The Minister of Justice has a responsibility to fill judicial vacancies in a timely manner. Notwithstanding that responsibility, this is simply not happening. Today there are approximately 60 judicial vacancies across Canada, 12 of them in the province of Alberta, where the situation in terms of backlog and delay is particularly acute.
A year and a half ago, the Alberta government by way of order in council established 10 new judicial posts to deal with the backlog in Alberta's courts. A year and a half later, the Minister of Justice has managed to appoint one new judge from the province of Alberta.
This would be problematic in normal times, but it is much more serious in light of the Jordan decision. As a result of the failure of the minister to fill these vacancies in a timely manner, what we have is a crisis that has worsened. There are serious costs, including more than 400 criminal cases having been thrown out.
Just a week and a half ago, a case involving notorious gang leader Nick Chan was thrown out of court because of delay. This is an individual who was charged with first-degree murder, who was facing a charge of conspiracy to commit murder and directing a criminal organization. He is the head of the notorious so-called Fresh Off the Boat gang, which is linked to more than a dozen murders. He has been called one of the most dangerous men in Calgary, and today he is walking the streets, in part because the minister has simply not gotten judicial vacancies in the province of Alberta and across Canada filled.
The fact is that Canadians deserve answers. They deserve to know, as these cases are being thrown out, why the minister has not filled these judicial vacancies in a timely manner.
Pursuant to the motion that I have put forward, I have asked that the minister appear before the committee to explain the delay. What's the holdup? Why has it been that in a year and a half, for example, in the province of Alberta, out of 10 new judicial spots that were established, only one has been filled? Clearly that is not a record of action. It is a record of inaction; it is a record of neglect.
In addition to these cases being thrown out and dangerous criminals walking the streets, public confidence in the administration of justice is being affected.
Further to this, I would like this committee to undertake a study about the shortage of judges and the impact it is having on the administration of justice and on public confidence in the administration of justice.
I think it's a straightforward motion; I think it's a common-sense motion. This is a problem that has gone on for now almost two years, and I think the time has come, in light of all these cases that have been thrown out, for the minister—not in a 35-second answer in question period—to come to the committee for an hour or an hour and a half so that substantive questions about a very serious issue can be asked of the minister, we can get some clear answers, and some light can be shed.
I think it would be worthwhile to undertake this study because clearly, when dangerous criminals are walking the streets, when more than 400 criminal cases have been thrown out, and when thousands more are at risk, confidence in the administration of justice is being undermined.
With respect to the motion that Mr. Cooper has put forward, I do not support the motion, for a couple of reasons.
First of all, I know the motion has been provided in the time required in order to have it before our committee properly, but there was no discussion with any committee members, that I'm aware of, as to the merits of the motion itself. This is unfortunate, and perhaps could have led to some agreements on the nature of the motion itself.
More substantively, there are two premises in the motion itself that I believe are unfounded. The first one is that the vacancies are not being dealt with. I would submit that they are being dealt with. In fact, in 2017, there was a record number of appointments made by the Minister of Justice. There were over 100 appointments made. To date, there are, I believe 168 appointments that have been made by the current . A new merit-based system, I would suggest, is better than the old way that it was done. It leads to a more diverse bench, but is also a more meritorious appointments process.
In fact, in Alberta, as Mr. Cooper referenced in particular, my understanding is that the vacancies are all new positions that this government has put forward. Granted, not all of them have been filled yet, but the new process will allow the appointment of justices, who will fill those positions shortly.
With regard to the other part of the motion dealing with a substantive premise, there is no evidence that the cases that have been stayed as a result of Jordan are due to the judicial vacancies themselves. Given those two premises not being founded, I do not support the motion.
I do find it a bit interesting that a Conservative member is bringing forward this motion, when we know that for many years under the previous government, there was a chronic number of judicial vacancies. In fact, Mr. Cooper may know this from being a lawyer from Alberta, according to a friend of mine who practises law in Alberta, it suspended some of its mandatory rules in its court in the years 2012-13, under the Conservative government, because of judicial vacancies. Those rules were suspended, which of course was a problem for people seeking justice in that province.
With all of that said, I think we need to address the issue of delay in our courts. Obviously, the Jordan case is a reality that we must deal with, but I don't think this motion address that at all.
I also would suggest that Bill , which is now before Parliament, does address some of the issues with delay, and I know our committee will be dealing with it soon.
