Bill C-375 (Historical)

An Act to amend the Criminal Code (presentence report)

This enactment amends the Criminal Code to require that a presentence report contain information on any aspect of the offender’s mental condition that is relevant for sentencing purposes.

Criminal Code

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Mr. Speaker, I am rising in the House today to speak to Bill C-375, which would amend the Criminal Code in order to introduce information about mental health issues and disorders in pre-sentence reports.

The NDP is committed to building a criminal justice system that works for everyone. We want compassion and rehabilitation to be central to our policy. That is why my NDP colleagues and I will support this bill, which we believe is necessary to ensure fair and effective justice for all Canadians.

The NDP believes that this bill is a step in the right direction because it ensures that the judge will have all the information needed to hand down a fair and equitable ruling.

At present, nearly 36% of federal offenders need some form of psychiatric or psychological follow-up. I would remind the House, however, that paragraph 721(3)(a) of the Criminal Code requires only certain information to be included in a pre-sentence report, namely “the offender’s age, maturity, character, behaviour, attitude and willingness to make amends”, but nothing on possible mental health issues.

This is despite the fact that people with mental illness are currently overrepresented in our criminal justice system. It would therefore be a good idea to take them into account by including mental health information in pre-sentence reports so that judges can make fairer and more appropriate decisions. Adding information on offenders' mental health represents a real opportunity to modernize our justice system and adapt it to reflect the current reality.

Bill C-375 is far from perfect, however. My NDP colleagues and I all agree that this bill desperately lacks ambition and does not go far enough. If we really want to bring about change, we need meaningful action on the accessibility of mental health care. Tuesday's budget could have been an excellent opportunity to invest, but no.

The NDP believes that mental health care should be just as readily available and accessible as any other health care service in our communities. It is only logical and only fair that comparable resources be allocated to mental and physical illnesses.

We must continue to focus on compassionate care in order to help Canadians with mental illness rejoin society after incarceration and avoid over-criminalization wherever possible.

That is why I believe that it is high time for the Liberal government to invest in programs that will truly help people with mental illness before or during their time in the criminal justice system. According to the Mental Health Commission of Canada, over a million children and youth in Canada have a mental illness, yet less than 20% of them are able to get the treatment they need.

That is why, during the last election campaign, the NDP promised to create an innovation fund for youth mental health services, with a particular focus on first nations and rural and remote communities. This innovation fund would be a real way of proactively preventing crimes committed by people with mental illness.

I believe that we need to completely rethink the way we look at things. We need to take care of these people and ensure that they get the treatment they need instead of completely abandoning them as is currently far too often the case.

We must also remember that these people who have serious illnesses often do not have the skills or the ability to adapt to the prison environment. However, with the closure of care facilities for people with mental illness and developmental disabilities, the criminal justice system has become a refuge for people who do not have the resources to cope with life in society.

Solitary confinement and other such measures meant to enhance prison security are never appropriate solutions for people with mental illness. When they leave prison, they end up having untreated or aggravated mental health problems, which may contribute to recidivism.

While the Conservatives want to focus on harsher penalties that will only make matters worse, the NDP prefers to focus on real solutions. This is why the NDP believes in helping convicts who have a mental disorder get access to resources and support so that they can rehabilitate and reintegrate as productive members of society. We believe that we must do everything to reintegrate former inmates into society and to make sure they have the tools to do so.

I want to take a moment to highlight a number of organizations in my riding of Saint-Hyacinthe—Bagot that are working very hard to help people with mental illnesses and their families. These organizations include The Lighthouse; Les Ateliers de transition; the Auberge du coeur Le Baluchon; the Centre psychosocial Richelieu-Yamaska; the Centre de femmes L'autonomie en soiE; the Collectif de défense des droits de la Montérégie; the Maison alternative de développement humain, or MADH, as it is known; the Trait d'Union Montérégien; and, of course, our volunteer centres and our health and social services institutions.

Every day, these organizations work to help people in need and contribute to improving life for the entire Saint-Hyacinthe and Acton Vale community. Le Phare is one such organization. Its mission is to bring together and help the loved ones of a person with serious mental health problems and provide them with a wide range of support services in order to help them reintegrate into society more easily.

