suffering from a mental disorder “in an acute phase” at the time of conviction.

Because of the provinces’ jurisdiction over mental health civil commitment proceedings and the potential cost implications of implementing some of these inoperative sections, their proclamation in force continues to be the subject of some controversy. In the meantime, it must be noted that the mental disorder provisions now in force have recently been upheld by the Supreme Court of Canada, notwithstanding a continuing potential for indeterminate detention. Concerning the practical administration of the new mental disorder provisions, the adequacy of Review Board powers has been questioned. In addition, there are a handful of related matters not dealt with in Bill C-30 that may need to be addressed. During 1991 committee hearings on the bill, it was recommended that the common law defence of automatism be codified to allow for supervisory orders in appropriate cases. The common law test for fitness to stand trial has also been the subject of criticism, while the common law test or definition of “mental disorder” has come under recent attack.

ISSUES FOR CONSIDERATION

The following questions set out the issues about which the Committee would like to hear your views. This list is not intended to be exhaustive and participants are encouraged to make their opinions known on other issues they consider relevant.

DECEMBER 2001