For all of those reasons, I do not support the motion.
I think what my colleague here is asking for is very reasonable. Just to talk about the premise of what this is all about, we are now not having a merit-based system which is something new to this country. We've had a merit-based system of appointing judges in this country for decades. Indeed, under the previous administration, there were judicial advisory committees made up of representatives from the legal profession, from the provinces, from the federal government, from people who were coming together for no other reason than for the best interests of this country. I think everybody can be very proud of all the appointments that were made during those years.
There are challenges in the province of Alberta in terms of the increase in population, of course, over the years, related to the demand for judicial services. It's important to do that. There are new jobs created. I think if the honourable member has a look over the last two and a half years, he'll see there has been a consistent difference between Alberta and many other jurisdictions in Canada. If there are a couple of vacancies in Ontario, I understand that. There are people who resign or retire, or whatever. It has to be done on a continuing basis. To have that many at one time.... I would be interested to hear from the minister saying, “Okay, if there's a problem maybe people aren't applying.” If that's the problem, great, we get the message out there. Get your name in if there's a problem with that. I'm hoping that she would agree with me that in the years that I had a look at the judicial applications in the province of Alberta, I never saw a shortage of people, quite frankly, who were qualified to sit on the Queen's Bench in Alberta.
That being said, with the number of vacancies there are now, I understand where my colleague is coming from. And he's right. When you get very serious cases thrown out, it does hurt people's confidence in the criminal justice system. I'm sure you hear this yourself. What's going on that this individual is getting a chance to walk without having to face the consequences of the charges levelled against him or her? That being said, there are more things we can do. We can encourage people to get their applications in, that sort of thing. I'm absolutely convinced there is no shortage of people in the province of Alberta who have their names before whatever, for the composition of the new judicial advisory committee. I'm sure there must be enough.... If there's some sort of a problem with their getting together and making these decisions.... They come on the recommendation from those committees to the Minister of Justice. If she tells us she's only had three in the last year, that's an issue, or if people aren't applying.
I think that's what Mr. Cooper is looking for, just to have a discussion around this table. What better place to have it than right here at this committee.
Let us hope, but we'll see in a few minutes.
I'll speak to a couple of points that were made.
To Mr. MacGregor's point, I wholeheartedly agree with you that filling judicial vacancies is not the be-all and end-all, but it is the easiest thing. It is the most straightforward thing the minister can do, which is to get these vacancies filled in a timely manner. As for the Jordan decision, it doesn't mean that we won't continue to see cases that are thrown out due to delay, but we can help solve the problem, as a first meaningful step, by doing the obvious and simple thing, which is getting these vacancies filled.
Mr. Fraser made a couple of points. The first point he made was that the minister is, in fact, appointing judges. Well, obviously it's not fast enough—not fast enough when there are 60 judicial vacancies across Canada; not fast enough when it has taken the a year and a half, and she has managed in that year and a half to fill only one of the new judicial posts in Alberta; and not good enough in the face of the Jordan decision, whereby the whole landscape has changed in terms of cases being thrown out due to delay. She has introduced a bill, Bill , which in fact is probably going to make the situation even worse, but we can have that conversation another day.
In terms of the minister doing her job, to the first point that Mr. Fraser made, it in fact took the minister more than six months to appoint a single judge. For more than six months, she sat on her hands. Indeed, for a minister who is supposedly doing her job and filling these vacancies.... This is a minister who has presided on several occasions with a record number of vacancies, so it is not the case that the minister is dealing with it. To the degree that the minister is going to hide behind Bill , I say it is too little, too late.
With respect to there being a lack of evidence that these vacancies are perpetuating the backlog, which in turn is perpetuating a crisis that is resulting in these cases being thrown out, with the greatest of respect to Mr. Fraser, for whom I do have a lot of respect, it is an absurdity. It is a matter of common sense that 10 or 12 judges in Alberta, for example, but also in other provinces, can hear a lot of cases. With respect to Mr. Fraser's point on that, I would suggest he tell that to former chief justice Wittmann of Alberta, who rather unusually, spoke out publicly expressing his deep frustration at the minister's inaction when it came to filling judicial vacancies.
