Canada's prison watchdog is concerned about the potential impact of a bill that seeks changes to the not criminally responsible regime for accused people with mental illness, and he wonders why the proposed reforms are even necessary.

Correctional Investigator Howard Sapers said in an interview that Bill C-54, which would reform the not criminally responsible provisions in the Criminal Code, could cause some defence lawyers to hold off on pursuing a NCR defence for their clients and the end result could be more people with serious mental illness in prisons rather than in hospitals.

"My concern is that we may see an increased number of offenders going into penitentiaries who have known significant diagnosed mental illness including major psychosis, and the concerns around the capacity of the correctional service to deal with that," he said.

"Defence counsel may choose to proceed with trials and take their chances at trial if they believe it's in their client's best interest, and if the client also believes that there may be some possibility of treatment in the correctional system."

Sapers said the corrections system is already struggling with the number of inmates who need mental health care and aren't getting it and he said there are "significant" gaps that need to be filled when it comes to the system's capacity. He said his office is increasingly asking for some inmates to be moved out of prisons into hospitals.

Bill debated Monday

Bill C-54, introduced by Justice Minister Rob Nicholson in February, was up for debate in the House of Commons on Monday. It was the third time the bill was being debated.

It rewrites the language of the current Criminal Code mental disorder regime so that the paramount consideration in any decision is public safety. Under the existing system, public safety is one of four factors that are weighed but the government now wants it front and centre. The mental condition of the accused, reintegration into society and other needs of the accused are the other factors.

A NCR verdict is given in cases where people are found to have committed an offence but lacked the capacity to understand what they did because of a mental illness. They are neither convicted or acquitted and then a provincial or territorial review board is tasked with deciding what happens next. It can give an absolute or conditional discharge or order someone to remain in detention in a hospital.

C-54 creates a new "high-risk" category for those found NCR in cases where there was serious personal injury. Prosecutors could apply for the designation and it would be up to a court, not a review board, to give it and to lift it. Those with the designation would not be eligible for release until a court removed the label and they would not be entitled to unescorted passes into the community.


Justice Minister Rob Nicholson, speaking to reporters on Parliament Hill on Feb. 11, a few days after introducing Bill C-54. (Adrian Wyld/Canadian Press)

Review boards generally look at cases on a yearly basis but the bill would allow them to go three years without considering someone's release.

C-54 also contains several measures to enhance the involvement of victims in the system so their views are considered more by courts and review boards. Victim impact statements, for example, can be submitted at review board hearings and victims would be notified if someone were designated high-risk or released.

Mental health groups fear increased stigma

Mental health groups have raised a number of concerns with the bill and are also upset that they weren't consulted in the drafting of it. A coalition of groups held a press conference on May 7 on Parliament Hill and said C-54 will undermine the progress that has been made on fighting stigma and will teach Canadians to be afraid of people with mental illness.

They are in favour of the measures to support victims but want to amend other parts of the bill and have been trying to get a meeting with Nicholson. His staff have met with some representatives since the bill was introduced but the mental health groups wish they had been given a chance to help draft the bill.

Nicholson's office told CBC News that criminal justice organizations, the provinces and individuals were consulted in the drafting of the bill. Press secretary Julie Di Mambro refused to give details on which groups were consulted and rejected repeated attempts to have further questions answered.

Sapers was not consulted either, but said he wouldn't have expected to be and his office's input may yet be sought once the bill gets to the committee stage.

The Mental Health Commission of Canada, created by the federal government, says in a fact sheet about the NCR system that focusing on a small number of cases "paints an inaccurate picture of violence and mental illness" and that the more mental illness is stigmatized, the harder it is to get people to seek and stay in treatment. "Yet treatment is the most effective preventative measure for the small number of people with mental illness who commit violent offences," it says. 

Louise Bradley, the commission's president and CEO, said in a statement that it supports the government's goal of protecting public safety and supporting victims.

"We encourage all legislators and stakeholders to work together to ensure Bill C-54 strikes the right balance to encourage treatment and avoid the unnecessary stigmatization of Canadians who live with mental illness," she said.

Sapers acknowledged the concerns of the mental health groups who say the bill will further criminalize those with mental illness but because of his role and mandate he is most concerned about defence counsel choosing to avoid the NCR route and more people with mental illness winding up in jails instead of in hospitals.

Sapers said there is a lot of uncertainty about how one might be designated high risk, what attaching that label could mean, what the conditions of confinement would be and to what degree victims' voices would influence both court proceedings and review hearings.

Defence lawyers may hesitate

"That's not in any way to dismiss the importance of victim perspectives in all of this but it's to say that if somebody is ill and not responsible then you have to hear those voices through a slightly different filter than you do in a criminal trial," he said.

"It's because of that uncertainty that defence counsel have told me that they would hesitate. And to the best of their ability they'd be seeking direction, they'd be seeking the input of the clients, but of course that is a bit problematic as well considering that we're necessarily talking about people with known, diagnosed, significant mental illness," Sapers said.

The correctional investigator also raised questions about why the reforms are even needed. The recidivism rates for those found NCR and later released from hospital are low, treatment has made huge advances, and the review boards seem to be doing a good job, he said.

"So I just wonder why Bill C-54 is seen as necessary," he said. Sapers said the government is concerned about the public's perception of the justice system, and rightly so, but he's looking for more explanation about the bill and its potential consequences.

The Library of Parliament is preparing a legislative summary that should explain more of the background and rationale for the proposed amendments but four months after the bill was introduced it's still not finished. A spokeswoman for the Library of Parliament said the branch isn't given bills in advance of their introduction and that Bill C-54 involves "a large and complex area of criminal law" that requires a lot of background information and analysis.

The legislative summary should be ready in the next few weeks, according to the library.

Sapers said he is looking forward to reading it so he can better understand why the government feels the current system needs to change.

"It would be very important to know exactly where the weaknesses are and exactly how these legislative proposals will address these weaknesses," he said.

When Nicholson introduced the bill, he said in the House of Commons that the government wants to ensure the public is protected from people who pose a danger to society and that the needs of victims receive the appropriate emphasis in the mental disorder regime. He said the reforms will not affect access to treatment and that they do not impose penal consequences on those found NCR.