Justice Minister Peter MacKay prepared to go to court over Not Criminally Responsible law

OTTAWA – Justice Minister Peter MacKay says he is prepared to go to court over changes to the way Canada treats its most mentally ill offenders.

The Canadian Bar Association has warned a Senate committee studying the government’s Not Criminally Responsible Reform Act, which deals with the mentally ill who commit violent crimes, of “potential constitutional issues” in the bill.

The law seeks to create a high-risk category that would hold the mentally-ill offender in custody for longer and make it more difficult for him or her to get out, with reviews every three years instead of annually and more decision-making power with a judge rather than the people treating the individual. It also works to make victims more included in the justice process.

The bar association – which represents 37,500 lawyers, notaries, students and academics – says it agrees victims should be notified when an accused is discharged, but giving victims the accused’s intended place of residence raising privacy concerns under section 7 of the Charter.

In its letter to the Senate, the association warns of vigilante justice and potential harm to those found not criminally responsible, due to an amendment that allows victims to be notified, by request, of the accused’s “intended place of residence.”

“We think there are very serious constitutional problems with the bill,” Vancouver lawyer Eric Gottardi, chair of the association’s national criminal justice section, said in an interview.

“This change is totally unnecessary, and really just kind of public pandering to a fear that doesn’t exist.”

As Global News has reported, the recidivism rate for people deemed not criminally responsible is actually far lower than those in the prison system.

MacKay told the Senate committee he believes the legislation complies with the Charter and balances the protection of the public and the rights of the accused.

“No one can say with certainty what every judge in the country would interpret, and certainly not every judge would interpret the same way the cases before them,” he said.

“We will defend this legislation, if necessary, in the courts.”

The government has gone to court over tough-on-crime legislation before – with mandatory minimum sentences for gun crimes ruled unconstitutional by Ontario’s top court last year, and a B.C. judge recently ruling that mandatory minimums for drug trafficking violate Charter rights.

But MacKay noted after the meeting that courts have also upheld their laws, including eliminating two-for-one sentencing and drunk driving provisions.

“That’s the adversarial nature of our legal system. If we didn’t believe that this legislation was constitutional, we simply wouldn’t have tabled it in this form,” he said.

“I believe in the principle of the bill, I believe it is in keeping with our government’s stated intent to protect the public, particularly, and I emphasize, when it involves acts of violence.”

MacKay also told committee the law could be applied retroactively, but it has yet to be determined how far back it could go.

Mental health groups have argued the bill will increase the stigma towards the mentally ill.

With a file from The Canadian Press