Bill C-54

1. Bill C-54 An Information Session May 1, 2013

2. Welcome Opening Remarks Hélène Philbin Wilkinson Director, Mental Health & the Law

3. Nancy Pilon - Moderator Introduction of Speakers

4. Biographies Paul Trenker, B.A., LL.B Paul Trenker was called to the Bar in 1986 and since that time has practiced General Litigation, both at the Trial and Appellate Levels. His practice has included Criminal Defence work, including matters before the Lieutenant Governors’ Board of Review. More recently, he has represented the North Bay Regional Health Centre before the Ontario Review Board.

5. Biographies(Cont) Erin J. Lainevool, B.A. (Hons) LL.B Erin Lainevool is a Partner in the Firm Wallace Klein Partners In Law LLP. She has practiced criminal law since 2002. Erin's connections with several community agencies influenced the development, in her practice, of a significant component of mental health related cases. Erin was appointed to the Consent and Capacity Board in 2007. As she gained experience within the civil side of the mental health system, her criminal law practice also expanded to include more clients with mental health needs. Erin's interest in the issues that arise when mental health and criminal law intersect, led her to complete the Osgoode Certificate in Mental Health programme in 2010. Erin has participated in the local Human Service and Justice Coordinating Committee and is part of a subcommittee exploring the development of a Mental Health Court in the Nipissing District.

6. Biographies(Cont) Dr. Susan Adams B.M., M.R.C.Psych., F.R.C.P.C., Dr Susan Adams attended medical school and completed her specialty training in psychiatry in England, and subsequently has worked as a psychiatrist practising in forensic psychiatry in North Bay for over 20 years. She was previously the Psychiatrist in Chief and Clinical Director of the North Bay Psychiatric Hospital and subsequently Psychiatrist in Chief of the Northeast Mental Health Centre. She is currently the Vice-President, Academics and Quality at the North Bay Regional Health Centre, and maintains a part-time clinical practice in forensic psychiatry. She has academic interests in criminal harassment and litigious paranoia as manifestations of mental disorder, and an interest in developing systematic approaches to managing risks posed by forensic patients.

7. Biographies(Cont) Dr. Milan Pomichalek, C. Psych. Dr. Milan Pomichalek received his psychology training at the University of British Columbia and York University, and is registered both as a clinical and forensic/correctional psychologist. He has been working in both capacities at the Mental Health and the Law division of the North Bay Regional Health Centre (and its predecessors, Northeast Mental Health Centre and North Bay Psychiatric Hospital) for over ten years. He is a member of the Canadian Psychological Association, American Psychological Association, and the Society for Personality Assessment, and is also registered with the Psychologists Board of New Zealand. Dr. Pomichalek has been representing District 1 (North) on the Council of the College of Psychologists of Ontario since 2007 and, in addition to being a member of various College committees, has been the College’s president during the 2011-2012 and 2012-2103 terms. His other experience includes working in the private sector, teaching college courses in psychology, supervising both graduate and undergraduate interns, serving as expert witness in court, and presenting at international scientific conferences.

8. Implications of Bill C-54 for court / legal officials practising in forensic mental health Paul E Trenker Erin J Lainevool

9. Historical background Until 1990, the provisions of the Criminal Code dealing with criminal acts committed as a result of mental illness reflected the common law approach of treating those offences like any others, subject to the special defence of not understanding the nature and quality of the act. The only verdicts available under the Criminal Code were conviction or acquittal. An acquittal on the basis of mental illness resulted in automatic detention at the pleasure of the Lieutenant Governor in Council.

10. Historical backgroundcont • The provision of automatic indefinite detention of a NCR accused was struck down by the Supreme Court in 1991 on the basis that it violated the accused’s S.7 Liberty Rights. • In response, and in 1991, Parliament enacted Part XX.I of the Criminal Code. • The design of the current scheme, for the most part, results from the 1991 enactment of Part XX.I, as interpreted by the Decision of the Supreme Court, particularly Winko [1999].

