Transcript Slide 1

Bill C-54
An Information Session
May 1, 2013
Welcome
Opening Remarks
Hélène Philbin Wilkinson
Director, Mental Health & the Law
Nancy Pilon - Moderator
Introduction of Speakers
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.
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.
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 VicePresident, 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.
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.
Implications of Bill C-54 for
court / legal officials practising in forensic mental health
Paul E Trenker
Erin J Lainevool
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.
Historical background
cont
• 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].
CHANGES TO THE SCHEME
• A new Test for Disposition Decisions.
• Creation of High-Risk Accused
Designation
• Greater Rights and Involvements of
Victims
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
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.
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”?
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)
(a)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,
(a)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.
High Risk Accused – Designation
Cont
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.
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.
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 HighRisk 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.
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
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
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]
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.]
Bill C-54
Implications 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”.
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
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.
Implications of Bill C-54 for clinicians practising in
forensic mental health
Dr. Susan Adams
Dr. Milan Pomichalek
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.
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.
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
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.
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
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).
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.
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
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)
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)
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.
Assessment of “high risk” Conclusion (1)
• Assessment of the risk of violent reoffence for the purpose of designating a
high risk accused should be contextspecific, 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
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
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.
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
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.
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
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.
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
Links
Bill C - 54
http://www.parl.gc.ca/HousePublications/Publication.aspx?Pub=Bill&Doc=C54&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
Questions
Closing Remarks