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A federal bill that was rushed through the House of Commons earlier this week could be vulnerable to a constitutional challenge if it becomes law, the Canadian Bar Association says.

Bill C-54 would create a new high-risk designation for some mentally ill offenders and establish new rules to keep victims informed about the status and location of those found not criminally responsible for a crime.

Both the Conservative government and the opposition NDP say the law will help better protect the public and offer victims more support. But the legislation has been criticized by mental health groups who worry that it stigmatizes mental illness and risks sending more mentally ill individuals to prisons instead of hospitals.

And some lawyers are warning that the removal of a key clause governing the detention of those found not criminally responsible (NCR) could put the entire system at risk for a constitutional challenge.

The NCR system exists to deal with someone who commits a crime but could not understand what they were doing because of a mental disorder. Individuals found not criminally responsible are generally detained in a hospital for treatment until a provincial review board determines that they no longer pose a significant risk to the public.

At the core of the current system is a rule in the Criminal Code indicating that those found not criminally responsible should be detained in the "least onerous and least restrictive" manner possible, while taking into consideration the need to protect the public and the individual's mental condition. Bill C-54 would remove the least onerous and restrictive phrase and replace it with, "what is necessary and appropriate in the circumstances."

Eric Gottardi, vice-chair of the Canadian Bar Association's national criminal justice section, said the constitutionality of the NCR system rests, in large part, on the careful balance that currently exists between protecting the public and protecting the rights of the accused.

"The concern is that the Supreme Court won't find the balance exists anymore, so that puts the legislation in constitutional jeopardy," Mr. Gottardi said in an interview.

The Canadian Bar Association made its case to the House committee that was studying the bill earlier this month. Green Party Leader Elizabeth May proposed an amendment to the bill to restore the language on "least restrictive" measures, but her amendment was defeated.

A spokeswoman for Justice Minister Rob Nicholson said the government views the proposed changes as "reasonable and necessary" to protect public safety and maintain confidence in the justice system. She said the removal of the least restrictive clause replaces the current phrase with something "simpler" and is not meant to alter the law in a substantive way.

A similar phrase was removed from the Corrections and Conditional Release Act last year after the government passed the omnibus Safe Streets and Communities Act. Mr. Gottardi said the change is more concerning in the current legislation because individuals found not criminally responsible are not actually convicted of a crime.

Bill C-54 was passed at third reading in the House of Commons on Tuesday night, with the support of the opposition NDP and was sent to the Senate this week.

Kim Mackrael is a parliamentary reporter in Ottawa.

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