Saint-Hyacinthe and the surrounding region can also count on the work of the Centre psychosocial Richelieu-Yamaska, which has set out to help people with mental health problems in their quest for a better quality of life with a focus on significant and lasting integration into the community.

It is thanks to local organizations like those that we can change things. That is why I believe that we must help them at a federal level in order to allow them to continue their vital mission.

I want to acknowledge another community organization in my riding in particular, the Trait d'Union Montérégien, a not-for-profit community organization that provides a sponsorship service for the social reintegration of adults who have lived with, continue to live with, or are at risk of living with emotional distress.

Since 1991, more than 300 people were able to meet a friend through this organization. When one understands how much support a good friend can provide, one understands how essential an organization like Trait d'Union Montérégien is for people who do not benefit from such relationships in their usual social circle.

The work that these organizations do is invaluable and a source of hope for thousands of people across Canada who are struggling with mental illness. However, I believe that it is vital that the government take action at the national level because the work that these community organizations do locally is not enough to bring about real change. That is why the NDP committed to working with all community workers, mental health professionals, front line workers such as the RCMP, and the provincial and territorial justice systems to seek better support services for people with mental illnesses. I encourage the government to do the same.

I repeat that the NDP will support this bill. However, my colleagues and I believe that the government needs to do more to deal with the overrepresentation of people with mental illness in the criminal justice system.

In our eyes, amending our Criminal Code to include information about mental health issues and disorders in pre-sentence reports is a good start. In conclusion, however, this move falls well short of what is needed to make a real difference for the thousands of people suffering from mental health issues who need real support from the federal government. It is time for the government to find the courage to release funds for mental health care. That is the kind of ambitious initiative I was expecting from the 2018 federal budget, but sadly, we will have to keep waiting.

[Marco Mendicino, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I am here today to speak to private member's Bill C-375, an act to amend the Criminal Code with respect to pre-sentence reports.

Let me say at the outset that our government will be supporting Bill C-375, and we commend the hon. member for Richmond Hill for his leadership and collaboration on the important issue of mental health in our criminal justice system.

I was listening very carefully to some of the concerns expressed by my Conservative colleague from the riding of Durham. It is important to address the thrust of it, which is that this private member's bill is somehow vague. In fact, in our interpretation of this private member's bill, it serves to clarify and cure a vagueness in the Criminal Code by making an express reference to mental health concerns in the context of the criminal sentencing process. What is important for my hon. colleague to appreciate is that in that context, when we are talking about finding someone not criminally responsible as a result of not having the mental capacity to appreciate the consequences of committing a criminal offence, it is a separate and distinct legal concept from the provisions under sections 718 and 721 of the Criminal Code, where after an accused individual pleads guilty and has accepted responsibility for committing those offences, a judge would take into consideration mental health issues as part of the overall sentencing exercise. I offer those comments in the spirit of constructive dialogue.

Let me say for my hon. colleague from Richmond Hill that in the first hour of second reading debate, the sponsor stated that his bill is intended to ensure that individuals with mental illnesses who find themselves in the criminal justice system are afforded the care, compassion, and appropriate treatment they need during the process of their rehabilitation. Specifically, the bill aims to make the criminal justice system more responsive to individuals with mental health issues by amending subsection 721(3) of the Criminal Code to specify that a pre-sentence report must contain information regarding any mental disorder from which the offender suffers.

A pre-sentence report is a written document prepared by a probation officer to help the court learn more about the person to be sentenced. Its purpose is to assist the court in making the appropriate sentencing decision. These reports are intended to be an accurate, independent, and balanced assessment of an offender and his or her prospects for the future.

Accordingly, these pre-sentence reports help to provide judges with a firm evidentiary basis on which to exercise their discretion at sentencing. When judges are given the necessary background and context about each unique set of circumstances, the result is a sentence that better protects the community, rehabilitates the offender, and ultimately reduces crime.

The Criminal Code currently outlines that certain information about the offender, including his or her age, maturity, character, behaviour, attitude, and willingness to make amends, should be contained in a pre-sentence report.

It should also include the criminal history of the offender under the Youth Criminal Justice Act and the history of previous sentences and findings of guilt. The history of alternative measures used to deal with the offender, and the offender's response to those measures, should similarly be contained in the report. Those measures may include judicial cautions or programs requiring community service or repairing harm done.