With respect to his comments about the previous Conservative government, there was no Jordan decision under the previous Conservative government. We have now lived with Jordan for almost two years, and nothing has changed in terms of the manner in which the minister has been moving to expedite the appointment process. Clearly, once the Jordan decision was rendered, there should have been an emphasis on the part of the minister to expedite the process to see that these vacancies were filled in a timely manner. When you have 60 that are vacant across Canada today, and it's taken a year and a half and all the minister has managed to do is get one of the new judicial spots filled in Alberta, the only conclusion one can come to is that the minister is not taking seriously her responsibility of filling judicial vacancies in a timely manner.
Thank you, Mr. Chair.
I can start by thanking the committee for inviting the Probation Officers Association to speak on Bill .
The Probation Officers Association was established in 1952. We're a voluntary, non-profit organization, representing professional interests of the probation officers and probation and parole officers across the province of Ontario. POAO is not a union, but an association of like-minded professionals, who believe in the work they do and the role they play in the criminal justice community in Ontario. POAO is an autonomous representative of probation officers and probation and parole officers in Ontario and is committed to the preservation of the fundamental role of the probation officer within community corrections.
Our association encourages members to improve their knowledge and skills by engaging in continuous education through seminars, workshops, and courses, with mental health being a topic of interest for the past several years.
As mentioned, my name is Chris Podolinsky. I'm the current President of the Probation Officers Association of Ontario. I am based out of Windsor. I work in the Ministry of Children and Youth Services, dealing with youth between the ages of 12 and 17. I've written many pre-sentence reports over the years, but they are governed under the YCJA Act. To my left is Christine Beintema, working in Chatham probation and parole. She's written many pre-sentence reports over the years.
We're here to speak on Bill , which proposes an amendment to subsection 721(3) of the Criminal Code, that any mental disorder from which the offender suffers as well as any mental health care programs available to them are to be included in pre-sentence reports. Bill concerns the preparation of pre-sentence reports that are prepared by probation and parole officers. The bill proposes that pre-sentence reports are to include information about any mental health disorder from which the offender suffers as well as any mental health care programs available to them.
In recent years, mental health has been identified as a significant concern. It's estimated that 10% of the general population suffers from a mental health disorder and the rates of mental health disorders experienced by those within community corrections and institutions are significantly higher, 26% for males, and estimated over 50% for females in the corrections system.
POAO continues to advocate many forums for increased mental health services for our offenders. POAO is pleased that improvements have been made in recent years to destigmatize mental illness. However, it recognizes that there are still many steps that need to be taken.
The bill requires in federal legislation that pre-sentence reports provide, unless the court orders otherwise, information on any mental health illness that offenders may suffer and any mental health care programs available to the offenders. Our association agrees that the issue of mental health is of significant concern to the criminal justice system and should be taken into consideration when making sentencing decisions.
In Ontario, the role of a probation and parole officer already includes a requirement to provide information related to an offender’s mental health in court reports. Feedback from our members, the members of POAO, with respect to the bill, concern the process of gathering the required mental health information, physical and mental limitations of the clients, and the lack of available resources in the community.
The association wishes to highlight that probation and parole officers in Ontario currently conduct skill-based interviews with offenders for the purpose of gathering information to prepare comprehensive pre-sentence reports. Investigative information is provided by the offender and collateral sources including but not limited to family, employment, counselling resources, community agencies, and health information, including mental health for inclusion in the pre-sentence report.
Through this investigative process, probation and parole officers comment on general patterns of behaviour; psychiatric, psychological, physical, and cognitive limitations; and disorders that may impact the offender’s pattern of criminal behaviour. In the event that the offender has a mental health diagnosis, probation and parole officers will investigate and confirm through contact with mental health professionals where possible. In instances where there is no confirmed mental health diagnosis, but reports of related mental health concerns from the client or collateral sources, probation and parole officers will comment on observed or reported behaviours.
Probation and parole officers recommend conditions in a pre-sentence report that best suit the needs of the offender, with consideration, of course, to victim safety and the safety of the general public.
One of the challenges faced by probation and parole officers is that community agencies often provide services on a voluntary basis. They are not equipped or prepared to provide services to offenders who are resistant or unwilling to attend for treatment. Although an offender may be directed to attend a particular service or agency, the agency is not compelled to provide services to an offender who is disinclined to seek treatment. In addition, offenders who are motivated to engage in mental health treatment or supports may lose motivation because of lengthy waiting lists at community agencies.