11. CHANGES TO THE SCHEME • A new Test for Disposition Decisions. • Creation of High-Risk Accused Designation • Greater Rights and Involvements of Victims

12. A New Test for Disposition Decisions? OLD STANDARD - Existing legislation 672.54 When the court or Review Board makes a disposition, it shall take into consideration • the need to protect the public from dangerous persons; • the mental condition of the accused; • the reintegration of the accused into society; and • other needs of the accused to make one of the following dispositions that is the least onerous and least restrictive to the accused

13. A New Test for Disposition Decisions?cont NEW STANDARD 672.54 When a court or Review Board makes a disposition it shall; • take into account the safety of the public, which is the paramount consideration; • the mental condition of the accused; • the reintegration of the accused into society; and, • the other needs of the accused; to make one of the following dispositions that is necessary and appropriate in the circumstances.

14. A New Test for Disposition Decisions?(Cont) • Is the paramountcy of public safety a change in the law? [See Justice Binnie in Pinet “The objective is to reconcile the twin goals of public safety and treatment. In this process of reconciliation, public safety is paramount”]. • Have Review Boards respected the paramountcy of public safety? • What is the consequence of the change of the controlling test from “least onerous, least restrictive” to “necessary and appropriate”?

15. High Risk Accused - Designation Why was it created? Test On Application of Prosecutor; NCR for serious personal injury offence [672.81(1.3)]; and, Accused 18 years of age or more. 672.64(1) The Court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person; or, The Court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.

16. High Risk Accused – DesignationCont In making the decision, the court shall consider all relevant information including: the nature and circumstances of the offence; any pattern of repetitive behaviour associated with the index offence; the current mental status of the accused; the past and expected course of treatment, including the willingness of the accused to follow treatment; and the opinions of experts who have examined the accused.

17. CONSEQUENCES OF HIGH-RISK ACCUSED DESIGNATION • Extremely limited disposition options [detention, with no absences from hospital save under escort for “medical reasons or for any purpose that is necessary for accused’s treatment”]. • Potential delay of “annual” review to three (3) year review. [What is the harm in looking?] • No change of designation by Review Board. Review Board may return to Superior Court for review if: …it is satisfied that there is not a substantial likelihood that the Accused… will use violence that could endanger the life or safety of another person.

18. Greater Rights and Involvement of Victims Bill C-54 introduces several changes to current regime New • Victims will have the right to notification of decisions by the Review Board to grant conditional and absolute discharges, and when the Review Board refers a High-Risk accused to the Court for review of the High-Risk Designation. • Bill C-54 compels the Review Board and Courts at each major decision juncture, to make full consideration of the impact of such decisions on victims.

19. Greater Rights and Involvement of Victims(cont) New • Allows Court or Review Board to craft terms aimed at protecting safety of victims or public • Consider the imposition of conditions or release orders to constrain the accused from contact and/or communication with victims

20. Greater Rights and Involvement of Victims(cont) If Board recommends review to court, to consider high-risk status, victim to be notified of right to file statement Victims will have the right to submit victim impact statements at any hearing ……..or Review Board

21. SUCCESFUL CHARTER CHALLENGES TO THE NEW REGIME? • The paramountcy of public safety. [No.] • The change of the qualifying test from least onerous and least restrictive to necessary and appropriate [the importance of Tulikorpi]. [Yes. Bet the house.] • The second branch of the High-Risk Accused Test 672.64(1) (b) [The Court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.]. [Maybe]

22. SUCCESFUL CHARTER CHALLENGES TO THE NEW REGIME?(cont) • The delay of review for three (3) years for High-Risk Accuseds [and the significance of Winko]. [Maybe.] • The test for referral by Board of High-Risk Accuseds back to Court [“if it is satisfied that there is not a substantial likelihood that the accused will use violence that could endanger the life or safety of another person]. [Most Likely.]

23. Bill C-54Implications for Defending mentally disordered accused The impact of factual determinations will be fundamentally important to the future dispositions of the accused. Defence Counsel will need to consider whether to require the calling of witnesses to ensure that the evidentiary basis for a finding of guilt is tested. Why? The determination of criminal responsibility will become secondary to the determination of what facts can be proven beyond a reasonable doubt. The facts of the offence will be the basis upon which the Review Board determines what disposition is “necessary and appropriate in the circumstances”.