However, the Criminal Code does not presently expressly require that information about the mental condition of the offender, as it relates to the offence, be included in the pre-sentence report. In my view, this is highly relevant information for a judge who is attempting to craft an appropriate sentence. Indeed, as we learn more and more about the role of mental health issues in contributing to criminal behaviour, the importance of considering this information at sentencing is beyond question.

The impacts of mental illness are of course not limited to the criminal justice system. They are linked to much broader challenges being faced by our society as a whole. Today mental health issues cost Canadians millions of dollars each year. As the sponsor has previously said, it is estimated that the total cost of mental health challenges exceeds $50 billion annually in health care expenses and lost productivity. According to the Canadian Mental Health Association, in any given year, one in five people in Canada will personally experience a mental health problem or illness. These challenges are even more pronounced in the criminal justice system.

While statistics are not as fulsome as we may like, there is evidence to suggest that in our penitentiaries, mental health issues are two to three times more prevalent than in the general population. The rate of mental illness among federal offenders has more than doubled in the last 20 years. In fact, individuals with mental illness are more likely to be arrested, detained, and incarcerated and are consequently more likely to be disciplined rather than treated. This is an ongoing issue, as once they have been released from the criminal justice system, they are also more likely to be rearrested and to reoffend. In other words, an offender whose mental illness is unrecognized and untreated is at far greater risk of being caught in the revolving door of incarceration and repeat offending.

That is why we need to continue to develop measures like the one proposed in Bill C-375, to address mental health in a proactive way. In particular, the bill will help to ensure that our judges are well-equipped to assess the needs of those being sentenced and enable them to direct the offenders to proper rehabilitation. This, ultimately, will help to break the vicious cycle of criminality by addressing this issue at the outset.

The social and economic benefits of this smart and proactive approach to criminal justice can hardly be overstated. Under the prior government, we saw time and time again that a regressive approach to sentencing divides families and consumes financial resources that could be better used to improve the lives of Canadians and to keep all of them safe. Instead, by identifying and meeting the mental health needs of offenders in the short term, we can stop that revolving door of chronic reoffending and create a safer, more prosperous community for all. All of this begins by identifying the underlying problem, which is precisely what Bill C-375 works to ensure.

It appears to me that supporting this bill is consistent with a number of broader initiatives of our government that are aimed at supporting those mental health issues, and they go back to our prior budgets. In budget 2018, we build on the investments made in past years, proposing an additional $20.4 million over five years, beginning in 2018-19, and $5.6 million per year ongoing. The funding is aligned with the recently announced investment of $5 billion over 10 years to improve mental health services across the country.

Bill C-375 is also consistent with the mandate given by the Prime Minister to the Minister of Justice and Attorney General. In particular, she was directed to “address gaps in services to...those with mental illness throughout the criminal justice system.” In my view, the measures proposed in Bill C-375 are consistent with that mandate and will serve to advance our government's broader plan to address the challenges related to mental health in Canada.

Before concluding, I wish to draw attention to a few questions I have identified with this bill. I would like to think that these issues could be studied by the committee and possibly addressed through minor amendments.

First, I note that the bill focuses on the need for a diagnosis of an offender, and not on the symptoms or behaviours that manifest as a result of a mental health issue. In my view, it would be more useful to a sentencing judge to have broader information about the offender's mental health more generally, rather than the official diagnosis.

Second, I would note that the bill does not contain a link or a nexus between the mental health information that is sought and the purpose for which it will be used. For me, this raises some concerns that a sentencing court could be provided with mental health information that may not be directly relevant to the offence, and by extension the sentencing process. I trust that these are issues the committee will address through its study.

Finally, it seems to me that the language with respect to “mental health programs” could create some confusion as to what type of information should be provided to the court. In my view, it is unclear what is meant by the term “programs”, as mental health care is, indeed, a specific type of medical care and not specifically delivered through programming.

Once again, I expect that all these issues can be thoroughly addressed at committee.

I would once again like to thank the sponsor of this bill and commend him for his work and his commitment to mental health issues. I know that it comes from a place of great sincerity and authenticity. I look forward to supporting this private member's bill, along with all members of the House.