In many instances, offenders will advise that they have been diagnosed with various mental health issues but are unable to provide details or confirm that they've been formally diagnosed. During the process of gathering information, they can tell us many different things but not always be willing to give the information or be able to provide the correct information for us to follow up.
In such cases it's difficult to gather the appropriate information necessary to confirm and provide an accurate and thorough report. Bill , if passed, should consider legislation that would assist in facilitating the sharing of information between Corrections and the health care systems. As gathering health care information can take a longer period of time, the court should also consider granting probation and parole officers additional time to investigate, for these reports, diagnoses that are reported but unconfirmed.
Currently, probation and parole officers experience difficulty when attempting to obtain information from medical professionals related to the mental health diagnosis or otherwise. Probation and parole officers must consider and are limited by the offender's right to privacy and must have the offender's consent to access health records. If this consent is received, obtaining health records can take an extended period of time, which affects the amount of time needed to adequately prepare a pre-sentence report for court.
If Bill passes, perhaps the new legislation would encourage changes to the health care system to require medical professionals—of course, where release of information is signed by the offender—to provide requested mental health information to probation and parole services in a timely manner, at no cost, and in a language that is suitable for the layperson.
That's one of the complications we run into: we're often sent a bill for information we're requesting, which we are not permitted to pay for. It often takes a long time. We understand they're busy, but we have timelines to follow. Oftentimes we'll have notes from a medical professional that are handwritten and be unable to read them but also to understand them, because we aren't medical professionals.
POAO members have suggested that if mental health concerns are being identified at court, as specified on a request for a preparation of a pre-sentence report, perhaps representatives at the court could facilitate offenders' signing of releases at that time, because at that point they're willing to provide permission for us to investigate and to reach out to their medical professionals. Sometimes, by the time they get to our office, they've said, “No, this is what we wanted. We wanted you to prepare a pre-sentence report, but now we're here and we're not really sure that's what we'd like to see happen”—which is their prerogative, but it would be nice if we could catch them at the court.
POAO members note that probation and parole officers are limited to providing information relative to the offender's willingness to co-operate and ability to make informed and appropriate decisions. We are restricted to being able to access only information and records to which the offender provides consent. That's something to keep in mind: even if the bill goes further and we are compelled to include that information, we can only include the information the offender is willing to provide.
POAO expresses the need for more comprehensive and organized information regarding the availability of mental health resources throughout the province and in individual areas. Ontario is a vast province, and resources vary in availability from region to region. The spirit of the bill, which is compassionate and noble, does not align with the reality of available services. Those involved in the justice system are often unable to access psychiatric services, as psychiatrists and mental health professionals are overburdened by the ever-increasing demands for services in the community.
One suggestion is to hire psychiatrists to work exclusively out of correctional institutions or probation and parole offices, which would allow clients direct access to services. At present, many offenders are compelled to seek services from their family doctors, who, while skilled, lack the knowledge and experience of a qualified psychiatrist.
I would like to begin by acknowledging that we have the honour and privilege today of meeting on the unceded traditional territory of the Algonquin nation.
Thank you for inviting our organization to speak today on Bill . I'm the director of advocacy and legal issues with the Canadian Association of Elizabeth Fry Societies, and I regularly visit the prisons for women across Canada with our regional advocate teams.
CAEFS has extensive experience advancing the equality rights of women whose behaviour is or is thought to be criminalized, and a depth of knowledge concerning the interactions of such women with the legal system. CAEFS has a substantial interest in ensuring the criminal justice system operates fairly with respect to women, and that the perspective and experience of women, in particular indigenous women, are represented in its design and operation.
My remarks today are born out of my experience working closely with women at CAEFS and whom our 24 local EFrys serve. I'll do my best to do justice to the experiences of these women and to identify the issues they have raised with me.
The numbers of women in prison with mental disabilities continues to rise. Indeed, with the majority of the female prison population identified as experiencing mental health issues, it appears prisons are becoming the default option for mental health intervention. This pattern persists despite the common practice in many jurisdictions to include mental health information in pre-sentence reports. As such, it is CAEFS's position that formalizing this practice into law does not go far enough. It will not reverse or even make a dent in the current practice of incarcerating women with mental disabilities, and it will not lead to their compassionate care.
In fact, there is a risk of which there is growing evidence that women may be sentenced to prison terms because of the false perception that appropriate counselling services are available in prison. In CAEFS's experience, women sometimes receive federal sentences rather than provincial sentences because of the misconception that they will have more access to rehabilitative programming at the federal level.