24. Implications for the Time to Trial • Practical Considerations? • Longer delay between offence and Judicial determination of guilty • Place of remand of accused • A kind of “Hybrid-Contested” trial process will emerge

25. Implications for the Time to Trial(cont) • Why? • Contested trials take longer. • Witness testimony, in serious matters, may be protracted. Many NCR matters, have proceeded on a paper record with the only oral testimony coming from Psychiatrists and expert witnesses, testimony from civilians, often victims, will be less clinical, more emotional, and subject to interruption, legal argument and evidentiary rulings. These all lead to longer hearings. • Practically speaking, even if the accused admits to the ultimate offence, i.e., causing the death of another, the evidentiary requirements for the proof of the applicable criminal charge will be in dispute.

26. Implications of Bill C-54 for clinicians practising in forensic mental health Dr. Susan Adams Dr. Milan Pomichalek

27. What’s new in Bill C-54 Enhances victim rights and participation. Redefines key legal concepts that are critical to clinical care and risk management. Creates new category High Risk Accused.

28. Enhances Victim Rights and Participation Victim(s) can participate and provide input at any decision-making juncture. From a clinical point of view, it is difficult to understand how this participation will contribute to better decision-making. Potential for ongoing traumatization (both victim and NCR accused), need for clinicians to be prepared to offer appropriate care or referral.

29. Redefines key legal concepts that are critical to clinical care and risk management Significant threat to the safety of the public - C-54 redefines “significant threat to the safety of the public” using as reference the Winko decision but altering the wording in a subtle way that opens it up to broader interpretation. - In Winko, the Supreme Court of Canada acknowledged that the assessment and predictions tasks are difficult. The Court stated that threat posed must be “more than speculative in nature; it must be supported by evidence…” and must “also be ’significant’, both in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious”. Winko v. British Columbia [Forensic Psychiatric Institute], 1999, para 57, emphasis added

30. Redefines key legal concepts that are critical to clinical and risk management (cont.) Least restrictive and least onerous - Previous standard for Disposition Orders The new standard in C-54 is “necessary and appropriate in the circumstances” (s. 672.54). - It is not clear how the new standard differs from the old standard, i.e., “least restrictive and least onerous”. - The implications of the new standard for management of patients are not clear.

31. Creates a new category“High Risk Accused” - Requirement for detention in hospital - Has implications for treatment and rehabilitation What accommodations will be necessary? How will treatment and rehabilitation be delivered? Risk management founded upon progressive decrease in supervision, pace determined by risk/dangerousness - Can only be removed by Superior Court - Is “retroactive” in the sense that the legislation can be applied to any patient already in the forensic mental health system

32. Clinician’s responsibility Often asked to provide opinion about -risk to the public -the likelihood of re-offending -circumstances leading to re-offending -likely severity of re-offending Clinicians will almost certainly be expected to provide such opinion when the question of designating someone as High Risk Accused arises (or removing the designation).

33. Assessment of “high risk” 2 parameters: likelihood and severity likelihood = statistical probability of harmful re-offending severity = likely degree of harm A combination of likelihood and severity = dangerousness “A minuscule risk of a grave harm will not suffice. Similarly, a high risk of trivial harm will not meet the threshold” Winko v. British Columbia [Forensic Psychiatric Institute], 1999, para 57.

34. Assessment of “high risk”(cont) Despite the requirement to provide opinion with regard to both aspects of dangerousness, only one factor is strongly supported by scientific evidence: There is a significant body of research that allows determining the likelihood aspect of the decision. However, for a number of reasons, there are no scientifically validated ways of predicting the seriousness of future violence. - At present we rely solely on professional opinion