[Majid Jowhari, Liberal, Richmond Hill, ON]

Mr. Speaker, I am pleased to rise once again to discuss my private members' bill, Bill C-375. At the outset, I would like to thank all members who have substantially contributed to the substance of this private members' bill. I would like to thank the members today for once again covering the scope and intent of the bill.

For the next four minutes, I limit my remarks to responding to some of the concerns raised earlier as part of the first hour of debate. I listened intently to those members who spoke previously to the bill. While the debate has been spirited, I have been encouraged by its good faith and co-operative nature. In and of itself, this is an of acknowledgement by all parties that there is a need for real change at the intersection between our justice system and mental health. I hope that Bill C-375 can play a role in this change and inform future changes as governments of today and tomorrow navigate that dynamic relationship.

If I could, I would like to take some time to address the contradictions and inaccuracies raised by some of my colleagues across the aisle during the first hour of debate. They raised two concurrent concerns. First is that, in cases where mental health information is relevant, judges already choose to include mental health information in pre-sentence reports. Second is that the process of mandating that this information be provided where relevant would add a new burden to the justice system.

I think the contradiction here is very clear. If judges are already choosing to include this information in the pre-sentence report in all relevant cases, then we are simply codifying an existing practice. There can be no additional burden because this practice is already applied when relevant. As well, if this legislation would add a burden, then we must accept that mental health information is, in fact, not being requested in all relevant cases.

While we are on the topic of additional burdens, it is my understanding that a sentence imposed without reference to relevant, available medical evidence is vulnerable to attack on appeal. Whatever hypothetical burden would be added to the justice system by adding additional information to a pre-sentence report cannot possibly compare to the burden of time and cost that the judiciary is opened to by vulnerable verdicts.

In addition, more than one of my colleagues have suggested that providing mental health information in pre-sentence reports would result in unfairness and inconsistencies in the administration of justice, by which they must mean to say that judges will make considered decisions based on information they would otherwise not have had. This is an intended feature, not a bug. I trust our judiciary. I consider them credible decision-makers and I trust they will not become confused when provided with additional context. However, for our judges to make an informed consideration, they must have all the facts.

Mental health is an ongoing project, a frontier of medical and social science. Even those at the forefront of their field continue to make new discoveries and find new connections and contexts. As such, judges must be provided with all information, whenever possible, so as not to prejudge an offender before they have all the facts. In this constantly changing field, what may or may not be pertinent is in flux, and it is unreasonable to expect every judge to take full account of relevant mental health information in the absence of the facts and context contained in the pre-sentence report.

There have also been colleagues who have suggested this bill would not go far enough. I agree. In drafting legislation, particularly private members' bills, there may be a tendency to err on the side of caution. To narrow the scope, one must consider the end result. I am proud of the bill as it stands, but far be it from me to suggest we cannot broaden its scope or clarify its existing intent. I believe the House stands united in our belief that improvements can and must be made at the intersection of our sentencing process and the lived reality of Canadians who continue to struggle with mental health.

[The Assistant Deputy Speaker, Anthony Rota]

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[The Assistant Deputy Speaker, Anthony Rota]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Assistant Deputy Speaker, Anthony Rota]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Assistant Deputy Speaker, Anthony Rota]

In my opinion the yeas have it.

And five or more members having risen:

Pursuant to Standing Order 93, the recorded division stands deferred until Wednesday, March 21, 2018, immediately before the time provided for private members' business.

The House stands adjourned until Monday, March 19, 2018, at 11 a.m., pursuant to Standing Orders 28(2) and 24(1).

(The House adjourned at 1:54 p.m.)

The House resumed from March 2 consideration of the motion that Bill C-375, An Act to amend the Criminal Code (presentence report), be read the second time and referred to a committee.

[The Speaker, Geoff Regan]

The House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill C-375, An Act to amend the Criminal Code (presentence report).

(The House divided on the motion, which was agreed to on the following division:)

Vote #466

[The Speaker, Geoff Regan]

I declare the motion carried.

Consequently, this bill is referred to the Standing Committee on Justice and Human Rights.

(Bill read the second time and referred to a committee)