This pattern is exacerbated by the gaps in mental health services in the community and the unwillingness on the part of some community-based services to accept criminalized women. We need to work on changing this.
The fact that prisons have become the accepted placements for women with mental disabilities is deeply problematic. CSC's response to women's mental health behaviour is overwhelmingly security driven and damaging. Incarcerated women who need quality mental health care end up receiving punishment in its place. It is CAEFS's position that this substitution is unacceptable in Canada.
When prison officials adopt counselling services like those seen in community-based programs, they often lack a gender, race, and class analysis of women's experiences and needs, and become part of the punitive regime. This is a mistake. A good example of this is the heavy reliance by CSC on cognitive behavioural therapy, a technique that is not meant to address past issues or provide supportive counselling.
For most women in prison, mental health problems and their occurrence, for that matter, are intractably linked to a lifetime of being subjected to poverty, systemic racism, and physical and/or sexual abuse. Within prison, women are frequently punished for responses to trauma, which are perceived by CSC as simply bad behaviour. In too many cases, CSC's approach to mental health can be deadly. For example, current CSC policy prescribes that prisoners at risk of self-injury or suicide be placed in a segregation cell on what they call mental health observation. It's segregation by another name.
CSC's position that segregation is a status and not a place, and that individuals on mental health observation are not in segregation, demonstrates its inability to recognize that confinement of this kind escalates women's distress and can lead—and has led—to further and more lethal forms of self-harm and suicide attempts. The jury at the Ashley Smith inquest made two concrete recommendations that had the potential to lead to significant changes in CSC's approach to self-injury back in 2009. Both were rejected by CSC.
In 2016, Terry Baker committed suicide while under mental health observation in a segregation cell at the Grand Valley Prison for women. Just days prior to her death, Ms. Baker had been bound to her bed for a prolonged period of time, which is another common practice used on women at risk of self-harming.
CSC has been on the same trajectory for decades, without any signs of real change, despite several reports, commissions, inquests, and recommendations to support change. This trajectory, which is security-driven, discriminatory, and harmful, is antithetical to the treatment of mental health issues. CSC's classification scheme confines indigenous women and women with mental health problems in maximum security and segregation because of their histories, not in spite of them.
Unemployment, lack of education, family instability, and homelessness prior to incarceration all lead to higher ratings on the custody rating scale, a tool that was developed over 25 years ago based on a sample of white male prisoners, which results in overly high classifications when used on women. This has been reported on for decades. Women's needs, especially those with mental disabilities, are translated to risks. Maximum security is a form of segregation that separates women with complex needs from the general population and therefore, from programming, meaningful work opportunities, family visits, and important mental health supports. In short, placement in maximum security greatly diminishes these women's chances of obtaining parole and successfully reintegrating into the general population and ultimately, into their communities.
The following are recommendations that, unlike the current bill, could amount to real and significant changes to the circumstances of women with mental disabilities.
First, we could support the UN special rapporteur on violence against women recommendation that preference be given “in every case, to alternatives to imprisonment for prisoners with disabling mental health by utilizing [section 29 of the CCRA] to transfer prisoners to mental health services, facilities, or psychiatric hospitals.” We've reported on this before. There are currently only two mental health beds designated for women.
In the meantime, while women with mental disabilities remain incarcerated, we should transfer the responsibility for the health care, including for mental health, of prisoners from public safety to the ministry of health, as has been done in British Columbia, Alberta, and Nova Scotia.
We should legislate an absolute ban on the use of solitary confinement; segregation, including maximum security in women's prisons; medical observation; mental observation; and all other related forms of isolation of incarcerated young women and women with mental health issues. This is something that has been supported by the special rapporteur on torture.
We should create a mechanism for the external judicial oversight of CSC and specifically, in relation to decisions regarding segregation placements, placement on mental health observation, and any other forms of isolation and the use of physical restraints, like Pinel restraints.
We should create a mechanism through which judges can revisit the sentences they impose if legalities, gross mismanagement, or unfairness in the administration of a sentence renders that sentence harsher than that imposed by the court. A reduction of the period of imprisonment may be granted to reflect that the punishment administered was more punitive than the one intended. That's a recommendation coming out of the 1996 Arbour report.