35. Some factors possibly contributing to the severity of re-offence Our clinical experience suggests a number of factors that may be predictors of increasingly harmful re-offence: High level of psychopathy and other personality factors History of carrying and use of a weapon, the nature of the weapon History of causing personal injury Criminal versatility, particularly with escalation in the seriousness of charges Dismissive of harm caused to victim(s) History of substance abuse/dependence Demographic factors (age, gender) Intelligence (either developmentally delayed or grandiose about one’s own abilities) Symptoms factors (depression/suicidality; treatment-refractory delusions)

36. Assessment of “high risk” C-54 suggests that one of the criteria for declaring an accused “high risk” is the seriousness of the previous offence: “On application made by the prosecutor … the court may… find the accused to be a high-risk accused if…. (b) The court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical harm to another person. s. 672.64(1)

37. Assessment of “high risk”(cont) There is no scientific support for the notion that severity of an index offence is a predictor of the severity of the next offence. In fact, in one of the leading actuarial risk assessment instruments, the Violence Risk Appraisal Guide (VRAG), the severity of the index offence is negatively correlated with the risk of re-offending.

38. Assessment of “high risk” Conclusion (1) Assessment of the risk of violent re-offence for the purpose of designating a high risk accused should be context-specific, taking into consideration. The likelihood of the re-offence occurring The timeframe during which it will likely occur The likely severity of harm upon re-offending

39. Assessment of “high risk” Conclusion (2) “A workable standard would not be any kind of violence at any time in the future. Rather, a proper measure would be sufficiently serious violence occurring sufficiently soon in the future that, had it been foreseen, would have justified continued commitment”. Litwack, 2001, p. 432

40. Considerations for removing the designation of high-risk accused (1) Successful pharmaceutical control of the SMI does not necessarily remove the risk. A comprehensive assessment of risk requires not only an assessment of the risk status of the accused at the time of the index offence, that is, his or her overall risk for violence in relation to a cohort, but also his or her ability to meet the demands of gradual removal of restrictions on the accused’s liberty.

41. Considerations for removing the designation of high-risk accused (2) Unfortunately, evaluation of the changing level of risk (e.g., due to effective treatment) may be hampered by a provision of Bill C-54 that: prohibits the high-risk accused from being subject to any condition that would permit the accused to be absent from the hospital, unless it is for “medical reasons” or for “any treatment purpose” and a structured plan of risk management has been prepared Unclear what constitutes medical reasons or treatment purposes

42. Considerations for removing the designation of high-risk accused (3) In other words, there appears to be no provision in Bill C-54 that would allow continuous, context-specific assessment of risk change for High Risk Accused.

43. Clinician/Patient Relationships • Assessments that affect the liberty interests of an NCR Accused/Patient affect the clinician/patient relationship • Ethical/conflictual issue of “double agency” • Onerous restrictions on liberty of High Risk Accused highlight the issue • Separation of Clinical Care and Legal Assessment to different individuals • Probably not enough experts in Canada • Some jurisdictions devalue non-physician experts

44. Implications: Additional bed space in forensic psychiatric hospitals may be required to accommodate anticipated higher inpatient populations and/or for the required rehabilitation and mitigation of risk. Will need to develop and provide specialized training with specialized additional training necessary and diminished professional satisfaction with prolonged court and review Board hearings, becoming increasingly adversarial. Will make it difficult to evaluate risk under conditions of carefully supervised increased access to the community; will require the Board to decide whether the High Risk Accused is ready for supervised community access discharge without the ability for reassessment under less restrictive conditions.

45. In Conclusion • Bill C-54 will inevitably change the landscape in Canadian Forensic Psychiatry. • It will likely take many years for appellant courts to provide a substantial body of decisions that can guide clinicians. • We will have to become expert in risk assessment, and be able to articulate the shortcomings of risk assessments. • The Bill will likely have an effect on our relationships with our patients

46. Links Bill C - 54 http://www.parl.gc.ca/HousePublications/Publication.aspx?Pub=Bill&Doc=C-54&Language=E&Mode=1&Parl=36&Ses=1 Winko v. British Columbia [Forensic Psychiatric Institute], 1999, para 57, emphasis added http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/1711/index.do Pinet and Winko http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/2132/index.do Tulikorpi and Winko http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/2133/index.do

47. Questions

48. Closing Remarks