Overall, we hope that you recognize that the relatively low number of women in prison as compared to men is an opportunity to innovate, rather than to ignore. Women prisoners, as a group, are low risk, and the potential gains from progressive and substantive changes to the law for this group, and for their families and communities, could be immeasurable.
Thank you, and good afternoon.
The Canadian Council of Criminal Defence Lawyers, or CCCDL, was formed in 1992. It was born out of a realization that there was no truly national voice for criminal defence lawyers. To fill this gap, the CCCDL was established as a council with board members from coast to coast and the north, so a national perspective could be generated and shared with legislators.
The CCCDL has been appearing before and consulting with the House and Senate committees since its inception. As I'm sure many of you are aware, the CCCDL is always grateful for the opportunity to participate and share its perspective. On behalf of the CCCDL and myself, I thank you for the opportunity to speak to you today.
As for myself, I'm a criminal defence lawyer with a practice in the GTA, and 90% of my practice is at the trial level, which unfortunately, from time to time includes sentencing when things go wrong for me and my client. Those sentencing proceedings often have pre-sentence reports. Further, a large percentage of my clients—probably the majority—suffer from major mental illness. I represent individuals with major mental disorders, with charges ranging from theft and simple assault to homicide.
In recent years I've had the opportunity to speak at law schools, conferences, and at legal aid training seminars about the intersection between criminal law and mental health. On those occasions, I've always tried to stress that absent considerations regarding an accused's fitness for trial or criminal responsibility, as affected by a mental disorder, an accused struggling with a mental disorder ought to be treated like all other accused.
While the fact that an accused may be suffering from a mental disorder is a fact about the accused, and it may indeed be an important fact, it should never be seen as a central fact. It is from that perspective, and from the perspective of the clients I represent, that I would submit that the proposed legislation, while it appears well-intentioned, is fatally flawed and ought not to be implemented.
Now, I say it is well-intentioned because it is my impression the proposed amendment seeks to draw out mitigating factors that are usually present when an accused suffers from mental illness. I assume it also seeks to enhance the rehabilitative function of sentencing by providing the sentencing judge with the information about mental health care programs that may assist the accused. Both of these are obviously laudable goals, and defence counsels welcome both of them.
That said, there are two major issues that are, in my view, insurmountable. The first is privacy issues and the second is serious practical concerns.
With regard to privacy, there can be no doubt that the information that is the subject of the amendment is private health care information, the disclosure of which is already strictly controlled by both federal and provincial legislation. The various legislative schemes are numerous and, frankly, beyond my area of expertise. That said, I submit that the guiding principle is that the personal health information ought not be disclosed except in exceptional circumstances or when it has been shown that such disclosure is absolutely necessary.
In contrast, this amendment would see the disclosure of clients' personal medical information as a matter of course. It would compel the parole officers, who we saw today, to inquire into and document an individual's mental health status anytime someone is found guilty of a criminal offence and a pre-sentence report is generated. I note that ordering a pre-sentence report is mandatory if a party requests one. Therefore, the crown of the court could, in effect, demand this information be disclosed, without having to provide any additional information or justification.
I also note that mandating this information goes beyond simply asking the accused, as I am sure we did hear today. While compiling a pre-sentence report, parole officers will seek input from collateral sources. That raises the spectre of parole officers asking family members, or even medical practitioners, about the offender's private medical information, or indeed seeking it out at treatment facilities or hospitals.
Aside from the fact that the information of this kind is subject to an extremely high privacy interest, privacy concerns in this area are especially acute for two reasons. Making this information part of a pre-sentence report would make it part of the public record. Once completed and filed, this information would be available to the public, to anyone who sought it.
In contrast, in my experience, it is possible, as defence counsel, to bring an accused's mental health status to the attention of the court, and therefore accrue the appropriate consideration without making it part of the paper record, or as an exhibit. For example, I've simply informed the court of the client's mental health issues, or read from a doctor's or expert's report, without filing that as an exhibit. In doing so, a client's private health information is exposed only insofar as it needs to be.
Of course, a very resourceful person could order the transcript of the proceeding, but that is far harder and far less likely to happen than someone simply ordering or copying the exhibits. Again, this is highly sensitive and private information, and ought not to be made public as a matter of course.
This brings me to the second major policy concern, which is that in some cases there is a nexus between an offender's mental health difficulties, but in many cases there isn't.
Today, I'm reading prepared remarks, but when I'm not, I often stutter because I have a stutter, which, interestingly, is a mental health disorder listed in the DSM, the Diagnostic and Statistical Manual of Mental Disorders. If, heaven forbid, one day I were found guilty of an offence, would my stutter be recorded, and if so, for what purpose?
That is sort of a light example, but what if someone who suffers from anorexia is found guilty of a fraud-related offence, or if an individual with post-traumatic stress disorder, stemming from a historical sexual assault, is found guilty of impaired driving? Such disorders are deeply private and have nothing to do with the offence the offender is found guilty of, but they would be publicly disclosed anyway, to the horror of the accused and to the benefit of no one.
The proposed amendment does not allow for any distinction between a mental disorder that is related to the offence and one that isn't. It simply mandates that all mental disorders must be listed. Parenthetically, I'll also mention, strictly from a criminal defence perspective, there are some mental disorders the disclosure of which does not assist the accused. Disorders such as borderline personality disorder or psychopathy rarely garner sympathy from the bench and run the risk of attracting a higher sentence than an offender may receive if it were not disclosed. Again, such disorders may be completely unrelated to the offence.
In my submission, the problem with the amendment is that it treats the mental disorder to be as central to a person as their age, maturity, character, behaviour, and attitude, which of course is wrong. With regard to practical concerns, in my experience, a large number of offenders before the court who suffer from mental disorders are, for all intents and purposes, undiagnosed. That could either be through a lack of assisted medical care or due to the fact that many offenders come into the system when their mental disorder manifests.
A similar problem, as I alluded to earlier, is that many individuals who suffer from a mental disorder will not identify as such, either to avoid the stigma of mental illness or, more commonly, because they truly don't believe they have a mental disorder, so it may be obvious to everyone in the room that there's a mental disorder at work, but the offender won't confirm it or even agree. As I think the parole officers made clear, they are simply not equipped to make a diagnosis. This is especially so when even psychiatrists have difficulty making differential diagnoses.
In effect, the amendment could lead to an assessment being ordered and made, which, in my submission, would be hugely problematic. Forensic psychiatrists are spread thin all across the country as it is, and the addition of so many new, necessary assessments would likely be unworkable.
Further, if an offender had to wait for an assessment prior to sentencing, it could have unnecessary delays. As we know from my earlier discussion, delay generally is a concern in the justice system, but is especially concerning when an offender is in custody. One could easily imagine a situation where an individual suffering from mental illness is arrested and denied bail, and then pleads guilty. A so-called stand down pre-sentence report already takes up to four weeks to complete, and all the time the offender will be in custody. An additional requirement of mental health information would extend the time needed for such reports, even if the mental health issue played no part in the offence.
Finally, for those two reasons, I think the amendment is flawed, but on a positive note, I submit that the amendment is largely unnecessary. Although not explicit in the code, the fact that mental illness plays an important role in sentencing has already been noted by the court. In R. v. Ellis, the Ontario Court of Appeal said:
||There is no doubt that an offender's mental illness is a factor to be taken into account in sentencing. Where mental illness plays a role in the commission of the offence, the offender's culpability may be diminished...
In my submission, what's missing from the amendment is that consent and relevance to the offence being sentenced are the key concepts that underlie the existing law. In my submission, defence counsel, in consultation with their clients, are in the best position to assess whether they wish to make their mental health status an issue. Defence counsel already have a duty to raise the issue if relevant, if it benefits their client, and only if their client consents. There are also cases that interpret the pre-existing sentence report provisions as authority for the court to order psychiatric assessments as part of the pre-sentence process.
In Nunavut, there was a case called R. v. Gibbons. I was following some Alberta, B.C., and Ontario decisions, and the law, as I understand it, is that an assessment can be ordered if it assists the court in determining the sentence for the offence being sentenced. The assessment has to be relevant.
The court can order an assessment without the accused's consent, but the accused cannot be compelled to participate—so the accused can just say, “I don't want anything to do with this”—and thoroughly, the order would be made following argument of the issue, and not simply as a matter of law.
Again, consent and relevance to the offence must be prerequisites. From that point of view, it is possible that the amendment be rewritten to include consent relevance, but then that would just duplicate the existing common law and therefore put us no further ahead.
Those are my submissions, and I thank you again.
Thank you. I would like to express my appreciation for your inviting the John Howard Society to share our concerns and perspective on Bill .
As many of you know, the John Howard Societies are charities providing services in more than 60 communities across Canada, and we are all committed to effective, just, and humane responses to the causes and consequences of crime.
The John Howard Society has been long concerned about those with mental illnesses who are involved in the criminal justice system. Too often, people default into the criminal justice system because needed services in the community are unavailable and alternatives are not in place. The end result is that we end up punishing the mentally ill rather than treating them.
I share the perspective of Savannah that correctional services or correctional institutions are not well placed to deal with people with serious mental health issues. I therefore see some hope that Bill , if properly implemented, could be an advantage in keeping people who do not need to be in the criminal justice system out of it.
What the bill does, as you know—and it's a nice short bill, the kind I like—is suggest that any mental disorder from which an offender suffers as well as any mental health care program available to him or her should be noted in a pre-sentence report. This amendment, I think, would really help sentencing judges become more aware and take note of the mental health issues and programs that might be available to assist.
If an individual is about to be sentenced, he or she will have been convicted, and so a finding that the accused was not criminally responsible because of a mental disorder will not have been made. NCR is a very low bar, and many people who face very serious mental health issues will find themselves being sentenced in the criminal justice system. The fact that they are at the sentencing stage and have been found to be criminally responsible—or not found not to be criminally responsible—does not relieve us of the likelihood that someone with significant mental issues is about to come into the criminal justice system.
The sentencing judge really has two important determinations to make. One is the seriousness of the offence and the degree of responsibility of the perpetrator when assessing the quantum of penalty. The second issue they have to deal with is what sentencing option should be imposed in order to hold the person accountable in the proportionate amount.
I'm easy as to whether it comes in a pre-sentence report or, in the youth justice system, conferencing that would keep it out of a formal record and the information be available to the judge, but if that information were available, it could really help individuals who are suffering from mental health issues take a look at the extent to which they are morally blameworthy for the offence, if they have serious mental health issues. The more incapable the mental illness makes individuals of understanding the nature and consequences of their criminal behaviour or appreciating that it is wrong, the more the quantum of the penalty is appropriately mitigated.
In my experience, some people who find themselves in the formal correctional system are completely disoriented as to time and place. They are so badly riddled with senile dementia that they have no idea why they're in prison or what happened that led them to be there. It is quite conceivable that this affliction was present at the time they committed their offence and at the time of sentencing and that, whatever is currently available to sentencing judges now, this was not picked up.
We could have a flag of some sort that reinforces that if the person is not aware of the consequences of his or her behaviour, that should be taken into account in mitigating the sentence.
The other thing that would really help is trying to figure out the appropriate sentencing option for someone who is criminally responsible but suffering from a mental health problem.
In my experience, there are some mental health conditions that predispose people to commit breaches. If you gave them a probation order, they would breach the order, because if they're suffering from fetal alcohol spectrum disorder or other brain injuries, they cannot understand causality in the way that the criminal justice system requires them to understand causality to avoid breaches.
It is thus important, I think, when assessing whether there should be a custodial penalty or a community-based penalty as your sentencing option or what the nature of the sentencing options should be, to have a clear understanding of the mental health condition and as to whether the sentence being imposed is one the prisoner is capable of discharging without attracting further breaches and other problems with the criminal justice system.
I take Mr. Embry's point that the information needs to be relevant and that it's not fair to the individual being sentenced for incidental information about his mental health issues to be placed on the public record. I think, though, that if the provision of the requisite information were done in a way such that the individual is consenting and the information is relevant to the offence, it could be really beneficial in ensuring that the penalties being imposed and the sentences being rendered have a better chance of being just, effective, and humane, taking into account the moral turpitude of the individual and the type of sentencing option that the individual can carry out.
We believe that valid consent is needed for any treatment option imposed through a criminal sentence and also for soliciting that information. I take the point that there continues to be significant stigma against those with mental health issues and that in correctional services and other agencies, identifying mental health problems can be understood as an enhanced risk factor and operate to the detriment of the individual who reveals it. We think, however, that if there were ways to do it in a manner that helps the sentencing judge craft a sentence that is fair, just, and appropriate, there is a reason to proceed with .
In sum, the inclusion of mental health information in pre-sentence reports is an important step in dealing with the mental health crisis in our prisons. It will allow sentencing judges to be better informed about mental illness and be an important tool in the promotion of just, effective, and humane sentences. For that reason we would like to see proceed.